
    INCORPORATED COMPANY LIABLE TO INDICTMENT FOR SELLING INTOXICATING LIQUORS.
    [Lawrence County Common Pleas Court.]
    State of Ohio v. The Leo Ebert Brewing Company et al.
    Decided, November 11, 1903.
    
      Corporations — Liable to Indictment for What Offenses — Requisite Intention of — Punishable for Belling Intoxicating Liquors.
    
    An incorporated company is liable to indictment in the state of Ohio for those offenses where the only requisite intention is an intention to do the act which the statute prohibits.
   Collins, J.

The main question presented by the demurrer to this indictment, which charges an unlawful sale of intoxicating liquor, is as to whether am incorporated company is indictable under the laws of the state of Ohio, it being strongly contended by counsel for the defendant' that for various reasons such indictment will not lie, principally because the Legislature has used terms which apply aptly to natural persons rather than artificial ones, and because it is doubtful whether a corporation as a legal entity can commit' an offense.

The statute which provides what meaning shall he given to certain words and phrases in interpretation of part fourth of the Revised Statutes, does not help to determine this question, because it merely provides that the word person shall include corporation when the corporation is the owner of property which is the subject of offense.

Judge Welch, in an early ease (24th Ohio State, 611), holds that a corporation is not indictable for nuisance, because the statutes prohibiting the offense at that time used the word person, and for the further reason that there was no provision for criminal process by which a corporation could be brought into court to answer to the indictment. I am -also reminded of the fact that the Legislature has, since the decision just 'alluded to, passed am act rendering a corporation liable to indictment for nuisance, and it is argued that the Legislature in passing that act indicated the purpose not to hold corporations indictable for other offenses; that if that tos so intended it would have been so enacted. But upon this proposition it must not be forgotten that the Legislature has enacted and incorporated into the criminal code of procedure a provision for summoning corporations when indicted.

Section 7231 reads:

“When an indictment is presented against a corporation, a summons commanding the sheriff to notify the accused thereof, and returnable on the seventh day after its date, shall issue on the precipe of the prosecuting attorney; and the corporation may appear by one of its officers, or by counsel, and answer to the indictment by motion, demurrer or plea.”

This statute no doubt passed upon- the assumption that corporations were indictable. It has long been settled law that a corporation is civilly answerable for certain torts committed by its officers, including even a malicious libel, although, as this might well be said, that an intention is an element.

It does not follow to my mind that because the Legislature iu enacting criminal statutes used personal pronouns, that they therefore intended only natural persons to be amenable in criminal procedure; in fact, in view of the prevalence of corporations, under present conditions, almost every branch of business now being transacted by them, it would seem strange, and hardly logical, to attribute to a Legislature a purpose to make an act unlawful when committed by a natural person, and not unlawful when done by the officers or agents of a number of persons who had become incorporated under the laws of the state. And it seems to me that the much more reasonable view is, that when acts of a corporation come within 'the spirit and purpose of a criminal statute, they should also he held to be within the letter, unless there is- something in the statute indicating the contrary intention.

We are not, however, without authority upou the question. A late decision in the United States District Court', N. D., California (United States v. John Kelso Company, reported in Federal Reporter, Vol. 86, p. 304), De Haven, District Judge, discusses quite freely the question, and comes to the conclusion that for a large class of crimes, at least, á corporation is indictable, although the statute in terms may only apply to persons. With the reasoning of 'this decision, I am entirely satisfied 'and believe that it is dis-positive of this case. The learned judge says,, after quoting the statute which makes it unlawful for a contractor or sub-contractor to require or permit a laborer to work more than eight hours a day:

“The rules of evidence in relation to the manner of proving the fact of intention are necessarily .the same in 'a 'criminal as in a civil case, .amid the same evidence, which in a civil case would be sufficient to prove a specific or malicious intention upon the part of a corporation defendant, would be sufficient to show a like intention upon the part of a corporation charged criminally with the doing of 'an act prohibited by the law. Of course, there are certain crimes of which a corporation can not be guilty, as, for instance, bigamy, etc. Crimes like these just mentioned can only be committed by natural persons, and statutes in relation thereto are for this reason never construed as referring to corporations; but when a statute in general terms prohibits the doing of an act which can be performed by a corporation, and does not expressly exempt such corporations from its provisions, there is no reason why such statute should he construed as not' applying to them, when the punishment provided for its infraction is one that can be inflicted upon a corporation, as, for instance, a fine. In the act of Congress now under consideration, it is made an offense for any contractor whose duty it shall be to employ, direct, or control any laborer employed upon any of the public works of the United States, to require or permit such laborer to work more than eight hours in any calendar day. A corporation may be a contractor or sub-contractor in carrying on public works of the United States, and 'as sucb it has the power or capacity to violate this provision of 'the law. Corporations are, therefore, within the letter, and as it is as much against -the policy of the law for a corporation to violate these provisions as for a natural person so to do-, they are also within the spirit of this statute, and no reason is perceived why a corporation which does the prohibited act should be exempt from the punishment' prescribed therefor. If the law should receive the construction contended for by thé defendant, the result would be that a corporation, in contracting for the doing of any' public work, would be given a privilege denied a natural person. Such an intention should not be imputed to Congress, unless its language will admit of no other interpretation.”

It seems to me the reasoning of this case applies forcibly to the one in hand. A corporation is without question capable of making a sale of liquor, and entirely capable of doing the acts prohibited in that behalf by the statute. And 'as is said by the learned judge just quoted, there ought not to be attributed to the Legislature a purpose to punish the act when done by a natural person and overlook the same act when committed by am. artificial person. The offense as here charged involves the act which a corporation is entirely capable of doing, and is punishable by a penalty, to-wit, a fine, which may readily be inflicted upon a corporation.

C. E. Belcher, for defendants.

The demurrer to the indictment is overruled.  