Argument for Defendant in Error.

229 U. S.

are the rules of the common law as of the year 1789. United States v. Reid, 12 How. 361; United States v. Maxwell, 3 Dill. 275; United States v. Nye, 4 Fed. Rep. 888; Erwin v. United States, 37 Fed. Rep. 470, 488; Withaup v. United States, 127 Fed. Rep. 530.

The definition of an indictable juridical person under the laws of the United States cannot be prescribed and governed by state law, common or statutory, and vary with the laws of the several States. Logan v. United States, 144 U. S. 263, 283.

The Government cites civil and criminal cases in this and other courts to which such companies have been parties in their associate name, but in no case was the Federal question of proper indictment raised. Adams Exp. Co. v. Iowa, 196 U. S. 147; Express Companies v. Kentucky, 206 U. S. 129, 138, 139; Adams Exp. Co. v. Schofield, 111 Kentucky, 832; Commonwealth v. Adams Exp. Co., 123 Kentucky, 720; Adams Exp. Co. v. State, 55 Oh. St. 69; Am. Exp. Co. v. People, 133 Illinois, 649. The actual title of Adams Express Company v. Ohio State Auditor, 165 U. S. 185, 194, was Henry Sanford, President of the Adams Express Company, v. Auditor &c. Adams Express Co. v. Indiana, 161 Indiana, 328, was maintained by the State under the provisions of a special statute. In Southern Express Co. v. Commonwealth, 92 Virginia, 59, the plaintiff is a corporation under the laws of Virginia.

If jurisdiction has heretofore been taken sub silentio, this court does not consider itself bound. Louisville Trust Co. v. Knott, 191 U. S. 225; United States v. More, 3 Cranch, 159, 172; United States v. Sanges, 144 Ų. S. 310; Pollock v. Farmers' L. & T. Co., 157 U. S. 429, 574.

Neither the Elkins Act of February 19, 1903, nor the Hepburn Amendment of June 29, 1906, makes the members of a joint stock association express company indictable in the company name. United States v. Michigan Cent. R. R., 43 Fed. Rep. 26, 28; Re Peasley, 44 Fed. Rep.

271, 275; N. Y. Cent. R. R. v. United States, 212 U. S. 481, 495.

Section 1 of the Elkins Law has no application to a common carrier that is not a corporation.

The several amendments extended the application of the act to various kinds of common carriage other than those originally included, but did not extend or change the application of the act as affected by the personnel or particular form of organization adopted by the persons engaged in the several kinds of common carriage covered by the act from time to time.

If there be any fair doubt of the application of a criminal statute it must be resolved in favor of the accused; United States v. Clayton, 2 Dill. 219; United States v. Wiltberger, 5 Wheat. 76, 95; Smith v. Townsend, 148 U. S. 490, 497; France v. United States, 164 U. S. 676; United States v. Biggs, 157 Fed. Rep. 264; Commonwealth v. Adams Express Co., 123 Kentucky, 720.

It is not denied that interstate express carriers, whether corporations, individuals or co-partnerships, are subject to the regulations imposed by the Interstate Commerce Act and to the jurisdiction of the Commission, but when they are charged in the courts with criminal offenses, the proceedings must be in accordance with fundamental principles of criminal law and procedure.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an indictment, under the Act to Regulate Commerce, of the Adams Express Company, by that name, alleging it to be 'a joint stock association, organized and existing under and by virtue of the common law of the State of New York.' A summons to the Adams Express Company was issued and returned served on Charles F. Barrett, general agent for said company. Thereupon Barrett moved to quash the service and return

'on the ground that the same are not authorized by law.' The entry with regard to the action upon this motion is that the court, "treating said motion as a demurrer to the indictment, finds that the indictment cannot be maintained against the Adams Express Company for the reason that it appears on the face of said indictment that the said Adams Express Company is not a corporation, but is a joint stock association and for this reason the motion to quash service, treated as a demurrer to the indictment, is sustained and the defendant discharged, and the cause dismissed; to all of which the United States of America, by its counsel, excepts."

It is objected that this court has no jurisdiction of the present writ of error under the act of March 2, 1907, c. 2564, 34 Stat. 1246, and that the court below had no authority to treat the motion of Barrett as equivalent to a demurrer. Without following the defendant into the niceties by which it seeks to escape the jurisdiction of this court after having eluded that of the court below, it is enough to say that in our opinion, if we are to go behind the entry, the decision entered was one setting aside the indictment and was based upon the construction of the statute upon which the indictment is founded, within the meaning of the act of March 2, 1907.

We turn to the merits. The indictment alleges that the Adams Express Company had filed with the Interstate Commerce Commission its schedules of rates and charges, specifies what those charges were in certain cases, and sets forth in different counts instances in which the company demanded and received sums in excess of its schedule rates for the parcels carried-in short, disobeyed the act of February 4, 1887, c. 104, § 6, 24 Stat. 379, 380. By § 10 (amended by act of June 18, 1910, c. 309, § 10, 36 Stat. 539, 549), any common carrier subject to the provisions of the act, wilfully doing this is guilty of a misdemeanor and liable to a fine.

The objection to applying § 10 to the defendant has been indicated. It is confirmed in argument by the citation of many cases in which such companies are treated as simple partnerships, including those in which this court has declined to extend the legal fiction applied in determining jurisdiction over corporations so as to cover them. Chapman v. Barney, 129 U. S. 677. Great Southern Fireproof Hotel Co. v. Jones, 177 U. S. 449, 454, 456. Thomas v. Board of Trustees, 195 U. S. 207. But the argument is met by the plain words of the statute as it now stands. For by § 1 of the original act of 1887, as amended by the act of June 29, 1906, c. 3591, 34 Stat. 584, "The term 'common carrier' as used in this act shall include express companies and sleeping car companies." And thus the liability of common carriers created by § 10 stands as if it read that express companies violating § 6 should be guilty of a misdemeanor and liable to fine.

It has been notorious for many years that some of the great express companies are organized as joint stock associations, and the reason for the amendment hardly could be seen unless it was intended to bring those associations under the act. As suggested in the argument for the Government, no one, certainly not the defendant, seems to have doubted that the statute now imposes upon them the duty to file schedules of rates. American Express Co. v. United States, 212 U. S. 522, 531. (The American Express Company is a joint stock association.) But if it imposes upon them the duties under the words common carrier as interpreted, it is reasonable to suppose that the same words are intended to impose upon them the penalty inflicted on common carriers in case those duties are not performed. It is true that a doubt was raised by the wording of § 10 in the original act, whether corporations were indictable under it. This doubt was met by the act of February 19, 1903, c. 708, § 1, 32 Stat. 847. We do not preceive that any inference can be drawn

from this source in favor of a construction of the later amendment other than that we deem the natural one.

The power of Congress hardly is denied. The constitutionality of the statute as against corporations is established, New York Central & Hudson River R. R. Co. v. United States, 212 U. S. 481, 492, and no reason is suggested why Congress has not equal power to charge the partnership assets with a liability and to personify the company so far as to collect a fine by a proceeding against it by the company name. That is what we believe that Congress intended to do. It is to be observed that the structure of the company under the laws of New York is such that a judgment against it binds only the joint property, National Bank v. Van Derwerker, 74 N. Y. 234, and that it has other characteristics of separate being. Westcott v. Fargo, 61 N. Y. 542. Matter of Jones, 172 N. Y. 575. Hibbs v. Brown, 190 N. Y. 167. Indeed, Article VIII of the constitution of the State, after providing that the term corporations as there used shall be construed to include all joint stock companies, &c., having any of the powers or privileges of corporations not possessed by individuals or partnerships, as these companies do, Matter of Jones, 172 N. Y. 575, 579, goes on to declare that all corporations may sue and be sued 'in like cases as natural persons.' We do not refer to the law of New York in order to argue that by itself it would suffice to make applicable the principle of Liverpool & London Life & Fire Ins. Co. v. Oliver, 10 Wall. 566. We refer to it simply to show the semi-corporate standing that these companies already had locally as well as in the popular mind, and thus that the action of Congress was natural and to be expected, if we take its words to mean all that by construction they import.

Judgment reversed.