State Ex Rel. Home Planners v. Hughes , 299 Mo. 529 ( 1923 )

It is true that the Legislature has wiped out the right to organize a business of the kind here involved. That law was not in effect when we granted our alternative writ, and will not be in effect for a month, or nearly so. Relator's rights are therefore dependent upon existing law. They were so dependent when this alternative writ was awarded, and the case submitted, long since. Delay in filing briefs has in a large measure delayed the disposition of the case. But this is of but little importance. The present scheme is condemned in the opinion on the theory that it is a lottery. The case of State ex rel. v. Lee, 288 Mo. l.c. 708, determines that question against the contention of the respondent, and in favor of the relator. That case cannot well be distinguished from this case, upon that issue. The alleged lottery feature is no more apparent in the one case than the other. The opinion of my learned brother draws a distinction without a difference. If we want to overrule the Lee Case, well and good, but to distinguish it, does not lie within the two records, when both schemes are read. The mere difference in interest rate does not increase the visions of a lottery. People can contract for such interest rate as they please. In either scheme the time or opportunity of a loan was dependent upon the filing of the application. It makes no difference when or with whom it was to be filed, so that the loan was dependent upon the order of filing. Without overruling Lee's Case, and one other following it, the peremptory writ should go, and I so vote. I think the Lee Case was right. In this situation I dissent from the opinion.