(dissenting). I am unable .to concur in the result reached by this court in its affirmance of the judgment below. This case was before the Supremo Court in two aspects, both involving the identical question as to whether or not a corporation aggregate could be held criminally responsible for manslaughter. The motion to quash was denied by the Supreme Court in an opinion which held that the corporation was indictable for the crime. 90 N. J. L. 373. The defendant then pleaded non mil in the trial court and moved in arrest of judgment, the principal ground urged being, that it could not be held criminally answerable for manslaughter under the laws of this state. This motion was denied and judgment was entered against, the defendant. Upon review of the errors assigned, the Supreme Court affirmed the judgment and, among other matters, held that the defendant was criminally amenable to indictment and punishment for manslaughter, for the reasons stated by it, on the motion, to quash. 92 Id. 261, 263. It is not pretended that at common law a corporation was indictable for manslaughter. It is assumed in the opinion of the Supreme Court on the motion to quash (90 Id. 373) that State v. Morris and Essex Railroad Co., 23 Id. 360; State v. Passaic Ag. Soc., 54 Id. 260; State v. Erie Railroad Co., 83 Id. 231; 84 Id. 661; State v. Lehigh Valley Railroad Co., supra, modify the common law on the subject. But a careful examination of the cases cited will make it plain that these cases do not; support the assumption.
Although a corporation was indictable at common law for acts of malfeasance as well as for non-feasance, no case can he found, in the books which goes to the extent that a corporation, without express legislative enactment, may be held criminally responsible for an offence which was felony at common law or involved malm animus. The decisions of sister states in which corporations ha'v'e been held to be criminally responsible for offences of the nature mentioned are the product of statutes creating such liability.
The Supreme Court seems to hold the view that Chief Justicie Green in State v. Morris and Essex Railroad Co., supra, laid down a rule modifying the common law in regard to *176criminal liability of corporations to indictment. Bu't I am unable to find anything- in the opinion of the learned Chief Justice which justifies any such conclusion. He was dealing with an indictment charging the defendant with, the creation of a nuisance, and (at p. 364) he says: “The law is well settled that a corporation aggregate is liable to indictment. It is said, indeed, by Bkckstone that a corporation cannot commit treason, felon}7 or other crime in its corporate capacity, citing the case of Sutton's Hospital, 10 Coke 32. * * * While it is conceded that a corporation cannot from its nature be guilty of treason, felony or other crime involving malm animus in its commission, it is believed there is no authority, ancient or modem, which denies the liability of a corporation aggregate to indictment. * * *”
Bearing in mind that the learned Chief Justice was dealing with an indictment for a nuisance, where the question was whether an indictment would lie against a corporation for maintaining a nuisance, his deliverance (at p. 370)- as to the liability of a corporation to indictment for such an offence and his reason therefor, significantly and emphatically point to cases of nuisance and offences akin thereto, in dealing with which the court may as part of the judgment abate the nui-' sanee or enforce the performance of a neglected duty. The learned jurist said (on p. 370) : “It is true that there are crimes [pea-jury, for example] of which, a corporation cannot, in the nature of things, be guilty. There are other crimes, as treason and murder, for which the punishment imposed by law cannot be inflicted upon a corporation. For can they he liable-for any crime of which a comipt intent or malm animus is an essential ingredient. But the creation of a mere nuisance involves no such element. It is totally immaterial whethei; the person erecting the nuisance does it ignorantly or by design, with a good intent or an evil intent; and there is no reason why for such an offence a corporatioaa should not be indicted.”
. “There is a strong reason, which does not seem to have been adverted to in the reported cases, why the corporation, and not the individual directors or laborers, should he indicted for the *177creation of a nuisance. 'The principal object of an indictment for a nuisance is to compel it to be abated; and1 regularly a part of the judgment on conviction is that the nuisance be abated.” (Cases cited.)
It seems to me that the only reasonable inference permissible from what the learned jurist so succinctly stated is, that he limits the liability of a corporation to indictment to offences committed which are of a remedial nature, such as maintaining a nuisance, or of kindred offences, like the failure to perform a public duty or for performing a public duty in an unlawful manner.
A careful reading of the opinion of the learned Chief Justice clearly demonstrates, that he raffs his conclusion that a corporation aggregate was indictable at common law for maintaining a nuisance, which was the nature of the case that was before the court for decision, upon the giouncls, first, that there were precedents to be found for such procedure at, common law going back as far as the year 1835, and secondly, because by the judgment of the court the nuisance could be abated. But there is no- precedent of an indictment against a corporation for manslaughter to be found at common law prior to the adoption of our constitution, nor is there any precedent io be found since, notwithstanding that it is a matter of common knowledge, that frequent instances have occurred warranting indictments for manslaughter where corporations were mora or less culpable, for the reason that it was the consensus of opinion of bench and bar from time immemorial that an indictment for manslaughter would not lie against- a corporation aggregate.
The question here is not whether a corporation aggregate ought not to he held liable to indictment for manslaughter, but the prime question is whether or not a corporation aggregate was indictable for manslaughter at common law. If it was not so indictable at common law, then unless there is a statute making it amenable to- indictment for the offence, the indictment must be held to be nugatory.
The Supreme Court, in holding the indictment to he valid, is constrained to recognize- the indubitable fact that no such *178indictment would lie at common law, and, lienee, it is forced to rest its determination to uphold the validity of the indictment upon the assertion that the common law has been modified. But this is an extremely dangerous step to take, and if carried out to> its legitimate consequences, might seriously affect the administration of the criminal jurisprudence of this state and the safety of its citizens. I can easily comprehend how the common law may he modified by statute^ but am unable to perceive by what authority a court may in a criminal case modify the common law, so as to malee an artificial body amenable to indictment for crime, which was not the ease before such judicial declaration. This is clearly a judicial enactment in the- nature of an ex post facto- law.
In view of the declaration of article 10 of our constitution that the common law and statute law now in force, not repugnant to the constitution, shall remain in force until they expire by their own limitation, or be altered or repealed by the legislature, the court is wholly without any power to modify the common law so as to make corporations liable to indict- - ment for manslaughter, which were not so at common law. The attempt to modify the common law on the subject is clearly the exercise of a legislative function which a court cannot constitutionally exercise.
To alter the common law, as here, is a matter of substance, and bears no analog]' to the application of well-recognized common law principles to. new facts, situations or conditions which might arise from time to time in the progress of our domestic or business life.
'It is suggested in the opinion of the Supreme Court that since a fine or imprisonment may be imposed upon a conviction of manslaughter, a corporation may be punished by way of fine, and as section 9 of the act relative to statutes the word “person” is declared to include bodies corporate (artificial persons) as well as individuals (natural persons), and that the same provision in somewhat different form a]Dpears in section 220 of the Crimes act, that, therefore, there is statutory authority fqr indicting a corporation for manslaughter.
*179Blit this reasoning seems to me to be manifestly unsound. To adopt the test suggested, that where a fine may be imposed as a part or whole punishment upon the offender, by virtue of the statute, a corporation may be indicted for the offence denounced, would render a corporation liable to indictment for any offence in the category of offences denounced in our Crimes act, with the exception of treason and murder. This in the very nature of most of the offences cannot be reasonably so. Thus, as examples, offences involving moral 'turpitude, such as sodomy, rape, adultery, fornication, &e. Tet these offences may by statute he punished by fine or imprisonment, or both. While it is true that section 220 of the Crimes act,. inter alia, provides that whenever in describing or referring to any person, matter or thing, any word importing the singular number or masculine gender is used in the statute, tlie same shall be understood to include and,shall apply to several persons and parties as one person or party, and females as well as males, and bodies corporate as well as individuals, (unless there be something in the subject or context repugnant to such construction, it will require a violent departure from firmly established rules of statutory interpretation to hold that it was the legislative intent to subject a corporation to an indictment for manslaughter. It is axiomatic that penal statutes must be strictly construed. In order to include a corporation within the term1 “person” designated by the various sections of the Crimes act, it must appear by express terms that it was the legislative- intent to subject a corporation to indictment for manslaughter. This does not appear.
Tt is clear to me, at least, that the object of the statutory provision was intended to prevent the escape of offenders against the law, from conviction under the Crimes act, where corporations wore the victims, as for instance, where money oi-j other property is obtained from a corporation under false pretences under a statute- using the term “person” only. State v. Reynolds, 65 N. J. L. 424.
Furthermore, it is io be observed that by many sections of the’ Crimes act where the legislature intended to make a cor*180poration amenable to indictment it lias expressly declared so.o This must be given significance in interpreting section 220.
Bnt the inapplicability of section 220 is further supported by the fact that the Crimes act lias placed a corporation in a class by itself. Special proceedings are provided for its appearance in court under an indictment, which proceedings are of a purely civil nature. Prior to the act of 1837, page 125, and the supplement thereto of 1841, page 18, there was no- way provided to compel a corporation to- appear to an indictment. • Lastly, the crime of manslaughter is a common law offence in this state and there is no statute defining it. As section 220 refers to the use of the term “person” in a statute, the section has obviousty no application to where the offence is manslaughter.
There is nothing to prevent the legislature from enacting a statute providing for indictment of a corporation for crimes and misdemeanors with adequate punishment upon conviction, but it seems to me to be a mockery of justice to shield those personally responsible for a great disaster under a prosecution of this character in which the most that can be exacted is a monetary penalty which serves neither as adequate punishment nor as a deterrent.
I am in accord with the views expressed in the opinion of this court that a bill of particulars forms no part of the judgment record.
Eor tine reasons herein stated I vote to reverse the judgment.
Judges White, Heppenlieimer and Taylor request me to state that they concur in the views expressed herein.
For affirmance—Ti-ie Chancellor, Parker, Bergen, Minturn,. Black, Williams, Gardner, Ackerson, JJ. 8.
For reversal—Kalisci-i, White, Hebbeni-ieimer, Taylor,JJ. 4.