State v. Fairbanks

• Citation: 115 N.E. 769,187 Ind. 648
• Decision Date: 20 April 1917
• Docket Number: 23,024
• Parties: State of Indiana v. Fairbanks
• Court: Supreme Court of Indiana

115 N.E. 769

187 Ind. 648

State of Indiana v. Fairbanks

No. 23,024

Supreme Court of Indiana

April 20, 1917

Rehearing Denied November 22, 1918.

From Sullivan Circuit Court; William H. Bridwell, Judge.

Prosecution by the State of Indiana against Crawford Fairbanks and others. From a judgment for the defendant, rendered on a motion to quash the affidavit, the state appeals.

Reversed.

Evan B Stotsenburg, Attorney-General, M. L. Pigg and W. F. Gruber for the state.

Davis, Bogart & Royse and Gilbert W. Gambill, for appellees.

OPINION

Erwin, J.

Appellees were prosecuted for violating the "Corrupt Practices Act" in an affidavit charging that appellees were officers and directors of the Terre Haute Brewing Company, a corporation organized under the laws of the state, and alleging that said corporation contributed to one Jess Bolinger, who was then and there treasurer of a public organization in Curry township, said county, known and designated as the "wet" organization, to promote and influence the success of a principle, measure and proposition submitted to a vote at a public election then and there held in said township and known and designated as a local option election in which the proposition to be voted upon was: "Shall the sale of intoxicating liquors as a beverage be prohibited in said township of Curry, county of Sullivan and State of Indiana?"

To the affidavit in this cause appellees interposed a motion to quash, which was sustained, and from a judgment discharging appellees, the state appeals. The only question here presented is, Did the court err in sustaining the motion to quash?

The affidavit is as follows: "Fred F. Bays, Prosecuting Attorney being duly sworn upon his oath, says that The Terre Haute Brewing Company was on the 27th day of May, 1915, a corporation duly organized and existing under and by virtue of the laws of the State of Indiana, and was on said day and has been continually since said time, doing business as such corporation in the State of Indiana. That on the 27th day of May, 1915, at said County of Sullivan, State of Indiana, aforesaid, the said Terre Haute Brewing Company did then and there unlawfully and directly by itself and through its officers, agents and employees, give, contribute and furnish money, to wit: two hundred dollars, to Jess Bolinger, who was then and there treasurer of a public organization in Curry township, Sullivan county, Indiana, known and designated as the Wet organization, and that said money was so given to said Jess Bolinger as such treasurer of said public organization for the use and benefit of such public organization to promote and influence the success of a principle, measure and proposition submitted to a vote at a public election then and there held in said Curry township, Sullivan county, Indiana, on said 28th day of May, 1915, the said election being known and designated as a Local Option Election and which was held pursuant to the laws of the State of Indiana governing such elections. The principle measure and proposition to be voted on at such election was 'Shall the sale of intoxicating liquors as a beverage be prohibited in said township of Curry, county of Sullivan and State of Indiana.'

"Crawford Fairbanks was then and there on said 27th day of May, 1915, the president of said Terre Haute Brewing Company, and was then and there an officer in said company, that Bruce Failey was then and there on said 27th day of May, 1915, the treasurer of said Terre Haute Brewing Company, and was then and there an officer in said company; that Walter G. Himmelbauer was then and there on said 27th day of May, 1915, the assistant secretary of said company, and was then and there an officer in said company; that George Maier was then and there secretary of said company and was then and there an officer in said company; that John E. Beggs, Thomas G. Beggs, Edward P. Fairbanks, Crawford Fairbanks, Edward G. Fairbanks, Walter G. Himmelbauer and Bruce Failey, were then and there on said 27th day of May, 1915, the sole and only directors in said corporation, The Terre Haute Brewing Company, and that said above named persons were on the 27th day of May, 1915, the sole and only officers and directors in said Terre Haute Brewing Company, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana."

To this affidavit each of the defendants filed a motion to quash, which motion with memorandum attached are alike as to each defendant except as to name, and which read as follows: "The defendant Crawford Fairbanks separately moves the court to quash the affidavit herein on the following grounds to wit: 1. The facts stated in said affidavit do not constitute a public offense. Wherefore the defendant prays the court to quash the affidavit in said cause."

"Memorandum.

"The affidavit in the above entitled cause is insufficient for the following reasons, to wit: 1. The affidavit does not allege that defendant did any act or thing in violation of the Corrupt Practice Act or of any other statute of the State of Indiana. 2. The affidavit does not allege that defendant had any knowledge of the act charged in said affidavit as a violation of law. 3. The affidavit does not allege that defendant had any part in the act charged by said affidavit as a violation of law. 4. There is no statute in the State of Indiana that authorizes the prosecution of the officers or directors of a corporation for an act done by the corporation. 5. There is no statute in the State of Indiana that authorizes the prosecution of the officers or directors of a corporation for a corrupt practice at a local option election. 6. The corrupt practice act of the State of Indiana is not applicable and does not govern local option elections within the said state. 7. The affidavit in the above entitled cause shows upon its face that the State is attempting to charge the defendant with giving money to Jesse Bolinger, Treasurer, and said affidavit also shows that he was treasurer of an organization to promote the success of a principle to be voted upon at a local option election held for the purpose of deciding whether the sale of intoxicating liquors should be prohibited in a township. The word 'treasurer' as defined by the Corrupt Practice Act does not apply to the treasurer in a local option election, but only applies to persons appointed by political committees. 8. The State is attempting to prosecute defendant for an offense not authorized by statute. 9. The affidavit does not allege that defendant contributed, furnished, loaned or promised any money, property, transportation, means or aid to any political party or to any candidate for public office or for nomination thereto, or to any public organization, or to any political committee or to any organization or political agent, either directly or indirectly to aid, promote or influence the success or defeat of any political party or principle or any measure or proposition submitted to vote at a public election or primary election in the State of Indiana, to aid, promote or influence in any manner the election or defeat of a candidate therein, or to be used, applied or expended in any way whatever for political purposes. 10. The affidavit does not allege that defendant gave, contributed, furnished, loaned or promised any money, property, transportation, means or aid to any political party or any candidate for public office or for nomination thereto or to any public organization, or to any political committee, or to any organization or political agent as defined by statute."

Concisely stated, the motion to quash presents the questions for our consideration: (1) Does the Corrupt Practice Act apply to local option elections; and (2) can the officers of a corporation be made personally liable for the violation of a criminal statute by the corporation. The prosecution in this cause is based on § 12 of the Corrupt Practices Act of 1911 (Acts 1911 p. 288, § 7111a et seq. Burns 1914), which section reads as follows: "It shall be unlawful and shall be deemed a corrupt practice for any corporation incorporated under the laws of the State of Indiana, or of any state or territory of the United States of the District of Columbia, or of the United States, or of any other country, directly or indirectly by itself, or through any officer, agent or employe, representative or other person whatsoever to give, contribute, furnish, lend or promise any money, property, transportation, means or aid to any...