Opinion
No. 39040.
April 21, 1947.
1. QUO WARRANTO: Corporations: Insurance: Purported Insurance Corporation: Ouster Against Individuals. A quo warranto action against the officers of a purported burial insurance corporation, which was organized under an unconstitutional statute and had no legal existence, was an action to oust such individual respondents from usurping a franchise and privilege not granted to them by the state. The court had jurisdiction, and respondents were ousted personally from usurping such franchise.
2. CONTEMPT: Quo Warranto: Injunctions: Invalid Injunction by Supreme Court Rejected as Surplusage: Prohibitive Effect of Ouster Decree. While the Supreme Court did not have jurisdiction under the 1875 Constitution to issue an injunction, such clause in the ouster decree of the court may be rejected as surplusage. The ouster decree had the future operative force of itself to prohibit any further exercise of the claimed franchise.
3. CONTEMPT: Quo Warranto: Issue Involved. The issue involved is whether respondents knowingly disobeyed the judgment of ouster by employing an Arkansas corporation as an instrumentality and subterfuge to violate the judgment.
4. CONTEMPT: Criminal Contempt Charged. This action charges criminal contempt for willful disobedience of a prior judgment of the Supreme Court. Such disobedience is punishable as contempt. And it is contempt to employ a subterfuge or device in an attempt to evade a judgment of a court.
5. CONTEMPT: Quo Warranto: Corporations: Evading Ouster Decree Though Arkansas Corporation: Corporate Entity Ignored. The Court will ignore the corporate entity of an Arkansas corporation formed for the purpose of evading a quo warranto ouster order.
6. CONTEMPT: Agency: Respondents Bound by Acts of Agents. Respondents are bound by the acts of their undertaker agents, even though unauthorized, since they received and retained the benefits therefrom with knowledge of the material facts.
7. CONTEMPT: Quo Warranto: Insurance: Corporations: Violation of Ouster Decree: Arkansas Corporation as Instrumentality: Doing Business in Missouri. Respondents were doing an insurance business in Missouri through the instrumentality of an Arkansas corporation, in violation of the ouster decree.
8. CONTEMPT: Quo Warranto: Ouster Decree: Secret Fraud on Court. When the ouster decree was entered, respondents were engaged in a secret fraud upon the court.
9. CONTEMPT: Quo Warranto: Ouster Decree: Respondents Guilty of Contempt. The evidence discloses that respondents were guilty of criminal contempt in violating the ouster decree.
10. CONTEMPT: Quo Warranto: Attorney and Client: Violation of Ouster Decree: Advice of Counsel Mere Pretense: Lack of Good Faith. The claim that respondents acted upon advice of counsel was a mere pretense. Their conduct showed lack of good faith.
11. CONTEMPT: Nature of Sentence for Criminal Contempt: Respondents Fined. Sentences for criminal contempt are punitive in nature and must vindicate the court's authority to have its mandates respected. Respondents are fined $25,000.
RESPONDENTS FINED.
J.E. Taylor, Attorney General, and Arthur M. O'Keefe, Assistant Attorney General, for informant; Allen McReynolds of counsel.
(1) Respondent's disobedience of the decree of ouster of this court of which he had actual knowledge was an interference with and attempted to obstruct the due administration of justice as to constitute contempt. 12 Am. Jur., p. 405, sec. 24; 17 C.J.S., p. 13, sec. 12; Thompson v. Farmers Exchange Bank, 333 Mo. 437, 62 S.W.2d 803; Bender v. Young, 252 S.W. 691; Carder v. Carder, 61 286 S.W.2d 388; State ex rel. Pulitzer v. Coleman, 347 Mo. 1239, 152 S.W.2d 640; Special Commissioner's conclusion of law, sec. 6, p. 72. (2) The contempt in this case partakes of both a civil and criminal nature. This proceeding arises from the inherent power of the court to protect its dignity, authority and enforce its judgments. 12 Am. Jur., p. 418, sec. 40; 17 C.J.S., p. 55, sec. 43; Carder v. Carder, 61 S.W.2d 388; State ex rel. Pulitzer Pub. Co. v. Coleman, 347 Mo. 1239, 152 S.W.2d 640; Thompson v. Bank, 333 Mo. 437, 62 S.W.2d 803. (3) The decree of ouster operated against the respondents both as officers of the purported corporation and as individuals. The decree not only enjoined past and present actions but prohibited any future action. Commissioner's Report, conclusion of law, secs. 1, 2, 3, p. 62-7, and authorities cited thereunder. (4) Actions of the respondents in resorting to fraud and subterfuge to avoid the effects of the ouster decree constituted contempt. 12 Am. Jur., p. 406, note 7; In re Lennon, 166 U.S. 648, 41 L.Ed. 1110, 17 S.Ct. 658; State v. Pittsburg, 80 Kan. 710, 25 L.R.A. (N.S.) 226; Dennis v. LeClerc, 1 Mart. (La.) 297, 5 Am. Dec. 712; In re Synod, 249 Mich. 669, 229 N.W. 402. (5) Respondents in making false representations to the Attorney General and this court and in signing a knowingly false stipulation upon which the decree of ouster was based were guilty of obtaining a decree by fraud and deceit so as to constitute contempt. 17 C.J.S., p. 12, sec. 10, note 72; United States v. Pendergast, 39 F. Supp. 189. (6) The respondents in transferring and removing the records, properties, business and affairs including money of the Missouri Association to the Arkansas Association, beyond the jurisdiction of this court, with the purpose and intent to continue the business in the State of Missouri contrary to and in defiance of the terms of the stipulation, order and judgment in the ouster suit are guilty of contempt. State records, properties, business records and affairs including money were impressed with a trust the only purpose of which was to liquidate the Missouri Association. 17 C.J.S., p. 18, note 27. (7) The pleadings of the respondents and the evidence shows that they were engaged in selling burial insurance contracts in Missouri and were doing an insurance business in this state because the law of the place where the contract is to be performed governs as to its construction and interpretation. Brookville El. Ry. Co. v. Utilities Co., 142 S.W.2d l.c. 809; Liebing v. Mutual Life Ins. Co., 276 Mo. 118, 207 S.W. 230. (8) Respondents were not engaged in interstate commerce because, where a contract is to be performed within a state or services to be rendered therein such performance or services constitute "doing business" within a state and the contract is intrastate in nature. Natl. Refrigerator Co. v. Southwest Mo. Light Co., 288 Mo. 290, 231 S.W. 930; State ex rel. Hayes v. Robertson, 271 Mo. 475, 196 S.W. 1132; Wichita Film Supply Co. v. Yales, 194 Mo. App. 60, 184 S.W. 119; Special Commissioner's conclusion of law, sec. 5, pp. 70-2. (9) The evidence shows that the respondents employed agents to solicit business within the State of Missouri because a principal who, with knowledge of the material facts concerning his agents unauthorized acts, receives and retains the benefits thereof, thereby ratifies the same. 2 C.J.S., p. 1097, sec 49; 2 Am. Jur., p. 181, sec. 227; St. Louis Mut. Life Ins. Co. v. Walter, 329 Mo. 715, 46 S.W.2d 166; Walker v. Hassler, 240 S.W. 257; Ruggles v. Washington County, 3 Mo. 496; Special Commissioner's conclusion of law, sec. 4, pp. 67-9. (10) The following actions on the part of the respondents constituted "doing business within this state." (a) The employment of soliciting agents. Village of Axrel v. Nebraska Hardware Mut. Ins. Co., 7 N.W.2d 471; Union Mut. Life Ins. Co. of Iowa v. District Court of City and County of Denver, 47 P.2d 401, 97 Colo. 108; Commercial Mut. Accident Co. v. Davis, 213 U.S. 245, 53 L.Ed. 782, 29 Sup. Ct. 445; North Am. Union v. Oliphint, 141 Ark. 346, 217 S.W. 1. Isaac Fass, Inc. v. Pink, 17 S.W.2d 379; (b) The payment of insurance losses and the continuing and holding of old policies in force within the state after it had withdrawn from the state. Isaac Fass, Inc. v. Pink, 17 S.E.2d 379; Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602, 43 L.Ed. 569, 19 Sup. Ct., 308; State v. Columbian Natl. Life Ins. Co., 141 Wis. 577, 124 N.W. 502. (c) The making of contracts with a Missouri radio station to render services in its behalf. Union Mut. Life Co. of Iowa v. District Court of City and County of Denver, 47 P.2d 401; Special Commissioner's conclusion of law, sec. 4, pp. 69-70. (11) In determining whether insurance business is done within the state so as to be subject to regulation by such state, considerations of location of activity prior and subsequent to making of contract, the degree of interest of the regulating state in subject insured, and of location of property insured, are of great weight. Hoopeston Canning Co. v. Cullen, Superintendent of Insurance, 318 U.S. 313, 63 Sup. Ct. 602. (12) The declared legislative policy of this state prohibits foreign corporations from doing business here, if organized in another state for the purpose of avoiding the laws of this state. Booth v. Scott, 276 Mo. 1, 205 S.W. 633. (13) The interstate commerce clause in the Federal Constitution in no way interferes with the appropriate exercise of police power by state authorities. First Natl. Benefit Society v. Garrison, Insurance Commissioner, 58 F. Supp. 972, 155 F.2d 522; United States v. Southeastern Underwriters Assn., 64 S.Ct. 1162; Special Commissioner's conclusion of law, sec. 5, pp. 70-2. (14) Parties who are guilty of contempt are subject to punishment either by fine or imprisonment in the discretion of the court. Sec. 2029, R.S. 1939; 17 C.J.S., pp. 132, 133; 12 Am. Jur., p. 718. Frank C. Mann, Gene Frost and C.A. Fuller for respondent; Mann Mann of counsel.
(1) The information wholly fails to charge a violation on the part of either respondent of the judgment of this court in the quo warranto proceeding which would warrant this court in finding either of them to be in contempt of this court. (2) The judgment upon which this proceeding is founded was one entered in an original proceeding in the nature of quo warranto, in which there was involved only the question as to whether the Barry County Burial Association of Cassville, Missouri, a corporation, and these respondents as its officers, were usurping, claiming or exercising corporate franchise and privileges in excess of the corporation's lawful charter powers. (3) Informant would have the court ignore the limitations upon its jurisdiction in the quo warranto proceeding and to construe its judgment therein as though it possessed, in that proceeding, general or unlimited jurisdiction; that the effect of the judgment was not only one of ouster of the corporate franchise of the Cassville Association and of the right of the individual respondents from writing any new burial contracts under that purported franchise, but, in addition, it enjoined and restrained the individual respondents from participating in the issuing of burial insurance by an association or agency other than and independent of the Cassville Association. (4) The charge here made is for criminal, not civil, contempt. Respondents are presumed to be innocent and must be proved guilty beyond a reasonable doubt. Secs. 2028, 2029, 4886, R.S. 1939; In re Shull, 221 Mo. 623; Gompers v. Buck Stove R. Co., 221 U.S. 417, 55 L.Ed. 796; Counselman v. Hitchcock, 142 U.S. 547, 35 L.Ed. 1110; Sandefur v. Canoe Creek C. Co., 266 U.S. 42, 69 L.Ed. 162. (5) The judgment in the quo warranto proceeding must be strictly construed in favor of respondents. In re Shull, 221 Mo. 623. (6) The judgment was, and could only be, directed against the right of these respondents to hold their respective offices in and to exercise in behalf and in the name of the Cassville Association corporate charters which the latter did not possess. By reason of the very nature of the extraordinary writ of quo warranto and the limitations upon the jurisdiction of the court in such a proceeding, no other construction of the judgment is tenable. (7) The scope of the common-law writ of quo warranto, which has not been extended by the modern proceeding in the nature of quo warranto is limited to and spends itself in, the determination of the title or right to a corporate franchise or to a corporate or public office. 51 C.J. sec. 10, p. 314; State ex inf. McAllister v. Norborne Land Drainage Dist. Co., 290 Mo. 91; State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941; State ex inf. Walsh v. Thatcher, 340 Mo. 865, 102 S.W.2d 937; State ex inf. McKittrick v. Murphy, 347 Mo. 484, 148 S.W.2d 527; State ex inf. Prosecuting Attorney v. Chipley, 233 Mo. App. 61, 116 S.W.2d 140; State ex inf. Pope v. Mansfield Special Road Dist., 299 Mo. 663, 253 S.W. 714; State ex inf. McKittrick v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876. (8) The writ of quo warranto is not a substitute for mandamus or injunction. State ex inf. McKittrick v. Murphy, 347 Mo. 484, 148 S.W.2d 527; State ex rel. Kimbrell v. Peoples Ice Co., 246 Mo. 168; 51 C.J. 390, sec. 1. (9) The jurisdiction of this court is derived from the constitution. It has no original jurisdiction to grant an injunction. Art. VI, Sec. 3, Constitution of Missouri 1875; In re Lercher, 269 Mo. 140, 149, 190 S.W. 19; Wait v. Atchison, T. S.F.R. Co., 204 Mo. 491, 103 S.W. 60; State ex rel. Natl. Subway Co. v. St. Louis, 145 Mo. 551, 46 S.W. 981; State ex rel. Roland v. Dryer, 229 Mo. 201, 129 S.W. 904. (10) The purpose of the writ of quo warranto is to oust corporations and corporate and public offices from usurping franchises emanating from the state. It will, therefore, not issue merely for the determination of private rights or disputes between private persons and corporations. State ex inf. Crow v. Atchison, T. S.F. Ry. Co., 176 Mo. 687; State ex inf. McAllister v. Norborne Land D.D. Co., 290 Mo. 91. (11) The writ is not directed against an individual claiming the office but against his right to hold the office. The dominant issue in quo warranto is title. State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941; State ex inf. Walsh v. Thatcher, 340 Mo. 865, 192 S.W.2d 937. (12) It is not true that the Cassville Association was made a party respondent in the quo warranto proceeding at the request or for the benefit of the individual respondents. That association having been chartered pursuant to statute was a necessary party to the quo warranto proceeding. State ex rel. v. Monarch Transfer Storage Co., 323 Mo. 562, 20 S.W.2d 60. (13) The writ of quo warranto will not lie to revoke a license granted by the state to an individual to practice law. State ex rel. Selleck v. Reynolds, 252 Mo. 369, 158 S.W. 671; In re Sizer and Gardner, 300 Mo. 369, 254 S.W. 82; In re Richards, 63 S.W.2d 672; In re Graves, 146 S.W.2d 555. (14) Or where there is other plain and adequate remedy. State ex rel. Letcher v. Dearing, 253 Mo. 604, 162 S.W. 618. (15) Injunction will not lie to prevent the commission of a crime or an offense punishable under the criminal laws of this state. State ex rel. Alton v. Salley, 215 S.W. 241; Clark v. Crown Drug Co., 348 Mo. 91, 152 S.W.2d 145; Ex parte May Laymaster v. Goodin, 260 Mo. 613. (16) An order which the court had no jurisdiction to enter is void. it is a mere nullity. State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941; State ex rel. McManus v. Muench, 217 Mo. 124; In re Letcher, 269 Mo. 140. (17) One cannot be adjudged in contempt of an order which the court had no power to enter. Ex parte Fowler, 275 S.W. 529; In re Letcher, 269 Mo. 140; State ex rel. Hyde v. Westhues, 316 Mo. 457, 290 S.W. 443. (18) The fact that the judgment in the quo warranto proceedings was entered pursuant to a stipulation of the parties does not render enforceable an otherwise void provision thereof. Jurisdiction cannot be conferred by consent. State ex rel. McManus v. Muench, 217 Mo. 124, 117 S.W. 25; Dahlberg v. Frisco, 328 Mo. 213, 40 S.W.2d 606; Mercantile Bank v. Becker, 40 S.W.2d 626; State ex rel. Crow v. Bland, 144 Mo. 534, 46 S.W. 440. (20) What respondents have done either in organizing the Arkansas Association, or as its officers, cannot constitute a violation of the court's judgment in the quo warranto proceeding. State ex inf. Gentry v. American Can Co., 12 S.W.2d 437. (21) The question of whether the Arkansas Association is doing business in Missouri without a license was not an issue in the quo warranto proceeding and consequently cannot be an issue in this proceeding. State ex inf. Prosecuting Attorney v. Chipley, 233 Mo. App. 61, 116 S.W.2d 140; State ex inf. Gentry v. American Can Co., 12 S.W.2d 437. (22) The methods employed by the Arkansas Association in issuing burial insurance to residents of Missouri, while not an issue in this proceeding, does not constitute doing such business in Missouri as would require a license therefor. (23) Newspaper publishers and Radio Station KWTO publishing or broadcasting advertisements of the Arkansas Association did not thereby become agents of it or of respondent. People v. International Broadcasting Corp., 255 N.Y.S. 349; Fisher's Blend Station, Inc., v. Tax Commission of the State of Washington, 297 U.S. 650, 80 L.Ed. 956; Holtz v. Western Union Telegraph Co., 3 N.E.2d 180; Mechem, Law of Agency (1914 Ed.), sec. 41. p. 26. (24) This court had no jurisdiction in the quo warranto proceeding to take charge of the assets or funds of the Cassville Association, or to place these assets in trust and direct their disposition by trustees, as provided in paragraph 3 of the judgment. State ex inf. McKittrick v. American Colony Ins. Co., 336 Mo. 406, 80 S.W.2d 876. (25) Jurisdiction to appoint a receiver or trustee is equitable in nature inherent only in a court exercising equitable jurisdiction, or where the jurisdiction is granted by statutory enactment. Miller Bros. v. Perkins, 154 Mo. 629; Kienker v. Power Truck and T. Co., 323 Mo. 281, 19 S.W.2d 1060; U.S. Casualty Co. v. Kacer, 169 Mo. 301. (26) Jurisdiction to appoint a trustee or receiver cannot be conferred by stipulation or consent. Laumeier v. Sun Ray P. Co., 330 Mo. 542, 50 S.W.2d 640. (27) Aside from the question of jurisdiction, the assets and funds of the association were properly administered. The $800 representing advance assessments paid was not an asset of the association. Its disposition was not directed by the judgment and, in any event, the disposition made thereof was lawful and did not constitute contempt of the court's judgment. (28) In no event could the failure of respondents to disburse the trust funds in accordance with paragraph 3 of the judgment be made the basis for adjudging them in contempt. Ex parte Fowler. 275 S.W. 529; Roberts v. Stoner, 18 Mo. 481; Coughlin v. Ehlert, 39 Mo. 285; Harrington v. Harrington, 121 S.W.2d 291; Fuller v. Smedley, 48 S.W.2d 131.
This is an original proceeding by Information for contempt filed on March 7, 1944 against respondents by the Attorney General as Informant. We appointed Honorable James H. Linton, of the Lafayette County Bar, as Special Commissioner to hear evidence and to report findings of fact and conclusions of law. He filed his report, found W.D. Koon guilty of contempt [448] of this Court, and found for Mrs. W.D. Koon. The Informant and each respondent have filed exceptions.
The contempt Information arose from the following facts: On November 17, 1941 Informant filed an Information here in quo warranto against the instant respondents and one Wilson Bradley (cause 37906) charging that since 1934 they had held themselves out to be a corporation styled, Barry County Burial Association, of Cassville, Barry County, Missouri (hereinafter called Missouri Association), and that respondents, under that name, and contrary to law (See, State ex inf. Williamson v. Black, 347 Mo. 19, 145 S.W.2d 406) were usurping the franchise of writing and selling policies of funeral and burial insurance in Missouri. In 1940 after our decision in the Black case, supra, W.D. Koon knew Missouri Association could not continue to do business in Missouri, but he nevertheless continued to operate as theretofore. Upon the filing of the quo warranto Information we issued an order to show cause why judgment of ouster should not be issued. Mrs. W.D. Koon claimed to be president, Wilson Bradley claimed to be Vice-President and W.D. Koon claimed to be Secretary-Treasurer of Missouri Association. On December 15, 1941, Koon, and his counsel, and counsel representing Mrs. Koon and Bradley in informal conference admitted to Informant the truth of the allegations of the Information, stated they had on hand or coming in as an assessment about $55,000 of monies being paid by policyholders, agreed they would confess judgment of ouster if given 90 days to satisfy claims and disburse said monies, and agreed that they would thereafter cease and desist selling burial insurance in Missouri. Respondents then requested that Missouri Association be made an additional party respondent to said cause so that if costs were assessed same could be paid from said monies on hand. Such amended Information was accordingly filed.
On January 5, 1942, a written stipulation, which was later filed here in that cause, was prepared and executed by Informant and counsel for respondents wherein it was agreed that in that cause we should enter against respondents a judgment and order of ouster effective as of April 5, 1942, and in such judgment restrain respondents from soliciting or accepting any new burial insurance contracts after January 5, 1942. The parties further agreed therein that respondents should hold the monies in trust to perform outstanding contracts and that costs should be paid therefrom. Koon understood that the stipulation he authorized contemplated the entry of a judgment forbidding him to further solicit, accept or write funeral and burial insurance contracts in Missouri. On January 12, 1942 respondents filed their return to the amended Information, admitted the truth of its averments and confessed a judgment of ouster. On said date we entered judgment in that cause, by which judgment all respondents were ousted from purporting and holding themselves out to be a corporation, were ousted from further usurping the franchise and privilege of writing and selling funeral and burial insurance in Missouri, were restrained from the solicitation and acceptance of any new burial insurance contracts on and after January 5, 1942, and the judgment further provided that the monies be held in trust for the purposes agreed upon, and provided payment of costs.
It appears from the pleadings, transcript and exhibits, and the Special Commissioner found, that on December 1, 1941, unknown to Informant and to this Court the respondents and their daughter incorporated the Barry County Burial Association, Inc., of Eureka Springs, Arkansas (hereinafter called Arkansas Association), under the laws of the State of Arkansas, for the purpose of continuing, by such instrumentality, the writing of funeral and burial insurance in Missouri and other states. Mrs. W.D. Koon was President and W.D. Koon was Secretary-Treasurer of Arkansas Association. They owned a majority of the stock, were at all times in the actual control and supervision of its property, business, funds and affairs. Shortly after December 1, 1941 and long prior to the liquidation of Missouri Association respondents transferred and delivered to Arkansas Association all the records (including a complete list of policyholders) of Missouri Association. On February 16, 1942, Koon caused [449] letters to be written by Arkansas Association, and signed by him, to about 85,000 residents of Missouri who held funeral and burial contracts of Missouri Association advising them that under the order of the Missouri Supreme Court Missouri Association could not maintain offices in Missouri, but "we have formed a corporation under the laws of Arkansas known as the Barry County Burial Association, Inc., of Eureka Springs, Arkansas". In those letters Koon sent each a new funeral and burial policy issued by Arkansas Association, urged its acceptance by each such Missouri policyholder and requested Missouri policyholders to mail their assessments to Eureka Springs. The policy issued by Arkansas Association was in substance identical with the policy theretofore issued by Missouri Association. Such policies sent to and retained by Missouri policyholders bore the same number as the former policies issued by Missouri Association and showed the same age for the policyholder as was shown by the former policy. About 75,000 Missouri residents retained such policies and became members of Arkansas Association.
Both before and after January 12, 1942 the same undertaker in each Missouri community where there were policyholders was placed on the "designated" list of both the Missouri and the Arkansas Association. A "designated" undertaker was one whom the Association required to be called to furnish appropriate merchandise and funeral services when a policy matured and became due. Such undertaker participated on a contract basis. Association thus reserved the right to limit and to name the designated person to be called on to carry out Association's contract in Missouri. Upon the filing of the ouster suit here certain Missouri newspaper advertisements by some of such "designated" Missouri undertakers were immediately critical and derogatory of the ouster suit and urged certain classes of people to "arise and fight this sinister group that seeks to destroy their sacred rights and privileges". The policyholder usually involved was humble and the amounts involved in policy premiums and assessments in each instance were not large. Newspaper advertisements in Missouri by some "designated" undertakers advised Missouri policyholders that they would be sent policies in Arkansas Association, and that "the only difference in the plan of operation is that all business will be transacted in Eureka Springs, instead of Cassville".
Missouri undertakers formerly "designated" by Missouri Association were continued as "designated" by Arkansas Association. Arkansas Association distributed to its Missouri policyholders a list of Missouri "designated" undertakers. Certain "designated" undertakers in Missouri kept printed applications of Arkansas Association for policies. Such undertakers and their employees solicited contracts, made out applications, kept records and card indexes of policyholders of Arkansas Association and of their payments, made collection of assessments due Arkansas Association on policies, issued various receipts therefor, regularly remitted collected assessments in quite sizable amounts to Arkansas Association, sometimes drove to Eureka Springs to deliver such funds in person, delivered policies to new policyholders and performed other acts of agency for Arkansas Association. These and other acts of agency were in fact performed for respondents, as will be hereinafter noted. Other payments were forwarded direct to Arkansas Association by mail from the policyholder.
When policyholders failed to use the "designated" undertaker for appropriate merchandise and funeral services when same became due under policies, Arkansas Association usually refused to pay the bill for funeral services. Certain "designated" undertakers in Missouri provided display advertisements in Missouri newspapers for Arkansas Association, stating therein that Arkansas Association was given the privilege of issuing policies to the Missouri policyholders. Letters signed by Koon in answer to inquiry from prospective Missouri policyholders stated. "For many years before the Supreme Court of Missouri held that Burial Associations could no longer operate except as insurance companies, we were located at Cassville, Missouri". Advertisements in Missouri newspapers soliciting contracts for Arkansas Association contained printed applications [450] therein, and warned of deadline dates for payment of certain assessments. The Koon Funeral Home in Cassville, Missouri, owned solely by respondents, was on the "designated" list, was quite active in advertising Arkansas Association, and applications for policies in Arkansas Association were solicited and accepted in that funeral home. Koon continued to live in Cassville, Missouri though his business was nominally a few miles south at Eureka Springs, Arkansas. Mrs. W.D. Koon, one of the respondents herein, personally solicited and accepted a new funeral and burial contract in Missouri. When a policyholder died in Missouri, if a "designated" undertaker furnished the appropriate merchandise and funeral service, such "designated" undertaker sent in the policy and made claim to Arkansas Association upon a blank furnished by Arkansas Association for that purpose. The "designated" undertaker then received from Arkansas Association 90% of the face value of the policy, and Arkansas Association credited itself with the payment of the full face value of the policy.
From February, 1943 to June, 1945 Arkansas Association advertised extensively by radio broadcasts over station KWTO in Springfield, Missouri, in which it claimed it "was organized 9 years ago", praised the service it claimed to give, reviewed at length the claimed benefits and low costs, advised when certain assessments were due and urged listeners to purchase contracts of funeral and burial insurance. Contracts for such radio time were executed by W.D. Koon.
At and before the entry of our judgment of ouster on January 12, 1942 W.D. Koon was advised by his counsel and knew and understood that he could not solicit or accept, directly or indirectly, any contracts of funeral or burial insurance in Missouri. Koon further testified that he was told by his counsel, "that I was not to write any more members"; and, "that I could liquidate if I would quit in Missouri"; and, "that I would go ahead and liquidate the old Barry County Burial Association, and I would have to quit writing, or quit having any agents in Missouri." Koon further testified: "I knew the (Missouri Supreme) Court had ordered me to cease to do business when this (Missouri) Association was liquidated". Respondents did not advise either Informant or this Court that they had theretofore incorporated in Arkansas and intended to continue to do in Missouri the very thing the judgment of this Court forbade them to do. Before January 12, 1941, respondents did business in Missouri under the name of "Barry County Burial Association of Cassville, Barry County, Missouri", and in Arkansas incorporated as the "Barry County Burial Association, Inc." There is no Barry County in Arkansas. The purpose of the similarity in names is obvious, and was admitted by Koon.
Respondents transferred to Arkansas Association $800.00 in monies which had been impressed with a trust for the purpose of liquidating Missouri Association, and instead of returning said funds to the individuals who deposited the same, wrote new policies in Arkansas Association and sent them to the Missouri residents in lieu of returning the money. At the time of the transfer of the $800.00, respondents transferred the membership records, the files and mailing list of Missouri Association for the purpose of enabling Arkansas Association to take over and conduct the business of Missouri Association. If at the time of the execution of the stipulation and entry of the judgment here, Informant had known respondents had incorporated in Arkansas and intended to continue writing policies of funeral and burial insurance in Missouri in violation of our judgment, Informant would not have executed the stipulation, and we would not have entered judgment in that form and without penalty. After our judgment of ouster was entered respondents intentionally continued to solicit and accept applications for and to write policies of funeral and burial insurance in Missouri contrary to the Missouri insurance laws and contrary to the decree of this Court. We must conclude that respondents incorporated, controlled and operated Arkansas Association as a subterfuge and device for the purpose of and by means of which they personally continued to solicit, accept, write and sell funeral and burial insurance in Missouri contrary to the Missouri insurance code.
[451] Respondents' return and answer denies that they pretended they would cease writing burial insurance in Missouri except under the charter of Missouri Association; admits they incorporated Arkansas Association unknown to Informant and to this Court "for the purpose of carrying on and transacting the business of writing, selling, soliciting and accepting funeral and burial insurance in the State of Arkansas and of soliciting funeral and burial insurance in other states", and asserts that Arkansas Association "has solicited applications for funeral and burial insurance in the State of Missouri . . . as a foreign corporation", upon the advice of counsel.
Respondents first contend that in the quo warranto case our jurisdiction was limited to the determination of the right of Missouri Association, and of respondents as its purported officers, to continue writing funeral and burial insurance under the charter of Missouri Association. They further contend that the judgment of this Court in that case did not and could not deny to respondents the right to issue such contracts of insurance in Missouri except under the charter of Missouri Association. We are not so persuaded. Such contentions seem based upon respondents' assumptions that the quo warranto case was one to oust an existing corporation from an existing franchise regularly granted by the state under corporate charter. In the quo warranto Information the Missouri Association was referred to only as a purported corporation, and respondents were charged with unlawfully purporting to be a corporation, and that Information further charged that respondents "have been unlawfully . . . usurping . . . the franchise . . . of writing and selling funeral and burial insurance . . . in the State of Missouri". That was an action to oust these individual respondents from usurping a franchise and privilege not granted to them by the State of Missouri. State ex rel. Gentry v. Monarch Transfer Storage Company, 323 Mo. 562, 20 S.W.2d 60, State ex rel. Miller v. O'Malley, 342 Mo. 641, 117 S.W.2d 319, State ex inf. Miller v. St. Louis Union Trust Company, 335 Mo. 845, 74 S.W.2d 348. After that Information was filed Missouri Association was made a party at respondents request, and only incidentally, and only for the purpose of the trust fund and costs. The pleadings, the facts, the stipulation and the judgment show the quo warranto proceeding was purely in personam.
In 1940 we held in the Black case, supra, that Sec. 5014 R.S. Mo. 1929, under which statute Missouri Association in 1934 had been granted a pro forma decree as a benevolent corporation, was unconstitutional and void. Thereupon and thereafter Missouri Association had no corporate existence. We said in State ex rel. Miller v. O'Malley, supra: "An unconstitutional statute is no law and confers no rights. . . . This is true from the date of its enactment, and not merely from the date of the decision so branding it." Missouri Association, therefore, after our ruling in the Black case, had no character of corporate existence and could not of itself be ousted. It was dead. That fact respondents seem to ignore. Missouri Association had no officers. Those purporting to be its officers had no such office or official capacity. The only possible respondents in the quo warranto were the individuals who purported to be officers. In State ex rel. Gentry v. Monarch Transfer and Storage Company, supra, we held: "If quo warranto be brought for usurping to be a corporation, it should be brought against particular persons because in disaffirmance of the corporation." Our decree not only ousted respondents from holding themselves out as a corporation, but also ousted them from "usurping and exercising the right franchise and privilege . . . of writing and selling funeral and burial insurance."
Courts recognize the distinction between a quo warranto against a living corporation because it has improperly exercised or has attempted to use a power it never had, and a quo warranto against individuals to oust them from usurping a franchise which the state never granted them. State ex inf. McKittrick v. Murphy et al., 347 Mo. 484, 148 S.W.2d 527. In the Murphy case. [452] supra, we extensively reviewed the scope and purposes of quo warranto and held: "`A writ of quo warranto is in the nature of a writ of right for the king, against him who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right. Bla. Com., Chases Ed. 752. . . . The writ of quo warranto is not a substitute for mandamus or injunction nor for an appeal or writ of error. It is not to be used to prevent an improper exercise of power unlawfully possessed. Its purpose is solely to prevent an officer or a corporation or persons purporting to act as such from usurping a power which they do not have . . . What is meant by the term `franchise' as used in connection with the writ of quo warranto? A franchise has been defined as `A special privilege conferred by government on individuals, and which does not belong to the citizens of the country generally by common right.'"
In Missouri the insurance business is affected with a public interest and is subject to the control and regulations of the state's police power. State ex rel. Mackey v. Hyde, 315 Mo. 681, 286 S.W. 363. Under that power the state withholds the right to engage in such business until the applicant for that privilege or franchise has complied with the statutes. R.S. Mo. 1939, Secs. 6003, 6004, R.S.A., sec. 6003, 6004, State ex rel. Mackey v. Hyde, supra. In State ex rel. Beach v. Benefit Association, 6 Mo. App. 163, 167, it was held: "The exercise of the right of carrying on the business of making assurance upon lives by a corporation in this State, is the assertion of a grant from the State to exercise that privilege, and it is therefore the usurpation of a franchise unless it can be shown that the privilege was granted . . . If then it appears from the facts stated that defendant is carrying on an insurance business, and it shows no authority for the exercise of such a franchise, the State is entitled to a judgment of ouster." In People v. Loew, 44 N.Y.S. 42 the court in the following language clearly stated the reasons for holding that the right to conduct an insurance business is a franchise which may be challenged by quo warranto: "As the business of insuring lives, property, credits and fidelity of conduct has become of such large public concern, in connection with the business enterprises and activities of the people of the state generally, such business has essentially become one of a public character; and it has been found necessary by the legislature to guard and protect the people of the state in their dealings with the persons and corporations assuming to act as insurance companies, in the same manner that it has been found essential to deal with the business of banking. The state has now for many years had a governmental department devoted to that purpose, and has placed upon the superintendent or head of that department responsible duties in regard to the supervision of domestic and foreign companies doing business within the state. It has thus been held repeatedly that the state has the right to regard the business of insurance as one dependent upon the exercise of a franchise which the state has the right to give and to withhold. This franchise right has grown up from a small beginning from necessity, but is not a departure from the general rule characterizing the meaning of the term `franchise.' It is simply a modern application of the principle governing such privileges, applied to new emergencies. Whatever is of large public concern, so that a want of regulation and control will injuriously affect the public in its general interests, may be the subject of a franchise."
At the time of filing the quo warranto Information in this court there was no possible question of the ouster of Missouri Association. It was dead and was doing and could do nothing. It was the actions of respondents in continuing to write burial insurance in Missouri, notwithstanding the death of Missouri Association, that gave the state concern. The state sought to oust respondents from exercising a franchise the state had never granted to them and sought to have respondents personally cease and desist from any further writing of burial insurance, as a purported corporation, or otherwise. Our judgment in the ouster case forbade them to do so.
In their brief respondents concede the propriety of the rule we applied in [453] State ex inf. Miller v. St. Louis Union Trust Company, supra, that quo warranto is proper to oust a respondent from the usurpation of a franchise not granted by the state. Quo warranto was proper against these respondents for that reason. We have carefully considered the cases cited by respondents but they are not in point on the instant facts and do not alter the conclusion which the facts compel. Respondents' argument fails to consider that respondents were also usurping a franchise which only the State of Missouri could grant to them and then only upon their compliance with the state insurance laws. We agree with respondents that our jurisdiction to enter the ouster judgment was not founded upon the stipulation and could not be conferred by consent. But upon the pleadings of the ouster suit this court possessed constitutional jurisdiction to determine by quo warranto whether respondents were usurping a franchise not granted to them by the State. State ex inf. McKittrick v. Murphy, supra, State ex inf. Miller v. St. Louis Union Trust Company, supra. The above mentioned contentions of respondents are not well taken. Quo warranto was a proper procedure against respondents individually and personally to determine by what authority they were purporting to usurp the franchise to write burial insurance in Missouri. By the quo warranto case the state sought to and did oust respondents personally from usurping the franchise of writing funeral and burial insurance in Missouri.
Respondents next contend that they should be purged of contempt because our judgment of January 12, 1942 in paragraph 2 thereof, provided "that the respondents be restrained and enjoined from soliciting or accepting any new burial contracts on and after the 5th day of January, 1942." Respondents contend this Court possesses no jurisdiction to restrain and enjoin. The pertinent portions of the stipulation executed and filed here were as follows:
"WHEREAS, this Court has issued its Writ in this cause predicated upon an information filed by the Relator, charging that the Respondents have usurped and exercised certain rights and privileges without any warrant, charter or grant and without authority of law, and praying that the Respondents shall be ousted from exercising such franchises and privileges; and
"WHEREAS, the Respondents have made their Return admitting the averments of the Information and Writ and confessing the judgment of Ouster; and . . .
"IT IS, THEREFORE, AGREED AND STIPULATED by and between the Relator and Respondents that the Court shall enter a Decree in this cause decreeing and providing:
"1. That the Court issue a Judgment of Ouster in this cause against each and all of the Respondents; such Judgment to become effective and to be in force on the 5th day of April, 1942;
"2. That the Respondents be restrained and enjoined from soliciting or accepting any new burial contracts on and after the 5th day of January, 1942."
The return and answer of respondents to the Information was: "Come now each and all of the Respondents in this cause by their attorneys and for answer to the First Amended Information In The Nature of Quo Warranto and to the Writ issued herein, admit the truth of all of the averments contained therein and confess that a judgment of Ouster may be entered against them."
Under the Constitution of 1875 this Court did not have general and original equity jurisdiction and had no original jurisdiction in injunction. Our jurisdiction in quo warranto at the time of the filing and judgment in the quo warranto case was expressly conferred by Sec. 3 of Article VI of the Constitution of 1875. The above quoted paragraph 2 of our order wherein respondents are "restrained and enjoined" may be and is disregarded as surplusage. That portion of our judgment was not necessary to its meaning and does not affect its validity as an ouster order. It was extraneous, superfluous and unnecessary, and may be and should be disregarded. It is apparent from the Information, the Return, the Stipulation signed by the parties and the Judgment that the intention, purpose and agreement of the parties, respondents and Informant, was that respondents should henceforth be ousted from the privilege and should discontinue [454] writing burial insurance in Missouri. That is evident without regard to the choice of words. Respondents were ousted. Under the circumstances of this case, and in this connection the word "ousted" as used in our judgment wherein we said: "That each and all respondents are ousted from purporting, claiming and holding themselves out to be a corporation under the name and style of the Barry County Burial Association of Cassville, Barry County, Missouri, and from claiming, usurping and exercising the right, franchise and privilege of carrying on the business of writing and selling funeral and burial insurance", means respondents were to be thereafter excluded from any exercise, directly or indirectly, of the challenged franchise to write funeral and burial insurance in Missouri. The judgment of ouster had the further operative force of itself to prohibit any further exercise of the claimed franchise. The judgment means that from the date of its issuance the respondents should henceforth cease and desist from further exercise of the franchise not merely by use of the pretended authority of Missouri Association, but as well by any subterfuge to which respondents might resort, either personally or through a foreign corporation. This Court has construed the effect of an ouster order in quo warranto cases as meaning that the person or corporation ousted from any such claimed franchise should cease and desist exercising such claimed franchise. State ex inf. Miller v. St. Louis Union Trust Company, supra. State ex inf. Miller v. Mississippi Valley Trust Company, 335 Mo. 872, 74 S.W.2d 361, 362, State ex inf. Miller v. Mercantile-Commerce Bank Trust Co., 335 Mo. 873, 74 S.W.2d 362, 363. In State ex rel. Barrett v. First National Bank of St. Louis, 297 Mo. 397, 249 S.W. 619, 625, we said: "The character of a judgment in quo warranto cases is largely within the discretion of the court, and foreign corporations may, under numerous precedents, be prohibited by a general ouster from committing particular illegal acts." (Citing cases.) That respondents were ousted was of itself sufficient to prohibit and such order did prohibit the future exercise of the challenged franchise. The ouster order was a cease and desist order.
The question here is not whether Arkansas Association is doing business in Missouri without a license, or without complying with Missouri laws respecting foreign corporations, or whether its business is interstate in character. We are not now concerned with Arkansas Association as a corporation, nor with its method of doing business. Those matters may be determined on another day in another forum after Arkansas Association as a corporation has had its day in court. But we are here concerned with the individual respondents and whether personally they have been guilty of contempt. We are concerned whether respondents employed Arkansas Association as an instrumentality and subterfuge to violate the judgment of this Court.
Did respondents knowingly disobey our judgment of ouster? If so, did such intentional disobedience to our judgment amount to contempt? These questions present the heart of this controversy. Within what legal limitations must these factual questions be considered?
Contempts fall into two major classifications, civil and criminal. Informant insists the record presents a contempt of both a civil and criminal nature. Respondents insist that a criminal contempt has been charged. A civil contempt is one instituted to preserve and enforce the rights of a private party to an action and to compel obedience to a judgment or decree intended to benefit such a private party litigant. State v. Norman, 193 S.W.2d 391 (Mo. App.). A criminal contempt results from an act or series of acts directed against the court's dignity which brings a court into disrepute by ignoring its mandates and judgments, or by challenging its authority, or by affronting its majesty as an agency of government, and which affects all the people of the state. In re Willis H. Clark, ex parte, 208 Mo. 121, 144, 145, 106 S.W. 990. While under some circumstances conduct may be both civil and criminal contempt, the instant case is a proceeding for a criminal contempt. This Court has both inherent and statutory [455] power to punish a criminal contempt. R.S. Mo. 1939, Sec. 2028, R.S.A. sec. 2028, Missouri Electric Power Company v. City of Mountain Grove, 352 Mo. 262, 269, 176 S.W.2d 612, State ex inf. Crow v. Shepherd, 177 Mo. 205, 76 S.W. 79. Such power is as old as the law itself and stems from the power of the judiciary to protect its dignity and authority and to enforce its judgments. Disobedience of any valid judgment, order or decree of a court, which such court had jurisdiction to enter, is such an interference with the administration of justice as to constitute contempt. Missouri Electric Power Company v. City of Mountain Grove, supra, In re West, 348 Mo. 30, 152 S.W.2d 69, Blackmer v. U.S., 284 U.S. 421, 52 Sup. Ct. 252, 76 L.Ed. 375. Willful disobedience of a lawful mandate of a court implies bad faith. State ex rel. Madden v. Padberg, 340 Mo. 667, 101 S.W.2d 1003. No man may judge his own case. If one man may determine the law of his own case, all men may do so. If parties make themselves the judge of the validity of a court order regularly entered respecting their conduct or course of action, then the courts become impotent and judicial power becomes a mockery. United States v. John L. Lewis and United Mine Workers of America, 67 Sup. Ct. 677, 91 L.Ed. 595. Until the judgment of a court is set aside by such court upon reconsideration, or is reversed for error upon orderly procedure, its orders must be respected by full obedience. Disobedience of such orders is contempt of its lawful authority and punishable as such. Howat v. Kansas, 258 U.S. 181, 42 Sup. Ct. Rep. 277, 66 L.Ed. 550. United States v. John L. Lewis et al., supra. It is contempt to employ a subterfuge or device in an attempt to evade an order or judgment of a court. 12 Am. Jur. 406.
Respondents' return and answer in the instant case does not aver that they have not been writing funeral and burial insurance in Missouri. Their return admits it. Their pleading denies merely that they pretended they would cease writing insurance in Missouri, and admits that while their preliminary negotiations with the Informant were in progress they secretly incorporated Arkansas Association to do, and that by the instrumentality of Arkansas Association they have done and are doing, the very thing the judgment of this court denied them the right to do. Under the name of Arkansas Association Koon, by letter, advised Missouri policyholders that "we have formed" Arkansas Association, and thus the respondents wrote about 75,000 new policies in Missouri. Policyholders were advised "the only difference in the plan of operation is that all business will be transacted in Eureka Springs instead of Cassville."
Under the circumstances of this case and under the admissions of the return and answer respondents "did . . . organize and incorporate" Arkansas Association "for the purpose of . . . writing, selling, soliciting and accepting funeral and burial insurance in the State of Arkansas and . . . in other states", and in view of the admission that such corporation "is engaged in transacting business in Missouri", we must disregard the corporate entity of Arkansas Association. Courts disregard the fiction of the corporate entity when, as here, a corporation is attempted to be used as a means of accomplishing a fraud upon a court or an illegal act. 18 C.J.S. 380, 13 Am. Jur. 160, and cases cited. Arkansas Association was secretly formed under the laws of another state for the express purpose of avoiding the laws of this state, and of doing the very thing we said in our ouster order respondents could not do. The corporate entity of Arkansas Association cannot avail respondents under these circumstances. Respondents themselves did the things the instant facts tend to show Arkansas Association did. Booth v. Scott, 276 Mo. 1, 205 S.W. 633, 18 C.J.S. 380, 13 Am. Jur. 160.
Some of the "designated" Missouri undertakers kept printed applications of Arkansas Association for policies, solicited contracts, made collections of assessments, issued receipts, made remittances to Eureka Springs, delivered policies and did other acts as agents for respondents. These acts were done with the knowledge of respondents. It matters not that respondents [456] now claim they did not authorize such acts. Where a principal with knowledge of the material facts of the unauthorized acts of another who assumes to act for him, receives and retains the benefits thereof, he thereby ratifies the same. St. Louis Mutual Life Insurance Company v. Walter et al., 329 Mo. 715, 728, 46 S.W.2d 166. Walter v. Hassler, 240 S.W. 257 (Mo. App.), 2 C.J.S., p. 1097. Respondents cannot accept the beneficial results of the acts of the "designated" Missouri undertakers and at the same time escape the burdens which that acceptance places upon them. Mutual Life Insurance Company v. Walter, supra.
The obligations of the policies carried on Missouri policyholders were contracted to be and were performed in Missouri, respondents had soliciting agents in Missouri, losses were adjusted and settlements reached in Missouri, payments upon the obligations of the Missouri contracts were made to Missouri undertakers in Missouri. The facts support the admission of respondents that through the instrumentality of Arkansas Association they were doing business in Missouri. Respondents, upon contracts signed by Koon, advertised over radio station KWTO in Springfield, Missouri. Such contracts were not binding until accepted in Springfield, Missouri. These contracts were to be and were performed wholly in Missouri. Upon those programs respondents solicited policyholders in Missouri. Respondents, under the guise of a foreign insurer were "doing business" within Missouri under such circumstances. Union Mutual Life Company of Iowa v. District Court of the City and County of Denver, 47 P.2d (Colo.) 401.
At the time they authorized the execution of the stipulation and had the judgment of this Court entered thereon, respondents had already secretly organized Arkansas Association to avoid the laws of this state and to do what our judgment said they could not do. The ouster judgment of this Court in the form in which it was entered without penalty was obtained by such fraud and deceit upon the part of respondents as of itself to constitute a contempt. 17 C.J.S. 12; U.S. v. Pendergast, 39 F. Supp. 189. The conclusion is inescapable that respondents' secrecy was intended to deceive and mislead Informant and this Court and that at the time of the entry of our judgment of ouster respondents had no intention whatever to observe the mandates of our judgment.
From a careful study of the evidence adduced before our Special Commissioner, we conclude it has been established beyond any reasonable doubt that each of the respondents intentionally disobeyed our judgment of ouster. In continuing to write and issue policies of funeral and burial insurance in Missouri and in thus making their own private determination of the law, respondents acted at their peril. Their disobedience of our judgment in the quo warranto case is punishable as criminal contempt.
Respondents further contend that they have acted in good faith and upon advice of counsel. Generally it is no defense in a contempt proceeding that the contemnors acted upon advice of counsel. That rule is modified by most courts by recognition of the further rule that where one in contempt acted in good faith and upon advice of counsel such facts will be considered in mitigation of both the offense and the punishment. It is the almost universal rule, however, that where the excuse of advice of counsel is a mere pretense, and where the facts establish that the contumacious acts were intentional and lacking in bona fides, that such excuse will not be accepted by the courts, even in mitigation. 17 C.J.S. 52.
When we consider the instant facts, we cannot accept respondents oral protestations of good faith. Respondents' return admits and the facts show that Arkansas Association was incorporated to do what we forbade respondents to do. We cannot give such subterfuge our approval. The record is replete with intentional violations of our judgment by these respondents. We cannot find good faith where there appears to have been only intentional and continued violations of our ouster order by the affirmative acts of respondents. As [457] to advice of counsel, the testimony of respondent W.D. Koon that such advice was given is not corroborated by any of his counsel. The only one of his counsel who testified was quite certain no such advice was given. Others of his counsel, although available, were not called as witnesses. The testimony of W.D. Koon upon this question is inconsistent and upon analysis is neither persuasive nor convincing. In any event, the things respondents did bespeak their lack of good faith.
In view of our conclusion that respondents are subject to punishment as and for a criminal contempt, we next consider that phase of this proceeding. Sentences for criminal contempt are punitive in nature. Such punishments must vindicate the court's authority to have its mandates respected. The interests of orderly government demand that. We must consider the public necessity for compliance with the laws of this state, the need to end the defiance of the respondents, the importance that others in the future comply with the laws above noted, the seriousness of the respondents' attempts to take the law into their own hands and adjudge their own conduct, the extent of their deliberate defiance of our judgment of ouster, their secret organization of Arkansas Association to avoid the laws of this state and their continued use of such subterfuge to do what our judgment of ouster forbade them to do. The contempt has continued since April 5, 1942. Nothing in the record before us indicates that the contumacy has ceased. Respondents deliberately refused obedience to our ouster judgment. Such conduct evidenced complete lack of respect for judicial process and was an intentional interference with the administration of justice. Contempt must be measured by the intent with which it is committed. In re Howell and Ewing, 273 Mo. 96, 116, 200 S.W. 65. We are of the considered opinion that under the principles of law involved and under the instant facts and circumstances the respondents should pay a fine of $25,000. Such fine is therefore assessed and execution shall issue therefor. It is so ordered. All concur.