Perley, J.
There are particular grounds of objection to the case of the government, on which we should be obliged to decide for the defendants, without determining the main question raised on the construction of the statute.
[469]*469The case does not show that Gould and Fuller were the agents or servants of the defendants. The defendants, so far as they acted in the matter, were themselves the agents and servants of the corporation. The agency of Gould and Fuller might be subordinate to that of the defendants; but no relation of master and servant, or of principal and agent, existed between them. No action could be maintained by the defendants against Gould and Fuller for neglect of their duty; nor by Gould and Fuller against the defendants for their wages. If the defendants were removed from their agency, it would not affect the relation of Gould and Fuller to the corporation; they would still remain, as they were before, the 'agents and servants of the road.
A.gain: The indictment does not show that the person whose life was lost left widow, child, or other relatives, to take the fine under the statute, which we apprehend to "be an essential averment.
But the main question on the construction of the statute is¿ whether the corporation or the individual stockholders are liable to the indictment. That question has been ably discussed at the bar; and it was thought that it might be important to these parties, and perhaps to the public, that it should be settled at this time. The court have considered it, and have arrived without difficulty at a conclusion which will now be stated.
The indictment is founded upon the seventh section of the act of 1850, entitled “ an act in amendment of the laws in relation to railroad corporations.” That section is in these terms : “ If the life of any person, not in the employment of the corporation, shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, or by the unfitness or gross negligence, or the carelessness of their servants or agents in this State, such proprietor or proprietors shall be liable to a fine, not exceeding five thousand dollars nor less than five hundred dollars, to be recovered by indictment, to the use of the executor or administrator of the deceased person, for the benefit of his widow and heirs, or one moiety thereof to go to the widow, and the other to the children of the deceased; but if there [470]*470should be no children, the whole shall go to the widow, and if no widow, to his heirs according to the law regulating the distribution of intestate personal estate among heirs.”
Was it the intention of the legislature to impose this fine on the railroad corporation, or on the individual stockholders ?
The statute introduces a new principle into the legislation of the State upon a subject of great extent and complication; and it was not perhaps to be expected that the meaning of the law should be expressed so plainly as to leave the construction wholly free from difficulty and doubt. There is certainly some ambiguity in the language used, and the duty of the court is to gather, as well as they can, the real intention of the legislature from the whole act.
. “ The proprietor or proprietors” are by the statute made liable to the fine. This term is not the most clear and unequivocal to express either the aggregate corporation, or the individual members and stockholders. If the legislature meant the corporation, why did they not say so in plain terms; especially as they use the term “corporation” and “railroad” in other parts of the act ? On the other hand, the term “ proprietors ” is not the most appropriate, either in a legal or a popular, sense, to express the individual stockholders and members of the corporation. “ Stockholders ” is the term used generally, in other statutes on this subject, and in this act itself, as in the ninth section, in respect to the payment of dividends. In business and in common discourse, “ stockholders” and not “proprietors ,” is the phrase employed to signify members of the corporation. A stockholder is not in law a proprietor, or owner of the road. He can bring no action against any third person in his own name for any injury to his rights in the corporation. He may himself sue the corporation, or be sued by them. He does not own anything in the road as partner or tenant in common. He has no seizin or possession of any property, either real or personal, that belongs to the road.
Though the term “ proprietors” is not the most appropriate to signify a corporation, yet it has not unfrequently been used in [471]*471that sense. It is the legal, statutory, corporate name of many corporations in this State; as “ The Proprietors of the Federal Bridge,” “ The Proprietors of the Fourth N. II. Turnpike.” So townships are legally styled the proprietors of the township. The act uses the singular as well as the plural number, and appears to contemplate a single owner of the road. This is undoubtedly somewhat remarkable, if the intention was to charge the corporation. But there is no legal impossibility in one man’s owning all the stock in the road, and being the sole member of the corporation; and this phraseology may have been intended to meet such a case.
The term “ proprietors,” standing by itself, is therefore ambiguous. It might be held to mean the individual stockholders, if such appeared to be the intention of the law; or, without violence to the language, it may be construed to mean the corporation. To give it this construction, it is not necessary to make an interpretation against the express words of the act.
This proceeding is in form an indictment for an offence against the State; but the penalty is a fine only, and that fine goes to the relatives of the deceased. If he left none, no fine can be imposed, because the statute in such case does not provide for the appropriation of any fine. The law in substance provides a method for recovering a sum for the benefit of the surviving relatives of one whose life has been lost by carelessness or negligence, on the ground that the surviving relatives have suffered an injury that ought to receive a pecuniary compensation. In this view of the case, to hold the corporation liable would agree with the general policy of the law, which charges the corporation for all negligence of agents and servants in cases where the party who has received the injury survives to bring his action, and also agrees with the provisions of the eleventh section of the same statute, which makes the corporation in express terms liable by action and indictment for other offences and defaults. Railroads, towns, and other corporations, are by the law of this State liable to indictments on various grounds; and there is nothing in the nature and object of the law that would lead us [472]*472to infer that the stockholders, and not the corporation as such, were intended to be charged.
If the corporation is liable, there is no difficulty in fixing on a party that must answer. The negligence may be in the corporation as such: they may have neglected to appropriate money for necessary repairs, &c., and in such case no individual agent or servant, could be fastened on, who was personally chargeable. So the fault may be in some agent or servant, without any actual negligence in the corporate body. In all these cases, if the corporation is the party liable, the remedy is easy.
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Perley, J.
There are particular grounds of objection to the case of the government, on which we should be obliged to decide for the defendants, without determining the main question raised on the construction of the statute.
[469]*469The case does not show that Gould and Fuller were the agents or servants of the defendants. The defendants, so far as they acted in the matter, were themselves the agents and servants of the corporation. The agency of Gould and Fuller might be subordinate to that of the defendants; but no relation of master and servant, or of principal and agent, existed between them. No action could be maintained by the defendants against Gould and Fuller for neglect of their duty; nor by Gould and Fuller against the defendants for their wages. If the defendants were removed from their agency, it would not affect the relation of Gould and Fuller to the corporation; they would still remain, as they were before, the 'agents and servants of the road.
A.gain: The indictment does not show that the person whose life was lost left widow, child, or other relatives, to take the fine under the statute, which we apprehend to "be an essential averment.
But the main question on the construction of the statute is¿ whether the corporation or the individual stockholders are liable to the indictment. That question has been ably discussed at the bar; and it was thought that it might be important to these parties, and perhaps to the public, that it should be settled at this time. The court have considered it, and have arrived without difficulty at a conclusion which will now be stated.
The indictment is founded upon the seventh section of the act of 1850, entitled “ an act in amendment of the laws in relation to railroad corporations.” That section is in these terms : “ If the life of any person, not in the employment of the corporation, shall be lost by reason of the negligence or carelessness of the proprietor or proprietors of any railroad, or by the unfitness or gross negligence, or the carelessness of their servants or agents in this State, such proprietor or proprietors shall be liable to a fine, not exceeding five thousand dollars nor less than five hundred dollars, to be recovered by indictment, to the use of the executor or administrator of the deceased person, for the benefit of his widow and heirs, or one moiety thereof to go to the widow, and the other to the children of the deceased; but if there [470]*470should be no children, the whole shall go to the widow, and if no widow, to his heirs according to the law regulating the distribution of intestate personal estate among heirs.”
Was it the intention of the legislature to impose this fine on the railroad corporation, or on the individual stockholders ?
The statute introduces a new principle into the legislation of the State upon a subject of great extent and complication; and it was not perhaps to be expected that the meaning of the law should be expressed so plainly as to leave the construction wholly free from difficulty and doubt. There is certainly some ambiguity in the language used, and the duty of the court is to gather, as well as they can, the real intention of the legislature from the whole act.
. “ The proprietor or proprietors” are by the statute made liable to the fine. This term is not the most clear and unequivocal to express either the aggregate corporation, or the individual members and stockholders. If the legislature meant the corporation, why did they not say so in plain terms; especially as they use the term “corporation” and “railroad” in other parts of the act ? On the other hand, the term “ proprietors ” is not the most appropriate, either in a legal or a popular, sense, to express the individual stockholders and members of the corporation. “ Stockholders ” is the term used generally, in other statutes on this subject, and in this act itself, as in the ninth section, in respect to the payment of dividends. In business and in common discourse, “ stockholders” and not “proprietors ,” is the phrase employed to signify members of the corporation. A stockholder is not in law a proprietor, or owner of the road. He can bring no action against any third person in his own name for any injury to his rights in the corporation. He may himself sue the corporation, or be sued by them. He does not own anything in the road as partner or tenant in common. He has no seizin or possession of any property, either real or personal, that belongs to the road.
Though the term “ proprietors” is not the most appropriate to signify a corporation, yet it has not unfrequently been used in [471]*471that sense. It is the legal, statutory, corporate name of many corporations in this State; as “ The Proprietors of the Federal Bridge,” “ The Proprietors of the Fourth N. II. Turnpike.” So townships are legally styled the proprietors of the township. The act uses the singular as well as the plural number, and appears to contemplate a single owner of the road. This is undoubtedly somewhat remarkable, if the intention was to charge the corporation. But there is no legal impossibility in one man’s owning all the stock in the road, and being the sole member of the corporation; and this phraseology may have been intended to meet such a case.
The term “ proprietors,” standing by itself, is therefore ambiguous. It might be held to mean the individual stockholders, if such appeared to be the intention of the law; or, without violence to the language, it may be construed to mean the corporation. To give it this construction, it is not necessary to make an interpretation against the express words of the act.
This proceeding is in form an indictment for an offence against the State; but the penalty is a fine only, and that fine goes to the relatives of the deceased. If he left none, no fine can be imposed, because the statute in such case does not provide for the appropriation of any fine. The law in substance provides a method for recovering a sum for the benefit of the surviving relatives of one whose life has been lost by carelessness or negligence, on the ground that the surviving relatives have suffered an injury that ought to receive a pecuniary compensation. In this view of the case, to hold the corporation liable would agree with the general policy of the law, which charges the corporation for all negligence of agents and servants in cases where the party who has received the injury survives to bring his action, and also agrees with the provisions of the eleventh section of the same statute, which makes the corporation in express terms liable by action and indictment for other offences and defaults. Railroads, towns, and other corporations, are by the law of this State liable to indictments on various grounds; and there is nothing in the nature and object of the law that would lead us [472]*472to infer that the stockholders, and not the corporation as such, were intended to be charged.
If the corporation is liable, there is no difficulty in fixing on a party that must answer. The negligence may be in the corporation as such: they may have neglected to appropriate money for necessary repairs, &c., and in such case no individual agent or servant, could be fastened on, who was personally chargeable. So the fault may be in some agent or servant, without any actual negligence in the corporate body. In all these cases, if the corporation is the party liable, the remedy is easy. In ordinary cases the corporation actually working the road must be supposed to be able to respond for any fine that may be imposed. The remedy, therefore, if the corporation is held answerable, would be consistent with the general policy of the law, which makes corporations liable civilly for all negligence of their agents and servants; and it would also be simple, easy, and effectual.
In the other view of the case, if the term “ proprietor or proprietors,” were construed to mean stockholder or stockholders, it could not have been the intention of the legislature to require that all the stockholders of the road should be indicted. That in most cases would be practically impossible. Was it then the intention of the act that any one or any number of the stockholders might be charged simply as such, for any neglect of the corporation, or any negligence or carelessness of any agent of the corporation, without showing any personal default of the defendants, or any personal relation of principal and agent, or of master and servant between the defendants and the person actually guilty of the negligence and carelessness ? The first count of the indictment would seem to have been framed in this view of the statute. It simply states the defendants to be proprietors, and that Gould and Fuller were their agents, without showing how they were agents; and the case agreed does not show that Gould and Fuller were agents of the defendants, except as they were agents of the corporation. This construction would lead to consequences so manifestly unreasonable and extravagant that we cannot suppose the legislature to have intended them. A [473]*473person who held a single share, who had never taken the slightest part in the business and management of the road, would be liable to this criminal prosecution, and might be charged on the procurement of those who were actually guilty, and who would be thereby discharged; for it cannot be maintained that there could be more than one penalty for the same offence. If there could be more than one, there might be any indefinite number; and there could be no contribution. No contribution is given by the act, as in the case where individual members are made liable for the debts of the corporation; and no contribution could be enforced on general principles. It appears to be conceded on the part of the State, that this construction cannot be maintained; but that if the individual stockholder is to be charged, it must be on the ground that he is individually and personally guilty, or that his personal agent or servant is guilty.
It is to be observed that if an individual is to be charged, he must be a stockholder. If a conductor, engineer, or other agent, is liable under the statute, he must also be a stockholder; which is rarely the case. It is seldom that a stockholder can be charged with any personal default; he seldom has anything to do personally with the management of the road. It also very rarely happens that an individual stockholder would have any agent or servant concerned in the management of the road. The road would be managed by the agents and servants of the corporation, and not of individual stockholders. The directors are themselves the agents of the road. The directors perhaps appoint a superintendent, and he may hire the operatives on behalf of the road. There is a subordination in these agencies; but they are all equally agents and servants of the corporation, and not of each other. A case may be supposed, where a stockholder might have a contract with the road to perform some service, and might employ hands, who would be Ms servants and agents; but such cases would be extremely unfrequent, and cannot be supposed to have been in the contemplation of the legislature.
If the individual stockholder then is to be charged, you must be able to fix on one <who was himself guilty of the negligence, [474]*474or whose servant or agent was guilty. This would generally be extremely difficult, and often impossible. The object of the law would be substantially defeated by a construction that required this. The object of the act can be answered effectually only by holding that the intention was to charge the corporation as such; and this we think is the sound and reasonable construction of the statute.