Boston, Concord & Montreal Railroad v. State

Railroad corporations are by statute suhjectcd to indictmcnt and ~ne in case of the loss of life by reason of the negligence or carelessness of the proprietors, or their servants. Held, there is no valid objection to such statute, aud the corporation may be legally subjected to such proceedings. Judgment may be rendered against a corporation upon an indictment, upon default of appearance, after due notice to appear. A summons is the only process to be issued to a corporation to appear and answer to an indictment.

In error. The original proceeding is an indictment against the Boston, Concord and Montreal Railroad, found at the Court of Common Pleas, in Belknap County, on the fourth Tuesday of February, 1853, founded on the 7 th section of an act entitled an act in amendment of the laws relating to railroads, passed June, 1850. (Comp. Stat. 354, sec. 66.) The indictment, in various counts, charged that the railroad corporation, on the 7th of October, 1852, at Meredith, by the negligence and misconduct of their servants, caused the death of John H. Smith, of Dover, esquire. On this indictment a summons issued March 14,1853, requiring the sheriff to summon the defendant corporation to appear and answer the indictment, which was served, as is shown by the return, on the 28th of March, 1853, by giving in hand to the clerk of the corporation an attested copy. The record of the judgment recites the style of the Court of Common Pleas, holden 4th Tuesday of February, 1853, and the indictment. It then recites that a summons to answer the indictment was duly served on the defendants on the 28th of March, 1853, and that at the Court of Common Pleas, holden, &c., on the 1st Tuesday of September, 1853, said railroad were, by order of court, three times called to come into court and answer to the State; and the said railroad did not appear, and were declared to be defaulted. And it was thereupon considered by said Court of Common Pleas, that the railroad pay a fine of eighteen hundred dollars, to the use of Joseph H. Smith, administrator of the deceased, for the equal benefit of said Joseph and of William B. Smith, alleged to be brothers, and only heirs at law of the deceased, with costs, taxed at $82.12. The errors assigned are, 1. That the indictment is insufficient, the offence not being one which by law a corporation could com-, mit. 2. That there was no legal proceeding to cause the corporation to appear, and no judgment could be lawfully rendered against them on default of appearance. The plea was in nullo est erratum. 1. The statute on which this indictment is founded, in its application to this and other existing railroad corporations, is unconstitutional and void. The defendants have by their charter the rights, and are subject only to the liabilities of other common carriers. Secs. 5 and 11 of the act of incorporation of the Boston, Concord and Montreal Railroad, and the Compiled Statutes, 347, sec. 33. The statute of 1850, on which the indictment is founded, attempts to subject the defendants to additional and onerous liabilities, and is, therefore, an infringement of their vested rights under their charter. See Backus v. Lebanon, 11 N. H. 19 ; Fletcher v. Peck, 6 Cranch 89 ; Territt v. Taylor, 9 ditto 43 ; Wilkinson v. Leland, 2 Peters 627, 657; Dartmouth College v. Woodward, 4 Wheat. 510. The legislature can no more pass laws infringing the implied privileges of a corporation, than those expressly granted. People v. Manhattan Go., 9 Wend. 351; State v. Tombeekbee Bank, 2 Stewart 30, (1 U. S. Dig. 555) ; Nesmith v. Sheldon, 7 How. 812, (9 IJ. S. Dig. 70) ; Bailey v. Philadelphia H. P., 4 Harring. (Del.) 389; Green v. Biddle, 8 Wheat. 1; 1 Aik. 264 ; New-Jersey v. Wilson, 7 Cranch 166. 2. The statute of 1850, in its application to existing railroad corporations, is opposed to the general spirit and to various provisions of the Constitution of this State. It is partial in its operation, because it applies not to common carriers generally, but only to the very limited number whose transportation is by railroads. It is not a standing general law, applicable to all parties standing in like circumstances, as it should be to constitute “ the law of the land,” according to the true construction of the 15th article of the Bill of Bights. See Proprietors of Kennebec Purchase v. Laboree, 2 Greenl. 275 ; People v. Platt, 17 John. 195. Under their limited delegation of power, the Legislature of this State can only pass “ wholesome and reasonable laws,” and not those which are partial in their operation, or which contravene the provisions of the 2d article of the Bill of Bights, which' recognizes “ the natural, essential and inherent right of acquiring, possessing and protecting property.” Opinion of Judges, 4. N. H. 572 ; Lewis v. Webb, 3 Greenl. 326 ; Ward v. Barnard, 1 Aikin 121; Schooner v. Dolbie, 17 Ohio 125 ; Walley v. Kennedy, 2 Yerger 554; State Bank v. Gooper, 2 ditto 599; Jackson v. Frost, 5 Cowen 346 ; Van Korn v. Borranee, 2 Dal. 304 ; Bradford v. Brooks, 2 Aik. 284. At common law the appearance of the defendant was essential in both civil and criminal cases. Without it no judgment could be rendered in either. In the case of natural persons, it was necessary to resort to the process of outlawry ; the consequences of which in capital offences were equivalent to conviction: And in misdemeanors it operates as a conviction for contempt, involving forfeiture of goods and imprisonment, and civil disabilities. In the case of corporations, the process to compel an appearance was by summons; and on refusal to appear by distress infinite, if necessary ; the corporation incurring forfeitures on every default, until all the effects of the corporation, including the franchise, being gone, nothing further could be done. 1 Chitt. Cr. Law 284, (original paging 348, and see page 287.) In the case of a corporation, a distringas is the only course that can be adopted. 1 Ch. Cr. L. 705 ; 1 Salk. 374 ; Haw. P. C., B. 2, ch. 27, sec. 10 ; 1 Tidd’s. Prac. 116, and cases cited ; Whart. Cr. Law 59, and notes ; Ang. & Ames on Corp. 576-7, and note 1; Regina v. Birmingham, ¿-c. Railway, 9 C. & P. 469; Regina v. Chichester, 8 L. & E. 294. At common law, then, no judgment could be rendered, either in a civil or criminal proceeding, without the appearance of the party defendant. In civil suits, this was long since changed by statute. In regard to indictments, the law was changed in the case of proceedings against towns for defects in highways. Law of Dec. 20,1797, (Edition of N. H. Laws, 1805, p. 209.) This provided that in an indictment against any town, a summons shall be served on the clerk or selectmen, and if the town do not appear and plead, the court shall order the general issue to be entered, and the merits tried, and judgment, &e., and enforced by distress. The law of June 26, 1827, (Laws, ed.- of 1829, p. 108,) provides, that in case of such service and default the court may order a default to be entered, or the general issue upon which the merits shall be tried, and judgment rendered accordingly. By the Revised Statutes, p. 125, sec. 3, if the town do not appear, the court was authorized to render a judgment. Until this statute of June, 1827, the court had no power to render judgment on default in such cases, although towns were charged with the duty of keeping in repair highways, by the Provincial Statute of 4 Geo. II., ch. 51, (Prov. Laws, 1771, p. 63.) And it will be observed, too, that it is for this species of offence, more than any and even all others — that is, the neglect to keep in repair a highway — have indictments against corporations been maintained. And until 1827 no provision existed in this State for a judgment on default in such cases. Until then the most that could be done was to try the merits upon the general issue. The act under which this indictment is framed had no existence until 1850. It changes somewhat the law in regard to corporations, inasmuch as it makes them liable for misfeasance, if at all. It is said that the practice warrants a judgment on default in this case, but no case is cited, and we believe none can be found. It may be that corporations have submitted to answer in other cases, besides those provided for by the laws cited, hut it will be found that indictments against corporations, except towns for bad roads, have been extremely rare; the remedy in most cases having been by civil suits, for the penalty, as against towns for want of guide-boards, pounds, &c. An information in the nature of a quo warranto, is a civil proceeding, not criminal. Angelí on Corp. 686, 7 ; State v. Oleo tt, 6 N. H. 74. In Massachusetts, by a law of 1851, ch. 848, provision is made for judgment on default against corporations, showing the belief of the necessity of such law in that State. The law referred to by the counsel for the State, (Compiled Statutes 462, sec. 8,) applies to civil process only, and so are the forms given in that chapter. Just so is it in chap. 194, with the provision for the service of original writs and writs of mesne process. Even if it did prescribe the mode of serving a venire, which by the common law should first issue to the corporation, it would not touch the question here, any more than it did before the law of 1827. No power is implied to render a judgment on default. The nature of the offence is immaterial, and does not affect the power of the court to render a judgment without appearance. It may have a bearing upon the question, when brought before the Legislature, but it cannot authorize the rendering a judgment, unless provision is made for it by statute. So the fact that the law would be inoperative under this view, can have no effect on the question. It is the fate of many better laws than this. The law is highly penal in its character, and neither the law itself, nor the remedy under it, should be extended by implication. The law of July 18, 1850, sec. 7, is taken from a law of Massachusetts relating to the proprietors of stage coaches, steamboats, &c., which charges individuals only. (Laws of Mass., March 23, 1840 ; Supplement to Revised Statutes, ch. 8, p. 165.) “ An act concerning passenger carriers, liability of carriers, where the life of a passenger is lost by reason of their negligence.” “ If the life of any person, being a passenger, shall be lost by reason of the negligence or carelessness of the pi’oprietor or proprietors of any railroad, steamboat, stage coach, or of common carriers of passengers, or by the unfitness or gross negligence, or carelessness of their servants or agents, in the commonwealth, such proprietor or proprietors, and passenger carriers, shall be liable to a fine not exceeding five thousand dollars, nor less than five hundred dollars, to be recovered by indictment, to the use of the executor or administrator of the deceased person, for the benefit of his widow and heirs: a moiety thereof to go to the widow, and the other to the children: but if there be no children, the whole to the widow, and if no widow, to the heirs, according to the law regulating the distribution of intestate personal estate among heirs.” March 3, 1840. It was drawn, probably, with the idea that an attempt to make a corporation liable for misfeasance would be anomalous, and so in fact it would have been. See Angelí and Ames on Corp. 392; State v. Great Works M. Co., 20 Maine 41; Wharton’s Criminal Law 57, 8 ; State v. Godfrey, 3 Fairf. 361, which was an indictment against individuals. In the case of Kane v. The People, 8 Wend. 203, which was error to reverse a judgment on indictment against an individual director of a corporation, the president and directors being charged with the duty of repairing the road, it was held that the indictment was properly against an individual director, it being declared that neglect was a misdemoanor in the president and individual directors. The section on which this indictment is framed is almost identical with the Massachusetts act, except that the Massachusetts act extends to proprietors of steamboats and stage coaches, as well as railroads. No one, we presume, will contend that the Massachusetts act makes a railroad corporation liable. No terms are used that necessarily imply it; and unless it be so, the law being, as it is, highly penal, is not to be construed to extend beyond the plain meaning of the terms used ; especially when, by extending it to the corporation, it is made to conflict with all our established notions on the subject. The negligence or carelessness of the proprietor, spoken of in that act, must mean of the individual, and not a corporation; for the corporation can no more be guilty of negligence than it can commit an assault and battery. And besides, had it been intended to charge the corporation, the term corporation would have been used.' And such it seems was the view of the Massachusetts Legislature, which, by law of May 25, 1858, made the corporation liable in express terms. The New-Hampshire law omits the proprietors of stage coaches, steamboats and common carriers of passengers, but in other respects copies the Massachusetts law. But these omissions could not change the construction in regard to corporations. Had it been the purpose to make this innovation, it is inconceivable that the Legislature should not have used the plain and obvious language to accomplish it. It is true that it has been settled in this State than an indictment against individual members of a corporation could not be maintained. But in the case of State v. Gilmore a., the indictment was framed in such a way as to make each individual liable for a penalty of from five hundred to five thousand dollars,’ instead of the whole being liable for a single penalty. It was not alleged that these persons were all the proprietors of the railroads, and so a judgment against them wrould have been no bar to a prosecution against others. Qn demurrer it was held that the indictment could not be maintained, and upon several distinct grounds. But it was not, as we think, decided that the corporation would be liable. If it be said that unless it will lie against the corporation, the law will be a dead letter, on account of the difficulty of proceeding against all the proprietors, we say, in reply, that this is no answer; that the statute being highly penal is not to be extended to corporations, unless its terms plainly require it, even if it be difficult to execute it otherwise. ' So if it be said that the effect will be the same either way, we answer, that the rule of contribution would be very different; in the one case equally, and in the other in proportion to the stock of each proprietor. 1. In nullo est erratum, confesses all facts assigned for error. It may be doubted whether the second error here assigned is error in law or in fact. Smith v. Smith, Cro. Charles 421; Thoroughgood v. Serogs, Cro. El. 582; Arundell v. Arundell, Yelverton 58. And this demurrer is filed to avoid a confession, as matter of fact, that no service was made. The sheriff’s return is part of the record, and if the service returned is good, the assignment contradicts the record, and for that reason is demurrable. Garitón v. Mortagh, 6 Modern 206 ; - Salkeld 268, S. C. 2. The process in this case was summons, which the return shews to have been duly served. The statute, (Comp. Stat. 462, chap. 193, § 3,) provides for process by summons, capias, and attachment, and in no other form. No other process is used in the practice of this State. The corporation could not be taken and brought in bodily, on a capias. Our writ of attachment can be used only where property is taken on mesne process, to secure a judgment. No other or further measures than those adopted could be taken on the part of the State to enforce an appearance to this indictment; for we have no judgment nor process of outlawry. The plaintiffs were not charged by the indictment with a felony, or even with a misdemeanor ; they were not in fact charged with any crime, in the proper sense of that term. They were charged with a particular neglect of their corporate duty, and the indictment is the method provided to recover, for the benefit of an individual or individuals, the penalty given by the statute. In such cases, and in the case of misdemeanors, it is not necessary that the defendant, if an individual, should appear in person ; he may come in and plead by attorney. And when a corporation is indicted for any cause, at common law or by statute, the appearance is by attorney. 1 Chitty Cr. Law 411, 412. The plaintiffs, therefore, could have felt no embarrassment as to the proper manner of answering to this indictment, and their objection on, this point is entirely formal and technical. If the plaintiffs have not been legally served with this indictment, they never can be, and the statute is idle and inoperative. Nor will this be by any means a solitary or unusual case, for there is no peculiar difficulty in this indictment. The State must meet the same difficulty in all the numerous cases where corporations are liable to a public prosecution, except, perhaps, in the single instance of towns prosecuted for neglect to make and repair highways. All corporations are liable to indictment at common law for any breach or neglect of a public duty. 9 Car. & Payne 469 ; Reg. v. Birmingham $ Crio. R. R., 3 A. & E. ; N. S. 223, S. C. And in this State corporations are liable by statute, and have been for a great number of years, to be indicted for various neglects and violations of corporate duty; (Com. St. 304, § 14; 322, § 7 and 11; 327, § 38 ; 338, § 35; 347, § 33 ; 350, § 45 ; 360, § 69; 371, § 4; 539, § 4;) and no special provision is made for the service of any indictment on a corporation, except in the case above mentioned. A quo warranto, or an information in the nature of one, is usually in substance, and always in form, a criminal proceeding, and must be served as such; and no legal service of such process could be made unless the service in this case is sufficient. It is believed that there has been an established practice to serve informations and indictments against corporations by summons, as was done in this case ; and the Legislature must have intended that the corporation in this case should be brought in by the process then in use against other corporations, on charges in the name of the State. 3. The neglect to appear on service of legal process must be taken to have the effect of a confession of the charge. In some cases, on neglect of a defendant to appear to a criminal charge, the court have proceeded to try the question of his guilt by a jury, (Canada v. The, Commonwealth, 9 Dana 304; Steele v. The Commonwealth, 3 Dana 84;) but such an ex parte trial is not known to our practice, and could be of no value to the defendant. 4. The statute is not unconstitutional. • It is a general law, interposing for the regulation of all railroads, and not a special act, pointed at a single corporation. It relates to a matter of general public concern, and is intended to protect the public against the neglect of this class of corporations in the performance of their public duty. It stands on the same ground with the law of Congress relating to steamboats. It does not take away any vested right or impose any new duty or obligation. It provides a penalty for the neglect of the corporation to perform their existing duty, of running and managing their road with proper care ; for the penalty is given only when the corporate duty of the railroad has been neglected; and to provide new remedies to enforce the performance of corporate duties, is clearly within the scope of legislative authority. Tunis Case, 6 Greenleaf 414 ; State v. Bosworih, 13 "Vermont 402; Bank v. The State, 4 Sm. & M. 439 ; 4 Dig. 339 ; Bryant v. Bank, 6 Shepley 240 ; Stanley v. Stanley, 13 Shepley 191; Hart v. Bailroad, 13 Metcalf 99 ; Suydam v. Moore, 8 Barb. Sup. Ct. 358 ; 12 Dig. 505, No. 12 ; Brown v. Bank, 8 Mass. 445 ; Bank v. Apthorpe, 12 Mass. 252; Marey v. Clark, 17 Mass. 330. The plaintiffs are a public corporation. The indictment alleges that they came in under the act of December 25,1844, and that act makes railroads public corporations. They are so in substance as well as in name. The intention of the act was to place railroads under legislative control. Railroads are, in their nature and business, of a public character. They have taken the place of highways. It never could have been the intention of these grants to part with the right to regulate by general laws a matter of such universal concern. Being public corporations, railroads are subject to legislative control, like other public corporations.. Angelí and Ames on Cor. 27 ; B. College v. Woodward, 1 N. H. Ill; Backus v. Lebanon, 11 N. H. 10.