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ers; and, in the humble opinion of the writer, the theory that a private person can so attack a corporation will disappear altogether in the near future, either by the courts that adhere to the ancient doctrine voluntarily changing their rule on the subject, or by its being changed by statute." The judge next considered the question whether the association had, notwithstanding the defects in its organization, become a corporation de facto, and maintained that this question must be answered in the affirmative: Citing Evenson v. Ellingson, 67 Wis. 634; Methodist etc. Church v. Pickett, 19 N. Y. 482; United States Bank v. Stearns, 15 Wend. 314; Trustees of Vernon Soc. v. Hills, 6 Cow. 23; 16 Am. Dec. 429; Brouwer v. Appleby, 1 Sand. 158; Vanneman v. Young, 52 N. J. L. 403; Georgia etc. Ry. Co. v. Mercantile etc. Co., 94 Ga. 309; 47 Am. St. Rep. 153. "The very meaning of the term 'de facto' indicates that nothing more is necessary to the existence of a de facto corporation than the exercise of corporate powers in good faith. Corporation de facto—that is, a corporation from the fact that it is acting as such under color of right In good faith. The existence of the law, and some attempt to comply with it, are essential, because without them there can be no assumption of the right to corporate existence in good faith. Persons cannot be said to honestly claim the right to corporate existence, in the absence of any law authorizing the organization, or in the absence of some honest attempt to comply with such law, if one exists. The law and such attempt, or user of the franchise, whatever mistakes may be made in so doing-such as the filing of articles of organization when they are required to be recorded, or the recording of articles when they are required to be filed, or the filing of such articles in the wrong office, or any other of the numerous mistakes that might be made-make a corporation good everywhere, in all courts and places, till successfully challenged by the state. There is hardly any end of authority, all in harmony on this subject, but we content ourselves by referring to the following additional cases: Haas v. Bank of Commerce, 41 Neb. 754; East Norway Lake etc. Church v. Froislie, 37 Minn. 447; Snider's Sons' Co. v. Troy, 91 Ala. 224; 24 Am. St. Rep. 887; Stout v. Zulick, 48 N. J. L. 601; McCarthy V. Lavasche, 89 Ill. 270; 31 Am. Rep. 83; Hudson v. Green Hill Seminary Corp., 113 Ill. 618; St. Louis v. Shields, 62 Mo. 247; Central etc. Assn. v. Alabama etc. Ins. Co., 70 Ala. 120; Palmer v. Lawrence, 3 Sand. 161; North v. State ex rel. Pate, 107 Ind. 356. From the foregoing, I am warranted in asserting that, by well-settled principles of law, the agricultural association with whom plaintiff contracted was a de facto corporation."

CORPORATIONS DE FACTO-WHEN EXIST-LIABILITY OF MEMBERS.-Corporations de facto exist when there is a law authorizing such corporation, and when the company has made an effort, though irregular and imperfect, to organize under the law, and is transacting business in a corporate name. The stockholders in such a corporation cannot be held liable as partners, but an association of persons cannot exist as a corporation de facto unless

they can legally become a corporation de jure: Duke v. Taylor, 37 Fla. 64; 53 Am. St. Rep. 232, and note. Where there cannot be a corporation de jure there can be no corporation de facto: Bradley v. Reppell, 133 Mo. 545; 54 Am. St. Rep. 685, and note. Though persons do business as a de facto corporation, they may be held liable as individuals: Williams v. Hewitt, 47 La. Ann. 1076; 49 Am. St. Rep. 394, and note. A company intended to be a corporation, but which has failed to comply with the statute requiring it to file its certificate of incorporation with the secretary of state, and to pay a fee therefor, is neither a de jure nor a de facto corporation, but simply a voluntary association of individuals in the nature of a copartnership: Jones v. Aspen Hardware Co., 21 Colo. 263; 52 Am. St. Rep. 220; monographic note to Rutherford v. Hill, 29 Am. St. Rep. 602, 603. Compare monographic note to People v. Montecito Water Co., 33 Am. St. Rep. 186.

CORPORATIONS-DEFECTS IN ORGANIZATION-COLLATERAL ATTACK.-The validity of articles of incorporation cannot be inquired into incidentally and collaterally: Pott v. Schmucker, 84 Md. 535; 57 Am. St. Rep. 415, and note; Boyd v. Redd, 120 N. C. 335; 58 Am. St. Rep. 792. It is a general rule that the right of a corporation de facto to do business and to exercise corporate functions is never open to inquiry in a collateral suit: See monographic note to People v. Montecito Water Co., 33 Am. St. Rep. 181. It would seem upon principle that the nature or character of the informality or defect is immaterial, provided, notwithstanding its existence, it is apparent that there was an attempt in good faith to create a corporation, and that in like good faith there has been an assumption and exercise of corporate functions: See monographic note to People v. Montecito Water Co., 33 Am. St. Rep. 183.

STATE V. CIRCUIT COURT.

[97 WISCONSIN, 1.]

COURTS, CONTEMPT OF-DISPARAGING REMARKS RESPECTING THE JUDGE.-One publishing of a judge, who is a candidate for re-election, a charge that he has been corrupt and intentionally partial in certain cases, which, however, have been finally determined, may be guilty of libel of the judge, but not of contempt of court, though such publication occurs while the judge is presiding in court in the discharge of his duties, and jurors and litigants are in attendance thereon.

A CRIMINAL CONTEMPT IS ANY ACT DONE TO OBSTRUCT THE COURSE of justice or to prejudice the trial of any action or proceeding then pending in court.

COURTS CONTEMPT.-The power of courts of superior jurisdiction to punish contempt is inherent and arises by implication from the creation of the courts. This power may be regulated, and the manner of its exercise prescribed, by statute, but it cannot be taken entirely away, nor can its sufficiency be so impaired or abridged as to leave the court without the power to compel the due respect and obedience essential to preserve its character as a judicial tribunal.

COURTS, CONTEMPT OF.-Newspaper comments on the action of a judge in cases finally decided prior to their publication cannot be considered criminal contempts.

COURTS, CONTEMPT OF-FALSE PUBLICATION.Though a statute declares that a contempt of court may be commit

ted by the publication of a false or grossly inaccurate report or copy of its proceedings, a commitment for contempt cannot be sustained when founded upon a charge that the accused published of the judge then presiding in court that his decisions, in certain cases before then finally determined, had been influenced by partiality and corrupt motives, if such charge does not further state that the reference thus made to the proceedings of the court was in some respect false or inaccurate.

CONTEMPT OF COURT ALLEGED TO HAVE BEEN COMMITTED IN ANSWERING AN ORDER TO SHOW CAUSE.—If matters charged against one accused of contempt of court are not punishable as such, because they did not occur in the presence of the court, the filing of an affidavit in response to an order to show cause averring the truth of the publication complained of cannot be punishable as such, because they did not occur in the presence of the court.

CONTEMPT OF COURT-PROHIBITION AS A REMEDY.If the matters charged do not constitute a contempt of court, and it appears that immediate imprisonment is threatened, a writ of prohibition affords an adequate remedy. The accused is not obliged to wait until sentenced or imprisoned and to seek relief by habeas corpus, writ of error, or certiorari.

Prohibition seeking to prevent the further prosecution in the circuit court of Eau Claire county against Ashbaugh and Doolittle of a charge of having committed a criminal contempt of court. The charge upon which the prosecution was founded was that, in March, 1897, and while the circuit court was in session, and the Honorable W. F. Bailey, judge thereof, was presiding, he was also a candidate for his re-election; that Doolittle was a lawyer practicing in the court, and Ashbaugh was the editor of a newspaper, and both were opposed to the re-election of Judge Bailey, and one wrote, and the other published, a newspaper article charging the judge with extravagance and also with having been partial and unfair in respect to his official conduct in the trial of causes, and with being influenced by corrupt motives. The causes thus alluded to had all been heard and finally determined prior to the publication in question. On April 2, 1897, an order to show cause why they should not be punished for contempt was issued against and served upon Ashbaugh and Doolittle, who applied for a change of venue. This was denied. They thereupon filed an affidavit, alleging the truth of the publication. Thereafter the judge announced that he would adjudge Ashbaugh and Doolittle guilty of contempt in the immediate presence of the court in having filed their affidavit alleging the truth of the publication in question.

A. L. Sanborn, John M. Olin, and L. A. Doolittle, for the relators.

H. H. Hayden and T. F. Frawley, for the respondents.

• WINSLOW, J. The importance of the questions arising in this case, and the imperative necessity of a wise and just decision, can hardly be overestimated. These questions involve not only the right of a court to enforce due respect for its authority, and punish acts which tend to diminish such proper respect and interfere with the performance of its important public duties, but they involve as well the preservation of personal liberty as against summary imprisonment, the right of free speech, the freedom of the press, and the proper limit which may be placed upon the discussion of the fitness of candidates for public office. Fully realizing, as we believe, the gravity of these questions, we have given the case the fullest and most careful consideration within our power, in order that no false step, involving at once consequences disastrous and far reaching, might be taken. The questions involved upon which all minor questions depend are but two in number: 1. Did the publications in question consti. tute a criminal contempt of court? and 2. Is the writ of prohi bition the proper remedy?

1. Did the publications constitute a criminal contempt of court? In considering this question it has not been deemed necessary to reproduce the articles in this opinion. It is sufficient to say of them that, among other things, they charged Judge Bailey with having been intentionally partial and corrupt in the trial of certain causes in his court. If the charges were true, the unfitness of Judge Bailey for his office was certain. That they were intemperate in tone, and well calculated to exasperate their subject, may be at once admitted. It seems probable also that from their very intemperance they were rather calculated to injure the cause which they were designed to help than otherwise. These questions are, however, foreign to the present inquiry; the question being, not whether Judge Bailey as an individual was grossly slandered, but whether a criminal contempt of court was committed.

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A criminal contempt at common law may be generally defined as any act which tends either to obstruct the course of justice or to prejudice the trial in any action or proceeding then pending in court. The power of courts of superior jurisdiction created by the constitution to punish such acts is necessarily inherent in such a court, and arises by implication from the very act of creating the court. A court without this power would be at best a mere debating society, and not a court. These principles have been recognized in all courts from time immemorial: In re Rosenberg, 90 Wis. 581, 588; Ex parte Robinson, 19 Wall.

505; Rapalje on Contempt, sec. 1. Doubtless, this power may be regulated, and the manner of its exercise prescribed, by statute, but certainly it cannot be entirely taken away, nor can its efficiency be so impaired or abridged as to leave the court without power to compel the due respect and obedience which is essential to preserve its character as a judicial tribunal. The decisions on this point are well nigh unanimous. See authorities collated in note to Percival v. State, 50 Am. St. Rep. 568-572. It is, and must be, a power arbitrary in its nature, and summary in its execution. It is, perhaps, nearest akin to despotic power of any power existing under our form of government. Such being its nature, due regard for the liberty of the citizen imperatively requires that its limits be carefully guarded, so that they be not overstepped. It is important that it exist in full vigor; it is equally important that it be not abused. The greater the power, the greater the care required in its exercise. Being a power which arises and is based upon necessity, it must be measured and limited by the necessity which calls it into existence. The ultimate question, then, is, Is it necessary to the due administration of justice by a court that the publication of such an article as the one before us be punished as a criminal contempt? Before discussing the authorities upon this question, it will be well to state the exact facts which were charged in the petition of Messrs. Hayden and Frawley in the circuit court. It was alleged that the articles were written by Doolittle, and by his request published by Ashbaugh; that court was in session, with a full panel of jurors, trying jury cases, and that the articles were by the defendants generally circulated in the city of Eau Claire, and were distributed to various persons residing in this state, and were by them distributed and delivered to the officers "of said court, and to persons summoned as jurors in said court," and "were read by the officers and jurors so in attendance in said court." The articles themselves referred to no cases pending or on trial, but contained only strictures upon the general character of the judge, and his acts in former cases which had been concluded. The fact should also be remembered that a judicial election was impending, and that the judge was a candidate for re-election.

It is evident that, if any contempt was committed, it was what is known as constructive contempt, as distinguished from direct contempt: Rapalje on Contempt, sec. 22. Numerous cases are cited which are claimed to support the conten. tion that such publications constitute constructive contempt

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