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WHY THE DELMAR JOCKEY CLUB IS. OUSTED. Failure to Hold Annual Agricultural Fairs Declared to Have Been Wilful Misuse of Franchise. St. Louis, Mo., November 23. The decision handed down by the Supreme Court at Jefferson City yesterday through the opinion written by Judge Graves means that the Delmar Jockey Club is dissolved, divested of its franchise and ousted from the State, and it is further taken generally to mean that there will be no more racing in this state so long as the present law remains on the statutes, unless it be at Elm Ridge Park, Kansas City. This can happen only in the event that the case now before the Supreme Court is decided in favor of the Kansas City Jockey Club, inasmuch as the contention of the club that by telegraphing wagers to Kansas City, Kansas, and there recording and registering them is no violation of the Missouri law. Three judges of the court favored assessing a fine of ,000 against the Delmar Jockey Club, but four judges Fox, Brace, Gantt and Burgess, were opposed to the fine, so that no further penalty than the ouster is entered against the club. The decision Is made on the ground that the company failed to hold agricultural fairs. Attorney-General Hadley made application to the iprmllffi, warranto, ousting the Delmar Jockey Club from the state, forfeiting its franchise and forfeiting its property to the state on the grounds that it was conducting gambling on horse racing in violation of law and that it was not using its franchise rights. This suit was decided several months, ago, the court holding that the franchises should be forfeited and assessing a fine of ,000. The club was granted a rehearing, resulting in the removal of the fine, but permitting the other judgment to remain. It was a feature of the clubs charter that it should hold anuual agricultural fairs, which it did not hold. It was a contention of the pleadings filed by the club that its payment of license money to the state, which went to support the State Fair, relieved it of being compelled to hold a fair itself. In passing on the case, Judge Graves said in ills opinion: "No money paid the state by reason of law in any wise excuses the respondent -for a failure to use the franchise granted to It. We have thus an admitted failure to exercise the principal and. to the state and the public, the most beneficial one of all the rights granted it. So that the motion for judgment upon the non-user should be sustained. "Courts move cautiously in taking from corporations their charter grant of franchises. No significant act of either misuse or non-use will suffice for the exercise of the power vested in the courts, hut the courts can and will forfeit all the franchises of a corporation for either misuse of non-use if the acts or omissions are sufficiently great. In fact it may be said that forfeiture may be declared upon either of mree grounds: 1 Wilful non-feasance or non-use; 2 wilful misfeasance or non-use; 3 usurpation of powers not granted. "The courts hold that where there is either wilful misuse or wilful non-use of the franchises, which are of the essence of the contract with the state and those in which the public is most interested, then a forfeiture of the whole charter should be and will be declared. When a corporation receives from the state a charter granting certain franchises or rights, there is fit least an implied or tacit agreement that it will use the franchises thus granted, that it will use 110 others and that It will not misuse those granted. "The failure to hold agricultural exhibits was a failure to perforin the very thing which was of the essence of the contract. "It would appear, at least by inference deducible from the pleadings, that respondent was alert in promoting that incidental feature of its charter, gambling upon horse races, and furnishing its gamblers with refreshments, both liquid and solid, but extremely indifferent as to doing the things its charter agreed to do, and the only things in which the state and the public had any special interest. "Such a llagrant and willful non-use of franchises demands the forfeiture of all the rights and franchises granted, and we, therefore, hold that a judgment should be entered decreeing a forfeiture of all the rights and franchises granted, and a dissolution of said corporation." The opinion written by Judge .Graves also includes the line of ,000, but a paragraph Is added showing a division of the court on this subject, in which Judges Valllant and Lamm side with Judge Graves, but the other four judges, a bare majority, hold an opposite view, thus removing the ijne.
