The opinion of the court was delivered by
Bennett, J.This is an indictment for a nuisance in blocking up a highway with freight cars, engines, etc.; and the offense is, wc think, well enough charged in the indictment.
Railroad companies are unquestionably liable to an indictment for obstructing a highway, contrary to the powers granted to them in their charters. Though it has sometimes been said that an aggregate corporation can not be indicted for a mis-feasance, but only for a non-feasance ; yet we apprehend the law is otherwise, especially if the offense charged does not essentially consist in a corrupt intent, which does not seem to be involved as a necessary element in the offense charged in this indictment.
The question however in this case is, do the facts agreed by the parties sustain this indictment ? It is not questioned but what the acts which have been done in blocking up the highway would sustain the indictment if done by the railroad company, or by men in their employ, over whom they had a control; but the case finds *110that the railroad and all the trains thereon were in the hands of a receiver appointed by a court of equity, and that the railroad company had no right or power to interfere with such trains or the conductors, or men managing them, but the same were wholly under the control of the receivers.
A railroad company are only indictable for a nuisance by reason of an improper management and conduct in running their road, in a way which neither their charter or the general railroad law will sanction. But if the railroad and all its concerns are in the hands of a receiver, and the company are under an injunction not to intermeddle with its concerns, it would seem difficult to maintain the proposition that still the company should be liable to an indictment for the acts of the receiver, or of his agents. To hold the company liable in such a case, would be indeed monstrous, as they had no power to control or prevent the acts complained of as a nuisance. No man or corporation should be made criminally responsible for acts which they have no power to prevent.
It has been assumed by the attorney for the government, that unless this prosecution is sustained the government are without the means of redress. But will that conclusion follow ? Why may not the receiver be subjected to an indictment ? If he has been guilty of a nuisance it would seem difficult for him to defend under his commission from chancery. He was not placed above the law. But this is not a point before the court calling for a decision. It is enough to say that the facts in this case will not sustain the present prosecution.
The decision of the court below adjudging the defendants guilty, must be reversed, and a new trial granted, and the cause be remanded to the county court unless the state’s attorney shall elect to enter a nolle prosequi.
Note. After this decision a nolle prosequi was entered by the state’s attorney.