Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volume 36 online

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guilty of treason or felony,' and it might be added 'of perjury
or offenses against the person.' The Court of Gommon Pleas



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JULY TERM, 1879. gU9

State T. Baltimore and Ohio Railroad Companj.

lately held that a corporation might be sued in trespass. Maud
Y. Monmouthshire Canal Co., 4 Man. & G. 452; but nobody has
sought to fix them with acts of immorality. These plainly de-
rive their character from the corrupted mind of the person commit-
ing them and are violations of the social duties belonging to men and
subjects. A corporation, which as such has no such duties, can-
not be guilty in these cases; but it may be guilty of commanding
acts to be done to the nuisance of the community at large. The
late case of Regina v. Birmingham £ Gloucester By. Co., 3 Q. B.
223, was confined to the state of things then before the court, which
amounted to a non-feasance only ; but was by no means intended
to deny the liability of a corporation for misfeasance.

^* We are told that this remedy is not required because the indi-
viduals who concur in voting the order, or in executing the work,
may be made answerable for it by criminal proceedings. Of this
there is no doubt; but the public knows nothing of the former; and
the latter, if they can be identified, are commonly persons of the
lowest rank, wholly incompetent to make any reparation for the
injury. There can be no effectual means of deterring from an op-
pressive exercise of power for the purpose of gain, except the remedy
by an indictment against those who truly commit it, that is, the
corporation acting by its majority; and there is no principle which
places them beyond the reach of the law for such proceed ings.^'

I have quoted this opinion at length, because it lays down clearly
principles which have been generally adopted in this country.
Thus in State v. Morris S Essex R. R. Co., 3 Zabr. 360, an indict-
ment was sustained against a railroad company for erecting a depot
on a public highway. Chief Justice Gbeen, delivering the opinion
of the court, says: '' But it is said, that although a corporation may
omit to perform acts made obligatory upon it by law, and thus be
liable for non-feasance, yet from its very nature it cannot use force,
and therefore cannot commit any act involving force, and which
must be charged to have been committed vi et armis. This argu-
ment rests entirely upon the disability of a corporation to commit
any act of trespass or positive wrong, and applies to its capacity to
commit civil as well as criminal injuries. It is the very argument
by which it is sought to be established that no action for a trespass
or tort would lie against a corporation. But it has been well said,
that if a corporation has itself no hands with which to strike, it
nuiy employ the hands of others; and it is now perfectly well settled*
Vol. XXXVI— 102



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810 WEST VIUOINIA,



State V. Baltimore and Ohio Railroad Companj.



contrary to the ancient authorities, that a corporation is liable
civiHfer, for all torts committed by its servants by authority of the
corporation, express or implied. Thus it is liable in trover or in
case for indirect injuries resulting from tortious acts, in trespass
qtMre clausum fregit, or trespass vi et arm is to personal property,
and in ejectment. So a corporation may be guilty of a disseisin or
even of an assault and false imprisonment."

These positions are sustained by numerous authorities cited, and
the chief justice says of them: "These cases have all arisen within
the present century and are certainly in conflict with the ancient
doctrine." He then proceeds thus:

" It is further objected that a corporation aggregate cannot be
liable to indictment for any crime because the commission of the
criminal act is not warranted by their corporate powers. This ar-
gument pushed to its legitimate conclusion, would exempt a cor-
poration from all liability for wrongs civil as well as criminal. It
is true there are crimes (perjury, for example) of which a corpora-
tion cannot in the nature of things be guilty. There are other
crimes, as treason and murder, for which the punishment imposed
by law cannot be inflicted upon a corporation. Nor can they be
liable for any crime of which a corrupt intent or fnalus animus is
an essential ingredient. But the erection of a mere nuisance
involves no such element. It is totally immaterial whether the
person erecting the nuisance does it ignorantly or by design, with
a good intent or evil intent, and there is no reason why for such
an offense a corporation should not be indicted."

For a like offense an indictment against a railroad company was
sustained in Stale v. Vermo7tt Central Railroad Co., 27 Vt 107.
In the Cmnmonwealth v. Proprietors of New Bedford Bridge Co,, 2
Gray, 339, an indictment was sustained against a corporation for a
nuisance in the erection of a bridge across a navigable stream.
BiGELOW, J., in this case says, p. 345* ** Corporations cannot be
indicted for offenses which derive their criminality from evil inten-
tion, or which consist in a violation of those social duties which
appertain to men and subjects. They cannot be guilty of treason
or felony, or perjury or offenses against the person; but beyond thia
there is no good reason for their exemption."

These and other decisions which might be cited establish on sat-
isfactory reason the liability of corporations to indictment for mi»*
feasance done by them by their servants and agents in eertaia



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JULY TERM, 1879. gll



State V. Baltimore and Ohio Hailroad Compaaj.



classes of cases. The real difficulty is in defining the cases in
which corporations are liable to indictment for misfeasance. I
have quoted the language of several judges who have attempted to
define the cases in which a corporation may be indicted, but their
definitions do not seem to me to be entirely satisfactory. They
seem to me to limit too much the liability of a corporation to
indictment for misdemeanors. Thus Chief Justice Greek says:
" Nor can they bo liable for any offense of which a corrupt intent
or malus animus is an essential ingredient;" and Bigelow, J.,
says: " Corporations cannot be indicted for offenses which derive
their criminality from evil intention."

In view of the fact that since these decisions have been rendered
the courts have shown a tendency to extend the liability of corpora-
tions in civil actions for the misfeasance of their agents, and as it
seems now well settled that they may be held liable in suits for
libel, and perhaps malicious prosecution, and for assaults and bat-
teries committed by their agents in the performance of their duties,
and in view of the further fact that they may in such suits, it is
said, be subjected to exemplary or punitive damages, I hesitate to
accede to the sh^tement that they cannot be held liable to an indict-
ment for any offenses which derive their criminality from evil
intention. The very basis of an action of libel, or for a malicious
prosecution, .is the evil intent, the malice of the party against
whom such a suit is brought ; and I cannot now well see how it is
possible to hold that a corporation may be sued for a libel and
punitive damages recovered, and at the same time hold that such
corporation could not be indicted for such libel. The suits of libel
and malicious prosecution are in their nature very like to criminal
proceedings, and if they lie against a corporation it would seem to
follow that there are cases for which indictments may lie against a
corporation where the evil intention constitutes an element in the
offense. And if a corporation is as has been said liable civilly for
an assault and battery committed through its servants, it is per-
haps going too far to say that a corporation can in no case be liable
criminally for any offenses against the person under any circum-
stances.

But it is unnecessary for us in this case to define accurately in
what cases a corporation can be indicted. The boundaries laid
down by all the judges whose language I have quoted, though j)er*
haps not sufficiently extended, are all of them sufficiently extensive



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812 WEST VIRGINIA,



State ▼. Baltimore and Ohio Railroad Company.



to inclade the liability of a corporatioa to be indicted for the stat-
utory misdemeanor of '^ Sabbath breaking/' as defined by oar
statute law. If this be so, it is all that it is necessary or proper for
us to determine in this case.

This misdemeanor, '* Sabbath breaking/' is created by the 16th
and 17th sections of ch. 149 of our Code, pages 694 and 695, which
are:

''Sec. 16. If a person on a Sabbath day be found laboring at
any trade or calling, or employ his minor children, apprentices or
servants in labor, or other business, except in household or other
work of necessity or charity, he shall be fined not less than $5.00
for each offense. And every day any such minor child or servant
or apprentice is so employed shall constitute a distinct offense.
Any person found hunting or shooting on the Sabbath day, or
openly carrying fire arms on that day, to the annoyance of the pub-
lic, shall be guilty of a misdemeanor, and fined not less than i5.00
or more than 120.00. But this provision as to carrying fire arms
and shooting shall not apply to an officer or person lawfully carry-
ing such arms, or shooting on the Sabbath day, under any law of
the State or of the United States. «

'*Sec. 17. No forfeiture shall be incurred under the preceding
section for the transportation on Sunday of the mail, or of passen-
gers or their baggage. And the said forfeiture shall not be incurred
by any person who conscientiously believes that the seventh day of
the week ought to be observed as a Sabbath, and actually refrains
from all secular business on that day, provided he does not compel
an apprentice or servant not of his belief to do secular work or
business on Sunday, or does not on that day disturb any other per-
son. And no contract shall be deemed void because it is made on
the Sabbath day."

It is argued that this statute requires this observance of the
Sabbath day as a religious duty imposed upon us by Gk)d, and that
as corporations can owe no religious duty, the statute cannot be
construed to extend to them. In this argument it is assumed as
universally admitted, that God has imposed on all mankind the
duty of keeping the first day of the week as holy. This assump*
tion is far from being conceded. It is of course not admitted by
those of our citizens who are disbelievers in the christian religion;
nor is it true that it is admitted by all believers in Christianity.

Judge Bead, in his opinion in Sparhawk v. Union Papsen-



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JULY TEKM, 1879. 813

State ▼. Baltimore and Ohio Railroad Companj.

g0r Railway Co.y 54 Penn. St, 434-439, dieousses this question at
lengthy and endeavors to show that Christianity does not enjoin the
keeping of the Sabbath as a holy day. To establish this position
he cites many texts from the Bible, and among them GoL, ch. 2, v.
14, 15; Gal., 4, v. 9, 10, and Bomans, ch. 14, t. 5. He qaotes,
too, largely from the writings of many recognized christian divines
and theologians as sustaining his view, among them Calvin, Luther,
Rev. Dr. Bice, Barclay's Apology, Jeremy Taylpr, Bishop White,
and Rev. Dr. James W. Alexander, and he asserts that the leading
protestant reformers, Melancthon, Beza, Bncer, Zwinglins, Knox
and Granmer all believed that the observance of the Sabbath day
as holy was not a requirement of the christian religion ; and he
says that with them concurred Milton, Paley, Arnold of Rugby,
and Penn, the founder of Pennsylvania.

But I conceive this theological controversy is utterly unimport-
ant in construing our statute. It might well be admitted, that it
was the universally received opinion of all persons in this country
that the christian religion required, as a religious duty, the observ-
ance of the Sabbath day, and yet be easy to show, from the very
wording of our statute, that our legislature has not attempted to
enforce the fulfillment of this christian duty by any person. Had
the legislature really imposed on the community an obligation to
support this observance of the Sabbath as a tenet of religion, they
would in so doing have violated Article II, section 9, of the then
Constitution, and Article III, section 15, of oor present Constitution,
which forbids the legislature to compel any one to support any
religious worship, or to confer any peculiar advantage on any sect
The requiring of those who, for instance, believed that Saturday
was a holy day to observe Sunday as such, while those who believe
that Sunday was a holy day were not required to observe Saturday
as such, would have been conferring peculiar advantages on one
sect, and would have violated our Constitution.

The Supreme Court of California, interpreting their statute in
reference to the observance of the Sabbath as enforcing on the com-
munity this observance as a religious duty, pronounced the law
unconstitutional and void. Ex parte Newman, 9 Cal. 502. But
it has been elsewhere very generally held that statutes more or less
resembling oars were ^constitutional, because they did not enforoa
the observance of the Sabbath as a religions duty. See SpeM ?•



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814 WEST VIRGINIA,



)



State V. Baltimore and Ohio Railroad Company.



Commonwealth, 8 Burr. 312; Shover v. State, 5 Eng. (Ark.) 259;

Voglesong v. State, 9 Ind. 113; State v. AmbSy 20 Mo. 214.

In construing our statute it would be our duty to give to it a
meaning consistent with our Constitution, if its meaning was
doubtful, and such meaning could reasonably be attached to its
language. Its meaning is not however doubtful. It was obviously
not intended by our statute to enforce the observance of the Sabbath
as a religious duty. The legislature obviously regarded it as pro-
motive of the mental, moral, and physical well-being of men, that
they should rest from their labors at stated intervals; and in this all
experienoe shows they were right If then rest is to be enjoined as
a matter of public policy at stated intervals, it is obvious that pub-
lic convenience would be much promoted by the community gen-
erally resting on the same day; for otherwise each individual would be
much annoyed and hindered in finding that those, with whom he had
business to transact, were resting on the day on which he was work-
ing. The legislature holding these views in selecting the particu-
lar day of rest doubtless selected Sunday, because it was deemed a
proper day of rest by a majority of our people who thought it a
religious duty to rest on that day ; and in selecting this day for
these reasons the legislature acted wisely. The law requires that
the day be observed as a day of rest, not because it is a religious
duty, but because such observance promotes the physical, mental
and moral well-being of the community; and Sunday is selected as
this day of rest, because if any other day had been named, it would
have imposed unnecessarily onerous obligations on the community,
inasmuch as many of them would have rested on Sunday as a relig-
ious duty, and the requirement of another to be observed as a day
of rest would have resulted in two days being observed instead of
one, and thus time would have been uselessly wasted. This I con-
ceive is the main object of our law; but it is not its only object.
While I am thus resting on the Sabbath in obedience to law, it is
right and reasonable that my rest should not be disturbed by others.
Such a disturbance by others of my rest is in its nature a nuisance,
which the law ought to punish, and Sabbath-breaking has been fre*
quently classed with nuisances and punished as such. See Com*
monwealth v. Jeandett, 2 Grant (Pa.), 506. That these are the ob«
jects of our statute is to my mind clearly shown by the wording
of the law and by its provisions.
The 17th section of the act, see Code, p. 695, provides that Qm



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JULY TERM, 1879. 815

State T. Baltimore and Ohio Railroad Company.

forfeiture imposed by the 16th section *^ shall not be incurred by
any person who conscientiously believes that the seventh day of the
week ought to be observed as a Sabbath, and actually refrains from
all secular labor on that day, provided he does not compel an ap-
pi-entice or servant not of his belief to do secular work or business on
Sunday, or does not on that day disturb any other person." This
in effect says: The resting on Sunday is not required of any one on
the ground tliat it is a religious duty, but because the well-being of
men requires that they should rest one-seventh part of their time, and
public convenience requires this rest should be taken on a day when
a majority of the community would even without law on the sub-
ject rest, as they regard it a religious duty to do so, and it would
be prejudicial to the public and tend to idleness, if two-sevenths
of time was devoted to rest If then any portion of the community
should regard it as their religious duty to rest on some other day
than Sunday, and do so rest, they are not required to rest on Sunday^
as one-seventh of time is all that the public good requires to be de-
voted to rest. But if yon do not rest on Sunday, you must take
care not to disturb those who do, and not to compel others to work
who should rest on that day.

The obvious purpose of the law was not to enforce the perform-
ance of a religious or moral duty, for it expressly provides that this
supposed religious duty may be neglected by any one who will
rest the required seventh part of his time. It may be said however
that the 16th section in prohibiting hunting or shooting on Sunday
shows that the true and real spirit of the law is to enforce the keep-
ing of the Sabbath holy as a religious duty. But it must be obvi-
ous that this section does not prohibit hunting ok* shooting on
Sunday, it only prohibits it from being done in a way which shall
be "to the annoyance of the public." That is, your hunting and
shooting must not be so done as to make it a public nuisance; and
this is in full accord with the general purpose of the act as I have
explained it. No inference can be drawn from the act forbidding
a person to ** employ his minor children, apprentices or servants in
labor " that the purpose of the act was to enforce on parents the
social duty of training religiously their children, as has been sug-
gested in argument. The spirit of this clause is simply to forbid
masters from compelling their servants to labor more than six-
sevenths of their time, and minor children are named simply
because minor children are the servants of their parents. Nor caa



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816 WEST VIRGINIA,



State T. Baltimore and Ohio Railroad Gompanj.



any inference be drawn that the whole scope of this law has not
been correctly stated^ because it is placed in the chapter headed
*^ Offenses against morality and decency." There are other sections
in this chapter punishing offenses or acts which cannot be regarded
as mala in se, or as contrary to religion or abstract morality, as the
intermarriage of a white person with a negro.

If these be correct views of the true meaning and purpose of this
act, it is obvious that there is no reason why its observance should
not be enforced against corporations, and why they should not be
fined according to the provisions of this act for employing their
servants in labor. The punishment inflicted is not because they
in employing their servants in labor on Sunday are violating the
fourth commandment or committing any immoral act, but because
they are requiring their servants to labor more than six-sevenths of
their time, and this is regarded by the State as prejudicial to their
well-being. Tlie corporation is therefore punished not for the vio-
lation of any social or moral obligation, but simply because it is
violating a positive law forbidding it to employ its servants in
labor on Sunday, or because it is annoying others who are thus
resting in obedience to law. /

The next inquiry is as to the character of the proof necessary to
sustain an indictment against a corporation for a misfeasance of its
authorized agent. There is respectable authority, as we have seen,
which holds that in a civil suit against a corporation for a tort
willfully done by its authorized agent within the scope of his em-
ployment, it is necessary to prove the approval of the act by the cor-
poration, and that such approval is not established by simply proving
that it was done by an authorized agent acting within the general
scope of his employment See Lenox v. JfcCall, 3 S. & B. 103. But
this independent proof of authority is not, as we have seen, always
necessary to be proven, and I incline to the opinion, as I have before
stated, that it is never necessary in a civil suit. But be this as it
may, it would seem quite clear that this independent proof of the
approval by the corporation of the act is necessary in some cases
when the proceeding against the corporation is a criminal proceed-
ing. It is certainly true that in some cases of indictment against
corporations for a misfeasance no such independent proof is
necessary. But the simple proof that the criminal act was done by
agents of the corporation within the scope of their employment is
Boffioient to sustain the indictment. It so happens that all the xe>



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JULY TERM, 1879. 817

State V. Baltimore and Ohio Railroad Companj.

ported cases of such indictments^ whicti I have seen, are of this char-
acter. In none of them was any thing more reqaired than simply to
prove that the servants of the corporation had done the criminal
act while acting for the corporation within the scope of their em-
ployment. But in all these cases the criminal act for which the
indictment was bound was obviously an act which from its nature
must have been approved by the corporation ; such as the erection
of a depot in a public road, the building of a bridge across a navi-
gable stream in such manner as to interfere with navigation. In
such cases no proof of the approval of the coi*poration was neces-
saiy, except the simple proof that it was done by its agents.

But while in a civil suit for a tort, even when done willfully,
perhaps no other proof may be necessary in any case, yet to hold
such proof sufiScient to sustain an indictment against a corporation
for the misfeasance of its agents in every case, would be to disre-
gard the maxim that the accused is always presumed to be inno-
cent ; and clear proof of guilt on the part of the accused must be
produced, before a conviction can properly be had. The act of mis-
feasance may, in a particular case, be of such a character, that
though done by an authorized agent within the scope of his general
employment and for the benefit of the corporation, yet it may give
rise to but a suspicion that it has been directed or approved by the
corporation. And if the act be of such character, independent
proof must in such case be produced of the approval of the corpo-
ration, before it can be found guilty in a criminal proceeding. In
such case it would clearly not be necessary to prove that the cor-
poration by a distinct act, such as a vote of its directors, either
directed the act to be done or subsequently approved of its being
done. For if this was required, it would amount to an absolute
exemption of a corporation, from all liability criminally for the
wrongs of its agents ; for criminal acts are never so formally di-
rected or approved. Still in such a case the approval of the corpor-
ation must be satisfactorily proven. But such approval may be
shown satisfactorily otherwise than by proving such direct act of
approval. The criminal act being in such a case done by an au-
thorized agent acting within the scope of his authority, the mere
doing of the act, even though done willfully, sufficiently shows, we
incline to think, the assent and approval of the corporation to
make them liable in a civil suit ; and it gives rise to a suspicion in
a criminal proceeding against the corporation, which, if corrobo-
VoL. XXXVI— 103



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318 WEST VIRGINIA,

State y. Baltimore and Ohio Railroad C^ompanv.

rated by evidence that similar acts have been done by the agents of
the corporation repeatedly, would be sufficient proof of their
approval to justify a conviction. It is but a reasonable inference



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 90 of 123)