use of the basin, and every reasonable effort should be made and required to remove the evil short of so serious a consequence. The court, I think, erred in instructing the jury that the defendants were bound to abate the nuisance, even if to do so, it was necessary to cut down the bulkhead; and it applied the maxim that the public safety is the paramount law. This is, no doubt the only principle that could countenance or excuse the act required of the corporation, as the basin and its appurtenances were constructed under the authority of a law of the Legislature, which they were competent to enact. It is the rule of necessity which supersedes all law, and to be sustained in this instance, if at all, by the overruling principle of self-preservation. There is nothing in the charter of the city of Albany making it the duty of the corporation to enforce this maxim, nor are we aware that it is ever enforced by the authority of law, through the medium of the judicial tribunals, or any other legally appointed body of men. The law of the land does not contemplate such an exigency, and, therefore, does not provide for it if it had, it would no longer be the undefined law of necessity. The duty of the corporation to deepen and cleanse the basin, does not authorize them to cut down the bulkhead; nor is there any other power given by the charter of which we know, or to which we have been referred, that would authorize them to do so. Without authority from this source, they are no more bound to perform the act by a supposed law of necessity for the protection of the public health or comfort than any individual citizen. They have no power but what is derived from their charter, or special acts of the Legislature, relating to the city of Albany. Judgment reversed. CORPORATION-NOT LIABLE FOR MISFEASANCE IN INDIANAOBSTRUCTING HIGHWAY. STATE v. PRESIDENT, ETC., OHIO AND MISSISSIPPI RAILROAD COM PANY. [23 Ind. 362.] In the Supreme Court of Indiana, November Term, 1864. 1. A Corporation in Indiana can not be prosecuted by information or otherwise for a misfeasance. 2. Corporation - Obstructing Highway. -A statute provided that "every person" obstructing any highway should be liable to prosecution. Under this statute an information was brought against a railroad corporation. Held that it would not lie. APPEAL from the Dearborn Common Pleas. Solon Russell and John Schwartz, for appellant. GREGORY, J. Solon Russell, District Attorney, filed an affidavit and information, in the court of Common Pleas of Dearborn County, against the appellee, for obstructing a public highway. A summons was issued and served by delivering a certified copy thereof to Lewis W. Drake, station agent at Lawrenceburg, and by leaving a certified copy thereof at the residence of Theodore Gazlay in Dearborn county, attorney and director of said railroad company. The railway company at the February term, 1863, of said court of common pleas, entered a special appearance by her attorneys for that purpose, and moved the court to quash the writ issued in this cause, and set aside the service thereof. The court sustained the motion, and the appellant excepted. The appellee then, by his attorneys, moved the court, that the prosocution be dismissed for the following reasons: 1. There is no law in force in Indiana authorizing a corporation to be prosecuted criminally for a misfeasance. 2. The corporation, in its corporate capacity, can not violate the penal statutes of the State; which motion the court sustained, and the State excepted. The action of the court below, in sustaining these motions, presents the questions for our consideration. Our criminal law is entirely of statutory origin; we have not adopted the common law of England on this subject. A warrant and not a summons, is the process in criminal cases in this State. The act establishing courts of common pleas provides that "all criminal proceedings may be commenced in said court by filing, with the clerk, a written charge, verified by affidavits, on which process shall issue for the body of the defendant." Distringas, as a means of compelling and appearance in a criminal case, is a writ unknown to our law. The court committed no error in setting aside the process and service thereof. The only remaining question is, can a railway corporation, as such, be guilty of a misdemeanor in obstructing a highway in this State? The misdemeanor act provides that " every person who shall in any manner obstruct any public highway, railroad, tow-path, canal, turnpike, plank or coal-road, or injure any toll or other bridge, or toll-gate, culvert, embankment, or lock, or make any breach in any canal, or inure any material used in the construction of such roads and canal, such 1 Beal v. State, 15 Ind. 878. 22 G. & H. 396, 397. 32 G. & H. 24, sec. 15. person, and all other persons aiding and abetting therein, shall be fined not exceeding $500, or imprisoned not exceeding three months." 1 It is contended that the word "person" extends to corporations, and a provision of the civil code is cited in support of this construction.2 The language is, "the word 'person' extends to bodies politic and corporate." Under this clause, the word "person" when used in the statutes embraced by it, includes the United States, as well as this State. But this rule of construction does not apply to the criminal code; that code provides that when the term 'person' or other word is used to designate the party whose property is the subject of an offense, or against whom any act is done with intent to defraud or injure, the term may be construed to include the United States, this State or any other State or Territory, or any public or private corporation, as well as an individual." 3 The construction claimed by counsel for the State would lead to absurdities. But, independent of this, there can be no agency in the commission of misdemeanors. A corporation can only act by agents: the agent and not the principal is the guilty party. The rule is well considered in the case of State v. Great Works Milling and Manufacturing Company. In that case, the corporation was indicted for a nuisance in the erection of a dam across the Penobscot River, thereby obstructing the use of the river (as a public highway) for the purposes of navigation. The jury, at nisi prius, found a verdict of not guilty and the corporation appealed to the Supreme Court. The opinion of the Supreme Court, delivered by Ch. J. Weston, is as follows:"A corporation is created by law for certain beneficial purposes. They can neither commit a crime or misdemeanor by any positive or affirmative act, or incite others to do so as a corporation. While assembled at a corporate meeting, a majority may, by a vote entered upon the records, require an agent to commit a battery; but, if he does so, it can not be regarded as a corporate act for which the corporation may be indicted. It would be stepping aside altogether from their corporate powers. If indictable, as a corporation for an offense thus incited by them, the innocent dissenting minority become equally amenable to punishment with the guilty majority. Such only as take part in the measure should be prosecuted as individuals, either as principals, or as aiding and abetting or procuring an offense to be committed according to its character or magnitude. It is a doctrine, then, in conformity with the demands of justice, and a proper distinction between the innocent and guilty that when a crime or misdemeanor is committed 1 2 G. & H. 475, sec. 66. 2 2 G. & H. 335, sec. 797. 8 2 G. & H. 428, sec. 170. 4 20 Me. 41. under color of corporate authority, the individual acting in the business, and not the corporation, should be indicted.1 We think it can not be doubted that the erection of a public nuisance is a misdemeanor. There are cases where quasi corporations are indictable for neglect of duties imposed by law. Towns, for instance, charged with maintenance of the public highways are by statute indictable for any failure of duty in this respect. The corporation here attempted to be charged have violated no duty imposed upon them by statute. Whatever has been done was by the hand or procurement of individuals. They may be indicted and punished, and the nuisance abated. We have been referred to no precedent where an indictment has been sustained against a corporation upon such a charge, and in our opinion the individuals concerned, and not the corporation, must be held criminally answerable for what was done." Whatever may be the rule in England, and in those States in which the common law as to crimes is recognized, in this State, under the criminal law, a corporation can not be prosecuted by information, or otherwise for a misfeasance. Judgment is affirmed. CORPORATION-RAILROAD IN HANDS OF RECEIVER-NOT LIABLE TO INDICTMENT FOR NUISANCE. STATE V. VERMONT CENTRAL RAILROAD COMPANY. [30 Vt. 108.] In the Supreme Court of Vermont, January Term, 1858. Railroads-Nuisance - Receiver - Indictment. While a railroad is in the hands and management of a receiver appointed by the court, no indictment will lie against it for a nuisance in the obstruction of a highway by the stoppage thereon of the trains run upon the railroad. INDICTMENT for a nuisance in the obstruction of a public highway. A statement of facts was agreed in this cause to the effect that the freight trains running over the Vermont Central Railroad were, on several occasions, allowed by the conductors in charge of them, to remain in the highway described in the indictment in such a manner as to constitute a public nuisance; but that said railroad during all of this time was in the hands and under the control of receivers appointed by the court of 1 Angell & Ames on Corporations, 396, sec. 9. chancery, and that the Vermont Central Railroad Company had no authority or control over said road, conductors, or trains. The County Court at the March term, 1857, -PECK, J., presiding,pro forma adjudged the respondent guilty of the alleged nuisance. Exceptions by the respondent. Levi Underwood, for the respondent. E. R. Hard, State's Attorney, for the prosecution. The opinion of the court was delivered by BENNETT, J. This is an indictment for a nuisance in blocking up a highway with freight cars, engines, etc.; and the offense is, we think, well enough charged in the indictment. Railroad companies are undoubtedly liable to an indictmeut for obstructing a highway, contrary to the powers granted to them in their charters. Though it has sometimes been said that an aggregate corporation can not be indicted for a misfeasance, but only for a non-feasance; yet we apprehend the law is otherwise, especially if the offense charged does not essentially consist in a corrupt intent, which does not seem to be involved as a necessary element in the offense charged in this indictment. The question, however, in this case is, do the facts agreed by the parties sustain this indictment? It is not questioned but what the acts which have been done in blocking up the highway would sustain the indictment, if done by the railroad company, or by men in their employ, over whom they had a control; but the case finds that the railroad and all the trains thereon were in the hands of a receiver appointed by a court of equity, and that the railroad company had no right or power to interfere with such trains or the conductors, or men managing them, but the same were wholly under the control of the receivers. A railroad company is only indictable for a nuisance by reason of an improper management and conduct in running their road, in a way which neither their charter nor the general railroad law will sanction. But if the railroad and all its concerns are in the hands of a receiver, and the company are under an injunction not to intermeddle with its concerns, it would seem difficult to maintain the proposition that still the company should be liable to an indictment for the acts of the receiver, or of his agents. To hold the company liable in such a case, would be indeed, monstrous, as they had no power to control or prevent the acts complained of as a nuisance. No man or corporation should be made criminally responsible for acts which they have no power to prevent. It has been assumed by the attorney for the government, that unless this prosecution is sustained the government are without the means of redress. But will that conclusion follow? Why may not the receiver |