into text writers, and adopted to its full extent in a few modern decisions. But if it ever had any foundation, it had its origin at a time when corporations were few in number, and limited in their powers, and in the purposes for which they were created. Experience has shown the necessity of essentially modifying it; and the tendency of the more recent cases in courts of the highest authority has been to extend the application of all legal remedies to corporations, and assimilate them, as far as possible, in their legal duties and responsibilities, to individuals." The rule contended for "would, in many cases, preclude all adequate remedy, and render reparation for an injury, committed by a corporation, impossible; because it would leave the only means of redress to be sought against irresponsible servants, instead of against those who truly committed the wrongful act by commanding it to be done. There is no principle of law which would thus furnish immunity to a corporation. If they commit a trespass on private property, or obstruct a way to the special injury and damage of an individual, no one can doubt their liability therefor. In like manner, and for the same reason, if they do similar acts to the inconvenience and annoyance of the public, they are responsible in the form and mode appropriate to the prosecution and punishment of such offenses. .. It may be added, that the distinction between a nonfeasance and a misfeasance is often one more of form than of substance. There are cases where it would be difficult to say whether the offense consisted in the doing of an unlawful act, or in the doing of a lawful act in an improper manner. In the case at bar, it would be no great refinement to say, that the defendants are indicted for not constructing their draws in a suitable manner, and thereby obstructing navigation, which would be a nonfeasance, and not for unlawfully placing obstructions in the river, which would be a misfeasance. The difficulty in distinguishing the character of these offenses strongly illustrates the absurdity of the doctrine that a corporation are indictable for a nonfeasance, but not for a misfeasance."

And the soundness of the rule was demonstrated by the court in State v. Morris, etc. R. Co. 23 N. J. L. 360, as follows: "It being conceded that an indictment will lie against a corporation aggregate for a nonfeasance, or for any cause whatever, all preliminary and formal objections arising out of the invisibility and intangibility of the body aggregate, the impossibility of arresting it, its inability to appear, its incapacity for punishment, and the injustice of punishing innocent stockholders for the acts of others, are at once disposed of. These objections apply, it is obvious, with equal force to indictments for

acts of nonfeasance. If they are invalid as to the one, they are equally so as to the other. But it is said, that although a cor poration may omit to perform acts made obligatory upon it by law, and thus be liable for nonfeasance, 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 argument rests entirely upon the disability of the 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 was sought to be established that no action for a trespass or tort would lie against a corporation. it has been well said, that if a corporation has itself no hands with which to strike, it may employ the hands of others." In Grant Bros. Constr. Co. v. U. S. 13 Ariz. 388, 114 Pac. 955, the court said: "A corporation, as well as an individual, is capable of forming a guilty intent and capable of having the knowledge necessary, provided the officers of the corporation capable of voicing the will of the corporation have such knowledge or intent."

But

The statement of the rule by Bishop, quoted in the reported case, that "within the sphere of its corporate capacity and to an undefined extent beyond, whenever it assumes to act as a corporation it [a corporation] has the same capabilities of criminal intent and of act-in other words, of crime-as an individual man sustaining the like relations," has also been regarded as authoritative in the following cases: Joplin Mercantile Co. v. U. S. 213 Fed. 926, 131 C. C. A. 160; U. S. v. Alaska Packers' Assoc. 1 Alaska 217; People v. Star Co. 135 App. Div. 517, 120 N. Y. S. 498.

III. Crime Requiring Specific Intent.

The weight of authority supports the holding of the reported case that a corporation can be convicted of a crime requiring a specific intent. U. S. v. MacAndrews, etc. Co. 149 Fed. 823; Joplin Mercantile Co. v. U. S. reported in full, post, this volume, at page 470; Telegram Newspaper Co. v. Com. 172 Mass. 294, 52 N. E. 445, 70 Am. St. Rep. 280, 44 L.R.A. 159; People v. Star Co. 135 App. Div. 517, 120 N. Y. S. 498; People v. Dunbar Contracting Co. 165 App. Div. 59, 151 N. Y. S. 164, affirmed 215 N. Y. 416, 109 N. E. 554; State v. Rowland Lumber Co. 153 N. C. 610, 69 S. E. 58; State v. Eastern Coal Co. 29 R. I. 254, 17 Ann. Cas. 96, 70 Atl. 1, 132 Am. St. Rep. 817. See also Kaufman v. U. S. 212 Fed. 613, 129 C. C. A. 149; Chicago, etc. Coal Co. v. People, 214 Ill. 421, 73 N. E. 770; State v. Passaic County Agricultural

Soc. 54 N. J. L. 260, 23 Atl. 680; State v. Atchison, 3 Lea (Tenn.) 729, 31 Am. Rep. 663; Standard Oil Co. v. State, 117 Tenn. 618, 100 S. W. 705, 10 L.R.A. (N.S.) 1015; State v. Baltimore, etc. R. Co. 15 W. Va. 362, 36 Am. Rep. 803; D'Ivry v. World Newspaper Co. 17 Ont. Pr. 387. Thus in Telegram Newspaper Co. v. Com. supra, the court, in affirming a conviction of criminal contempt, said: "We think that a corporation may be liable criminally for certain offenses of which a specific intent may be a necessary element. There is no more diffculty in imputing to a corporation a specific intent in criminal proceedings than in civil. A corporation cannot be arrested and imprisoned in either civil or criminal proceedings, but its property may be taken either as compensation for a private wrong or as punishment for a public wrong. In most of the states of this country corporations may be formed under general laws for the purpose of doing almost any kind of business as easily as partnerships, and many of the newspapers are published by corporations. Although natural persons who publish or assist in publishing a libel in a newspaper owned by a corporation may be punished criminally by fine or imprisonment, or both, yet if the corporation cannot be punished by a fine it will escape all criminal liability. The authors of libels are often irresponsible persons, and the remedy by private action against corporations for the publishing of libellous statements is often inadequate."

In a case in which the facts were somewhat similar to those appearing in the reported case, a corporation was convicted of grand larceny. People v. Hudson Valley Constr. Co. 165 App. Div. 626, 151 N. Y. S. 314.

But in Androscoggin Water Power Co. v. Bethel Steam Mill Co. 64 Me. 441, the court in construing a statute said: "It is obvious that the defendant corporation could not be indicted under this last section. The intent, with which the act prohibited is done, is individual, not corporate intent. Larceny cannot, by any existing law, be predicated of any corporate action of a corporation, nor is there any provision for its punishment for the crime, if it were one which it is capable of committing." And in Cumberland, etc. Canal Corp. v. Portland, 56 Me. 77, the court said: "The question presented, is whether a suit for the penalty given by this section can be maintained against a corporation, by whose servants the acts prohibited have been done. The language of the section manifestly refers only to individuals-persons-offenders, those who could 'wilfully, maliciously, or contrary to law,' do the several acts forbidden. But malice and wilfulness cannot be predicated of a corporation, though they may well be of its members."

In a number of cases there are dicta to the effect that a corporation cannot be con

victed of a crime requiring specific intent. Pearks v. Ward (1902) 2 K. B. (Eng) 1, 20 Cox C. C. 279; Com. v. New Bedford Bridge, 2 Gray (Mass.) 339; State v. Delmar Jolkey Club, 200 Mo. 34, 92 S. W. 185, 98 S. W. 539; State v. Morris, etc. R. Co. 23 N. J. L. 360; People v. Dunlep, 32 Misc. 390, 66 N. Y. S. 161.

See especially in connection with this subject the cases relating to the liability of a corporation to indictment for homicide which are collated in the notes to People v. Rochester R. etc. R. Co. 16 Ann. Cas. 887, and Com. v. Illinois Cent. R. Co. Ann. Cas. 1915B 617.

IV. Corporation as "Person" within
Penal Statute.

The term "person" used in a statute imposing criminal liability is regarded as including corporations where that construction is warranted by the spirit and purpose of the statute. See the notes to Willmotts v. London Road Car Co. 20 Ann. Cas. 733 and State v. Rutland, etc. R. Co. Ann. Cas. 1914A 1305.

V. Particular Crime.

1. CONSPIRACY..

A corporation can be indicted for conspiracy. Joplin Mercantile Co. v. U. S. reported in full, post, this volume at page 470; U. S. v. MacAndrews, etc. Co. 149 Fed. 823; People v. Dunbar Contracting Co. 165 App. Div. 59, 151 N. Y. S. 164, affirmed 215 N. Y. 416, 109 N. E. 554; State v. Eastern Coal Co. 29 R. I. 254, 17 Ann. Cas. 96, 70 Atl. 1, 132 Am. St. Rep. 817. See also Chicago, etc. Coal Co. v. People, 214 III. 421, 73 N. E. 770; Standard Oil Co. v. State, 117 Tenn. 618, 100 S. W. 705, 10 L.R.A. (N.S.) 1015. In People v. Dunbar Contracting Co. supra, the court said: "The defendants demurred to the indictment upon various grounds, the defendant company basing its demurrer in part upon the contention that the crime of conspiracy requires a specific criminal intent and that a corporation is incapable of committing any crime requiring criminal intention, because of which the indictment against it would not lie. The demurrers were severally overruled at Special Term, and it is now contended that this was error. This contention is without merit. Upon both principle and authority, a corporation may be indicted and convicted for conspiracy and similar crimes of which specific intent is the necessary and controlling element."

Where, however, it appeared that the indictment charged the defendant in one count with a conspiracy to commit two distinct offenses, the indictment was held to be bad for duplicity. John Gund Brewing Co. v. U. S. 204 Fed. 17, 122 C. C. A. 331.

It has been held that a corporation can be guilty of criminal contempt of court. Telegram Newspaper Co. v. Com. 172 Mass. 294, 52 N. E. 445, 70 Am. St. Rep. 280, 44 L.R.A. 159, wherein a newspaper company was adjudged guilty of criminal contempt for publishing in a paper circulated in the place where a trial was pending an article concerning the cause on trial and calculated to influence the jury,

3. LARCENY.

In People v. Hudson Valley Constr. Co. 165 App. Div. 626, 151 N. Y. S. 314, the defendant corporation was convicted of grand larceny in the second degree, no question being raised as to its power to commit the crime. Compare the dictum in Androscoggin Water Power Co. v. Bethel Steam Mill Co. 64 Me. 441.

4. LIBEL.

A corporation can be indicted for criminal libel. People v. Star Co. 135 App. Div. 517, 120 N. Y. S. 498; State v. Atchison, 3 Lea (Tenn.) 729, 31 Am. Rep. 663; D'Ivry v. World Newspaper Co. of Toronto, 17 Ont. Pr. R. 387. In People v. Star Co. supra, the court after reviewing the authorities said: "We find no difficulty, therefore, in holding that a corporation may be indicted for and convicted of the crime of criminal libel, the evil intent of its agents who write and print the libel being attributable to it."

5. NUISANCE GENERALLY.

A corporation is liable to indictment for committing a nuisance. State v. Louisville, etc. R. Co. 86 Ind. 114 (by statute); Paragon Paper Co. v. State, 19 Ind. App. 314, 49 N. E. 600 (by statute); Acme Fertilizer Co. v. State, 34 Ind. App. 346, 72 N. E. 1037, 107 Am. St. Rep. 190 (by statute); State v. Portland, 74 Me. 268, 43 Am. Rep. 586, overruling State v. Great Works Mill, etc. Co. 20 Me. 41, 37 Am. Dec. 38; People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L.R.A. 722; State v. Paggett, 8 Wash. 579, 36 Pac. 487. See also Morris, etc. R. Co. v. Prudden, 20 N. J. Eq. 530. Accordingly it has been held that a corporation can be indicted for keeping a disorderly house. State v. Passaic County Agricultural Soc. 54 N. J. L. 260, 23 Atl. 680. municipal corporation has been held to be liable to indictment for the negligent construction of a public sewer which caused a nuisance. State v. Portland, 74 Me. 268, 43 Am. Rep. 586. Where it appeared that a paper company in the conduct of its business

And a

sance.

caused the pollution of a river, to the injury of persons living near the river, it was held that the company could be prosecuted under a statute providing for the indictment of a corporation for maintaining a public nuiParagon Paper Co. v. State, 19 Ind. App. 314, 49 N. E. 600. But under a statute providing that corporations can be prosecuted for maintaining a public nuisance, it has been held that a corporation could not be indicted for keeping a tenement for gaming, where it did not appear that gaming was carried on to such an extent as to become a nuisance. State v. Sullivan County Agricultural Soc. 14 Ind. App. 369, 42 N. E.

963.

6. OBSTRUCTION OF PUBLIC ROAD or
WATERWAY.

A particular form of nuisance for which corporations have in a number of cases been prosecuted is the unlawful obstruction of a public road or waterway. Reg. v. Great North of England R. Co. 9 Q. B. (Eng.) 315, 58 E. C. L. 315, 2 Cox C. C. 70, 10 Jur. 755, 16 L. J. M. C. 16; Reg. v. Longton Gas Co. 2 El. & Bl. 651, 105 E. C. L. 651; Reg. v. United Kingdom Electric Tel. Co. 2 B. & S. 647, 110 E. C. L. 647 note; St. Louis, etc. R. Co. v. State, 52 Ark. 51, 11 S. W. 1035; Palatka, etc. R. Co. v. State, 23 Fla. 546, 3 So. 158, 11 Am. St. Rep. 395; State v. Baltimore, etc. R. Co. 120 Ind. 298, 22 N. E. 307 (by statute); State v. Chicago, etc. R. Co. 77 Ia. 442, 42 N. W. 365, 4 L.R.A. 298; Cincinnati R. Co. v. Com. 80 Ky. 137; State v. Freeport, 43 Me. 198; Com. v. Nashua, etc. R. Corp. 2 Gray (Mass.) 54; Com. v. New Bedford Bridge, 2 Gray (Mass.) 339; Com. v. Vermont, etc. R. Corp. 4 Gray (Mass.) 22; Com. v. New York Cent, etc. R. Co. 206 Mass. 417, 19 Ann. Cas. 529, 92 N. E. 766; State v. Morris, etc. R. Co. 23 N. J. L. 360; State v. Warren R. Co. 29 N. J. L. 353; State v. Western North Carolina R. Co. 95 N. C. 602; Northern Cent. R. Co. v. Com. 90 Pa. St. 300; Com. v. Lehigh Valley R. Co. 165 Pa. St. 162, 30 Atl. 836, 27 L.R.A. 231; Louisville, etc. R. Co. v. State, 3 Head (Tenn.) 523, 75 Am. Dec. 778; State v. Louisville, etc. R. Co. 91 Tenn. 445, 19 S. W. 229; State v. Vermont Cent. R. Co. 27 Vt. 103. See also State v. White, 96 Mo. App. 34, 69 S. W. 684; State v. Central R. Co. 32 N. J. L. 220. Contra, Com. v. Swift Run Gap Turnpike Co. 2 Va. Cas. 362 (decided in 1823). Thus in State v. Louisville, etc. R. Co. supra, the court said: "That railway corporations are liable to indictment for obstructing a public highway has been long settled. . Being a corporation, it necessarily acts only through its agents. If the obstruction is the act of its agent, it is the act of the corpora

did the act in the duty as an agent.

tion; provided the agent course and scope of his It is immaterial that the agent was, by the rules of the company, instructed not to permit such obstruction to continue for a time deemed by the corporation to be unreasonable. If such agent disobeys the reasonable requirement of the corporation, it becomes liable for the nuisance, because the agent was within the scope of his duty in operating the train and in stopping it across a public road. This principle is necessary to be enforced in regard to acts of misfeasance by corporations of this character. Otherwise, the public would be required to look alone to subordinates, in general unknown and irresponsible."

The necessity under certain circumstances for bringing the indictment against the corporation, instead of against individuals only, was pointed out in State v. Morris, etc. R. Co. 23 N. J. L. 360, as follows: "If the rights of the corporation are to be concluded by the judgment, as in the present case, a valuable building, erected by the company at great cost for their own convenience, is to be ordered to be torn down as an encroachment upon the highway, there is peculiar propriety in making the corporation itself a party, and giving it an opportunity of being heard in defense. To condemn the property of the corporation to destruction upon an indictment against an irresponsible individual who was employed in the construction of the work, but who has no interest in the company, and who perhaps is hostile to its interests, savors strongly of the injustice of condemning them unheard. And it is not clear how the sentence is to be executed against the corporation, who are in possession, and in no sense parties to the proceeding."

Accordingly, a corporation has been indietéd and convicted for leaving a hand car at the intersection of its track with a public road. Cincinnati R. Co. v. Com. 80 Ky. 137. But where it appeared that a railroad company had the right to erect a bridge "so constructed as not to prevent" navigation, it was held that the company could not be indicted for building a bridge so as to obstruct and impede navigation. State v. Portland, etc. R. Co. 57 Me. 402.

7. UNJUST DISCRIMINATION. Corporations are liable to indictment under statutes forbidding unjust discrimination in transportation. New York Cent. R, Co. v. U. S. 212 U. S. 481, 29 S. Ct. 304, 53 U. S. (L. ed.) 613. See also State v. Southern R. Co. 122 N. C. 1052, 30 S. E. 133, 41 L.R.A. 246; State v. Southern R. Co. 125 N. C. 666, 34 S. E. 527. In New York Cent. R. Co. v. U S. supra, the court said; "There is a

large class of offenses, of which rebating under the federal statutes is one, wherein the crime consists in purposely doing the things prohibited by statute. In that class of crimes we see no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred upon them. 2 Morawetz on Corporations, sec. 733; Green's Brice on Ultra Vires, 366. If it were not so, many offenses might go unpunished and acts be committed in violation of law, where, as in the present case, the statute requires all persons, corporate or private, to refrain from certain practices forbidden in the interest of public policy. It is a part of the public history of the times that statutes against rebates could not be effectually enforced so long as individuals only were subject to punishment for violation of the law, when the giving of rebates or concessions inured to the benefit of the corporations of which the individuals were but the instruments. This situation, developed in more than one report of the Interstate Commerce Commission, was no doubt influential in bringing about the enactment of the Elkins Law, making corporations criminally liable, We see no valid objection in law, and every reason in public policy, why the corporation which profits by the transaction, and can only act through its agents and officers, shall be held punishable by fine because of the knowledge and intent of its agents to whom it has intrusted authority to act in the subject matter of making and fixing rates of transportation, and whose knowledge and purposes may well be attributed to the corporation for which the agents act. While the law should have regard to the rights of all, and to those of corporations no less than to those of individuals, it cannot shut its eyes to the fact that the great majority of business transactions in modern times are conducted through these bodies, and particularly that interstate commerce is almost entirely in their hands, and to give them immunity from all punishment because of the old and exploded doctrine that, a corporation cannot commit a crime would virtually take away the only means of effectually controlling the subject matter and correcting the abuses aimed at."

8. VIOLATION OF BANKRUPTCY LAW. It has been held that a bankrupt corporation is capable of committing the criminal offense of knowingly or fraudulently concealing its property from its trustee. Kaufman v. U. S. reported in full, post, this volume at page 466. U. S. v. Young, etc. Co. 170 Fed. 110; Cohen v. U. S. 157 Fed. 651, 85 C. C. A. 113. But of course it could not be punished

for that offense under a statute providing for imprisonment only. Cohen v. U. S. supra,

9. VIOLATION OF LABOR LAW.

A corporation has been held to be criminally liable under a statute providing that the employment of children under age shall constitute a misdemeanor. Overland Cotton Mill Co. v. People, 32 Colo. 263, 75 Pac. 924, 105 Am. St. Rep. 74.

Likewise it has been held that a corporation can be convicted under a statute regulating the hours of labor. U. S. v. John Kelso Co. 86 Fed. 304. See also People v. Chicago, 256 II. 558, Ann. Cas. 1913E 305, 100 N. E. 194, 43 L.R.A. (N.S.) 954.

10. VIOLATION OF LIQUOR LAW.

A corporation can be indicted under a statute forbidding the solicitation or taking of orders for intoxicating liquors in certain localities. R. M. Rose Co. v. State, 4 Ga. App: 588, 62 S. E. 117. Likewise a corporation may be guilty of a conspiracy to carry liquor into prohibited territory. Joplin Mercantile Co. v. U. S. reported in full, post, this volume, at page 470. And a corporation may be guilty of furnishing liquor to a minor. Southern Express Co. v. State, 1 Ga. App. 700, 58 S. E. 67. A contrary result has been reached in a case wherein it was held that the statute making the act unlawful applied only to natural persons. Leo Ebert Brewing Co. v. State, 25 Ohio Cir. Ct. Rep. 601.

11. MISCELLANEOUS.

Corporations have been held liable to prosecution under statutes making criminal the following acts:

Advertising to practice medicine by a person not a registered physician: People v. John H. Woodbury Dermatological Institute, 192 N. Y. 454, 85 N. E. 697, affirming 124 App. Div. 877, 109 N. Y. S. 578.

Collecting excessive toll: Nashville, etc. Ridge Turnpike Co. v. State, 96 Tenn. 249,

34 S. W. 4.

Fishing: U, S. v. Alaska Packers' Assoc. 1 Alaska 217.

Inclosing public domain: U. S. v. Pacific Live Stock Co. 192 Fed. 443.

Knowingly assisting in bringing certain laborers into the United States: Grant Bros. Constr. Co. v. U. S. 13 Ariz. 388, 114 Pac. 955.

Mailing obscene matter: U. S. v. New York Herald Co. 159 Fed. 296.

Ann. Cas. 1916C.-30.

Sabbath breaking:

State v. Southern R. Co. 119 N. C. 814, 25 S. E. 862, 56 Am. St. Rep. 689.

Selling adulterated milk: Com. v. Graustein, 208 Mass. 38, 95 N. E. 97.

Selling food which was not of the nature, substance and quality of the article demanded: Pearks v. Ward [1902] 2 K. B. (Eng.) 1. See also Small v. Com. 134 Ky. 272, 120 S. W. 361.

Use of false weights and measures: State y. Belle Springs Creamery Co. 83 Kan. 389, 111 Pac. 474, L.R.A.1915D 515.

Wilful destruction of premises by tenant: State v. Rowland Lumber Co. 153 N. C. 610, 69 S. E. 58.

VI. Punishment.

A corporation is punished for its criminal acts by fine. New York Cent. R. Co. v. U. Ş. 212 U. S. 481, 29. S. Ct. 304, 53 U. S. (L. ed.) 613; John Gund Brewing Co. v. U. S. 204 Fed. 17, 124 C. C. A. 268; U. S. v. Alaska Packers' Assoc. 1 Alaska 217; Overland Cotton Mill Co. v. People, 32 Colo. 263, 75 Pac. 924, 105 Am. St. Rep. 74; State v. Belle Springs Creamery Co. 83 Kan. 389, 111 Pac. 474, L.R.A.1915D 515; People v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735, 9 L.R.A. 722; American Fork City v. Charlier, 43 Utah 231, 134 Pac. 739. And see the reported case.

Of course a corporation cannot be imprisoned. Cohen v. U. S. 157 Fed. 651, 85 C. C. A. 113.

The fact that a corporation can be fined but not imprisoned does not render penal statutes, prescribing fine or imprisonment, and applying alike to individuals and corporations, open to the objection of unequal operation. State v. Belle Springs Creamery Co. 83 Kan. 389, 111 Pac. 474, L.R.A.1915D 515; Small v. Com. 134 Ky. 272, 120 S. W. 361, wherein the court said: "That an individual guilty of an offense may be both fined and imprisoned, and a corporation likewise guilty only fined, does not affect the validity of the statute. The apparent discrimination grows out of conditions that cannot be avoid-. ed, and the corporation that is favored by the discrimination cannot complain."