Boston, Concord & Montreal Railroad v. State , 32 N.H. 215 ( 1855 )

Bell, J.^*

The first question raised upon the plea in this case, which is in its nature merely a demurrer, is as to the constitutionality of the statute upon which this indictment is founded. Assuming that by its true construction it subjects the plaintiffs in error to indictment, as the State contend, it is said that it subjects the defendants to additional and onerous liabilities, and is, therefore, an infringement of their vested rights.

It is asserted that the legislature have no power to infringe either the express or implied privileges of a corporation, and ■"* this principle in the abstract we are inclined to admit. If this case falls within it, it is governed by it. But we think this principle cannot be construed to limit the general powers of legislation, where such legislation merely regulates the existing rights and duties of corporations, or provides new modes of en-'"' forcing acknowledged obligations. Camden A. B. B. Co. v. Briggs, 2 N. J. 623 ; Caleña $ C. B. B. B. Co. v. Loomis, 13 111. 548. This statute provides a new mode of enforcing the admitted duty of these bodies to conduct their business with such care and prudence as not to endanger the lives and limbs of those whom they undertake to transport, and their obligations to compensate those who suffer by their failure to perform their duty, for the damages sustained. It was never a right of these corporations to conduct their business so carelessly as to destroy the lives of their customers, either by any express or implied grant. Their general liability to answer civilly in such cases is beyond question; and the principle of law, which prevented any redress for personal wrongs in case of the death of / either party, was an absurd provision of a barbarous age, which had ceased to exist here in all cases where an action was commenced in the lives of the parties. It would be but a reasonable extension of the same principle, acted upon in the statute, A granting the right of prosecuting actions for personal wrongs to the personal representatives, (Comp. Stat. 481, sec. 14,) to have allowed the same representatives to prosecute actions which might have been commenced by the deceased, if sufficient time had elapsed between the injury and his decease. It can make no difference in the principle, that the legislature, in giving this right, have endeavored to protect these corporations from popular prejudice and excitement, and have required the prosecution to be in the form of an indictment, thus forbidding any action unless deemed well founded by a grand jury, and by limiting the amount of the fine to be assessed by the court, and thus - preventing the assessment of excessive damages.

Again, it is said that the law is partial; not applicable to common carriers generally, nor even to carriers by steam, but is confined to the case of railroads. The force of this objection is admitted, in cases where a law is made applicable to a class out ■ of a large number, all standing substantially in the same position ; but this law applies to a class, well defined, of common carriers, distinguished by the circumstance that they use, in their business, steam locomotives, driven at a rate of speed known in no other mode of travelling, and attended with risks peculiar to themselves, and far exceeding those of any other carriers. The same reason for this provision does not apply to any other class of persons, and we think the law is free from just exception on this account.

We regard it as clear, that at common law corporations are liable to indictment for neglect of any public duty. Ang. and Ames on Corporations 392; Arch. Cr. Pr. & Pl. 8; 11 Wend. 539; Regina v. Birmingham R. W., 3 B. Q. 223 ; State v. Dover, 9 N. H. 468. And there is nothing new in the extension of this liability by statute to other cases. Reg. v. Great North of England Railway, 11 Shaw’s J. P. 21; 9 Q. B. 315. Nor does there seem to us to be any reasonable objection to laws which should make corporations criminally liable for the misconduct of their officers and agents in the discharge of their duties.

If the laws impose duties of a general and public character upon corporations, they must provide modes to compel their performance, and we are unable to see any reason why the mode of prosecution by indictment is open to any objection which would not equally apply to any kind of criminal prosecution. Corporations necessarily transact their business by means of agents. If they are held responsible criminally, it must generally, perhaps always, be for acts or neglects of those agents. If they are thus answerable for negligence and omissions of agents, there seems no well founded objection to their being made liable, in a proper case, for their acts. Towns and counties are at common law responsible for the repair of highways and bridges, and liable to indictment for neglect of their duty in this respect. Turnpike corporations were usually by statute subjected to the same liability, so far as we have heard without objection. And it is somewhat remarkable that a law against towns, in principle like that in question here, was passed in Massachusetts when her jurisdiction was practically extended over the settlements in the territory of this State, probably in 1648 or 1651. Anc. Char, of Mass. 55, ch. 16, sec. 2. “ The court, considering the great danger that persons, horses, teams, are exposed to by reason of defective bridges and country highways in this jurisdiction, doth order and declare, that if any person at any time lose his life in passing any such bridge or highway, after due warning given unto any of the selectmen of the town in which such defect is, in writing, under the hand of two witnesses, or upon presentment in the shire court, of such defective ways or bridges, that then the county or town which ought to secure such ways or bridges shall pay a fine of one hundred pounds to the parents, husband, wife or children, or next of kin of the party deceased.”

A similar provision is understood to have remained in force in Massachusetts to the present day. Mass. Rev. Stat. 246, and a similar provision is cited from the statutes of this Province in 1732.

The objection which seems chiefly relied upon, relates to the process and proceedings in the case. It divides into two points : first, that the process issued against the defendant corporation was not such as is required by law; and, second, that if this should be deemed proper process, yet it was not such a process as, though duly served, authorized the court to enter up a judgment by default.

. Our examinations lead us to the conclusion that a summons is { the proper and usual process in England to corporations. Some- \ times the process there is called a venire, but it is always spoken of as in the nature of a summons ; so that we are of the opinion that the process adopted in this case was proper and suitable, no less at common law than by the practice of this State.

If there were a doubt upon its strict propriety at common law, yet our examinations satisfy us that from- the early period when the course of proceedings can be traced here, a summons was the uniform course in the case of towns, which were for a long i period the only corporations known. We find on the files such a summons to the town of Portsmouth, in 1668, and to Portsmouth and Dover in 1718 and 1719, an order that a summons issue to Portsmouth in 1698, to Dover in. 1733, to Exeter in 1735, and to Greenland in 1736. Our search was necessarily very limited, but the cases we found were quite sufficient to satisfy us that a I summons has been the usual process to towns from our earliest f records.

But it is said that a distringas should have issued at the return term, and that no judgment could be entered until the defendant corporation had first appeared ; and it may perhaps be so at common law, since the course, as it is suggested, was to distrain the whole property of the corporation, including the franchise; and if they would not appear, there was the end of ¡the case and of the corporation. But we have failed to find any evidence that any such process as a distringas has ever been in use in New-England. The nearest approach to it is the process of attachment, which, perhaps, was at first a process to compel an appearance, but was almost at once converted by the colonial legislature of Massachusetts to its present use; a seizure of the property of the defendant, “ as security to satisfy the judgment which may be recovered.”

The distringas was in the case of individuals the regular step to an outlawry; and we suppose it too clear to be questioned, that no process of outlawry was ever used or known in this government.

The summons and capias were, so far as we have been able to'* trace, the only processes known here in criminal cases; and the capias did not lie in the case of a corporation. There being no r other process against towns than a summons, it necessarily folN lowed that if the town did not appear, it must have been taken, as was uniformly done in all civil cases, as a confession of the action, and judgment rendered against the town upon their default of appearance.

This was” doubtless a departure from the usual course of proceeding at common law ; but it was not a greater departure in criminal than in civil cases, nor in the case of a corporation than in that of individuals. Judgment by default without an appearance was an unusual thing at common law. Writs were issued from the king’s offices, and were a source of profit to the king, as well as to every body employed in the administration of the law. No short ways were encouraged, but writ after writ was issued, until the defendant was compelled to appear, or to be outlawed.

The first colonists of New-England were fishermen and farmers, their leaders were clergymen, and though they brought with them a general idea of English law and English liberty, the Registers of Writs were sealed books to them, as much as they are to us at this day. Instead of attempting to follow the forms of the Register, they devised processes of their own. The recital of some of them will show that no reverence for any ancient forms existed among the courts here.

Among the files of 1660 is a writ, of which the following is a copy:

“ To the Constable of Portsmouth, or his Deputy:

“ You ar'e required to attach the goods, and, for want thereof, the body of John Pickering, and take bonds of him to the vallew of 12 li., with sufficient securite for his appearance at the next commission court held at Portsmouth, then and there to answer the complaint of Walter Abbott, in an action of debt for seven pounds, 12s. 6d., as may appear by book, with due damages, and soe make your return under your hand.

“ Dated 19th June, 1660.

“ Per curia, Elias Stileman.”

The following is an extract of the summons before referred to, in a criminal case :

“ To ye Constable of Portsmo., or his Dep'te:

“ You are requ’d, in His Ma’te’s name, to somons these undernamed, to answer to their several presentm’ts, the last Tuesday in September, in Dover, at the Court of Associates, with the witnesses in the margent.

WITNESSES.

“ John Miehemore. George Jones, for his excessive drinking."

Robert Mattoone, for excessive drinking, and fighting with Tho. Day.” “ Capt. Pendleton. Rob. Puddington.

Martin Hall and Mary Codner, for keeping of compa. at unseasonable times.” “ Capt. Pendleton. Mr.Tfryer.

“The Selectmen of the town of Portsmouth, for neclecting to repair the country way between Greenland and Bloody Point, . and for want of weights and measures, and for not fencing their burying-place.”

“ Hereof you are not to fail, at yr. p’ill. Da. ye 19 day of August, 1668. “Pr. Elias Stileman, Dime.”

With the introduction of these original processes, new rules as to the effect of them were adopted, and among these was the judgment by default upon a single summons, where there is no appearance. Such a practice was hardly known in England, and it was long after this that we find the expedient to avoid the tedious common law proceedings to compel an appearance by successive writs, by allowing the plaintiff to enter common bail for the defendant, thus keeping up the appearance of not rendering judgment till appearance.

We regard it as an historical fact, that judgments by default, for want of any appearance after due service of a single proper process, was an original invention of New-England, and has existed here since a very early date after the first settlement of the country. And we have mot been so fortunate as to trace it to any legislation of the early colonial legislature. We are not aware of any objection to this ancient New-England usage, which is constantly applied in civil cases, in the case of corporations as well as individuals, without inconvenience or complaint. The foundation of the English common law, with its infinite niceties, was nothing more than usage ; and usage here holds as high a place, in our esteem, as usage there. Indeed, we regard the ignorance of the first colonists of the technicalities of the common law as one of the most fortunate things in the history of the law |(since, while the substance of the common law was preserved, we happily lost, a great mass of antiquated and useless rubbish, and gained in its stead a course of practice of admirable simplicity, and one which seems to us far better than the most improved codes of practice which have been recently introduced elsewhere.

The idea was suggested in the argument, that the law relating to the service of summons on towns, in case of indictments, was introduced by statute in 1797. • Certainly tbe practice had been uniform for a century and a half before, and the statute of 1797 was introduced to provide for the general issue and a trial, an idea found inconvenient and useless in practice, and which was changed, and the ancient law restored, in the revisions of 1827 and 1842. It is not in any way consistent with our idea of the history of this matter, to say that the courts could not enter a judgment by default against a town till 1827. So far as we can discover, there was no process ever used to compel an appearanee, and judgment was always entered on their default as a con- ¡¡ fession, if they did not appear, till 1797, after which there was a Í formal trial, in the defendant’s absence, till 1827. 1

By the Revised Statutes, chap. 54, sec. 2, it is provided, in terms, that towns indicted may be summoned, and by section 3, if they do net appear, the court shall impose a fine, &c. The maxim, ubi eadem ratio, ibi idem jus, would well justify the extension of the same rule to the case of other corporations.

By title 21, of the Revised Statutes, entitled “ of actions and process,” chap. 182, sec. 2, it is provided that “ original process in said courts shall be summons, attachment and capias, and shall be in the forms prescribed by law,” and by sec. 7. In cases where no form of process is prescribed by law, such process shall be made conformable to the forms prescribed in this chapter, so far as the nature of the case will admit.

By chap. 188, sec. 11, it is provided that any writ or process against any other corporation or body, (than towns,) may be served by leaving an attested copy thereof with the clerk, treasurer, or one of the directors.

It is said these provisions are limited to civil cases, but they seem not so limited necessarily by any part of the context, and might well be regarded as applying to criminal as well as to civil process, if it were necessary to resort to that view.

The ordinary course at common law of issuing repeated processes of different kinds, to compel an appearance in criminal cases, wholly unknown here, has been regarded in England itself as but an arbitrary rule of practice, not required by the principles of natural justice. In the case of the Queen v. Simpson, 10 Mod. 248, 341, and 378, S. C. 1 Sess. Ca. 346, and Gill. 282, it was held that a justice may convict an offender in his absence, upon his default to appear after being duly summoned, in a case where the forms of proceeding are not prescribed by statute. And Ld. O. J. Parker, (afterward Ld. Macclesfield,) says, “ the justices are not obliged to the observance of any rules, unless those of natural justice, which all men are bound to observe. One of those rules is, that the offender should be heard before he is condemned. But this rule must admit of this limitation, viz., unless the party refuse to appear. Natural justice only requires the party should know when and where he is to appear and make his defence ; and if he will then neither appear himself, nor trust his defence to any body else, it is highly reasonable he should be proceeded against, and not reap an advantage from a willful and criminal absence.” And he shows “ how the common law proceeds in criminal cases, where the party refuses to appear. In case of outlawry for treason or felony, the law interprets his absence as a sufficient evidence of his guilt, and without requiring further proof accounts him guilty of the fact; corruption of blood and forfeiture of estate ensue. In real actions the second default is final and conclusive, and the court, without regarding the merits of the cause, will give judgment that he shall lose his land. Outlawry in lesser crimes or in personal actions, does not, as in the first case, occasion the party to be looked upon as guilty of the fact, or, as in the second case, occasion a judgment for the thing in demand; yet, it is in its consequences more penal and fatal than if it did. For a restraint of the liberty of the party, if he can be found, the profits of the land, while the outlawry remains in force, and all his goods and chatties forfeited to the king, together with an exclusion from the benefit and protection of the law, follow upon it.”

The judgment of outlawry is clearly a judgment rendered upon default of appearance, as the judgment for the land in a real action, and both cases show that there is no principle of the Jggnt against Batchelder, and in the same writ caused this defend-common law which forbids a judgment, either in a civil or criminal case, where the party has been duly served with proper process, in his absence.

It is suggested in argument, that in Masachusetts a statute was passed, in 1851, providing for judgment on default against corporations, from which the inference is drawn that by the ancient practice there no such judgment could be entered. But we find a different mode of accounting for this statute. In the Revised Statutes of 1836, a clause was introduced that “ no person indicted for an offence shall be convicted thereof unless by confession of his guilt in open court, or by admitting the truth of the charge against him, by his plea or demurrer, or by the verdict of a jury, accepted and recorded by the court.” Under such a statute no question could arise as to the ancient and previous practice.

Upon these views we are of the opinion that the process used was legal, and the judgment duly entered upon the defendants’ failure to appear as upon default.

Judgment affirmed.

* Perlet, C. J., having been of counsel, did not sit.