Grant Bros. Const. Co. v. United States

Decision Date27 March 1911
Docket NumberCivil 1173
Citation114 P. 955,13 Ariz. 388
PartiesGRANT BROTHERS CONSTRUCTION COMPANY, a Corporation, Defendant and Appellant, v. THE UNITED STATES OF AMERICA, Plaintiff and Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the District Court of the First Judicial District. John H. Campbell, Judge. Affirmed.

The facts are stated in the opinion.

Baker &amp Baker, Isadore B. Dockweller and F. C. Struckmeyer, for Appellant.

The judgment is contrary to law and not supported by the evidence. This action, though civil in form, is in fact an action to recover a penalty for the commission of a crime and the act imposing the penalty is highly penal and "should be so construed as to bring within their condemnation only those who are shown, by direct and positive averments and clear proof to be embraced within the terms of the law." Moffit v. United States, 128 F. 375 63 C.C.A. 117. "The law is highly penal, and must be strictly construed." United States v. Edgar, 45 F. 44; United States v. Gay, 95 F. 226; United States v. Stevenson, 215 U.S. 190, 30 S.Ct. 35, 54 L.Ed 153. A master is not liable criminally for the unlawful act of his agent, or servant, though such unlawful act was committed in the master's business, unless such unlawful act was directed by him, knowingly assented to or acquiesced in. "The relation of principal and agent does not appertain to transactions which are illegal, immoral or opposed to public policy. Parties to such transactions are both liable as tort-feasors or criminals, and all contracts thus entered into are null and void." 2 New Am. & Eng. Ency. of Law & Proc. 834; 26 Cyc. 1545; 1 Clark & Marshall on Agency, 1140; Mechem on Agency, 746; Hoover v. Wise, 91 U.S. 311, 23 L.Ed. 393. Whatever may be the answerability of the principal for the wrongful act of his agent in civil actions, he is not answerable criminally when the act is in positive disobedience to his explicit instructions." Commonwealth v. Junkin, 170 Pa. 194, 32 A. 617, 31 L.R.A. 124; Cushing v. Dill, 2 Scam. (Ill.) 460; Whitecraft v. Vanderver, 12 Ill. 235; Cushing v. Oliver, 81 Ill. 444; Satterfield v. Western Union Tel. Co., 23 Ill.App. 446; Patterson v. State, 21 Ala. 571; Sagers v. Nuckolls, 3 Colo.App. 95, 32 P. 187. "The authority to take testimony in this manner, being in derogation of the rules of common law, has always been construed strictly; and therefore it is necessary to establish that all of the requisites of the law have been complied with before such testimony is admissible. Before a deposition should be allowed to be read in evidence, every requisite of the statute must have been substantially and fully complied with." Western Union Tel. Co. v. Collins, 45 Kan. 88, 25 P. 187, 10 L.R.A. 515; Harris v. Wall, 7 How. (U.S.) 693, 21 L.Ed. 875; Garner v. Cutler, 28 Tex. 175; Knode v. Williamson, 17 Wall. (U.S.) 587, 21 L.Ed. 670. Evidence taken by virtue of a commission cannot be received by the court, unless taken and returned into court in the manner and form provided by statute. "Costs in criminal proceedings are a creature of statute, and a court has no power to award them unless some statute has conferred it." United States v. Gaines, 131 U.S. Appendix, clxx, 25 L.Ed. 733; 11 Cyc. 24; 8 Ency. of Pl. & Pr. 955.

J. E. Morrison, United States Attorney, and J. C. Forrest, Assistant United States Attorney, for Appellee.

A corporation or person may become liable, civilly and criminally, where the corporation directs, acquiesces in or ratifies the unlawful acts. "Where there is evidence tending to prove every material fact necessary to be found to sustain the judgment of the lower court, it is not the province of this court to weigh it or decide upon its preponderance." Old Dominion Copper Co. v. Andrews, 6 Ariz. 205, 56 P. 969. "Where there is a conflict in evidence, this court will not interfere with the findings of the trial court." Miller v. Green, 3 Ariz. 205, 73 P. 399; McCormack v. Arizona Central Bank, 5 Ariz. 278, 52 P. 469; Ryder v. Leach, 3 Ariz. 129, 77 P. 490; Brash v. White, 3 Ariz. 212, 73 P. 445; De Mund Lumber Co. v. Stillwell, 8 Ariz. 1, 68 P. 543. Corporations, of necessity, operate and do business through agents. The facts taken together tend to show that the appellant, through its principals, had knowledge, both actual and constructive, of the unlawful importation of the forty-five aliens named in the complaint, and that appellant originally entered into an arrangement, which not only permitted but in effect authorized these unlawful importations. "A corporation is responsible for the acts of its servants of the character under consideration, when done within the scope of their general authority, although forbidden by the corporation." Overland Cotton Mills Co. v. People, 32 Colo. 263, 105 Am. St. Rep. 74, 75 P. 924; State v. Railroad Co., 91 Tenn. 445, 10 S.W. 229; Railway Co. v. Ryan, 56 Ark. 245, 19 S.W. 839; 21 Ency. of Law, 896; Western Maryland R.R. Co. v. Franklin Bank, 60 Md. 36; Titus v. Great Western etc. Road Co., 61 N.Y. 237; Holbrook v. New Jersey Zinc Co., 57 N.Y. 616; Allen v. South Boston R.R. Co., 150 Mass. 200, 15 Am. St. Rep. 185, 22 N.E. 917, 5 L.R.A. 716; Clark on Corporations, 438. "The defendant could not be convicted unless it either actually knew that it was accepting and receiving a concession, or willfully and intentionally ignored facts and circumstances known to it which would have led to such knowledge." Standard Oil Co. v. United States, 164 F. 376. "The act is penal in its consequences, and must be strictly construed, and as knowledge is generally the principal and indispensable ingredient in offenses, it would seem reasonable to hold the government to proof of it, or to proof of circumstances from which it might be fairly inferred." United States v. Beaty, Fed. Cas. No. 14,555, Hempst. 487; United States v. Houghton, 14 F. 544. "A bona fide substantial compliance with the rule requiring notice is sufficient." 13 Cyc. 881 (note 44); Kellum v. Smith, 39 Pa. 241. "Where the depositions are received by mail and there is no evidence of irregularity, it will be presumed that the commissioner duly deposited them in the proper post office, although no indorsement or certificate to that effect appears." 13 Cyc. 963. "Opening of the package by agreement of the parties is a waiver of irregularities in transmission." Killian v. Augusta etc. R.R. Co., 78 Ga. 749, 3 S.E. 621. "The successful party to a suit shall recover of his adversary all the costs expended or incurred therein, except where it is or may otherwise be provided by law." Ariz. Rev. Stats. 1901, par. 1543.

OPINION

KENT, C.J.

The appellant, Grant Bros. Construction Company (whom we shall hereafter designate as the construction company), is engaged in the business of a railroad contractor, and in the year 1909 was building a line of railroad between Kelton and Naco Arizona. The construction work required the services of a large number of laborers, and, as such laborers were constantly leaving the employment, the work necessitated the constant employment of new laborers to take the place of those leaving; some 5,000 laborers in all having been from time to time employed. The officer of the construction company in charge of the employment of the men was Angus Cashion, its assistant general foreman. During the latter part of August or the 1st of September, 1909, Angus Cashion entered into an oral contract with one W. W. Carney, at Nogales, Arizona, to furnish the construction company laborers for its construction camps in Arizona, agreeing to pay Carney a dollar a head in gold for every laborer delivered to its camps and twenty cents per meal while en route from Nogales, Arizona, to the construction camps. It having come to the attention of the authorities that laborers for the construction company were being brought into this country from Mexico, the United States brought an action in the district court against the construction company to recover a penalty under sections 2, 4, and 5 of the act of Congress approved February 20, 1907, entitled: "An act to regulate the immigration of aliens into the United States" (34 Stat. 898; Fed. Stat. Ann. Supp. 1907, p. 96 [U.S. Comp. Stats. Supp. 1909, p. 447]). The complaint contained forty-five counts. The first count alleged that on the twenty-ninth day of October, 1909, the construction company induced and solicited, and caused to be induced and solicited by offers and promises of employment as a laborer for the construction company, one Benito Acuna to migrate from the United States of Mexico into the United States of America, and that upon such offers and promises the said Acuna did migrate from the United States of Mexico to the United States of America, and that the construction company assisted and encouraged, and caused to be assisted and encouraged, the importation and immigration of the said Acuna into the United States, and furnished and caused to be furnished conveyance and transportation to the said Acuna, and paid and caused to be paid the expenses of his trip from Hermosillo, state of Sonora, United States of Mexico, into Naco, territory of Arizona, in the United States of America. The count further alleged that the said Acuna was an unskilled laborer and not one of the classes of persons exempt from said act of Congress. The allegations of the remaining forty-four counts of the complaint are identical with the first count, except that a different alien is named in each count. Each count prays judgment for $1,000, and the complaint concludes with a prayer for judgment against the construction company for $45,000. The construction company interposed a general denial, and upon the issues so formed the jury returned a verdict against the appellant on all of the...

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12 cases
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    ...relied upon by the defendants which apparently support what they conceive as the Model Penal Code principle are Grant Bros. Constr. Co. v. United States, 13 Ariz. 388, 114 P. 955, and People v. Canadian Fur Trappers' Corp., 248 N.Y. 159, 161 N.E. 455. Particular emphasis is placed on the Ca......
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