State v. Taylor

• Decision Date: 27 April 1914
• Docket Number: 3572.
• Citation: 147 N.W. 72,34 S.D. 13
• Parties: STATE ex rel. v. TAYLOR, Judge of Circuit Court. BOTSFORD LUMBER CO.
• Court: South Dakota Supreme Court

147 N.W. 72

34 S.D. 13

STATE ex rel. BOTSFORD LUMBER CO. v. TAYLOR, Judge of Circuit Court.

No. 3572.

Supreme Court of South Dakota

April 27, 1914

Original prohibition proceeding by the State, on relation of the Botsford Lumber Company, against Alva E. Taylor, Judge of the Circuit Court of Kingsbury County in the Ninth Judicial Circuit of the State of South Dakota. Writ denied, and proceeding dismissed.

Brown Abbott & Somsen, of Winona, Minn., and Warren & Warren, of De Smet, for plaintiff.

D. A Crawford, State's Atty., of De Smet, and M. Harry O'Brien, Asst. Atty. Gen., for defendant.

SMITH P. J.

At the December, 1913, term of the circuit court of Kingsbury county, the grand jury returned an indictment against the Botsford Lumber Company, a corporation, charging unfair discrimination in violation of chapter 131, Laws of 1907. Certain proceedings were had to bring the defendant corporation before the court to answer said charge, which the court held to be unauthorized, but which are not material to any question presented at this time. Thereafter the circuit court directed the issuance of a summons, which was duly served on an officer of the corporation, and which required the defendant to appear before the circuit court on the 2d of March, 1914, at 10 o'clock a. m., to answer the indictment. The summons recited the impaneling of the grand jury, the return of the indictment, and a full statement of its contents. On the return day the defendant corporation appeared specially by counsel, and objected to further proceedings, on the ground that the service of a summons did not give the court jurisdiction of the defendant, for the reason that the statutes of this state do not authorize the issuance of a summons upon an indictment. The objection was overruled, and, the defendant failing further to appear or plead, a plea of not guilty was entered by direction of the court, pursuant to section 566, Code of Criminal Procedure. On motion of the state's attorney, the cause was set for trial at the regular April, 1914, term of the circuit court. Thereupon the plaintiff, the Botsford Lumber Company, filed in this court its verified application for a writ of prohibition, alleging that the circuit court was attempting to act without jurisdiction of the person of plaintiff, and demanding that it be enjoined from further proceedings in said cause.

'The record discloses that no preliminary examination was had either upon a presentment by a grand jury, or on an information filed before a magistrate, nor any certificate returned of sufficient cause to believe the corporation guilty of the offense charged, prior to the finding of the indictment. Plaintiff's contention is that the trial court was without jurisdiction or authority to issue a summons or other process requiring the corporation to appear and answer a criminal charge, except upon an indictment after proceedings prescribed by chapter 6 of the Code of Criminal Procedure, as amended by chapter 87 of the Laws of 1905. This chapter, as amended, provides for a preliminary examination upon a presentment by a grand jury, or on an information filed before a magistrate, a hearing thereon, and a certificate of probable cause, the submission of the matter to a grand jury, and the return of an indictment.

Section 7 of the Penal Code provides: "This Code specifies the classes of persons who are deemed capable of [committing] crimes, and liable to punishment therefor; and defines the nature of the various crimes; and prescribes the kind and measure of punishment to be inflicted for each. The manner of prosecuting and convicting criminals is regulated by the Code of Criminal Procedure."

Section 15 provides: "The following persons are liable to punishment under the laws of this state: 1. All persons who commit, in whole or in part, any crime within this state."

Section 822, Penal Code: "The word 'person' includes corporations as well as natural persons."

Section 183 of the Code of Criminal Procedure provides that "The grand jury has power, and it is their duty, to inquire into all public offenses committed or triable in the county or subdivision, and to present them to the court, either by presentment or indictment, or accusation in writing."

Under these provisions of the Code, this court held in State v. Security Bank of Clark, 2 S. D. 538, 51 N.W. 337, that: "The Code of Criminal Procedure is applicable to all persons, natural or artificial, in respect to the manner of commencing criminal actions. Section 7211 makes it the duty of the grand jury 'to inquire into all public offenses, committed or triable in the county, and to present them to the court, either by presentment or indictment or accusation in writing.' There is no distinction as to their duty to investigate between natural persons and corporations, and whatever evidence will justify either an indictment or a presentment against an individual will justify an indictment or a presentment against a corporation"-and: "The grand jury may indict a corporation in the first instance, as they may indict an individual." We adhere to the view announced in that case. United States v. Alaska, etc., Ass'n, 1 Alaska, 217; Bishop's New Crim. Proc. § 417; People v. Rochester Ry. & L. Co., 195 N.Y. 102, 88 N.E. 22, 133 Am. St. Rep. 770, 21 L. R. A. (N. S.) 998, notes; People v. Equitable Gaslight Co. (Gen. Sess.) 5 N.Y. Supp. 19.

Under the statutes of this state, there are three modes in which a criminal proceeding against a corporation may originate: First. By indictment by a grand jury, in the first instance. Second. Through the return of a presentment by a grand jury, and a hearing before a magistrate. Third. By an information filed before magistrate, and a preliminary examination. When the proceeding is by presentment or information before a magistrate, a summons may issue, as provided by section 560, Code Crim. Proc., requiring the corporation to appear before the magistrate, at a specified time and place, to answer the charge. When the proceeding is begun in either of the modes last named, the state's attorney may himself file an information in the circuit court, or he may submit the matter to a grand jury and have an indictment returned. A corporation is incapable of arrest or physical restraint, and cannot be compelled to appear and answer to a criminal charge. It is, however, a well-settled principle of law that courts may acquire jurisdiction over a corporation by notice or writ, constituting due process of law, so far as to pronounce legal judgment against it upon its failure or refusal to appear. Plaintiff's contention is that no process exists in this state which may issue after the filing of the indictment or information. A careful examination of chapter 6 of the Code of Criminal Procedure as amended by chapter 87, Laws of 1905, and the Code of Criminal Procedure reveals the fact that the statutes contain no special provision for process against a corporation upon any indictment, either with or without preliminary examination, nor upon an information filed by the state's attorney. Sections 560 and 561 of the Code of Criminal Procedure as amended, providing for the issuance of summons, have application only to the preliminary hearing before the magistrate.

Plaintiff's contention is, in effect, that while a corporation may be criminally liable under the laws of this state, and an indictment may be returned by a grand jury, or an information may be filed by the state's attorney, yet the accused corporation can never be brought to trial in a circuit court because, in the absence of an express statute authorizing it the trial court is powerless to issue summons or process, service of which will confer personal jurisdiction of the corporation. If plaintiff's contention must be sustained, it follows that the courts of this state are powerless to try corporations for any violation of the criminal laws of the state. It is perfectly clear that corporations may be guilty of crime, under the laws of this state. It is likewise clear that the courts are given jurisdiction over such crimes, and that a corporation may be charged therewith, either by indictment or information. The specific question is whether there exists any legal mode by which such corporation may be brought before the court to answer the indictment or information. Section 643 of the Code of Criminal Procedure provides: "The procedure, practice and pleadings in the circuit courts of this state, in criminal actions or in matters of a criminal nature,...