State v. Dry Fork Railroad Co.
| Decision Date | 23 November 1901 |
| Citation | 50 W.Va. 235 |
| Court | West Virginia Supreme Court |
| Parties | State v. Dry Fork Railroad Co. |
An indictment against a corporation need not aver that it is a corporation. If such were the requirement, however, the name, "The Dry Fork Railroad Company," would sufficiently import that it is a corporation. (p. 226).
To sustain an indictment for obstructing a public road, it must be shown that the road is a public one, not merely a private road. Mere user alone without its establishment or recognition by order of the county court, or work done upon by the surveyor of roads, will not make it a public road. (p. 22G).
An indictment for obstruction of a public: road will not be barred by limitation, though such obstruction began more than a year before the indictment, provided it was continued within such year, as every day's continuance of it is a new offense, (p. 238).
It is not necessary, in an indictment against a railroad company for obstructing a public road, to aver that it had no license to occupy or cross the road. (p. 236).
Where an exception or proviso exempting one from criminal liability is not a part of the description of the offense under a statute, though it be even in the enacting clause, it is not necessary to negative the exception or proviso in the indictment; otherwise it is necessary. (p. 237).
Error to Circuit Court, Randolph County. The Dry Fork Railroad Company was convicted of obstructing a public road, and brings error.
Reversed.
C. Wood Dailey, for plaintiff in error.
Edgar P. Rucker, Atty. Gen., and L. C. Anderson, for the State,
Brannon, President:
The Dry Eork Railroad Company having been convicted in the circuit court of Randolph County by the verdict of a jury of obstructing a public highway by maintaining a bad crossing where the railroad crossed the public highway, has brought this writ of error.
The indictment is not bad for omitting to aver that the defendant is a corporation. It is very well settled in the Virginias, and generally elsewhere, that in civil cases it is not necessary to aver in a declaration that a party is a corporation, or to show how it became such by pleading its charter. Reese v. Conocochegue Bank, 5 Rand. 320; Douglass v. Kanawha etc. Co., 4.4 W. Va. 207. I see no reason for drawing any distinction, in this matter, between civil and criminal proceedings. Individuals and corporations are both persons, both entities, the one natural, the other legal. But authorities say that it is not necessary in an indictment to say that the defendant is a corporation. 10 Ency. PL & Prac. 509. If, however, it were necessary to aver it in the indictment, the name, "The Dry Fork Railroad Company" would import a corporation, and be a sufficient averment that it is such. Utile It v. American, etc. Co., 29 Grat. 505.
The indictment is not bad because of the fact that it does not negative that the defendant might have been authorized by the county court to construct its railroad track over or along the public road. It is true that sub-division 6, chapter 54, section 6, Code, gives the authority to a railroad company to construct its road, across, along or upon a highway with the consent of the county court, upon certain conditions. This is a grant of authority, a license to the company, and when it is charged with public nuisance by the obstruction of a highway, it must prove, as a matter of defense, such license or authority. The indictment charges that the company did unlawfully obstruct the highway. That is enough to call upon the defendant to show its authority, if any it has. The Chesapeake and Ohio Railroad Company was indicted for obstructing a highway, and this Court held that it was sufficient to aver that the act was done "unlawfully, or without lawful authority," that is, in either way. If the act was done unlawfully, it must have been done without authority of the county court. State v. C. & 0. R. R. Co., 24 W. Va. 809. That case goes far to answer, I think completely answers, this objection. We settled in the case of State v. Mouongahela River R. Co., 37 W. Va. 108, and Moundsville v. Ohio River R. Co., Id. 92, that even where a railroad company has such authority, if it do not comply with it by keeping a crossing in order, it commits an indictable public nuisance. Besides, this offense is a common law offense, or rather now one under section 45, chapter 43, Code, not under section 50, clause 6, chapter 54. The rule as given in Hill's Case, 5 Grat. 682, and Ilcndrick's, 75 Va., p. 943, and State v. Richards, 32 W. Va., p. 356, is that where an exception or proviso is not in the enacting clause creating the offense, the indictment need not negative such exception or proviso, but the defense must show its application. Here the matter is not even in the same statute. The better rule, however, is that no matter whether the exception or proviso is in the enacting clause or not, if it is not a part of the description of the offense in the statute, it need not be negatived in the indictment, otherwise it must be. 10 Ency. PI. & Prac. 195.
No evidence whatever was adduced to show that the road constructed was a public road. The only evidence bearing on that point is that a few people passed over it with vehicles. Even a general public user is not shown. There is not a bit of evidence to show that the county court ever established this road, or recognized it as a road, or that a surveyor of the county ever assumed any authority over or did any work upon it. As Judge Woods said in State v. C. & 0. Co., 24 W. Va. 811, it was incumbent on the State to establish by competent evidence that the road was a public road. This could...
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