delivered the opinion of the Court:
This action was commenced under section 37, chapter 114, Eev. Stat. 1874, which provides that every railroad corporation that shall fail to erect and maintain suitable fences on either side of its road within six months after the same is open to use, sufficient to prevent stock from getting on the track, shall be “ liable for double the amount of all damages” which may be done by its agents, engines or cars, to stock on such track. The law, however, has not. made it obligatory upon railroad corporations to fence their roads at the crossings of public roads and highways, nor within the limits of cities and incorporated towns and villages. The stock for which plaintiff seeks to recover in this action, was not killed at any of the excepted places mentioned in the statute. As to that fact there is no disagreement between the parties. ■ It is, therefore, a matter of no consequence whether the instruction given by the court on this branch of the case stated the law incorrectly or not, as it could, by no possibility, do defendant any harm. Defendant did not claim in the court below, nor is it claimed in this court, that the cow was killed at any of the excepted places on defendant’s road, where such killing would not render the company liable, unless it were negligently or wilfully done, and hence it is manifest the instruction did not mislead the jury on the issues involved.
The point, however, relied on with the most confidence for a reversal of the judgment is, that the statute authorizing a recovery of double the amount of damages done to stock, where there has been a failure on the part of a railroad corporation to comply with the provisions of the act cited in regard to fences, is unconstitutional, and for that reason the judgment should be set aside.
Article 2, section 2, of the constitution of 1870, provides, “ no person shall be deprived of life, liberty or property, with*101out due process of law;” and it is with that provision of the constitution, it is said, the statute allowing the recovery of double damages in such cases is in conflict. The argument seems to be, if we fully comprehend it, that any statute that allows a party injured, in any case, to recover beyond the actual damages sustained, in some way deprives the wrongdoer of his property “without due process of law;” but how that conclusion is reached is not apparent. Statutes giving the owner the right to recover against an officer who sells under process of court property exempt from execution, in some cases twice and others three times its value, have been enforced in this State through a long series of years, without any suggestion from any source that such statutes contravene any constitutional provision designed for the protection of the property of the citizen. That such statutes, as well as the one we are considering, are in their nature penal, may be admitted, but that is not their distinguishing feature. Such statutes are, no doubt, designed, in part, to punish the wrong-doer for negligent and wilful omissions of duty, imposed by considerations of public concern; but most of all, the purpose is to furnish the party injured compensation for wrongs done to his person or property.
It is undeniable law, at least in this State, that .in actions for personal injuries the party injured may recover beyond actual damages sustained, and where the facts and circumstances warrant the belief the injury was wilfully inflicted, may recover exemplary or punitive damages. In such cases the damages recovered are both punitive and compensatory. So with the statute we are considering,—it is in its nature penal as well as compensatory. ■ While the remedy given affords compensation to the party whose stock is injured or killed, it compels the observance by railroad corporations of those duties imposed by law for the security of the property of persons residing in the vicinity of their lines of road. The enforcement of such duties has always been regarded as within the police powers of the State, and may be invoked whenever *102the legislature deems it necessary to secure the public welfare. It is not perceived how the exercise of such powers contravenes any provision of our constitution, or deprives one of his property “ without due process of law.” With equal propriety it might be urged that the imposition of any penalty for wrongful conduct is inhibited by,that provision of the constitution,—a position that finds no sanction in reason or law.
That the compensation provided by statute in such cases as the one at bar, although partaking of the nature of penalty, may be recovered in the name of the party injured, has been uniformly allowed under analogous statutes by the practice in this State. In the recent case of Cairo and St. Louis Railroad Co. v. Murray, 82 Ill. 76, it was expressly ruled, in a case arising under this statute, that the action was properly brought in the name of the owner of the stock, and that it need not be in the name of the people.
The case of Atchison and Nebraska Railroad Co. v. Baty, 6 Neb. 37, cited, can not be regarded as a controlling authority. That case seems to regard “double damages” for stock killed or injured as purely a penalty,—a proposition to which we can not fully yield our assent. Considering double damages as penalty, the conclusion reached by the court in the case cited was inevitable, as the constitution of that State, as the opinion declares, provides, that “all fines and penalties * * * shall be appropriated exclusively to the use and support of common schools,” and hence the decision that no private individual could recover the penalty. But we have no such constitutional provision in this State, and, besides, the damages given by statute in such eases are not exclusively penalty, but are to be regarded as compensation as well as penalty, and may, therefore, be recovered in the name of the owner of the stock; Clearly, it is nothing more than a remedy given by statute for injury done to the property of the citizen, which, it is understood, it is competent at all times for the legislature to provide.
The judgment is warranted by the law and the evidence, and must be affirmed. Judgment affirmed.