Upon review of the conviction of a corporate officer on
informations charging the corporation and him with shipping in
interstate commerce adulterated and misbranded drugs in violation
of § 301 of the Federal Food, Drug, and Cosmetic Act,
1. The provision of § 305 of the Act, that, before reporting a
violation to the United States Attorney, the Administrator shall
give to the person against whom such proceeding is contemplated a
notice and an opportunity to present his views, does not create a
condition precedent to a prosecution under the Act. P. 320 U. S.
2. It was open to the jury to find the officer guilty though
failing to find the corporation guilty. P. 320 U. S.
3. Where there is no guaranty such as under § 303(c) of the Act
affords immunity from prosecution, that section cannot be read as
relieving corporate officers and agents from liability for
violation of § 301 . P. 320 U. S.
4. The District Court properly left to the jury the question of
the officer's responsibility for the shipment, and the evidence was
sufficient to support the verdict. P. 320 U. S.
131 F.2d 500, reversed.
Certiorari, 318 U.S. 753, to review the reversal of a conviction
for violation of the Federal Food, Drug, and Cosmetic Act.
Page 320 U. S. 278
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This was a prosecution begun by two informations, consolidated
for trial, charging Buffalo Pharmacal Company, Inc., and
Dotterweich, its president and general manager, with violations of
the Act of Congress of June 25, 1938, c. 675, 52 Stat. 1040, 21
U.S.C. §§ 301-392, known as the Federal Food, Drug, and Cosmetic
Act. The Company, a jobber in drugs, purchased them from their
manufacturers and shipped them, repacked under its own label, in
interstate commerce. (No question is raised in this case regarding
the implications that may properly arise when, although the
manufacturer gives the jobber a guaranty, the latter, through his
own label, makes representations.) The informations were based on §
301 of that Act, 21 U.S.C. § 331, paragraph (a) of which prohibits
"[t]he introduction or delivery for introduction into interstate
commerce of any . . . drug . . . that is adulterated or
misbranded." "Any person" violating this provision is, by paragraph
(a) of § 303, 21 U.S.C. § 333, made "guilty of a misdemeanor."
Three counts went to the jury -- two, for shipping misbranded drugs
in interstate commerce and a third for so shipping an adulterated
drug. The jury disagreed as to the corporation, and found
Dotterweich guilty on all three counts. We start with the finding
of the Circuit Court of Appeals that the evidence was adequate to
support the verdict of adulteration and misbranding. 131 F.2d 500,
Two other questions which the Circuit Court of Appeals decided
against Dotterweich call only for summary disposition to clear the
path for the main question before us. He invoked § 305 of the Act
requiring the Administrator, before reporting a violation for
prosecution by a
Page 320 U. S. 279
United States attorney, to give the suspect an "opportunity to
present his views." We agree with the Circuit Court of Appeals that
the giving of such an opportunity, which was not accorded to
Dotterweich, is not a prerequisite to prosecution. This Court so
held in United States v. Morgan, 222 U.
, in construing the Food and Drugs Act of 1906, 34
Stat. 768, and the legislative history to which the court below
called attention abundantly proves that Congress, in the changed
phraseology of 1938, did not intend to introduce a change of
substance. 83 Cong.Rec. 7792-94. Equally baseless is the claim of
Dotterweich that, having failed to find the corporation guilty, the
jury could not find him guilty. Whether the jury's verdict was the
result of carelessness or compromise or a belief that the
responsible individual should suffer the penalty instead of merely
increasing, as it were, the cost of running the business of the
corporation, is immaterial. Juries may indulge in precisely such
motives or vagaries. Dunn v. United States, 284 U.
And so we are brought to our real problem. The Circuit Court of
Appeals, one judge dissenting, reversed the conviction on the
ground that only the corporation was the "person" subject to
prosecution unless, perchance, Buffalo Pharmacal was a counterfeit
corporation serving as a screen for Dotterweich. On that issue,
after rehearing, it remanded the cause for a new trial. We then
brought the case here, on the Government's petition for certiorari,
318 U.S. 753, because this construction raised questions of
importance in the enforcement of the Federal Food, Drug, and
The court below drew its conclusion not from the provisions
defining the offenses on which this prosecution was based (§§
301(a) and 303(a)), but from the terms of § 303(c). That section
affords immunity from prosecution if certain conditions are
satisfied. The condition relevant to this case is a guaranty from
the seller of the innocence of
Page 320 U. S. 280
his product. So far as here relevant, the provision for an
immunizing guaranty is as follows:
"No person shall be subject to the penalties of subsection (a)
of this section . . . (2) for having violated section 301(a) or (d)
if he establishes a guaranty or undertaking signed by, and
containing the name and address of, the person residing in the
United States from whom he received in good faith the article to
the effect, in case of an alleged violation of section 301(a), that
such article is not adulterated or misbranded within the meaning of
this Act, designating this Act. . . ."
This Circuit Court of Appeals found it
"difficult to believe that Congress expected anyone except the
principal to get such a guaranty, or to make the guilt of an agent
depend upon whether his employer had gotten one."
131 F.2d 500, 503. And so it cut down the scope of the
penalizing provisions of the Act to the restrictive view, as a
matter of language and policy, it took of the relieving effect of a
The guaranty clause cannot be read in isolation. The Food and
Drugs Act of 1906 was an exertion by Congress of its power to keep
impure and adulterated food and drugs out of the channels of
commerce. By the Act of 1938, Congress extended the range of its
control over illicit and noxious articles and stiffened the
penalties for disobedience. The purposes of this legislation thus
touch phases of the lives and health of people which, in the
circumstances of modern industrialism, are largely beyond
self-protection. Regard for these purposes should infuse
construction of the legislation if it is to be treated as a working
instrument of government, and not merely as a collection of English
words. See Hipolite Egg Co. v. United States, 220 U. S.
, 220 U. S. 57
and McDermott v. Wisconsin, 228 U.
, 228 U. S. 128
The prosecution to which Dotterweich was subjected is based on a
now familiar type of legislation whereby penalties serve as
Page 320 U. S. 281
of regulation. Such legislation dispenses with the conventional
requirement for criminal conduct -- awareness of some wrongdoing.
In the interest of the larger good, it puts the burden of acting at
hazard upon a person otherwise innocent but standing in responsible
relation to a public danger. United States v. Balint,
258 U. S. 250
so it is clear that shipments like those now in issue are
"punished by the statute if the article is misbranded [or
adulterated], and that the article may be misbranded [or
adulterated] without any conscious fraud at all. It was natural
enough to throw this risk on shippers with regard to the identity
of their wares. . . ."
United States v. Johnson, 221 U.
, 221 U. S.
The statute (§ 303) makes "any person" who violates § 301(a)
guilty of a "misdemeanor." It specifically defines "person" to
include "corporation." § 201(e). But the only way in which a
corporation can act is through the individuals who act on its
behalf. New York Central & H. R Co. v. United States,
212 U. S. 481
the historic conception of a "misdemeanor" makes all those
responsible for it equally guilty, United
States v. Mills,
7 Pet. 138, 32 U. S. 141
doctrine given general application in § 332 of the Penal Code, 18
U.S.C. § 550. If, then, Dotterweich is not subject to the Act, it
must be solely on the ground that individuals are immune when the
"person" who violates § 301(a) is a corporation, although, from the
point of view of action, the individuals are the corporation. As a
matter of legal development, it has taken time to establish
criminal liability also for a corporation, and not merely for its
agents. See New York Central & H. R. Co. v. United States,
The history of federal food and drug legislation is a
good illustration of the elaborate phrasing that was in earlier
days deemed necessary to fasten criminal liability on corporations.
Section 12 of the Food and Drugs Act of 1906 provided that
"the act, omission, or failure of any officer, agent, or other
Page 320 U. S. 282
acting for or employed by any corporation, company, society, or
association, within the scope of his employment or office, shall in
every case be also deemed to be the act, omission, or failure of
such corporation, company, society, or association as well as that
of the person."
By 1938, legal understanding and practice had rendered such
statement of the obvious superfluous. Deletion of words -- in the
interest of brevity and good draftsmanship [Footnote 1
] -- superfluous for holding a corporation
criminally liable can hardly be found ground for relieving from
such liability the individual agents of the corporation. To hold
that the Act of 1938 freed all individuals, except when
proprietors, from the culpability under which the earlier
legislation had placed them is to defeat the very object of the new
Act. Nothing is clearer than that the later legislation was
designed to enlarge and stiffen the penal net, and not to narrow
and loosen it. This purpose was unequivocally avowed by the two
committees which reported the bills to the Congress. The House
Committee reported that the Act "seeks to set up effective
provisions against abuses of consumer welfare growing out of
inadequacies in the Food and Drugs Act of June 30, 1906." (H.Rep.
No. 2139, 75th Cong., 3d Sess., p. 1.) And the Senate Committee
explicitly pointed out that the new legislation "must not weaken
the existing laws," but, on the contrary, "it must strengthen and
extend that law's protection of the consumer." (S.Rep. No. 152,
75th Cong., 1st Sess., p. 1.) If the 1938 Act were construed as it
was below, the penalties of the law could be imposed only in the
rare case where the corporation is merely an individual's alter
ego. Corporations carrying on an illicit trade would be subject
only to what the House Committee described as a "license fee
Page 320 U. S. 283
for the conduct of an illegitimate business." [Footnote 2
] A corporate officer who, even
with "intent to defraud or mislead," (§ 303b), introduced
adulterated or misbranded drugs into interstate commerce could not
be held culpable for conduct which was indubitably outlawed by the
1906 Act. See, e.g., United States v. Mayfield,
765. This argument proves too much. It is not credible that
Congress should by implication have exonerated what is probably a
preponderant number of persons involved in acts of disobedience --
for the number of noncorporate proprietors is relatively small.
Congress, of course, could reverse the process and hold only the
corporation, and allow its agents to escape. In very exceptional
circumstances, it may have required this result. See Sherman v.
United States, 282 U. S. 25
the history of the present Act, its purposes, its terms, and
extended practical construction lead away from such a result once
"we free our minds from the notion that criminal statutes must be
construed by some artificial and conventional rule." United
States v. Union Supply Co., 215 U. S. 50
215 U. S.
The Act is concerned not with the proprietary relation to a
misbranded or an adulterated drug, but with its distribution. In
the case of a corporation, such distribution must be accomplished,
and may be furthered, by persons standing in various relations to
the incorporeal proprietor. If a guaranty immunizes shipments, of
course, it immunizes all involved in the shipment. But, simply
because, if there had been a guaranty, it would have been received
by the proprietor, whether corporate or individual, as a safeguard
for the enterprise, the want of a guaranty
Page 320 U. S. 284
does not cut down the scope of responsibility of all who are
concerned with transactions forbidden by § 301. To be sure, that
casts the risk that there is no guaranty upon all who according to
settled doctrines of criminal law are responsible for the
commission of a misdemeanor. To read the guaranty section, as did
the court below, so as to restrict liability for penalties to the
only person who normally would receive a guaranty -- the proprietor
-- disregards the admonition that "the meaning of a sentence is to
be felt, rather than to be proved." United States v.
Johnson, 221 U. S. 488
221 U. S. 496
It also reads an exception to an important provision safeguarding
the public welfare with a liberality which more appropriately
belongs to enforcement of the central purpose of the Act.
The Circuit Court of Appeals was evidently tempted to make such
a devitalizing use of the guaranty provision through fear that an
enforcement of § 301(a) as written might operate too harshly by
sweeping within its condemnation any person however remotely
entangled in the proscribed shipment. But that is not the way to
read legislation. Literalism and evisceration are equally to be
avoided. To speak with technical accuracy, under § 301, a
corporation may commit an offense and all persons who aid and abet
its commission are equally guilty. Whether an accused shares
responsibility in the business process resulting in unlawful
distribution depends on the evidence produced at the trial and its
submission -- assuming the evidence warrants it -- to the jury
under appropriate guidance. The offense is committed, unless the
enterprise which they are serving enjoys the immunity of a
guaranty, by all who do have such a responsible share in the
furtherance of the transaction which the statute outlaws -- namely,
to put into the stream of interstate commerce adulterated or
misbranded drugs. Hardship there doubtless may be under a statute
which thus penalizes the transaction though consciousness of
wrongdoing be totally wanting.
Page 320 U. S. 285
Balancing relative hardships, Congress has preferred to place it
upon those who have at least the opportunity of informing
themselves of the existence of conditions imposed for the
protection of consumers before sharing in illicit commerce, rather
than to throw the hazard on the innocent public who are wholly
It would be too treacherous to define or even to indicate by way
of illustration the class of employees which stands in such a
responsible relation. To attempt a formula embracing the variety of
conduct whereby persons may responsibly contribute in furthering a
transaction forbidden by an Act of Congress -- to-wit, to send
illicit goods across state lines -- would be mischievous futility.
In such matters, the good sense of prosecutors, the wise guidance
of trial judges, and the ultimate judgment of juries must be
trusted. Our system of criminal justice necessarily depends on
"conscience and circumspection in prosecuting officers," Nash
v. United States, 229 U. S. 373
229 U. S. 378
even when the consequences are far more drastic than they are under
the provision of law before us. See United States v. Balint,
(involving a maximum sentence of five years). For
present purpose, it suffices to say that, in what the defense
characterized as "a very fair charge," the District Court properly
left the question of the responsibility of Dotterweich for the
shipment to the jury, and there was sufficient evidence to support
"The bill has been made shorter and less verbose than previous
bills. That has been done without deleting any effective
provisions." S.Rep. No. 152, 75th Cong., 1st Sess., p. 2.
In describing the penalty provisions of § 303, the House
Committee reported that the Bill
"increases substantially the criminal penalties which some
manufacturers have regarded as substantially a license fee for the
conduct of an illegitimate business."
H.Rep. No. 2139, 75th Cong., 3d Sess., p. 4.
MR. JUSTICE MURPHY, dissenting.
Our prime concern in this case is whether the criminal sanctions
of the Federal Food, Drug, and Cosmetic Act of 1938 plainly and
unmistakably apply to the respondent in his capacity as a corporate
officer. He is charged with violating § 301(a) of the Act, which
prohibits the introduction or delivery for introduction into
interstate commerce of any adulterated or misbranded drug. There
Page 320 U. S. 286
no evidence in this case of any personal guilt on the part of
the respondent. There is no proof or claim that he ever knew of the
introduction into commerce of the adulterated drugs in question,
much less that he actively participated in their introduction.
Guilt is imputed to the respondent solely on the basis of his
authority and responsibility as president and general manager of
It is a fundamental principle of Anglo-Saxon jurisprudence that
guilt is personal, and that it ought not lightly to be imputed to a
citizen who, like the respondent, has no evil intention or
consciousness of wrongdoing. It may be proper to charge him with
responsibility to the corporation and the stockholders for
negligence and mismanagement. But, in the absence of clear
statutory authorization, it is inconsistent with established canons
of criminal law to rest liability on an act in which the accused
did not participate and of which he had no personal knowledge.
Before we place the stigma of a criminal conviction upon any such
citizen, the legislative mandate must be clear and unambiguous.
Accordingly, that which Chief Justice Marshall has called "the
tenderness of the law for the rights of individuals" [Footnote 2/1
] entitles each person,
regardless of economic or social status, to an unequivocal warning
from the legislature as to whether he is within the class of
persons subject to vicarious liability. Congress cannot be deemed
to have intended to punish anyone who is not "plainly and
unmistakably" within the confines of the statute. United States
v. Lacher, 134 U. S. 624
134 U. S. 628
United States v. Gradwell, 243 U.
, 243 U. S.
Moreover, the fact that individual liability of corporate
officers may be consistent with the policy and purpose of a public
health and welfare measure does not authorize this Court to impose
such liability where Congress has not
Page 320 U. S. 287
clearly intended or actually done so. Congress alone has the
power to define a crime and to specify the offenders.
United States v.
5 Wheat. 76. It is not our function to
supply any deficiencies in these respects, no matter how grave the
consequences. Statutory policy and purpose are not constitutional
substitutes for the requirement that the legislature specify with
reasonable certainty those individuals it desires to place under
the interdict of the Act. United States v. Harris,
177 U. S. 305
Sarlls v. United States, 152 U. S. 570
Looking at the language actually used in this statute, we find a
complete absence of any reference to corporate officers. There is
merely a provision in § 303(a) to the effect that "any person"
inadvertently violating § 301(a) shall be guilty of a misdemeanor.
Section 201(e) further defines "person" as including an
"individual, partnership, corporation, and association." [Footnote 2/2
] The fact that a corporate
officer is both a "person" and an "individual" is not indicative of
an intent to place vicarious liability on the officer. Such words
must be read in light of their statutory environment. [Footnote 2/3
] Only if Congress has
otherwise specified an
Page 320 U. S. 288
intent to place corporate officers within the ambit of the Act
can they be said to be embraced within the meaning of the words
"person" or "individual" as here used.
Nor does the clear imposition of liability on corporations
reveal the necessary intent to place criminal sanctions on their
officers. A corporation is not the necessary and inevitable
equivalent of its officers for all purposes. [Footnote 2/4
] In many respects, it is desirable to
distinguish the latter from the corporate entity, and to impose
liability only on the corporation. In this respect, it is
significant that this Court has never held the imposition of
liability on a corporation sufficient, without more, to extend
liability to its officers who have no consciousness of wrongdoing.
] Indeed, in a closely
analogous situation, we have held that the vicarious personal
liability of receivers in actual charge and control of a
corporation could not be predicated on the statutory liability of a
"company," even when the policy and purpose of the enactment were
consistent with personal liability. United States v. Harris,
Page 320 U. S. 289
that express statutory provisions are necessary to satisfy the
requirement that officers, as individuals, be given clear and
unmistakable warning as to their vicarious personal liability. This
Act gives no such warning.
This fatal hiatus in the Act is further emphasized by the
ability of Congress, demonstrated on many occasions, to apply
statutes in no uncertain terms to corporate officers, as distinct
from corporations. [Footnote 2/7
The failure to mention officers specifically is thus some
indication of a desire to exempt them from liability. In fact, the
Page 320 U. S. 290
of federal food and drug legislation is itself illustrative of
this capacity for specification, and lends strong support to the
conclusion that Congress did not intend to impose liability on
corporate officers in this particular Act.
Section 2 of the Federal Food and Drugs Act of 1906, as
introduced and passed in the Senate, contained a provision to the
effect that any violation of the Act by a corporation should be
deemed to be the act of the officer responsible therefor, and that
such officer might be punished as though it were his personal act.
] This clear
imposition of criminal responsibility on corporate officers,
however, was not carried over into the statute as finally enacted.
In its place appeared merely the provision that,
"when construing and enforcing the provisions of this Act, the
act, omission, or failure of any officer, agent, or other person
acting for or employed by any corporation . . . within the scope of
his employment or office shall in every case be also deemed to be
the act, omission, or failure of such corporation . . . as well as
that of the person. [Footnote
This provision had the effect only of making corporations
Page 320 U. S. 291
responsible for the illegal acts of their officers and proved
unnecessary in view of the clarity of the law to that effect.
New York Central & H. R. Co. Co. v. United States,
212 U. S. 481
The framers of the 1938 Act were aware that the 1906 Act was
deficient in that it failed "to place responsibility properly upon
corporate officers." [Footnote
] In order "to provide the additional scope necessary to
prevent the use of the corporate form as a shield to individual
wrongdoers," [Footnote 2/11
these framers inserted a clear provision that.
"whenever a corporation or association violates any of the
provisions of this Act, such violation shall also be deemed to be a
violation of the individual directors, officers, or agents of such
corporation or association who authorized, ordered, or did any of
the acts constituting, in whole or in part, such violation.
This paragraph, however, was deleted from the final version of
Page 320 U. S. 292
We cannot presume that this omission was inadvertent on the part
of Congress. United States v. Harris, supra,
177 U. S. 309
Even if it were, courts have no power to remedy so serious a
defect, no matter how probable it otherwise may appear that
Congress intended to include officers; "probability is not a guide
which a court, in construing a penal statute, can safely take."
United States v. Wiltberger, supra,
at 18 U. S. 105
But the framers of the 1938 Act had an intelligent comprehension of
the inadequacies of the 1906 Act and of the unsettled state of the
law. They recognized the necessity of inserting clear and
unmistakable language in order to impose liability on corporate
officers. It is thus unreasonable to assume that the omission of
such language was due to a belief that the Act as it now stands was
sufficient to impose liability on corporate officers. Such
deliberate deletion is consistent only with an intent to allow such
officers to remain free from criminal liability. Thus, to apply the
sanctions of this Act to the respondent would be contrary to the
intent of Congress as expressed in the statutory language and in
the legislative history.
The dangers inherent in any attempt to create liability without
express Congressional intention or authorization are illustrated by
this case. Without any legislative guides, we are confronted with
the problem of determining precisely which officers, employees and
agents of a corporation are to be subject to this Act by our fiat.
To erect standards of responsibility is a difficult legislative
task and the opinion of this Court admits that it is "too
treacherous" and a "mischievous futility" for us to engage in such
pursuits. But the only alternative is a blind resort to "the good
sense of prosecutors, the wise guidance of trial judges, and the
ultimate judgment of juries." Yet that situation is precisely what
our constitutional system sought to avoid. Reliance on the
legislature to define crimes and criminals distinguishes our form
Page 320 U. S. 293
from certain less desirable ones. The legislative power to
restrain the liberty and to imperil the good reputation of citizens
must not rest upon the variable attitudes and opinions of those
charged with the duties of interpreting and enforcing the mandates
of the law. I therefore cannot approve the decision of the Court in
MR. JUSTICE ROBERTS, MR. JUSTICE REED, and MR. JUSTICE RUTLEDGE
join in this dissent.
United States v.
5 Wheat. 76.
The normal and necessary meaning of such a definition of
"person" is to distinguish between individual enterprises and those
enterprises that are incorporated or operated as a partnership or
association, in order to subject them all to the Act. This phrase
cannot be considered as an attempt to distinguish between
individual officers of a corporation and the corporate entity. Lee,
"Corporate Criminal Liability," 28 Col.L.Rev. 1, 181, 190.
Compare United States v. Cooper Corp., 312 U.
, 312 U. S. 606
and Davis v. Pringle, 268 U. S. 315
268 U. S. 318
holding that the context and legislative history of the particular
statutes there involved indicated that the words "any person" did
not include the United States. But, in Georgia v. Evans,
316 U. S. 159
Ohio v. Helvering, 292 U. S. 360
these considerations led to the conclusion that "any person" did
include a state. See also
40 Stat. 1143, which
specifically includes officers within the meaning of "any person"
as used in the Revenue Act of 1918.
In Park Bank v. Remsen, 158 U.
, 158 U. S. 344
this Court said,
"It is the corporation which is given the powers and privileges
and made subject to the liabilities. Does this carry with it an
imposition of liability upon the trustee or other officer of the
corporation? The officer is not the corporation; his liability is
personal, and not that of the corporation, nor can it be counted
among the powers and privileges of the corporation."
For an analysis of the confusion on this matter in the state and
lower federal courts, see
Lee, "Corporate Criminal
Liability," 28 Col.L.Rev. 1, 181.
In that case, we had before us Rev.Stat. §§ 4386-4389, which
penalized "any company, owner or custodian of such animals" who
failed to comply with the statutory requirements as to livestock
transportation. A railroad company violated the statute, and the
government sought to impose liability on the receivers who were in
actual charge of the company. It was argued that the word "company"
embraced the natural persons acting on behalf of the company, and
that to hold such officers and receivers liable was within the
policy and purpose of so humane a statute. We rejected this
contention in language peculiarly appropriate to this case (177
U.S. at 177 U. S.
"It must be admitted that, in order to hold the receivers, they
must be regarded as included in the word 'company.' Only by a
strained and artificial construction, based chiefly upon a
consideration of the mischief which the legislature sought to
remedy, can receivers be brought within the terms of the law. But
can such a kind of construction be resorted to in enforcing a penal
statute? Giving all proper force to the contention of counsel of
the government, that there has been some relaxation on the part of
the courts in applying the rule of strict construction to such
statutes, it still remains that the intention of a penal statute
must be found in the language actually used, interpreted according
to its fair and obvious meaning. It is not permitted to courts, in
this class of cases, to attribute inadvertence or oversight to the
legislature when enumerating the classes of persons who are
subjected to a penal enactment, nor to depart from the settled
meaning of words or phrases in order to bring persons not named or
distinctly described within the supposed purpose of the
"Whenever a corporation shall violate any of the penal
provisions of the antitrust laws, such violation shall be deemed to
be also that of the individual directors, officers, or agents of
such corporation who shall have authorized, ordered, or done any of
the acts constituting in whole or in part such violation."
15 U.S.C. § 24.
"The courts of bankruptcy . . . are hereby invested . . . with
such jurisdiction at law and in equity as will enable them to . . .
(4) arraign, try, and punish bankrupts, officers, and other
persons, and the agents, officers, members of the board of
directors or trustees, or other similar controlling bodies, of
corporations for violations of this Act."
30 Stat. 545.
"Any such common carrier, or any officer or agent thereof,
requiring or permitting any employee to go, be, or remain on duty
in violation of the next preceding section of this chapter shall be
liable to a penalty. . . ."
45 U.S.C. § 63.
"A mortgagor who, with intent to defraud, violates any provision
of subsection F, section 924, and if the mortgagor is a corporation
or association, the president or other principal executive officer
of the corporation or association, shall upon conviction thereof be
held guilty of a misdemeanor. . . ."
46 U.S.C. § 941(b).
S. 88, 59th Cong., 1st Sess. Senator Heyburn, one of the
sponsors of S. 88, stated that this was
"a new feature in bills of this kind. It was intended to obviate
the possibility of escape by officers of a corporation under a
plea, which has been more than once made, that they did not know
that this was being done on the credit of or on the responsibility
of the corporation."
40 Cong.Rec. 894.
34 Stat. 772, 21 U.S.C. § 4.
Senate Report No. 493, 73d Cong., 2d Sess., p. 21.
p. 22. This report also stated that
"it is not, however, the purpose of this paragraph to subject to
liability those directors, officers, and employees, who merely
authorize their subordinates to perform lawful duties and such
subordinates, on their own initiative, perform those duties in a
manner which violates the provisions of the law. However, if a
director or officer personally orders his subordinate to do an act
in violation of the law, there is no reason why he should be
shielded from personal responsibility merely because the act was
done by another, and on behalf of a corporation."
This provision appears in several of the early versions of the
Act introduced in Congress. S. 1944, 73d Cong., 1st Sess., § 18(b);
S. 2000, 73d Cong., 2d Sess., § 18(b); S. 2800, 73d Cong., 2d
Sess., § 18(b); S. 5, 74th Cong., 1st Sess. § 709(b); S. 5, 74th
Cong., 2d Sess., § 707(b), as reported to the House, which
substituted the word "personally" for the word "authorized" in the
last clause of the paragraph quoted above. A variation of this
provision appeared in S. 5, 75th Cong., 1st Sess., § 2(f), and made
a marked distinction between the use of the word "person" and the
words "director, officer, employee, or agent acting for or employed
by any person." All of these bills also contained the present
definition of "person" as including "individual, partnership,
corporation, and association."