State v. Norfolk Southern R. Co.

• Decision Date: 30 September 1914
• Docket Number: 49.
• Citation: 82 S.E. 963
• Parties: L.R.A. 1915B,329, 168 N.C. 103 v. NORFOLK SOUTHERN R. CO. STATE
• Court: North Carolina Supreme Court

82 S.E. 963

L.R.A. 1915B,329, 168 N.C. 103

STATE v. NORFOLK SOUTHERN R. CO.

No. 49.

Supreme Court of North Carolina

September 30, 1914

Appeal from Superior Court, Wilson County; Bond, Judge.

The Norfolk Southern Railroad Company was charged with a violation of a municipal ordinance, and, being acquitted in the superior court, to which it appealed from a conviction in the recorder's court, the State appeals. Affirmed.

Clark C.J., and Hoke, J., dissenting.

The terms of a penal statute cannot be extended by construction so as to embrace persons or acts not within its intent though it be sought to render a corporation liable.

The defendant was charged in the recorder's court of the town of Wilson with blocking Tarboro street crossing, in said town, for 20 minutes, with a freight train, in violation of the following town ordinance:

"No railroad company nor engineer in charge of any train of any railroad company shall run or operate in or through the town of Wilson any locomotive or car or train of cars at a higher rate of speed than ten miles per hour, and every engineer in charge of any train or locomotive running through the town of Wilson, shall ring the bell of such locomotive while same is being run and operated through said town; no railroad train or locomotive shall block any street crossing for a longer period than ten minutes, and any engineer in charge of any train or locomotive of any railroad company violating any of the provisions of this section shall be fined not more than ten dollars for each and every offense Provided, nevertheless, that the rate of speed hereinbefore prescribed shall not apply to any train running in or through the said town between the hours of 11 o'clock p. m. and 6 o'clock a. m., but all trains operating between such hours may be run and operated at a reasonable rate of speed."

Defendant was adjudged guilty by the recorder, and appealed. In the superior court the jury rendered a special verdict, finding that a train of cars belonging to defendant blocked the said crossing on November 27, 1913, for more than ten minutes, and that there was an engineer in charge of the train at the time, his name being unknown to the jurors. This finding was based upon the admission of the facts by the defendant only for the purpose of the trial. No charge was made against the engineer. The jury having submitted to the court the question as to defendant's guilt in the usual form, and the presiding judge, Hon. William M. Bond, having ruled that, under the said ordinance and the findings of fact in the verdict, the defendant was not guilty, as the penal provision is confined to the engineer, the jury so found and returned their verdict of not guilty. Judgment was entered for the defendant, and the state appealed.

Attorney General Bickett and T. H. Calvert, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above).

We may as well say in limine that our able and learned Attorney General and assistant, in their argument before us, admitted, with their usual frankness and candor, that, as the ordinance prohibited any railroad train or locomotive from blocking any street crossing for a longer period than ten minutes, and provided that any engineer in charge of any train or locomotive of any railroad company violating the provision shall be fined not more than $10, and there was an engineer in charge of the train, the ordinance, in its penal aspect, was manifestly aimed at the engineer as the sole offender and the one who should be made to suffer for doing the forbidden act. He then added:

"We know of no principle of law, or any authority to which we can refer the court, against the decision of the trial judge."

In this view of the case we concur. It will hardly be contended that the town did not have the right to make the engineer solely responsible for the blocking of the crossing, if it saw fit to do so, and we think it is equally clear that the ordinance was intended to penalize the engineer alone for doing, or permitting to be done, the forbidden act. Defendant is not charged with running its trains at an excessive rate of speed, and the portion of the ordinance where that is prohibited is the only one in which the words "railroad company" are used. When requiring the ringing of the bell and forbidding the blocking of the crossing, the engineer only is mentioned, it being reasonably supposed by the draftsman of the ordinance and the town board that, if the prohibited acts were committed, the engineer would be the one directly responsible for it, and the only one who could well prevent it, and they very wisely and justly restricted the imposition of a penalty for disobedience of the ordinance to him. It may be seriously questioned if the part of the ordinance relating to the speed of trains is not also confined to him, but we do not decide this, as it is not before us. The ordinance is too plainly worded for any doubt to be entertained as to the intention that the penal clause should be confined to the engineer. It says that very thing, in so many words, and with such directness and perspicuity as to exclude any other conclusion. The words are:

"And any engineer, in charge of any train or locomotive of any railroad company violating any of the provisions of this section shall be fined not more than ten dollars for each and every offense."

The law of the case is as well settled as the meaning of the ordinance is obvious. It is fully considered by Justice Connor in Nance v. Railroad, 149 N.C. 366, 63 S.E. 116. It is there held that we cannot punish even a corporation by the unwarranted extension of the terms of a statute, and especially we cannot insert words, or imply them. for the purpose of amplifying a penal clause, so as to embrace persons or acts not within its spirit and clear intent. It is the penal clause that gives life and vigor to the enactment, and by which alone can it be enforced. It must be remembered that this was not an offense at common law, but solely the creation of this ordinance. The rule then prevails, and must be applied, that when a particular offense is created, and the penalty for its commission prescribed, we are confined to that particular remedy, to the exclusion of all others. This is too familiar a rule to be doubted. But in State v. Railroad, 145 N.C. 496, 59 S.E. 570, 13 L. R. A. (N. S.) 966, we followed the law as stated by Justice Ruffin in State v. Snuggs, 85 N.C. 542, as follows:

"The statute not only creates the offense, but fixes the penalty that attaches to it, and prescribes the method of enforcing it; and the rule of law is that, wherever a statute does this, no other remedy exists than the one expressly given, and no other method of enforcement can be pursued than the one prescribed. The mention of a particular mode of proceeding excludes that by indictment, and no other penalty than the one denounced can be inflicted. 1 Russell on Crimes, 49; State v. Loftin, 19 N.C. 31." We are convinced that his honor's ruling in quashing the indictment is correct, in view of the fact that the statute creates the offense, affixes the penalty, and prescribes the mode of proceeding--the mention of the particular method operating to the exclusion of every other. 1 McLain's Cr. Law, § 8, thus states the principle:

"If the act prohibited has been previously an indictable offense, it will be presumed that the civil penalty therefor is cumulative; but when the act creates a new offense and makes that unlawful which was lawful before, and prescribes a particular penalty and mode of procedure, that penalty alone can be enforced."

We reviewed many of the authorities upon this question in State v. Railroad Co., supra, but the following extract from that case will suffice to show the decided trend of judicial thought since the early days of the law up to the present time:

"In Rex v. Wright, 1 Burr. 543, it was held that 'an indictment lies not upon an act of Parliament which creates a new offense and prescribes a particular remedy.' Lord Mansfield said in that case: 'I always took it that, where new-created offenses are only prohibited by the general prohibitory clause of an act of Parliament, an indictment will lie; but where there is a prohibitory particular clause, specifying only particular remedies, there such particular remedy must be pursued, for otherwise the defendant would be liable to a double prosecution--one upon the general prohibition, and the other upon the particular specific remedy.' And when afterwards informed that the counsel for the crown 'gave up the matter,' he replied, 'I do not wonder at all at it; I thought he would do so. I have looked into it, and there is nothing in it. That case of Crofton (where the contrary is supposed to have been decided) has been denied many times.' In Rex v. Robinson, 2 Burr. 799-803, the great Chief Justice (Lord Mansfield) said: 'But where the offense was antecedently punishable by a common-law proceeding, and a statute prescribes a particular remedy by a summary proceeding, there either method may be pursued, and the prosecutor is at liberty to proceed either at common law or in the method prescribed by the statute, because there the sanction is cumulative, and does not exclude the common-law punishment. 1 Salk. 45. Stephens v. Watson was a resolution upon these principles. In that case keeping an alehouse without license was held to be not indictable, because it was no offense at common law, and the statute which makes it an offense has made it punishable in another manner.' And again in the same case, when discussing the same point, he sums up, at page 805, as follows: 'The true rule of distinction seems to be that where the offense intended to be guarded against by statute was

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