Legislation requiring railroad companies to fence their tracks has been generally sustained as a legitimate exercise of the police power of the state, on the ground that it tends to promote the safe operation of trains and to the safety of the traveling public. It has been said that the police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the state, and to that end persons and property are subjected to many restraints and burdens in order to secure general comfort, health, and prosperity. But it is difficult to see how the giving of the notice specified would legitimately fulfill any of these purposes. If it does, the penalty should be limited to cases. where the company has knowledge of the killing. It cannot be assumed that the company would have such knowledge in all instances, and it would seem, also, that it should be limited to cases where the owner of the stock killed or injured did not have 159 knowledge of the fact, and was not himself at fault in the premises.

It is further contended that section 3 cannot be construed with reference to section 1 so as to limit its operation to cases where the railroad company has failed to fence its track, and the specified notice is not given, for the reason that there is no law in this state requiring railroad companies to fence, and consequently there is no basis for the imposition of a penalty for a failure to do so. A question very like this was also decided by this court in Oregon Ry. & Nav. Co. v. Smalley, 1 Wash. 206, 22 Am. St. Rep. 143, where a majority of the court held that the act which fixed a liability for killing stock where the right of way was not fenced imposed no duty upon the company to fence. The authorities are not uniform upon this proposition, and it has been held that legislation subjecting unfenced roads. to liabilities and penalties from which roads which were fenced were exonerated, was indirectly intended to compel railroad companies to fence their right of way. The decision rendered in Oregon Ry. & Nav. Co. v. Smalley, 1 Wash. 206, 22 Am. St. Rep. 143, was by a divided court, and the writer hereof was one of the dissenting judges, but sufficient grounds have not been presented in this case to warrant overruling it, and, construing this act in the light of that decision, it must be conceded that no obligation is imposed upon railway companies to fence their rights of way, and section 3 cannot be sustained upon that ground.

It is next contended that section 4 of the act, which is as follows: "In all actions for injury to stock by collision with moving railway trains where the plaintiff shall recover, and in actions to recover a penalty under this act in which the plaintiff

shall recover judgment, the judge shall allow a reasonable attorney's fee to be taxed as a part of the costs," 160 is invalid, on the ground of its being an attempt to grant special privileges and advantages to one class of litigants at the expense and to the detriment of another. Legislation requiring railroad companies to pay an attorney's fee in case of litigating such claims unsuccessfully, where none was imposed upon the plaintiff if unsuccessful, has been sustained in some instances, and generally upon the ground that it was in the nature of a penalty for failure to perform a duty imposed by statute: See Illinois Cent. Ry. Co. v. Crider, 91 Tenn. 489; Gulf etc. Ry. Co. v. Ellis (Tex.), 18 S. W. Rep. 723; Jacksonville etc. Ry. Co. v. Prior, 34 Fla. 271.

It cannot be sustained here as a penalty, for, as has been said, there was no duty to fence imposed by statute, and the provision requiring the notice to be given cannot be sustained in the unlimited manner in which the power was sought to be exercised as expressed in the section. There is a broad distinction to be recognized between legislation requiring a party to pay actual damages occasioned, and that which would impose a penalty in addition thereto. Such legislation can be sustained only where the party on whom the penalty is imposed is in fault or guilty of a wrong. Considered as an attorney's fee purely and simply, it distinguishes between classes of persons and not as to subjects of litigation or classes of controversies, and by the weight of authority has been held to be unconstitutional: Denver etc. Ry. Co. v. Outcalt, 2 Col. App. 395; St. Louis etc. Ry. Co. v. Williams, 49 Ark. 492; South & North Ala. R. R. Co. v. Morris, 65 Ala. 193; Wilder v. Chicago etc. Ry. Co., 70 Mich. 382; Chicago etc. R. R. Co. v. Moss, 60 Miss. 641.

161 The first section of the act is as follows: "That in all actions against persons or corporations owning or operating steam railways in the state of Washington, for injuries to stock of any kind, except hogs, by collision with moving trains, it shall be prima facie evidence of negligence on the part of the defendant to show that the railroad track was not fenced so as to turn said stock from the track," and it is contended that it is so connected with sections 3 and 4 that it should not be permitted to stand independently of them, and also that its provisions operate as a penalty where there is no violation of a duty, but it seems to us that this is not well founded. This section relates to a matter entirely independent of the others, and establishes a rule of evidence only. Where the fact of the killing has been proven, it shifts the burden of proof as to negligence upon the defendant. The facts of the case are usually peculiarly within the knowledge

.

of the railroad company, and it is not an unwarranted exercise of legislative power to impose upon such parties the burden of showing that they are not at fault. It establishes only a prima facie rule of evidence, and legislation of this kind has been so universally sustained that it is needless to refer to any of the numerous cases cited thereon. No evidence was introduced upon the trial of this action of the circumstances relating to the killing of the cow, the court below basing its decision upon the proposition that all the sections involved were unconstitutional. In arriving at a different conclusion and holding section 1 to be in force, a prima facie case of negligence was made out and the burden of proof was placed upon the railroad company.

For this reason the judgment is reversed, and the cause remanded for trial.

Hoyt, C. J., and Dunbar, Anders, and Gordon, JJ., concur.

STATUTES--ATTORNEYS' FEES.-A statute which permits the plaintiff, in an action against a railway company for a violation of its provisions, to recover, in addition to the damages therein provided for, an attorney's fee, confers no special privilege prohibited by the constitution, nor can it be regarded as imposing a penalty for exercising the right of defense: Burlington etc. Ry. Co. v. Dey, 82 Iowa, 312; 31 Am. St. Rep. 477. The constitutionality of a similar statute is discussed in the case of Coal Co. v. Rosser, 53 Ohio St. 12; ante, p. 622.

COMMERCIAL BANK V. CHILBERG.

[14 WASHINGTON, 247.]

BANKING-CHECK AND GARNISHMENT, CONFLICT BETWEEN.-A check drawn on a bank does not, until accepted, operate as a transfer of the funds of the drawer therein, and therefore is subject to a garnishment served after the drawing and delivery of the check and before its payment or acceptance by the bank.

Thomas Carroll and Hagerman & Carroll, for the appellant. F. Campbell, for the respondent.

247 SCOTT, J. The Commercial Bank of Tacoma obtained a judgment against the defendant, Chilberg, and caused a writ of garnishment to be served upon the Pacific National Bank, and at that time said last-named 248 bank was indebted to Chilberg in the sum of two hundred and thirty-seven dollars and sixty-one cents, on a general deposit. Prior to the service of said writ, Chilberg had given checks against said amount aggregating two hundred and twenty-three dollars and twentyone cents, and he appeals from the judgment of the lower court holding that the plaintiff was entitled under its garnishment to said moneys on deposit at the time the writ was served.

Appellant attacks the finding of the lower court that the Pacific National Bank had no notice of the issuing of said checks prior to the time the writ of garnishment was served on it. It is conceded that such notice was given and the checks were presented for payment prior to the time of the answer in the garnishment proceedings.

After an examination of the testimony, we are satisfied with the findings of the court on the questions of fact, and the judg ment of the court thereon is correct in law. The issuing of these checks by the appellant did not constitute a transfer of the funds. The relation between a banker and a general depositor is one of debtor and creditor, and there is no privity of contract between a bank and a holder of a check given by a depositor until such check is accepted by the bank. Prior to its presentment even the drawer could countermand its payment: Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y, 82; 7 Am. Rep. 314; Bank of the Republic v. Millard, 10 Wall. 152; Carr v. National Security Bank, 107 Mass. 45; 9 Am. Rep. 6.

Affirmed.

Hoyt, C. J., and Anders, Dunbar, and Gordon, JJ., concur.

CHECKS-ACCEPTANCE.-A check drawn by a depositor on the bank, unless it has been accepted, does not constitute an assignment so as to vest the fund or credit against which it is drawn, or any part thereof, in the payee or holder: Bank v. Windisch-Mublhauser Brewing Co., 50 Ohio St. 151; 40 Am. St. Rep. 660, and note. The giving of a check by a bank depositor operates, at least after presentment, as an assignment to the holder of a sufficient amount of the deposit to pay the check, and is, therefore, a definite appropriation of that sum to its payment, binding upon all the parties to the check: Metropolitan Nat. Bank v. Jones, 137 Ill. 634; 31 Am. St. Rep. 403. This subject is fully treated in the extended notes to Hemphill v. Yerkes, 19 Am. St. Rep. 609, and Sowden v. Craig, 96 Am. Dec. 132.

HATHAWAY V. YAKIMA WATER, LIGHT & POWER Co.

[14 WASHINGTON, 469.]

LICENSE, RIGHT TO REVOKE.-An oral license to enjoy a permanent privilege on the land of another, as to maintain a ditch thereon intended for permanent use, is revocable by the licensor, although money has been expended thereon by the licensee.

Whitson & Parker and Reavis & Englehart, for the appellant. F. H. Rudkin and Jones & Newman, for the respondent.

469 GORDON, J. The respondent brought this action for the purpose of enjoining appellant from keeping and maintain

ing a waterway or waste ditch across certain lands. The controlling facts in the case can best be stated by setting forth the findings of the lower court. They are as follows: "1. That at all times mentioned in the complaint herein, the plaintiff was and now is the owner in fee simple of all those certain lots, tracts, or parcels of land situate, lying, and being in the county of Yakima, state of Washington, and particularly described as follows [then follows description]; 2. That the defendant is a corporation organized and existing under the laws of the state of Washington; 3. That for more than one year last past the defendant has unlawfully and wrongfully kept and maintained a large waste ditch upon, through, over, and across the above-described lands of plaintiff commencing 470 at a point in the southeast corner of lot 28 above described, thence in an easterly direction along and across the southerly portion of lots 29, 31, and 32, above described: 4. That said defendant has no right of way for said waste ditch across the above-described lands of plaintiff, and has no interest or easement therein, but the plaintiff is the sole and absolute owner in fee of the above-described lands and every part thereof; 5. That the defendant has made no compensation to plaintiff for or on account of the use and occupation of said above-described lands by said waste ditch or for any easement or interest in said lands, and said defendant refused and still refuses so to do; 6. That the defendant threatens to and will continue so to use and occupy said above-described lands of plaintiff by said waste ditch, and is attempting to deprive the plaintiff herein of his said property, without paying or making any compensation therefor and without due process of law, and, if said use and occupation by the defendant of plaintiff's said land for said waste ditch is continued, such use and occupation will ripen into an easement, and the plaintiff will be wholly deprived of his said property without compensation, to his great and irreparable damage and injury, and plaintiff has no plain, speedy, or adequate remedy at law."

The following finding was specially requested by the appellant, viz: "That said defendant entered upon the premises described in the complaint and constructed said ditch with the knowledge and consent of the plaintiff, and plaintiff granted verbally the right of way therefor prior to said entry, and has continuously occupied and used the same ever since as a right of way for its canal, and same is necessary for the operation of its works, and cannot be operated without the same."

Thereupon the court struck therefrom the words, 471 "and plaintiff granted verbally the right of way therefor prior to said