147 N.W. 72 | S.D. | 1914
At the December, 19x3, term of the circuit court of Kingsbury county, the grand jury returned an indictment against the Bo-tsford 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 t-h-e 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
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. .
Sec. 7 of the Penal Code provides: “This code specifies the ' classes of persons who are deemed capable of 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.” Sec. 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.” Sec. 822 Penal
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 a 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.
A careful examination of chapter 6 of the Code of Crim. Proc. as amended by chapter 87, Laws of 1905, and the Code of Crim. Proc. 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. Sec. 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 not specifically provided for in this Code, shall be in accordance with the procedure, practice and pleadings of the common law.” In the case of People v. Jordan, 65 Cal. 644, 4 Pac. 683 ; the court said: “It may be conceded for our present purposes, that where machinery has 'been supplied for
The summons provided by section 561 of the Code of Criminal Procedure is recognized by our Legislature as an appropriate pro^-cess to require a corporation to answer a criminal charge, upon a preliminary hearing, before a magistrate. We think a summons such as was issued and served in this case, is equally appropriate and sufficient. Similar process has been many times recognized as sufficient by the courts of other states, and the Federal courts. State v. Pres. Ohio M. R. Co., 23 Ind. 362; State v. Western N. C. R. Co., 89 N. C. 584; State v. Norfolk & S. Ry. Co., 152 N. C. 785, 67 S. E. 42, 26 L. R. A. (N. S.) 710, 21 Ann. Cas. 692; Boston, C. & M. R. R. Co. v. State, 32 N. H. 215; United States v. John Kelso Co., 86 Fed. 304; United States v. Standard Oil Co. (D. C.) 154 Fed. 728; United States v. Union Supply Co., 215 U.
In Commonwealth v. N. Y. & H. R. R. Co., 206 Mass. 417, 19 Ann. Cases, 529, 92 N. E. 766, the court says1: “It is a general rule that, where there is power in the court to hear and determine a case, there is also a power .to issue proper process to enforce its orders. Riggs v. Johnson County, 6 Wall, 166, 187, 18 L. Ed. 768; Collins County National Bank v. Hughes, 152 Fed. 414, 81 C. C. A. 556. And the power of the court to obtain control over a corporation in either a 'civil or a criminal case by any appropriate process has been maintained. United States v. Kelso, (D. C.) 86 Fed. 304; United States v. Standard Oil Co., (D. C.) 154 Fed. 728. See further upon this subject United States v. Union Supply Co., 215 U. S. 50, 30 Sup. Ct. 15, 54 L. Ed. 87; Boston, Concord & Montreal R. R. v. State, 32 N. H. 215; Commonwealth v. Lehigh Valley R. R., 165 Pa. 162, 30 Atl. 836, 27 L. R. A. 231; State v. Western North Car. R. R. 89 N. C. 584; People v. Jordan, 65 Cal. 644, 4 Pac. 683. The general pidnciple of these cases is that a grant of jurisdiction 'carries with it by implication power to use the necessary means to exercise and enforce that jurisdiction. What are the limits of that principle in such cases as the one now before us, it is not necessary here to consider. There is at least no question, either on principle or on authority, that a summons served upon its proper officers is the correct process to bring a corporation into court either upon complaint or indictment.”
Plaintiff contends that the Legislature of this state has directed how a corporation shall be brought into court to answer a criminal 'charge, and that the courts are forbidden .to devise or adopt other or different means, under the maxim "Bxpressio unius, excnsio alterius.” The maxim can have no> application in this case, for the reason that the Legislature has wholly failed to provide any method or process by which a corporation may be required to appear before the Circuit Court for trial upon an indictment or information. The situation is precisely that discussed by the recorder of the Court of General Session of New York County, in People v. Equitable Gaslight Co., 5 N. Y. Supp. 19, where the recorder said: “ I have been unable to find any statutory provision compelling the appearance of a corporation after indictment
Section 643 of our Code of .Criminal Procedure, declares that in criminal actions, any matter of. procedure not specifically provided for in the Code, shall be in accordance with the procedure of the common law.
The doctrine of common law process against corporations in criminal actions is learnedly and exhaustively discussed in Commonwealth v. Lehigh Valley R. R., 165 Pa. St. 30 Atl. 836, 276 R. A. 231, where it is held that summons is proper process, upon which default may be entered against a corporation in a criminal action.
In State v. W. N. C. Ry. Co., 89 N. C. 584, it was held that “A corporation, having existence only as a legal conception, and incapable of being present in court except as represented by an attorney, would seem from its nature, be subject to- the same process in civil and criminal actions.” In R. R. v. State, 32 N. H. 215, the same view is expressed. The common law process by distringas being held obsolete, or repealed, the provision of the Code of Civil Procedure as to service of summons on corporations, was held applicable in Commonwealth v. N. Y. C. & H. R. R. Co., 206 Mass. 417, 92 N. E. 766, 19 Ann. Cases 529.
We are of the opinion the summons issued by the trial court, was a valid and appropriate process to require the defendant cor