229 U.S. Argument for the United States. UNITED STATES v. ADAMS EXPRESS COMPANY. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO. No. 652. Argued April 7, 1913.-Decided June 9, 1913. The decision of the court below, granting a motion to quash the service on the ground that the statute on which the indictment is based does not include the defendant, is equivalent to a decision sustaining a demurrer to the indictment and is based upon the construction of the statute, and this court has jurisdiction under the Criminal Appeals Act of March 2, 1907. Under § 10 of the Act to Regulate Commerce, as amended by the act of June 29, 1906, c. 3591, 34 Stat. 584, express companies are inIcluded in the term common carrier and made amenable to the act. Congress at that time had knowledge of the fact that some of the great express companies were organized as joint stock associations and the amendment was intended to bring such associations under the act. A joint stock association is amenable to the provisions of the Act to Regulate Commerce and is subject to indictment for violations. thereof. Congress has power to charge the assets of joint stock associations with liability and to personify them so far as to collect fines by proceeding against them in the respective names of the associations. THE facts, which involve the question of whether a joint stock association is amenable to the anti-discrimination provisions of the Act to Regulate Commerce, are stated in the opinion. Mr. Assistant Attorney General Denison, with whom Mr. Loring C. Christie was on the brief, for the United States: The words of the Interstate Commerce Act explicitly make "express companies" guilty of misdemeanor if they violate its provisions, and these words were intended to mean what they say and to cover all express companies, Argument for the United States. 229 U.S. There is no reason for limiting their scope to corporate, as distinguished from joint stock, "companies." The duties imposed by the statute are imposed upon the express companies as companies and not on their members as individuals. American Express Co. v. United States, 212 U. S. 522; Queen v. Commercial Co. (1891), 2 Q. B. 588, 592 et seq. All the real reasons which could have influenced Congress to apply the penal provisions of the act to corporate companies as entities equally exist in reference to joint stock companies as entities. Prior to the passage of the Hepburn Act of June 29, 1906, which made the Interstate Commerce Act applicable to "express companies" the Elkins Law had provided that corporations should be subject to indictment as entities and the Hepburn Act, by using the words "express companies" rather than "express corporations" clearly indicated the intention of Congress to extend that principle to joint stock corporations engaged in the express business. In §§ 3, 6, 9 and 10 of the Act to Regulate Commerce, the distinction is drawn between "corporations" and "companies" and it is therefore apparent that Congress was aware of the difference and did not intend by the words 'express companies" to mean merely "express corporations." 66 The joint stock association express companies including the defendant have been repeatedly before this court even under indictment and the point has never heretofore been made that they were not subject to indictment. Adams Express Co. v. Iowa, 196 U. S. 147; Express Companies v. Kentucky, 206 U. S. 129, 138; Adams Express Co. v. Kentucky, 214 U. S. 218; American Express Co. v. Iowa, 196 U. S. 133; United States v. Adams Express Co., 119 Fed. Rep. 240. Several of the States treat these joint stock express 229 U. S. Argument for the United States. companies as entities precisely like foreign corporations. Adams Express Co. v. State, 161 Indiana, 328, 705, 706; State v. Adams Express Co., 66 Minnesota, 271; Adams Express Co. v. Schofield, 111 Kentucky, 832; Adams Express Co. v. State, 55 Oh. St. 69; Commonwealth v. Adams Express Co., 123 Kentucky, 720; American Express Co. v. People, 133 Illinois, 649; United States Ex. Co. v. State, 164 Indiana, 196; State Commission v. Adams Ex. Co., 19 L. R. A. 93; Southern Express Co. v. Commonwealth, 92 Virginia, 59 (affirmed, 168 U. S. 705). See also American Express Co. v. United States, 212 U. S. 522; Adams Express Co. v. Ohio, 165 U. S. 194, 166 U. S. 185. In general, joint stock associations have liabilities which partnerships have not, as, for instance, the liability for contempt of court (J. & P. Coats, Ltd., v. Chadwick (1894), 1 Chancery, 347); and for torts, including fraud and libel, 1 Lindley on the Law of Companies, 6th ed., pp. 267-268; Van Aerman v. Bleistein, 152 N. Y. 355; Whitney v. Backus, 149 Pa. St. 29. As to penal actions, see Pharmaceutical Society v. London & Provincial Supply Association, Ltd., 5 Appeal Cases, 857; Queen v. Tyler & International Commercial Co., Ltd. (1891), 2 Q. B. 588; Pearks &c. v. Ward (1902), 2 K. B. 1; Lawler v. Egan, Ltd. (1901), 2 Ir. 589. It is not material whether the New York law distinctly treats joint stock companies as entities, for the Interstate Commerce Act does so and that is sufficient. Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, 574. But even in New York these companies are entities. National Bank v. Van Derwerker, 74 N. Y. 234; Westcott v. Fargo, 61 N. Y. 542; In re Jones, 172 N. Y. 575; Hibbs v. Brown, 190 N. Y. 167; People v. Coleman, 133 N. Y. 279; People ex rel. Platt v. Wemple, 117 N. Y. 236; Van Aerman v. Bleistein, 102 N. Y. 355; Waterbury v. Merchants' Union Ex. Co., 55 Barb. (N. Y.) 158; New York Constitution, art, VIII, sec. 3, Argument for Defendant in Error. 229 U.S. The Federal cases which held that they are not “citizens," as entities, under the diversity clause are distinguishable because they rest upon the individual liability of the members and not upon any lack of the quality of entities. Chapman v. Barney, 129 U. S. 677; Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449; Thomas v. Board of Trustees, 195 U. S. 207; Liverpool Ins. Co. v. Massachusetts, supra, p. 575. The act as so construed is constitutional. N. Y. C. & H. R. R. Co. v. United States, 212 U. S. 481. Mr. Joseph S. Graydon, with whom Mr. Lawrence Maxwell was on the brief, for defendant in error: The court has no jurisdiction to review the decision and judgment of the court below. The act of March 2, 1907, confers no jurisdiction on this court to review a criminal case generally on writ of error by the Government, but only in so far as it involves the invalidity or construction of the statute upon which the indictment is based. United States v. Patten, 226 U. S. 525; United States v. Stevenson, 215 U. S. 190, 195. Statutes of the several States allowing appeals by the State in criminal cases are construed strictly so as to confine such appeals to the precise matters covered by the statute. State v. Adams, 193 Missouri, 196; People v. Higgins, 114 California, 63; People v. Richter, 113 California, 473; State v. Evansville Ry. Co., 107 Indiana, 581; People v. Snyder, 44 Hun, 193; State v. Moore, 84 N. Car. 724; State v. Simmons, 49 Oh. St. 305; Mick v. State, 72 Oh. St. 388; State v. Kemp, 5 Washington, 212; State v. Finstad, 16 S. Dak. 422; People v. Dundon, 98 N. Y. S. 1048; S. C., 113 App. Div. 369. The present case does not fall within the statute. The defendant entered no appearance and filed no pleading in the court below. The cause was dismissed, but the 229 U. S. Argument for Defendant in Error. decision or judgment dismissing it was not a decision or judgment quashing, setting aside or sustaining a demurrer to the indictment. The court treated the motion to set aside and quash the return of the summons as a demurrer to the indictment, but this was not at the request or with the consent of defendant. The court had no authority to treat the motion of Barrett to set aside service as a demurrer of the Adams Express Company, and by so doing confer jurisdiction on this court not provided for in the Criminal Appeals Act. The Adams Express Company is not a corporation but a joint stock association or co-partnership. Chapman v. Barney, 129 U. S. 677; Great Southern Hotel Co. v. Jones, 177 U. S. 449; Platt v. Colvin, 50 Oh. St. 703; Boston & Albany R. R. v. Pearson, 128 Massachusetts, 445; Gregg v. Sanford, 65 Fed. Rep. 151; Lindley on Companies, 5th ed. (1891). Members of a joint stock association may be sued or indicted, but not in the company name, unless a statute so provides. Taylor v. Weir, 171 Fed. Rep. 636; 23 Cyc. 469, 477; Van Aerman v. Bleistein, 102 N. Y. 355; Moore v. Brink, 4 Hun, 402; St. Paul Typothetae v. St. Paul Bookbinders, 94 Minnesota, 352; Romona Oolitic Stone Co. v. Bolger, 179 Fed. Rep. 979; Pearson v. Anderberg, 28 Utah, 495; Standard Oil Co. v. Commonwealth, 122 Kentucky, 440; Peterson & Fitch v. State, 32 Texas, 477. In the absence of an enabling statutory provision, a joint stock association cannot sue or be sued or prosecuted by indictment or otherwise in its associate name. There is no statute of the United States which authorizes the institution of an action by or against a joint stock company in its associate name, or authorizes the prosecution of such a company by indictment in its associate name. The rules of pleading and practice in criminal cases in the United States courts, except as modified by statute, VOL. CCXXIX-25 |