United States Exp. Co. v. State

• Decision Date: 03 February 1905
• Docket Number: No. 20,308.,20,308.
• Citation: 164 Ind. 196,73 N.E. 101
• Parties: UNITED STATES EXP. CO. v. STATE.
• Court: Indiana Supreme Court

164 Ind. 196

73 N.E. 101

UNITED STATES EXP. CO.

v.STATE.

No. 20,308.

Supreme Court of Indiana.

Feb. 3, 1905.

Appeal from Circuit Court, Howard County; J. F. Elliott, Judge.

Action by the state of Indiana against the United States Express Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Baker & Daniels and Blacklidge, Shirley & Wolf, for appellant. W. C. Geake, C. C. Hadley, C. W. Miller, Ed. Daniels, L. G. Rothschild, and Thos. S. Gerhart, for the State.

GILLETT, J.

This action was commenced before a justice of the peace. Appellant was charged with a violation of the act of March 6, 1901 (Acts 1901, p. 97; section 3312a, Burns' Ann. St. 1901). The act (omitting the enacting clause) is as follows: “That all express companies doing business within the State of Indiana shall deliver all express matter to all persons to whom the same is directed, living within the corporation limits of cities within the State having a population of twenty-five hundred or more inhabitants, according to the last preceding United States census, and any express company failing to deliver such express matter shall be fined in a sum not to exceed one hundred dollars, or less than ten dollars, for each and every offense.” It appears from the evidence upon the trial in the circuit court that on or about July 24, 1902, appellant was engaged in the express business, and that it had an office in the city of Kokomo. On that day the prosecuting witness, Thomas A. Gerhart, who lived in said city, received through the mail a postal card from said company, stating that it had at its office an express package for him, consisting of a box of fruit, and requesting him to call for it. The postal was addressed to Mr. Gerhart at his residence, No. 395 South Main street, in said city. Mr. Gerhart called up the agent on the telephone, and informed him that he desired to have the package delivered at his said residence. This the agent refused to do. There was a second refusal on his part in a conversation between the two at the express office in the course of which the agent stated that the express companies doing business in that city had limited their delivery limits some two weeks before. The package was addressed to Mr. Gerhart at his residence. Appellant introduced in evidence its articles of association, from which it appears that by articles of agreement certain individuals agreed that said company be organized as a joint-stock company for the period of 10 years from April 22, 1854, for the purpose of doing a general express forwarding agency, commission, banking, exchange, and insurance business. A capital stock of 5,000 shares, of the par value of $100 each, was provided for, and a board of directors was created, to whom the articles purports to grant extraordinary powers relative to the management of the affairs of the company. It was further provided in the agreement that all deeds of real estate and all bonds, mortgages, and other sealed instruments made to and for the benefit of the company should be made to and by the president of the company, and that he might bring and prosecute all suits in law and in equity. It was also stipulated by the writing that the death or disability of a stockholder should not dissolve or affect the business of the company, and it was provided that in case of the decease of any member and his shares of stock coming into the hands of any person who was not legally competent to act the company might purchase such shares at a value to be fixed by appraisement. By a supplemental agreement, made in 1859, the stockholders agreed that the existence of said company should be extended for 20 years from and after the 1st day of May, 1864, and that the board of directors might thereafter from time to time make extensions of the existence of said company as it might deem best, and it is shown by a resolution dated at New York, January 23, 1884, that the directors, purporting to act “pursuant to a legal notice,” ordered a further extension for a like period. It also appears that the company had complied with the provisions of section 3307, Burns' Ann. St. 1901, relative to the filing of a statement in Howard county. Appellant assigns error in this court as follows: “(1) The facts stated in the affidavit upon which this prosecution was based do not constitute a public offense. (2) The facts stated in the affidavit and warrant issued thereon do not constitute a public offense. (3) The Howard circuit court erred in overruling appellant's motion for a new trial.”

It is first contended by appellant's counsel that the charge in the affidavit that “the United States Express Company, late of said county, did then and there, being an express company, doing business within the state of Indiana,” etc., amounts to an averment that appellant is a corporation, and that the evidence shows that appellant is a partnership. Assuming that, in the absence of proof of the law under which appellant claims to possess the extraordinary powers provided for in its articles, it is not shown that appellant was a corporation, it does not follow that there is any variance between the allegation and the proof. The legislation of this state shows that since 1855 the General Assembly has not only assumed to regulate, but has been familiar with the manner of the organization of, that class of carriers which furnish express facilities as auxiliary to the public service furnished by corporations operating over rail and water ways. Acts 1855, p. 99, c. 48; Acts 1879, p. 146, c. 56; section 3306, Burns' Ann. St. 1901; Acts 1883, p. 107, c. 88; section 3309, Burns' Ann. St. 1901; Acts 1901, p. 149, c. 93; section 3312b, Burns' Ann. St. 1901. The acts cited describe the organizations regulated as all copartnerships, associations of persons, joint-stock associations or companies, and sometimes the word “corporation” is also used. In all of these acts there is the added description, “usually called express companies.” In the light of the legislation referred to, it is clear that when the act under review was adopted the words “all express companies doing business within the state of Indiana” had a settled meaning, and that they were employed in a generic sense. Indeed, any interpretation of the act which so limited its operation as not to include all of these auxiliary organizations which use the railroads and waterways of the state as a means of transporting parcels by express would render the act unconstitutional-an interpretation which this court will only adopt as a dernier ressort. There is no reason whatever for this interpretation, and we must conclude that the term “express companies” was employed generically.

Counsel have called our attention to certain early holdings of this court to the effect that, where an organization is described as a company, it will be presumed that it was intended to aver that it was a corporation. There is no occasion to call these rulings in question. Here we have a statute which uses the words “express companies” as descriptive of a class, and it is evident that the state is proceeding against appellant under this enactment. The words of the affidavit, “being an express company doing business within the state of Indiana,” are set out by way of inducement. “Matter of inducement need not be set out in the indictment either so much in detail or with such directness of charge as those parts are required to be which constitute the gist of the offense.” 1 Bish. Cr. Pro. § 554; Clark's Cr. Pro. p. 176. We do not perceive how it can be contended with any show of reason, considering the nature of the matter, that the state may not aver in the language of the statute that the defendant belonged to the class against whom the penalty is denounced. The inducement describes appellant as an express company, and the proof shows that it belonged to that class of organizations which the statute describes as companies. As stated by an authoritative writer: “On the general principles of common-law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute in all cases where the statute so far individuates the offense that the offender has proper notice, from the mere adoption of the statutory terms, what the offense he is to be tried for really is.” Wharton, Cr. Pl. & Pr. § 220. This is a matter of settled law in this state. Parks v. State, 159 Ind. 211, 64 N. E. 862, 59 L. R. A. 190, and cases there cited. It is competent for the Legislature to provide that a partnership committing a certain act shall be liable criminally. No question of service is presented in this case by the assignment of error, and appellant appeared below by counsel.

It is next claimed by counsel for appellant, as we understand them, that the statute does not require a delivery at the residence or place of business of the consignee, but is satisfied with a personal delivery, from which we infer that appellant's position is that the statute may be complied with by holding the package at the local office subject to the call of the consignee. We recognize that criminal statutes are to receive a strict construction, and that courts are not at liberty to explore without the letter of the enactment for the intent of the Legislature, but it is nevertheless true that the purpose of the lawmaking power may be ascertained from a consideration of the enactment as a whole, and that it is not to be construed so strictly as to defeat the obvious intent. State v. Hogreiver, 152 Ind. 652, 53 N. E. 921, 45 L. R. A. 504; Lewis' Suth. St. Const. § 528. The provision which limits the operation of the statute to cases where the consignee lives within the corporate limits would be meaningless if it were not the purpose of the Legislature to require the carrier to do something more than to deliver the package at its own office. In this instance the address upon the package indicated that it was to be delivered to the...