Connecticut has a statute which declares that where the real estate of a married woman has been sold, and the proceeds thereof "secured or invested in her name or in the name of a trustee for her benefit, the same shail Am. Rep. 637; State v. Buttles, 3 Ohio St. | the argument. The fact that the legislature 309; Etna Nat. Bank v. Fourth Nat. Bank has enacted that state moneys shall be deof New York, 46 N. Y. 82, 7 Am. Rep. 314; posited in banks does not make the placing Lowry v. Polk County, 51 Iowa, 50, 33 Am. of the funds therein any the less a loan than Rep. 114; Long v. Emsley, 57 Iowa, 11; Re had they been deposited without sanction of Franklin Bank, 1 Paige, 249, 2 L. ed. 635, law. On the contrary, it would seem that 19 Am. Dec. 413; Wray v. Tuskegee Ins. Co. the two cases decided by our own court are 34 Ala. 58; Bank of Northern Liberties v. the more valuable as precedents for our now Jones, 42 Pa. 536; Knecht v. United States holding that such a transaction amounts in Sav. Inst. 2 Mo. App. 563. In Foley v. Hill, law to a loan, since we have a statute which 2 H. L. Cas. 28, Lord Chancellor Cottenham authorizes the deposit of public funds, and said: "Money, when paid into a bank, in every case of deposit this statute enters ceases altogether to be the money of the into, and forms a part of, the contract. principal. It is then the money of the banker, who is bound to return an equivalent by paying a similar sum to that deposited with him when he is asked for it. The money paid into the banker's is money known by the principal to be placed there for the purpose of being under the control of the banker. It is then the banker's money. He is known to deal with it as his own. He makes what profit of it he can, which profit he retains to himself, paying back only the principal, according to the custom of bankers in some places, or the principal and a small rate of interest, according to the custom of bankers in other places. The money placed in the custody of a banker is, to all intents and purposes, the money of the banker, to do with it as he pleases. He is guilty of no breach of trust in employing it. He is not answerable to the principal if he puts it into jeopardy, if he engages in a hazardous speculation. He is not bound to keep it or deal with it as the property of his principal, but he is, of course, answerable for the amount, because he has contracted, having received that money, to repay to the principal, when demanded, a sum equivalent to that paid into his hands. That has been the subject of discussion in various cases, and that has been established to be the relative situation of banker and customer. That being established to be the relative situation of banker and customer, the banker is not an agent or factor, but he is a debtor. The Ohio case was this: The Ohio canal fund commissioners deposited with the Columbus Insurance Company $100,000 of the money and funds of the state, belonging to the canal fund, and in consideration of which the company gave a bond, signed by various persons, to repay the same in two years, with 7 per cent interest thereon per annum, payable annually. In an action by the state upon the bond, the court held that the advancement of the money to the insurance company was a loan, although the bond denominated the receipt of the money as a "deposit." In State v. Keim, 8 Neb. 63, this court held that the deposit of state moneys by a state treasurer in a bank was a loan, in its legal effect. This case was cited with approval in First Nat. Bank of South Bend v. Gandy, 11 Neb. 431. It is urged that the Nebraska cases cited do not apply to the questions here at issue, since, at the time they arose, no law was in existence which required the deposit of public funds in bank, while now the treasurer is not only authorized to deposit them for safe-keeping, but he is expressly commanded to do so. We are unable to see the force of not be liable to be taken on execution for the debts or liabilities of her husband.” The supreme court of that state, in Jennings v. Davis, 31 Conn. 134, held that, where the money received by the wife from the sale of her lands is deposited in her name in a bank, it is invested, within the meaning of the statute. Sanford, J., in delivering the opinion, observes: "It is not stated whether the money was deposited in the bank for safekeeping merely, or in the character of a loan to the bank, for which a stipulated rate of interest was paid during its continuance there, nor is it material to inquire, because, in either case, the deposit (being a general, as contradistinguished from a special, one) creates a debt in favor of the depositor, and against the bank, and then the money became invested' in that debt, and, being thus invested in the name of Mrs. Morehouse, was protected by the statute against her husband's. claims upon it. It can make no difference whether the depositor took any written evidence of this investment, or did not. The statute does not require any particular speciesof evidence that the investment has been made. It only requires that it shall be made in her name, or in the name of a trusted for her benefit. Money loaned is 'invested' in a debt against the borrower. If a promissory note is taken for it in the lender's name, the note becomes the evidence of the investment, and secures it to the lender. If no note is taken, the money is nevertheless invested' in the debt against the borrower, and in the lender's name." The conclusion is irresistible that the framers of the law under review contemplated that the moneys deposited in pursuance of the provisions thereof should be retained by the bank receiving the same for an indefinite period of time and be used and loaned by it as its own, the bank being under obligation to repay the amount so deposited on the presentation of the check of the state treasurer. There is no room for doubt that, where money is deposited under this act, the bank receiving the same is not a bailee, which would be the case if the title to the money remained in the state after the same was received by the bank. Prior to the adoption of the present statute, there existed in this state no law authorizing or requiring the deposit of public funds in banks. It was, however, generally understood that each of the former state treasurers. had loaned the state funds to various bank-ing that the legislature is powerless to enact ing institutions of the state for his own a law requiring the state treasurer to deposit pecuniary benefit. The state received no in- the moneys belonging to these funds in a bank come from such use of its money, and it was or banks for safe keeping merely. Perhaps to remedy this that the depository law was it has that power, but such is not the scope enacted, rather than to provide for the safe and effect of the law before us, since it rekeeping of the moneys belonging to the state quires a general deposit of the funds, and not treasury. The clear and manifest object of a special deposit, where the identical moneys the statute was to enable the state to receive deposited are to be returned. The amount interest on its funds deposited in banks. The of uninvested moneys.belonging to the sevtransaction contemplated by the statute is as eral permanent educational funds of the state much a loan or investment of the moneys is large, and opportunities for the permanent deposited under its provisions as where a bank investment of these moneys in the class of loans its money's on the note of its customer; securities and bonds described in the constiand if this law can be upheld, so far as it tution are daily becoming less frequent, so relates to the depositing of the permanent that the amount in the treasury belonging to educational funds in banks, then there is these trust funds is constantly increasing. nothing to prevent the legislature from en- That they should be invested so that they acting a law authorizing the loaning of the will yield an income to the state, no one educational or trust funds to its citizens, with will deny. But the remedy, in part at least, or without security for the repayment there- must come through an amendment of the conof; and all will agree that such a law, if stitution. The courts cannot, under the guise enacted, would contravene the section of the of interpretation, extend the powers conferred constitution above quoted. But it is said by the constitution beyond the scope of its that the constitution does not say that these provisions. educational funds shall not be temporarily deposited in bank, until opportunity for their permanent investment is presented. That instrument, in express terms, forbids their being loaned or invested," except in a certain manner; and, as we have already attempted to show, the depositing of these money's in bank on open account, drawing interest, although deposited temporarily, constitutes a loan and investment of the money. The fact that a person borrows money for an indefinite period, payable on demand of the lender, does not make the transaction any the less a loan than if the money had been taken for a fixed. long period of time. The same is equally true as regards the depositing of money in bank. The length of time the money is left does not determine whether the transaction is a loan or not. We are satisfied, both from reason and upon authority, that the depositing of the moneys belonging to the permanent educational fund of the state in banks, under the provisions of the depository law, is, in effect, a loan and investment of the funds so deposited, and is therefore inhibited by the constitution. We do not wish to be understood as in the least intimat We have not considered, nor do we now determine, whether the relator has such an interest as entitled it to maintain the action, since its right to do so has not been raised or argued by counsel. As the state at large is directly interested in the enforcement of the depository law, the attorney general could, and doubtless it is his duty to, institute proceedings to compel the depositing of the funds in the banks designated as depositories; and perhaps a bank which has complied with the law might do so, at least in case the attorney-general should refuse to appear and file the application. As it is important to the public interests that the real questions involved in this controversy should be determined and set at rest, we have thought it necessary to pass upon the merits of the case, without going into the question of who should have instituted the proceedings. It follows from the views expressed in the above opinion that the demurrer to the application should be overruled, and a peremptory writ of mandamus allowed. Writ allowed. The other Judges concur. IOWA SUPREME COURT. C. F. FURLEY et al. v. CHICAGO, MILWAUKEE & ST. PAUL Absolute liability for damages caused that defendant had no notice and could not have NOTE.-An exemption from liability for violation contagion, where the dealer exercises ordinary of the express terms of a statute when done un-care, and is free from any wrong intent, is so great intentionally and without negligence, although allowed in the above case, is not made without dissent. But the harshness of the operation of a law which would inflict a penalty for dealing in cattle which communicate an unknown and undeveloped that an implied exception seems to the majority of the court to have been intended. The statute, as an exercise of the police power, is not altogether unlike one who should make a person subject to a penalty for personally communicating a contagious 1 (January 31, 1894.) excuses an innocent violation committed under an honest mistake of the facts, and this upon APPEAL by defendant from a judgment of the plainest principles of reason and justice. the District Court of Tama County in favor of plaintiff in an action brought to recover damages for the loss of certain cattle which died from Texas fever, which was alleged to have been communicated to them by a cow unlawfully transported into the state by defend ant. Reversed. The facts are stated in the opinions. Messrs. Mills & Keeler, for appellant: The statute in question, enacted in 1886 for the protection of domestic cattle from contagious diseases, was evidently taken from an earlier and substantially similar law of the state of Kansas. See Kan. Laws 1881, chap. 161; Laws 1884, chap. 3. In 1887 the supreme court of that state construed their statute, in a case involving the precise question at issue here, and held: "No recovery could be had against the defendant where he acted in good faith, unless he had knowledge, or such facts existed as made him chargeable with knowledge, that the cattle were diseased, or of a kind liable to communicate the disease to the domestic cattle of the state." Patee v. Adams, 37 Kan. 133. In 1888, a similar case against a common carrier, the supreme court of Kansas reaffirmed the construction placed upon the statute in the Patee Case. Missouri Pac. R. Co. v. Finley, 38 Kan. 550. In the Iowa statute, the civil action for damages allowed by section 5419, is based and conditioned upon a violation of the provisions of the preceding section. The legal wrong, if any, lies in doing the act prohibited by section 5418. This section is highly penal, and must therefore be construed strictly. Bond v. Wabash, St. L. & P. R. Co. 67 Iowa, 716; Sutherland, Stat. Constr. §§ 349, 350. As the language used does not require the interpretation of absolute liability, irrespective of negligence, the further presumption obtains that the legislature did not intend to abrogate the common-law rule in such cases, which makes negligence the basis of liability. Sutherland, Stat. Constr. §§ 290, 291, 371: Potter's Dwarr. Stat. 185. The trial court so construed and applied this statute that defendant became liable in treble damages if it erred by refusing to transport the cow, and in actual damages with added fine or imprisonment, or both, if it erred by carrying the cow into the state. A construction of statute which necessarily leads to such absurd, unjust, and oppressive results cannot be correct in law, and should not be adopted by this court. Small v. Chicago, R. 1. & P. R. Co. 50 Iowa, 345; Dilger v. Palmer, 60 Iowa, 130; Sutherland, Stat. Constr. § 322, 324, 407. | Margate Pier Co. v. Hannam, 3 Barn. & Ald. 266; Sutherland, Stat. Constr. 354; Bishop, Statutory Crimes, § 132; 1 Bishop, Crim. L. 6th ed. §§ 291, 303, 304; Dickenson v. Fletcher, L. R. 9 C. P. 1; Reg. v. Tolson, L. R. 23 Q. B. Div. 168; Reed v. Davis, 8 Pick. 516; Hassenfrats v. Kelly, 13 Johns. 468; Ethridge v. Cromwell, 8 Wend. 635; Lane v. Shears, 1 Wend. 437; Anderson v. State, 7 Ohio, 250; Duncan v. State, 7 Humph. 148; Cohn v. Neeves, 40 Wis. 393; Wallace v. Finch, 24 Mich. 255; Mhoon v. Greenfield, 52 Miss. 434; Price v. Thornton, 10 Mo. 135; Com. v. Stout, 7 B. Mon. 247; Henry v. Tilson, 17 Vt. 479; Wilberforce, Statute Law, p. 254. Under the Fire and Stock Statute the liability is just as absolute for failure to keep the fence in proper condition after construction, as for failure to erect it originally, yet this court has uniformly held that knowledge of the defective condition of the fence, and negligence in maintaining it, were necessary conditions of liability on the part of the railroad company. Aylesworth v. Chicago, R. I. & P. R. Co. 30 Iowa, 461; Perry v. Dubuque & S. W. R. Co. 36 Iowa, 105; McCormick v. Chicago, R. 1. & P. R. Co. 41 Iowa, 195. There must be negligence somewhere to make the company liable. Small v. Chicago, R. 1. & P. R. Co. 50 Iowa, 341. See also Crabell v. Wapello Coal Co. 68 Iowa, 753; Reynolds v. Hindman, 32 Iowa, 146; Messenger v. Pate, 42 Iowa, 445; Cooley, Const. Lim. p. 580. The construction placed upon this Texas Fever Statute by the court below brings it in direct conflict with section 8, article 1, of the Constitution of the United States, as amounting to a regulation and burdensome restriction of interstate commerce. The statute, as construed below, cannot be justified as a mere quarantine regulation, or legitimate exercise of the police power of the state. Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465, 24 L. ed. 527; Minnesota v. Barber, 136 U. S. 313, 34 L. ed. 455, 3 Inters. Com. Rep. 185; Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 31 L. ed. 700, 1 Inters. Com. Rep. 823; Leisy v. Hardin, 135 U. S. 100, 34 L. ed. 128, 3 Inters. Com. Rep. 36; Henderson v. Wickham, 92 U. S. 259, 23 L. ed. 543; Norfolk & W. R. Co. v. Com. 13 L. R. A. 107, 88 Va. 95, 47 Am. & Eng. R. R. Cas. 1. Messrs. Struble & Stiger for appellees. Rothrock, J., delivered the opinion of the court: It appears from the record that on June 22, 1890, one Nathan L. Brown shipped from Even in strictly penal laws, the general rule' Long Beach, on the Gulf of Mexico, six disease. If such diseases were communicated by a person in whom it had not fully developed, and who was not aware of the fact that he had it or could communicate it, a statute making him liable therefor might be constitutional, but surely a very strict construction of it would be proper. As to the liability of persons for communicating contagious diseases, see State v. Butts (S. Dak.) 19 L. R. A. 725, and note. For liability of one who kills a horse which was not in fact diseased, in supposed obedience to a statute requiring the destruction of glandered horses, see Miller v. Horton (Mass.) 10 L. R. A. 116 which is as follows: "The statute of Iowa expressly prohibited any person from bringing into this state cattle in such a condition as to infect with or to communicate Texas fever to other cattle. Defendant, in the said second count of its answer, admits, by implication, the violation of this statute, but pleads, as a defense and excuse, that it acted in ignorance and without information as to the condition of the animal in question; and the admission of the defendant that it violated the law of this state is not excused by an allegation of want of knowledge or information, nor that it acted in violation of law in miles east of Pass Christian, in the state of Mississippi, a carload of emigrant movables, consisting of household goods, a horse, and a cow, to a station on defendant's road at Elberon, Tama county, in this state. Brown accompanied the car, and remained in charge of its contents, throughout the journey. The car was billed through from the starting point to its destination, and it was transported over connecting lines until it reached Port Byron Junction, in the state of Illinois, where it was delivered to the defendant, to be forwarded over defendant's road to its destination. When the car arrived at Elberon, which was about June 27, 1890, Brown un-ignorance of its provisions, and exercised loaded and took away his property. He turned the cow into a pasture with plaintiffs' cattle, and it is claimed by the plaintiffs that their cattle contracted the disease known as Texas Fever" from said cow, and that by reason thereof about thirty-two of plaintiffs' cattle died. The defendant filed an answer in two counts. The plaintiffs demurred to the second count of the answer. The court sustained the demurrer. The trial proceeded upon the petition and the first count in the answer. The main contention on the trial, after the demurrer was sustained, appears to have been on the question whether the plaintiffs' cattle died from Texas fever by contagion from the said cow owned by Brown, or from some other disease. care in the premises." It will be observed that the demurrer is as broad as the answer and the question presented is, Is the defendant absolutely liable to the plaintiffs, notwithstanding the fact that its agents and employés had no knowledge or information of the condition of the cow, and that the said condition could not have been discovered by the exercise of proper care and caution, and that the defendant was not negligent in receiving the car, and transporting its contents to the destination? The ruling on the demurrer precluded the defendant from showing that it exercised all proper care and caution, and was not chargeable with negligence; and the charge to the jury was to the effect that if the cow was, at the time of shipment, in such condition as to infect with or communicate Texas fever to other cattle, and did communicate the disease to plain. tiffs' cattle, from which disease they, or some of them, died, the defendant was absolutely liable for damages. It is conceded by counsel for the respective parties that the principal question in this appeal is whether the demurrer to the second count of the answer was rightly sustained. We will therefore proceed to a consideration of that question. The defendant, in the second count of the answer, admits that it re- The question is to be determined by the ceived the car at Port Byron Junction in the construction placed on chapter 156 of the state of Illinois, with a waybill of said car Acts of the 21st General Assembly, which is and contents, and that said cow and other amendatory to, or rather substituted for, secproperty were shipped from Long Beach, tions 4058 and 4059 of the Code. The second near Pass Christian, Miss. The defensive section of the Act, which is designated as part of the answer is as follows: "And de- section 4058, prohibits any person or corpofendant further avers that at no time while ration from importing any cattle into this said car and stock were so in its possession state which, at the time of such importation, or under its control, whether in transit or are in such condition as to infect with or comotherwise, did it have any knowledge or in- municate to other cattle pleuropneumonia, formation whatever, of any nature or degree, or splenic or Texas fever. It makes the viothat said cow was in such condition as to in- lation of the law a misdemeanor, and visits fect with or to communicate Texas fever to the offender with a fine of not less than $300, other cattle, or to plaintiffs' cattle; that, if and not more than $1,000, or by both fine such cow was then in that condition, such and imprisonment in the county jail not exfact was utterly unknown to this defendant, ceeding six months, in the discretion of the and could not have been discovered by it with court. The third section of the Act is as folthe means then at its command, or in the ex-lows: "Any person who shall be injured or ercise of such care on its part as was required damaged by any of the acts of the persons by law, under the circumstances; that this named in section 4058, and which are prodefendant exercised all due care and caution hibited by such section, in addition to the on its part, and had neither knowledge nor remedy therein provided, may bring an acmeans of knowledge that said cow, when so tion at law against any such persons, agents, brought within the state of Iowa, or when employés or corporation mentioned therein, delivered at Elberon, was diseased, or was and recover the actual damages sustained by in such condition as to infect with or to com- the person or persons so injured, and neither municate to other cattle Texas fever, as al said criminal proceeding nor said civil acleged in plaintiffs' petition, and it was not tion shall in any stage of the same be a bar negligent in that respect. There were sev- to a conviction or to a recovery in the other." eral paragraphs in the demurrer, separately This statutory provision does not appear to numbered; but there was really only one us to be essentially different, so far as the ground upon which it was claimed that the rule of liability thereunder is involved, from answer was vulnerable to the demurrer. It that part of section 1289 of the Code which is clearly stated in the seventh paragraph, I was under consideration by this court in the But it is claimed by counsel for appellee that the question has, in effect, been determined by this court; and we are cited to the cases of Jamison v. Burton, 43 Iowa, 282; Dudley v. Sautbine, 49 Iowa, 650, 31 Am. Rep. 165; State v. Thompson, 74 Iowa, 119, and State v. Cloughly, 73 lowa, 626. case of Small v. Chicago, R. I. & P. R. Co., the cattle so driven were diseased with the 50 Iowa, 338. That provision is as follows: fever, or were liable to communicate the dis"Any corporation operating a railway shall ease to the domestic cattle of the state. It be liable for all damages by fire that is set will be observed that the statute involved in out or caused by operating of any such rail- that case is not essentially different from our way, and such damage may be recovered by own. They both declare a liability in genthe party damaged in the same manner as set eral terms, without any language importing forth in this section in regard to stock, ex- an absolute liability. The cited case goescept as to double damages." It was held, in much further than Small's Case, or than we the case above cited, that this does not create do in the case at bar, and holds that the an absolute liability, but makes the fact of burden of proof of knowledge or negligence an injury so occurring only prima facie evi- is on the plaintiff. Putee v. Adams, supra, dence of negligence, which may be rebutted was followed and approved in Missouri Pac. by a showing of freedom from negligence. R. Co. v. Finley, 38 Kan. 550. Counsel for It is true that the decision in that case was appellee admit that the cited cases involve made by a divided court; but the rule of the the same question which we are considering. majority has since been followed in veryIt is to be conceded that a contrary rule has many cases. See Slosson v. Burlington, C. been adopted in the state of Missouri. SeeR. & N. R. Co. 51 Iowa, 294; Libby v. Chi- Wilson v. Kansas City, St. J. & C. B. R. Co. cago, R. 1. & P. R. Co. 52 Iowa, 92; Bab- 60 Mo. 184, and Surface v. Hannibal & St. cock v. Chicago & N. W. R. Co. 62 Iowa, 593, J. R. Co. 63 Mo. 452. In our opinion, the 598; Rose v. Chicago & N. W. R. Co. 2 rule of the Kansas cases is in line with the Iowa, 625; Seska v. Chicago, M. & St. P. R. better principle. Co. 77 Iowa, 137; Engle v. Chicago, M. & St. P. R. Co. 77 Iowa, 661, 666; Greenfield v. Chicago & N. W. R. Co. 83 Iowa, 270. And since the decision was made in Small's Case there have been six regular sessions of the general assembly. and we are not aware that at any time there has been any proposi tion introduced looking to an amendment of this statute, so as to make the liability for setting out fires absolute. Under the circumstances, it would be an amazing departure from a long line of decisions to hold that the construction adopted in Small's Case is not the settled law of this state, as expressed by this court, and as enacted by the lawmaking power. As we have said, the statute declaring liability for setting out fires, so far as the question of its absoluteness is involved, is not different from the statute applicable to this case. We need not here set them out side by side. They are essentially the same, as will appear by any fair examination of their provisions. It is provided by a statute of the state of Kansas as follows: "That no person or persons shall drive or cause to be driven into or through any county in this state, any cattle diseased with the disease known as Texas, splenic, or Spanish fever. Any person violating any provision of this Act shall on conviction be adjudged guilty of a misdemeanor, and shall be fined not less than one hundred and not more than one thousand dollars, and be imprisoned in the county jail not less than thirty days and not more than one year." Another section of the same Act is as follows: "Any person or persons who shall drive or cause to be driven into or through any county in this state any of the cattle mentioned in section one of this Act, in violation of this Act, shall be liable to the party injured for all damages that may arise from the communication of disease from the cattle so driven to be recovered in civil action, and the party so injured shall have a lien upon the cattle so driven." In the case of Patee v. Adams, 37 Kan. 133, it was held that in an action to recover damages under this statute it was essential for the plaintiff to allege and prove that the de fendant knew, or had reason to know, that These and other cases which have been decided by this court are mainly prosecutions for violations of the prohibitory liquor law of this state by selling beer to minors and inebriates, and it is held that want of knowledge of the age or habits of the purchaser isno defense. The principle upon which the cases rest is that the avocation of the vendor of intoxicating liquors is unlawful, except under certain circumstances, and that, when he sells, he assumes the burden of knowing that these circumstances exist, and sells his liquor at his peril. It is a general rulethat mere ignorance of fact will not excuse a person from a penalty provided by statute. 3 Greenl. Ev. § 21. But that principle can have no application to one who, in the pursuit of a lawful calling, and in the exercise of proper care and caution, does an act contrary to some statutory requirement. The theory of appellee is that defendant committed a criminal act, the violation of which is punishable by fine and imprisonment, and that, as it could make no successful defense to a criminal prosecution, it is absolutely liable for the damages occasioned by the criminal act. This is not an absolute rule. The law is well settled that, when a railroad train is operated through a city at a rate of speed prohibited by law or ordinance under a penalty, there is no absolute liability to a person injured by reason of the violation of the law or ordinance. It may, in such case, be shown that the person injured contributed to cause the injury by his own negligence. The application of the principle contended for to the facts of this case, it appears to us, shows conclusively that the defendant should have the right to prove, if it can, that it was free from negligence in receiving and transporting the car over its road. There is no hardship to plaintiffs in adopting this rule. The case is exceptional in its facts. |