Commonwealth v. Lehigh Valley Railroad

• Decision Date: 07 January 1895
• Docket Number: 463
• Citation: 30 A. 836,165 Pa. 162
• Parties: Commonwealth, Appellant, v. Lehigh Valley Railroad
• Court: Pennsylvania Supreme Court

30 A. 836

165 Pa. 162

Commonwealth, Appellant, v. Lehigh Valley Railroad

No. 463

Supreme Court of Pennsylvania

January 7, 1895

Argued April 11, 1894

Appeal, No. 463, Jan. T., 1894, by plaintiff, from order of Q.S. Luzerne Co., June T., 1893, No. 89, refusing to enter judgment against defendant in default. Reversed.

Rule for judgment in default of appearance in indictment against corporation for nuisance.

The facts appear by the following opinion of the court below, by RICE, P.J.:

"On May 26, 1893, the constable of Yatesville borough made return that the defendant company had obstructed a public highway by dumping dirt and stones thereon and using the same for their right of way without having reconstructed the same as they are required to do by law. An indictment was sent before the grand jury which was returned a true bill. A rule to show cause why a venire facias should not issue was granted served on a director of the defendant company, and made absolute. On October 24, 1893, a writ of venire facias issued in the following form:

"'To the sheriff of said county, Greeting: We command you that you cause the Lehigh Valley Railroad Company to come before our court of quarter sessions of the peace to be holden at Wilkes-Barre, in and for said county, on the 15th day of November, next, there to answer the commonwealth of Pennsylvania of a certain indictment for nuisance, and have you then and there this writ. Witness,' etc.

"The sheriff made return to the writ as follows: 'I hereby certify and return that I served this writ on the within named defendant, the Lehigh Valley Railroad Company, on the 27th day of October, 1893, by giving to W. L. Conyngham, a director of said defendant company, a true and attested copy and making known to him the contents thereof, same time giving him, the said W. L. Conyngham, a director of the said Lehigh Valley Railroad Company, defendant, a true and attested copy of the indictment.'

"The defendant company not having appeared, the district attorney on December 6, 1893, moved for judgment by default. The question is whether the court is authorized by a statute or by the common law to enter such judgment.

"Section 41, of the act of June 13, 1836, provides: 'That every corporation aggregate or sole, shall be amenable to answer upon a writ of summons as aforesaid.' The reference by the terms 'as aforesaid' is to preceding sections of the same act prescribing the form of summons and authorizing judgment for default of appearance, but all these provisions relate to personal actions only.

"Blackstone defines personal actions to be such 'whereby a man claims a debt, or personal duty or damages in lieu thereof, and likewise whereby a man claims a satisfaction in damages for some injury done to his person or property.' Manifestly a prosecution by indictment is not a personal action within the meaning of the act of 1836, and therefore not within its provisions authorizing judgment in default of appearance.

"But it is argued that at common law, and without any statute on the subject, such judgment may be entered on an indictment against a corporation, and, as authority for this proposition, the case of Boston, etc., R.R. v. State, 32 N.H. 215, is cited. That case does decide that a summons is the only process to be issued to a corporation to appear and answer to an indictment, and that, upon default of appearance after service of such process, judgment may be rendered against the corporation. In this country, although it has always been held that the English colonists brought with them and made part of their laws the common law of England that was not unsuited to their new situation, yet it is also true that every state has its common law varying from the common law of England in greater or less degree, which variances have their source in the usages, habits, manners and customs of its people. What may be the common law of one state may not be of another, although the courts of both states may profess and declare that their unwritten law is based on the common law of England. These differences may result from conflict of opinion as to what the common law of England was, or because of departures therefrom, made necessary by the differing conditions, or which have grown into use by gradual adoption and have received from time to time the sanction of the courts of justice. Undoubtedly, in deciding any common law question, there being no precedent of our own, the decision of the courts of another state, which has adopted the common law of England as the basis of its jurisprudence, is entitled to very great weight; but in determining its weight it is to be considered how far the decision of the question was affected by local conditions and usages. The New Hampshire case, however correct an exposition of the common law of that state it may be, cannot be regarded as authoritative here if we look at it in the light of these general principles. (1) The learned judge who wrote the opinion of the court concedes that at common law a distringas should have issued, and no judgment could be entered until the defendant corporation had first appeared. (2) He says the distringas was never in use in New England. In case of individuals it was a regular step to outlawry, but no process of outlawry was ever used or known there. (3) We think the ground of the decision may be summed up in the following language, quoted from the opinion: 'We regard it as an historical fact, that judgment by default for want of an appearance after due service of a single proper process, was an original invention in New England and has existed here since a very early date after the first settlement of the country.' Starting with the same premises, the courts of this commonwealth might possibly reach the same conclusion; although we should hesitate to say that the practice of taking judgment by default for want of appearance in a personal action could be cited as a precedent for such judgment in a criminal prosecution by indictment. But, be that as it may, in Pennsylvania the right to take judgment by default for want of appearance even in personal actions is given by statute and does not exist at common law. In Michew v. McCoy, 3 W. & S. 501, Chief Justice GIBSON said: 'It is evident from this that the common law does not permit a judgment in personam to be rendered against an absent party in any case; and every judgment for want of appearance, which is not supported by statute, is consequently irregular. . . . The practice of our courts has been modeled after that of the common pleas at Westminster, whose process is summons and distress infinite, according to the usage of the common law, and which consequently does not authorize a judgment by default for want of appearance.' In civil suits this was long since changed by statute, but there is in Pennsylvania no statute authorizing a judgment by default in any criminal case, unless a judgment in outlawry proceedings may be so called, and certainly it was not allowed at common law. We are therefore compelled to deny the motion."

Error assigned was above order.

The order refusing judgment is reversed, and judgment directed to be entered against the defendant by default for want of appearance. ^[*]

John M. Garman, district attorney, C. Frank Bohan with him, for appellant. -- A corporation may become amenable to the criminal law in the matter of the creation and maintenance of things which amount to or become public nuisances and be proceeded against by indictment: 1 Am. Cr. L. § 86; Del. Div. Canal Co. v. Com., 60 Pa. 371; North. Cent. Ry. v. Com., 90 Pa. 305; Pittsburg & Ry. v. Com., 101 Pa. 198; Com. v. P.R.R., 117 Pa. 643.

It is now the law to indict when the object is the imposition of a fine on the corporation estate, or the abatement of a nuisance: 1 Whart. Cr. L., 9th ed. § 91; Whart. Cr. Pl. & Pr. § 100.

Admitting that a corporation cannot be guilty of offence against the person, nor of perjury, nor of treason or felony; still, for that which is analogous to a mere trespass on land, an indictment may lie against it: Angell and Ames on Corporations, § 396.

A judgment against a corporation is practically a personal action and the law of this state as to judgments will properly apply: Act of June 13, 1836, § 41, P.L. 579; Chase's Bl. Com. 673.

That a venire facias is a summons and that judgment may be entered in default of appearance is decided in Railroad v. State, 32 N.H. 215; State v. Western Railroad Co., 89 N.C. 585.

In this state we can find no reference to the question except that it has been decided that when leave is granted to file an information in the nature of a quo warranto defendants must be summoned by a venire or subpoena, and if they fail to appear must be brought in by distringas: Com. v. Sprenger, 5 Bin. 353. But this was prior to the act of 1836.

Wheaton, Darling & Woodward, offering no oral argument, for appellee. -- This action does not come within the definition of a personal action, and as evidence of this contention on our part, the statutory writ of summons prescribed by act of 1836, P.L. 572, which is therein specially made to cover the case of all personal actions, except in cases where other processes shall be especially provided, is never issued out of the quarter session, but always out of the common pleas.

The only way to compel the appearance of a corporation on an indictment is by a writ of venire facias and distress infinite: Regina v. Birmingham etc. Ry., 9 Car. & P. 469; 38 E.C.L. 278; Com. v. North & West Branch Ry., 5 Kulp, 293.

R.R. v. State, 32 N.H. 215, is sufficiently distinguished in the opinion of the court below.

Before WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE MITCHELL:

It is...