ON MOTION TO MODIFY. In addition to the expression in the majority opinion, in which I concur, I state these additional reasons for concurring in the order modifying the original judgment.
The difference between the judges of the court is not as to the guilt of the respondents, nor as to the amount in fines to be imposed. As I understand it, we differ mainly regarding the best method to secure future compliance with the law. Should the corporations be dissolved there is no certain way to hinder the individuals operating them from conducting the same business as individuals, or from forming under other names new corporations for the same purpose. It is better to allow them to continue business in the open rather than to continue under the veil of different names. In the latter case, a subsequent violation of the law would require another suit like this.
It may be argued that the statute prevents the continuance, under other names, of the business of the forfeited corporations. Section 9665, Revised Statutes 1919, contains the following: *Page 573
"It shall thereafter be unlawful for any person, corporation, or association of persons, to deal in or offer for sale in this State any article of manufacture, mechanism, merchandise, commodity, . . . produced, manufactured or dealt in by any corporation whose rights, franchises or privileges have been so declared to be forfeited."
The section further says that the above provisions "are hereby made applicable in all respects to the successors or assigns of any corporation whose rights, franchises or privileges have been so declared to be forfeited."
The next section, Section 9666, attempts to apply the provisions mentioned to "natural persons, partnerships, associations of persons and corporations created or organized by or under the law of this State."
Numerous perplexing questions spring into view in determining the meaning and scope of that statute. If that language is to be given effect as it reads, nobody in the State of Missouri, after a forfeiture, could ever engage in the lumber business. The citizens of St. Louis would be obliged to bootleg their lumber from Illinois. To give the statute that meaning is to hold it unconstitutional.
Suppose it is construed to mean that the persons who have operated the dissolved corporation shall not again engage in the same business. Does anyone suppose it would be easy to give it such effect? Corporations are artificial persons and have no natural rights; they may be prohibited from engaging in any particular business. Natural persons have natural rights. Any person out of jail has the right to make a living at any lawful calling, and no legislative act can deprive him of that right. [Sec. 4, Art. 2, Mo. Constitution; State ex rel. v. Ashbrook,154 Mo. 394; 6 R.C.L. p. 266.]
Suppose the construction of the statute be narrowed so as to prohibit any person from dealing in only the specific property owned by the dissolved corporations. The judgment does not forfeit that property to the State. A forfeiture of the property could not be implied from *Page 574 the judgment of ouster, because the statute provides for an express forfeiture. That property consists of their stock, equipment and good will. With that construction the forfeiture of the franchises would increase the penalties to an uncertain degree, and perhaps enormously. The quantity of lumber and other material which the companies have on hand is probably in value many times the amount of the fines assessed. It could not lawfully be sold. The only value available from it would be the exhilaration respondents might feel in the production of a most extraordinary bonfire. It would be a needless waste of a commodity of which the builders of St. Louis are in urgent need. To avoid the puzzling questions which necessarily would arise in case of a continuance in business by persons who operated the offending companies, it is better to keep the corporations, which are now before the court, in their present identity.
The court retains jurisdiction of the cause and has the parties before it, and if at any time it should be deemed advisable we may revoke the suspension and order a complete ouster. We may, if necessary, at any time prescribe conditions, and require supervision, inspection, etc., at their expense, so that it will be impossible for them to violate the law without detection. It will be the duty of the Attorney-General to advise this court of any infraction of the law by respondents.
For these reasons I concur in the order to modify, and I favor holding the respondents in court, for a time at least, in their present character.
JUDGMENT. — Now at this day it is ordered by the court that the order heretofore made, overruling the motions of the said respondents to modify the judgment herein, be set aside and for naught held, and that the said motions of respondents, except that of the St. Louis Lumber Trade Exchange, be sustained in part, and to the extent indicated by the following further order: That the judgment of ouster herein as to all the respondents, except the St. Louis Lumber Trade Exchange, be suspended upon condition that they shall comply with all *Page 575 other of the provisions of the original judgment herein, and upon the further condition that they, and each of them, furnish satisfactory assurance that they, and each of them, are not now violating, and will not hereafter violate, any of the provisions of the anti-trust laws of the State of Missouri. It is further ordered that the original judgment in this cause, except as herein expressly modified, stand in full force and effect, and that jurisdiction of the cause be, and the same is hereby, retained by the court.