* law, and author of the chapter on Corpora- | Company and not by the defendant. Clearly, tions in the Cyclopedia of Law and Pro- then we think the indictment cannot be suscedure, says: "The president of a private tained upon the doctrine of agency. If this corporation is, as the term implies, the pre-indictment can be sustained at all, it must siding officer of its board of directors and of be, as we view it, upon the ground that the its shareholders when convened in general defendant is charged, in effect, with assentmeeting. The office itself, however, confers ing to the reception of the deposit after he no power to bind the corporation or control knew the bank was insolvent. This of neits property. The president's power as an cessity, involves the construction of the statagent must be sought in the organic law of ute itself. Is the statute broad enough to the corporation, in a delegation of authority include in its provisions the penalization of from it, directly or through its board of di- the act of assenting to the reception of a derectors, formally expressed or implied from posit knowing the bank to be insolvent? a habit or custom of doing business." 10 "Every officer, agent, teller or clerk of any Cyc. 943. "The appointment of the president bank, who receives any deposit of a corporation to the office of general super- * # knowing that such bank is insolv intendent or manager necessarily invests him ent shall be guilty, is the lanwith the powers incident to that office or guage of the statute. The language is plain agency." 10 Cyc. 909. But whether acting and unambiguous. The personal pronoun strictly as president, or in the added capacity "who" has for its antecedents the words "ofof general manager, he is the agent of the ficer, agent, teller and clerk." The word corporation, and not a principal. Referring "receives" has a well-understood meaning. specifically to the powers of a bank presi- Hallenbeck v. Getz, 63 Conn. 385, 28 Atl. 519. dent, the following is from 5 Cyc. 468: "In The receiving of a thing and the assenting to some cases a president receives only a nomi- its reception are two separate and distinct nal salary, is expected to devote only a portion of his time to the business, and is not required to exercise the same degree of care and foresight as a president who is the real head and manager, and who possesses all the authority of the cashier. He may, however, be authorized by the directors to do anything within the authority of the bank's charter, except those positive requirements that are personal and cannot be delegated; but, when he goes beyond the scope of his usual authority, it must be shown that in some way his act was authorized by the directors." affairs. The one involves an affirmative act; the other is mere passive acquiescence. 3 Cyc. 1110. That the Legislature was laboring under no misconception of the ordinary use of these terms is evidenced by the fact that upon the same day that the penal statute was passed a general act providing for the incorporation of banks was passed, section 11 of which act provided: "It shall be unlawful for any president, director, manager, cashier, or other officer, to assent to the reception of deposits, after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances. Every * * No In the case of Wallace v. Lincoln Savings Bank. 89 Tenn. 630, 15 S. W. 448, 24 Am. St. Rep. 625, the court said: "Bank direct-person violating the provisions of this secors are not expected to give their whole time tion shall be individually responsible for and attention to the business of the company. such deposits so received. The customary method in regard to such other liability or penalty was imposed by associations is that the active management said act. "The rule is cardinal and universal and responsible custody is left to the cashier, that if a law is plain and unambiguous, there and other agents selected by the directors is no room for construction or interpretafor that purpose. These are paid salaries, tion." Brown v. Davis, 1 Nev. 409. "When demanding their skill and time should be the language of a statute is plain, its ingiven to the duties of immediate manage- tention must be deduced from such lanment. As a rule, the custodian of the assets guage, and the courts have no right to go beis the cashier. The duty of directors with re- yond it." State v. Washoe County, 6 Nev. spect to such is to supervise, direct, and con104. trol. These agents, though usually selected by the directors, are not the agents of the directors, but agents of the corporation. Morawetz on Private Corporations, § 552 et seq. The neglect which would render them responsible for not exercising that control and direction properly must depend on the circumstances of each particular case. They are not insurers of their fidelity, and they are not liable for their acts on any principle of the law of agency." Under the indictment in this case the actual receipt of the deposit was by the rereiving teller: the receipt in law was by the corporation, the State Bank & Trust This court in Ex parte Deidesheimer, 14 Nev. 311, said: "Penal laws generally prescribe what shall or shall not be done, and then declare the consequences of a violation of either requirement. They should be plainly written, so that every person may know with certainty what acts or omissions constitute the crime. Bish. on Stat. Crimes, § 193; Beccaria on Crimes, 22, 45; The Schooner Enterprise, 1 Paine, 33, Fed. Cas. No. 4,499. And in the United States v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37 (opinion by Chief Justice Marshall), the court says: 'It has been said that although penal laws are to be construed strictly, the intention * of the Legislature must govern in their con- | penal provisions. The statutes of Nevada, struction. That if a case be within the in- California, and Illinois impose a penalty on tention, it must be considered within the those who "shall receive" the deposit; that letter of the statute. The rule that penal of Pennsylvania on those who shall "take laws are to be construed strictly is perhaps and receive"; that of Wisconsin on those not much less old than construction itself. It who shall "accept or receive"; the statutes is founded on the tenderness of the law for of Missouri and Colorado on those who "shall the rights of individuals, and on the plain receive or assent to the reception"; and principle that the power of punishment is those of Iowa, Kansas, Minnesota, and South vested in the legislative, not in the judicial, Dakota on persons who shall "accept or redepartment. It is the Legislature, not the ceive, be accessory to, or permit or connive court, which is to define a crime and ordain at, the receiving or accepting," etc. Speakits punishment. * The intention of ing of the Iowa statute the court in State v. the Legislature is to be collected from the Yetzer, supra, said: "The legislative purpose words they employ. Where there is no am- was evidently to be comprehensive so as to biguity in the words, there is no room for omit from the provisions of the act none construction. The case must be a strong who might be parties to the fraudulent acts." one, indeed, which would justify a court in As heretofore stated by this court, the Nedeparting from the plain meaning of the vada statute is a copy of the California statwords, especially in a penal act, in search of ute, excepting that the California law only an intention which the words themselves do makes the offense a misdemeanor. The Calinot suggest. To determine that a case is fornia Reports do not contain a case in which within the intention of a statute, its language the provisions of this law were called in must authorize us to say so.' See, also, Sedg-question, or where any prosecution therewick on the Construction of Stat. and Const. under was involved. The statute of this Law, 279 et seq.; Smith's Commentaries, § state only imposing a penalty upon the per746; Bish. on Stat. Crimes, § 192 et seq." son "who receives" a deposit into a bank Considering the construction of a penal stat- with the knowledge of the bank's insolvent ute in the case of State v. Wheeler, 23 Nev. condition, and it being manifest, not only 143, 152, 44 Pac. 430, 432, this court said: from the established rules governing the "Being penal, the proviso exempting persons construction of penal statutes, but from all from the operation of the law should, on the the authorities that have had occasion to other hand, receive a liberal interpretation. consider the question, that the word "reMr. Bishop states the rule thus: 'While the ceives" cannot be construed to include "asparts of a penal statute which subject to sent to reception," it follows that the statpunishment or a penalty are, from their ute of this state only imposes a penalty upodious nature, to be construed strictly, those on that person or officer of a private or inwhich exempt from penal consequences will, corporated bank who receives a deposit, eithbecause of their opposite character, receive er in fact or law, knowing the bank to be a liberal interpretation.' Bishop, Writ. Laws insolvent. As the indictment in this case §§ 196, 226. To the same effect are Suther- charges the receipt in fact to have been by land, Stat. Const. § 227; Endlich, Stat. Int. the receiving teller as a general deposit in § 332." the bank, there is presented but one question, Does it charge the defendant with a receipt in law? In addition to the fact that Missouri, Kansas, and Colorado courts have had occasion to hold that the receiving and the assenting to the reception of a deposit knowing the bank to be insolvent are separate and distinct offenses, and that there are no decisions to the contrary, the fact that most of the states which have passed statutes upon the subject have specifically, or in effect, provided that assenting to the reception of a deposit under the conditions named in the statute constitutes an offense is a very strong intimation at least that these lawmaking bodies deemed such provisions necessary in order to penalize officers of incorporated banks, who probably are mainly responsible for the condition of the bank, yet do not actually participate in the receipt of the deposit. A brief reference to the statutes of the various states that have had occasion to consider prosecutions under acts making it a crime to receive deposits into banks after they are known to be insolvent will serve The doctrine seems to be settled, without any conflict whatever, that in the case of an incorporated bank the receipt in law is by the corporation itself; that under facts as stated in the indictment in this case both the defendant and receiving teller were agents of the same principal, to wit, the corporation, and that, as between themselves, no relationship of principal and agent was involved. The assertion made by counsel for the state in their brief that "the receipt of a deposit by an employé of an insolvent bank is the act of the president, or other officer having authority over the employé," is not only not supported by any authority cited by them, but is opposed by the whole current of authority both of text-writers and decisions of courts. We have been impressed that counsel for the state have realized their inability to support their position in the law; hence the desire, repeatedly expressed its of the questions presented upon the face of the indictment. A very extensive and careful examination of these questions has conclusively shown to the court that in no instance have we been able to find one that could be regarded as being close. Finally, it must be conceded that when the Legislature saw fit to deal with the subject of insolvent banks, it had power to limit the extent of the penal provisions. It had power, if it saw fit, to impose a penalty only upon those who received deposits either in fact or in law. If this was the intention of the Legislature, it would be difficult to find words more expressive of that intent than those used in the act in question. As the language used in the statute warrants the court only in determining such to be the intent of the Legislature, we are bound to construe the statute accordingly. With the wisdom and policy of statutes courts have nothing to do; that function is exclusively the province of the Legislature. Parker & Brown, for appellant. Scott Calhoun and James E. Bradford, for respondent. DUNBAR, J. This was an action against the city of Seattle for the death of a 10 year old child caused by coming in contact with a live wire, which, it is alleged, was brought to the ground in a certain street in the city of Seattle by reason of the city negligently permitting an upright pole on which the wire was fastened to fall to the ground. A demurrer was interposed to the complaint for the reasons (1) that there was a defect of parties plaintiff; (2) that the complaint did not state facts sufficient to constitute a cause of action; and (3) that the claim attached to the complaint was invalid, and did not comply with any of the terms of the city charter relative to filing of such claims. This demurrer was sustained by the court, and, the plaintiff electing to rely upon his complaint, judgment was entered dismissing the action, and from such judgment this appeal is taken. We have pointed out how the Legislatures of various states have dealt with the question of receiving deposits by insolvent banks. It is not within the power of this court to extend the provisions of the statute beyond the limits fixed by the Legislature. If we could read into our statute provisions such as appear in the laws of Colorado, Missouri, Iowa, Kansas, or Minnesota, for example, a very different legal question would be presented, but to do so would be a usurpation of powers, which the Constitution has imposed upon the Legislature and denied to the courts. The indictment in this case fails to charge an offense against the laws of this state. The defendant is legally entitled to be dis-only ground which was argued by counsel charged, and it is so ordered. WURSTER v. CITY OF SEATTLE. A provision of a city charter requiring the notice of claim for injuries from a defective street to state claimant's residence for a year prior to the accident is unreasonable, and will not be literally enforced. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1699; Dec. Dig. § 812.*] Chadwick, Fullerton, and Mount, JJ., dissenting. No argument was made in this court, orally or by brief, in favor of the first two grounds set forth in the demurrer, and an examination of the complaint satisfies us that no successful argument could be made in that regard. We conclude that the demurrer was sustained on the third ground, not for the reason stated so broadly in the demurrer, that the notice did not comply with any of the terms of the city charter relative to the filing of such claims, but for the reason that the claim did not state the residence of the claimant for one year last past; this being a requirement of the charter. This is the upon this appeal either in their briefs or orally. Since the court sustained this demurrer, this question has been passed upon by this court, after due consideration and a thorough investigation of the authorities, in Hase v. Seattle, 98 Pac. 370, and we there held that this provision of the charter was unreasonable, and therefore could not be Sustained. This court also held in Jones v. Seattle, 98 Pac. 743, that this charter provision could not be literally enforced by holding good a notice where the language of the claim was "that during the time herein mentioned and long prior thereto she was a resident of Seattle, King county, Washington." Counsel for respondent in their oral argument presented in this case earnestly urge the court to overrule that decision in Hase v. Seattle, but both their oral argument and Appeal from Superior Court, King County; the arguments presented in the brief are R. B. Albertson, Judge. Action by John W. Wurster against the City of Seattle. From a judgment for defendant on demurrer to the complaint, plaintiff appeals. Reversed and remanded for trial. practically the same as the arguments presented to the court in that case, and, after duly considering the arguments presented, we are not convinced that we should overrule the decision in the case above referred to. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes cause. The judgment in this case will therefore | city of Seattle, the exercise of which is esbe reversed, and the case remanded, with sential to the orderly government of the instructions to proceed with the trial of the municipality. As is said in the Hase Case, there is a dearth of authority upon the exact question before us, but it seems to me RUDKIN, C. J., and CROW and GOSE, that my opinion is sustained by reason as JJ., concur. well as the logic of the cases to which I have referred. CHADWICK, J. I dissent. The charter of the city of Seattle (article 4, § 29) provides that claims for damages against the city may be prosecuted provided a claim meeting the following conditions is filed: (1) Presentation within 30 days after the time said claim accrues; (2) accurate location and description of the defect that caused the injury; (3) accurate description of the injury and items of damages; (4) the residence of the claimant for one year preceding the time of injury. Instructions should not be given upon im- 2. TRIAL (§ 242*) — INSTRUCTIONS - MISLEAD The use of the words "evidence" and "testimony" in instructions without regard to the technical difference in their meaning was not misleading. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 569; Dec. Dig. § 242.*] 3. TRIAL (§ 258*)-INSTRUCTIONS-REQUESTSUFFICIENCY OF REQUEST. Where the trial judge offered to recall the jury and give instructions which defeudant claimed were presented to him, if counsel thought it was necessary, but counsel did not state that they desired them to be given, but merely said they excepted to the refusal to give the instructions, there was no such request for the instructions as would put the court in error for failure to give them. Dig. 8 646; Dec. Dig. § 258.*1 Chadwick and Fullerton, JJ., dissenting. Appeal from Superior Court, King County; R. B. Albertson, Judge. Now, if it be a reasonable requirement that a claim must be presented within 30 days, and this court has so held (Postel v. Seattle, 41 Wash. 432, 83 Pac. 1025; Ehrhardt v. Seattle, 40 Wash. 221, 82 Pac. 296). if it be a reasonable requirement that the location and description of the defect be set out, and this court has so held (Falldin v. Seattle, 97 Pac. 658; Ellis v. Seattle, 47 Wash. 578, 92 Pac. 431), if it be a reasonable requirement that the injury be accurately described, a compliance with which would generally require a resort to technical advice and direction, and this court has so held (Mears v. Spokane, 22 Wash. 323, 60 Pac. 1127), I can conceive of no reason why we should have held, or should now hold, a requirement that a claimant should give his residence for the year preceding the time of his injury to be unreasonable. I grant that any condition put upon a claimant must be a reasonable one, and that all such provisions should be liberally construed in favor of the claimant, and to that extent I have no quarrel with the case of Hase v. Seattle (Wash.) 98 Pac. 370, upon which the majority opinion rests. But I have seen no argument either in that case or in any other that convinces me that it is unreasonable to require a claimant to make such discovery of his antecedents as will fully protect the city in its right to know its adversary and invesDUNBAR. J. This action was brought by tigate his character. The provision is in aid plaintiff to recover damages for personal inof the honest litigant, rather than a stum-juries alleged to have been caused by the bling block and pitfall. In many cases the character of the claimant would be an essential element in effecting a compromise of claims that might otherwise be doubtful. It outs no burden on the deserving, while it may be a most essential weapon in the defense of the claims of the dishonest. This should be the supreme test of reasonableness when considered in connection with this charter provision. Clearly it seems to me we have assumed to substitute the judgment of this court for that discretion which the Legislature has properly lodged in the Action by Eugene Scherrer against the City of Seattle. From a judgment for plaintiff, defendant appeals. Affirmed. Scott Calhoun and James E. Bradford, for appellant. Reynolds, Ballinger & Hutson, for respondent. negligence of defendant in maintaining a sidewalk, and a verdict was returned in favor of plaintiff in the sum of $963. Motion for new trial was denied, judgment entered, and appeal followed. The first two assignments of error are to the effect that the court erred in admitting in evidence the claim filed with the city, and erred in denying appellant's motion challenging the legal sufficiency of the evidence. These assignments seem to be directed to an alleged defect in the claim of damages filed, in that the claim did not state the residence of the claimant for one year last past. This, Noyes v. Pugin, 2 Wash. 653, 27 Pac. 548, and question was determined adversely to appellant's contention in the case of Hase v. Seattle (Wash.) 98 Pac. 370, where it was held that the requirement under discussion was an unreasonable one, and this decision was affirmed in the case of Wurster v. Seattle (decided February 23, 1909) 100 Pac. 143. So that it will not be necessary to discuss that proposition again. the contention now urged by appellant was held to be without merit." In this case there was really only one question for the jury to consider, and that was the contributory negligence of the appellant; for the negligence of the city in maintaining the sidewalk in the condition in which it was maintained was proven without any question, and without any contradiction on the part of the city, the city having introduced no evidence upon that point. No matter what instruction the court might have given, the jury could not have found that the city was not guilty of negligence. The appellant alleges error of the court in refusing to give a great number of instructions which appear in the record. In addition to the fact that these instructions, so far as they stated the law, had already been given by the court, the record shows that they really never were submitted to the court for a presentation to the jury. After the jury had retired the following occurred: It is assigned that the court erred in its instruction in regard to the duty of the city in constructing its sidewalks, inasmuch as that question was not involved in the case and there was no testimony on that subject. A reference to the original construction of the sidewalk appearing in the instructions given by the court was merely casual and leading up to the instruction in regard to the duty of the city in maintaining such a walk. It is true that, as a general rule, instructions should not be given concerning immaterial issues, but it plainly appears from all the instructions and from the testimony that the instruction was entirely without prej- "Mr. Bradford: The defendant duly and udice. No theory could be advanced upon which the appellant could found a prejudice, because the jury could not possibly have been misled by this prefatory remark of the court concerning the real matter at issue, viz.. the negligence of the city in maintaining a dangerous sidewalk. It is insisted by the appellant that the court erred when it instructed the jury that their verdict should be for the plaintiff in such sum as would fairly compensate him for the loss, in that the court ought to have limited the instruction to the amount claimed in the complaint. We think from the whole instruction that the jury were not misled in this particular, not only from the language of the instructions as a whole, but from the fact that the amount of damages found by the jury was less than the amount claimed. timely excepts, etc. The Court: I wasn't aware that the defendant requested any instructions. They were not exhibited to me. If they were, I wasn't aware of it. Mr. Bradford: I filed them with the clerk before the argument began. The clerk says they were laid on your desk. The Court: Perhaps I thought they were the pleadings. If there is anything you will call my attention to, I will recall the jury. (Looking over instructions) I did not instruct the jury on the subject of comparative negligence. If you think that is important I will recall the jury. Mr. Bradford: Of course, I want to take exception to the court refusing to give all of them. The Court: I wasn't aware that you requested them given. If you think that is important enough, I will recall them. I don't think it is necessary. unless considered of sufficient importance by counsel. Mr. Bradford: Except to the refusal of the court to give defendant's re Counsel for appellant also insists that the court erred in using indiscriminately the words "testimony" and "evidence" in his in-quested instruction No. 1, which requested structions to the jury, and sets forth the technical differences between the words. This same objection was raised in the case of Jones v. Seattle (Wash.) 98 Pac. 743, and was disposed of in the following language: "Counsel for appellant criticises the instructions of the court for the reason that the word 'testimony' was used where it is alleged the word 'evidence' should have been used. But this criticism we think is overtechnical. While it is true that some authorities define the words as technically different, making 'evidence' the more comprehensive word, yet in common expression, even of courts, they are used synonymously, and we have no idea that the jury was misled by any accurate knowledge on its part or nice technical distinctions. This same question was considered by this court in 100 P.-10 instruction is as follows, to wit," etc. It is evident from the record that counsel was more anxious to obtain an exception to the court's refusal to give instructions than he was to have the instructions given, and that they were not actually submitted to the court for the purpose of being given to the jury. It is well said by counsel for respondent that the object of presenting proposed instructions to the court is, not to place some matter in the record without the court's knowledge from which error can be claimed. but rather to call the court's attention to specific instructions desired, to the end that a just result may be obtained in the trial. In this case, when the court's attention was called to the fact that he had not given the instructions presented by the appellant, he offered to recall the jury and give the in |