Delaware Division Canal Co. v. Commonwealth , 1869 Pa. LEXIS 96 ( 1869 )

The opinion of the court was delivered,

by

Thompson, C. J.

No doubt whatever can exist at this day, but that corporations other than municipal may become amenable to the criminal law in the matter of the creation and maintenance of things which amount to or become public nuisances, and to be proceeded against by indictment: 1 Am. Crim. Law, §§ 86-87. As a general rule they are not indictable for misfeasances unless indeed they assume the shape of nuisances: Id. § 89. For assaults and batteries, riots, larcenies and the like they are not so answerable. These principles, however, do not seem to be disputed in this case.

The 1st and 2d assignments of error present a single question, namely, that the court below erred in not arresting judgment on the verdict against the defendant.

Arrests of judgment arise from intrinsic causes appearing on the face of the record: Chit. Blac. vol. 3, p. 395. In criminal cases an arrest of judgment is founded on exceptions to the indictment: Id., vol. 4, 375. This is the general rule, although an exception exists where a pardon is pleaded before sentenbe. The rule in civil cases seems well settled and elementary “ that whatever is alleged in arrest of judgment, must be such matter as would on demurrer have been sufficient to overturn the action or plea: 3 Bl. Com. 394. I apprehend there is no difference' between criminal and civil cases in the applicability of the rule. Tested by this rule wherein was there error on part of the court in refusing to arrest the judgment in this case ?

We find on examination of the indictment that it is in due and proper form, charging the defendants with maintain'Jweontinuing and keeping up the tow-path in so careless, unskilft.^Wi unlawful manner, that the water from their canal escapes th^R;h the lock or walls, and forms pools or ponds of stagnant water, producing miasma or miasmatic vapors, corrupting and rendering the air unwholesome, to the nuisance and injury of the public, and producing disease among the inhabitants of the neighborhood. The 2d count charges the defendants with unlawfully and injuriously keeping and maintaining the pools or ponds, formed as stated in the 1st count, outside ‘of, and unnecessary to the use and business of the canal, without drains or other means to carry off the water whereby they became and are stagnant water, creating miasma and producing disease among the people resident there.

Tested by this standard of whether demurrable, the indictment is sound beyond a doubt,- if the creation and maintenance of a nuisance be a misdemeanor. That it is, no possible doubt can exist. The indictment being sound and exhibiting on its face a clearly defined offence, what reason could there be for'arresting judgment ? The answer must jnevitably be, none; and here we might leave the subject of the exceptions, but will notice some matters claimed in argument, but which, after all, cannot affect the positions stated, so far as the result is concerned. '

The defendants claim that they ought not to be convicted and sentenced, because they held the works mediately by purchase and lease from the Commonwealth. This is true. But it nowhere appears in the indictment, or by plea, that the Commonwealth created those, or similar pools, while it is distinctly charged that the defendants did; and this the jury have found to be true, and that the pools are no part of the canal, or necessary to its use. But suppose it had been proved that the Commonwealth did create and maintain them, and notwithstanding the defendants had been convicted, that appearing only in the testimony and not on the record, and there being no bill of exceptions in such case to bring up the rulings of the court on the testimony, or the testimony itself, we could not review the trial and. give relief even if we supposed there was error. That can be done only by the court below.

But it is objected that it should have been averred in the indictment, it appearing that the canal was constructed by the Commonwealth, that the company conducted and used their works differently from the use and management of them by the state, and that the indictment was defective for the want of such an averment. If the fact of entire accordance in the use of the canal by the company with that of the state, were a defence, the case was open to them to make it, and the form of the indictment did not preclude the proof. The Commonwealth was not bound to do more than to set forth facts constituting the offence; which she did, as alr^Jv said. That the defendants did not succeed in inducing thS^Hárt and jury to believe that there was a similarity of user, or tW^f there was, it was a defence, is not a matter for our consideratron. It ought to be understood by the people, as well as the profession, that this court has but a limited power of review in Commonwealth cases'of the grade of this. We cannot say what effect the proof should have had in any given case, for it cannot come before us as the law stands. We can only interfere where the record evinces error — that is to say, when there has been a conviction, and no offence charged in the indictment— or a sentence not conforming to the law of the crime, or sustained by the conviction — or other matters which the record may show to be contrary to law.

It has not yet been decided that a nuisance created by the Commonwealth resulting from, but not necessarily a part or parcel of its works, may not be a nuisance when continued by a company. The analogy between the position of the Commonwealth as proprietor, and that of a corporation, is not exact on the question of liability and relative duty, because the one is sovereign, and the other subordinate. The maxim relating to the one is, that it can do no wrong, while the other may, and for this reason, acts resulting from sovereignty are not indictable when done by the sovereign power. The Commonwealth can neither be sued nor indicted; but because this is so, I do not think it follows that such an immunity passes to the vendees of her property or rights. The Railroad Company v. Duquesne Borough, 10 Wright 223, strongly sustains this view. It is in fact, however, not material to decide the point in this case.

In The Commonwealth v. Reed, 10 Casey 275, the whole question of liability was reduced to a question of law by the pleadings. The plea averred that the dam complained of as occasioning the nuisance was erected by the Commonwealth as part of her canal, and as such was granted to the defendants upon the express condition that they were to maintain and keep up said canals and necessary works. There was a demurrer to this, which admitted every allegation in the plea. The decision, therefore, was that the works themselves having been created by the Commonwealth and granted to the defendants, could not be indicted as a nuisance. The effect of the creation and grant by the Commonwealth was thus brought upon the record, and the determination of the question on review in this court, was upon the case on the record. Yery different is the position of the question here, even if it were essentially similar. There it appeared on the record — here it could only appear in the proof that the Commonwealth created similar pools, or the very ponds or pools indicted. In the latter aspect this court could take no cognisance of the action of the court on the subject. The questions would have been similar and the position similar if the canal itself had been indicted as a nuisance, and the plea had set forth its construction and grant to a purchaser by the Commonwealth. The difference between the question in this case and the one before us is very marked. That would have involved the right of the state to construct such a work, while the question here is, are the defendants indictable for so maintaining the works as to create ab extra a nuisance ? That does not involve the construction, but the use. We think the court could not have arrested the judgment for the reasons urged by the defendants’ counsel, taking it for granted that they were substantially those so ably argued here.

3. The 3d assignment of error is disposed of by what has been already said. We think there is an indictable offence sufficiently set forth in the indictment.

4. It is part of the penalty in convictions for public nuisances that the defendant be required to abate them; and the fact that the nuisance is on the land of a stranger, is no reason for not abating it. The owner of the soil where the nuisance is must not be allowed to control the public right to have it abated; and what the law commands to be done for the benefit of the public an individual may not resist. Smith v. Elliott, 9 Barr 375, rules this assignment of error against the defendants.

The averment that the nuisance is situate in the borough of Morrisville, is a sufficient averment of being in the neighborhood of dwellings; certainly it is, after verdict, without objection previous to trial. So is the proximity of a highway sufficiently averred.

Seeing no reason for disturbing the action of the court below in this case, the sentence is affirmed.