Baker v. State

• Decision Date: 14 March 1882
• Citation: 12 N.W. 12,54 Wis. 368
• Parties: BAKER v. STATE OF WISCONSIN.
• Court: Wisconsin Supreme Court

54 Wis. 368

12 N.W. 12

BAKER

v.STATE OF WISCONSIN.

Supreme Court of Wisconsin.

Filed March 14, 1882.

Error to circuit court, Fond du Lac county.

The plaintiff in error was arrested and taken into custody, July 2, 1881, by the sheriff of Fond du Lac county, upon a warrant duly issued by a justice of the peace of that county containing the following recitals: “Robert A. Baker did, on the fourth day of May, 1881, at the city of Fond du Lac, in said county, feloniously accept and receive on deposit, from the said Nicholas Serese, the sum of $125 in money, and of that value, and being the property of the said Nicholas Serese and P. Serese; and that the said Robert A. Baker was then and there engaged in banking and deposit business, at said city and county of Fond du Lac, Wisconsin, in Robert A. Baker's bank; and that the money aforesaid was accepted and received in said Robert A. Baker's bank on deposit by the said Robert A. Baker; that he, the said Robert A. Baker, at the time when he took said money on deposit in his said bank, knew, or had good reason to know, that said bank and he, the said Robert A. Baker, was unsafe and insolvent; that said bank and said Robert A. Baker was in fact then and there insolvent, against the peace,” etc. While so held the plaintiff in error sued out a writ of habeas corpus, upon a petition, in due form; caused the same to be served upon the sheriff, who made return thereto before the Hon. N. S. Gilson, judge of the circuit court of Fond du Lac county, setting up the said warrant as the sole and only ground for the detention of the prisoner; and the plaintiff in error demurred to such return. The hearing of the issue thus joined was had before the said circuit court, and after full consideration the court entered an order denying the prayer of the plaintiff in error to be discharged, and remanded him to the custody of the sheriff of Fond du Lac county. Thereupon a writ of certiorari was issued out of this court directed to the judge of said circuit court to bring up the record and such adjudication for review.E. S. Bragg, for plaintiff in error.

L. F. Frisby, Atty. Gen., for defendant in error.

CASSODY, J.

The arrest was made under section 4541, Rev. St., which reads as follows: “Any officer, director, stockholder, cashier, teller, manager, clerk, or agent of any bank, banking, exchange, brokerage, or deposit company, corporation, or institution, or of any person, company, or corporation engaged in whole or in part in banking, brokerage, exchange, or deposit business, in any way, or any person engaged in such business in whole or in part, who shall accept or receive on deposit, or for safe-keeping, or to loan, from any person, any money or any bills, notes, or other paper circulating as money, or any notes, drafts, bills of exchange, bank checks, or other commercial paper for safe-keeping or for collection, when he knows, or has good reason to know, that such bank, company, or corporation, or that such person, is unsafe or insolvent, shall be punished by imprisonment in the state prison not more than ten years nor less than one year, or by fine not exceeding $10,000.” This section is a revision of section 1, c. 213, Laws 1876.

1. Did the transaction of the plaintiff in error, as charged in the warrant, bring him within the provisions of this section? The charge in the warrant is that Baker, being engaged in banking and deposit business, accepted and received on deposit, as such banker, the money named, knowing, or having good reason to know, that he and his bank were unsafe and insolvent. Was such action on his part prohibited by the section quoted? It seems to be conceded that it is applicable to the “cashier, teller, manager, clerk, or agent” of a party so engaged, but the contention is that it does not apply to an individual who is himself engaged as principal or proprietor of such business. The difficulty in construing the section is the multiplicity of parties to which it is sought to be made applicable. The meaning of the section may be more apparent by omitting such words as are not applicable here, and all parties except the principal or proprietor of such business. By such elimination the section would read: “Any person engaged in such (banking, brokerage, exchange, or deposit) business in whole or in part, who shall accept or receive on deposit, or for safe-keeping, or to loan, from any person any money, * * * when he knows, or has good reason to know, that such bank, company, or corporation, or that such person, is unsafe or insolvent, shall be punished by imprisonment,” etc.

The words “unsafe or insolvent” would seem to be as applicable to the individual so engaged as to “such bank, company, or corporation.” Since this is so, and since the act sought to be punished is such acceptance or receiving by one knowing or having good reason to know that such bank, company, or corporation, or “ such person, is unsafe or insolvent,” there would seem to be no ground for holding that the “cashier, teller, manager, clerk or agent of the person engaged in such business in whole or part,” and so accepting or receiving with knowledge of his proprietor's insolvency, should be punished under the section, but that the proprietor himself doing the same act, with as good, if not better, knowledge and means of knowledge, should be excluded from its operation. Any other construction renders nugatory the words “or any person engaged in such business in whole or in part,” and the words, “or that such person,” and this the learned counsel for the plaintiff in error concedes to be one of the “logical deductions” of his argument. But we are constrained to believe that the prohibition is aimed at the person so engaged, as well as the others named. We must, therefore, hold that the act charged brings the plaintiff in error within the provisions of this section.

2. It is urged that such legislation is prohibited by the clause: “No state shall * * * deny to any person within its jurisdiction the equal protection of the laws,” found in the fourteenth amendment to the constitution of the United States, and the following cases are cited in support of the contention: Live Stock Ass'n v. Crescent City Co. 1 Abb. (U. S.) 398;Slaughter-house Cases, 16 Wall. 36;Bartmeyer v. Iowa, 18 Wall. 129. For an authoritative interpretation of that amendment we must look to the decisions of the supreme court of the United States. In the Slaughter-house Cases, supra, it was held by that court that the legislature of Louisiana were not prohibited by that amendment from prescribing and determining the localities where the business of slaughtering animals for the city of New Orleans might be conducted, and prohibiting their being slaughtered anywhere else. Page 61. Miller, J., giving the opinion of the court, said: “The power here exercised by the legislature of Louisiana is, in its essential nature, one which has been, up to the present period in the constitutional history of this country, always conceded to belong to the states, however it may now be questioned in some of its details.” He then quotes approvingly from Chancellor Kent the following: “Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and the burial of the dead, may all be interdicted by law, in the midst of dense masses of population, on the general and rational principle that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interests of the community.” He then continued: “This is called the police power. * * * Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly-populated community, the enjoyment of private and social life, and the beneficial use of property.” He then quotes approvingly from an able opinion by Redfield, C. J., in Thorpe v. Ry. 27 Vt. 149, the following: “It 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 persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state. Of the perfect right of the legislature to do this no question ever was, or, upon acknowledged general principles, ever can be, made, so far as natural persons are concerned.” Page 62.

Counsel urge upon our consideration the reasoning of the minority of the court in the Slaughter-house Cases. But the dissenting opinion concedes that the police “power undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. * * * With this power of the state and its legitimate exercise I shall not differ from the majority of the court. * * * In the law in question there are only two provisions which can properly be called police regulations--the one which requires the landing and slaughtering of animals below the city of New Orleans, and the other which requires the inspection of the animals before they are slaughtered. When these requirements are complied with, the sanitary purposes of the act are accomplished. In all other particulars the act is a mere grant to a corporation created by it of special and exclusive privileges, by which the health of the city is in no way promoted.” Page 87. Thus it was conceded by the minority of the court that the fourteenth amendment did not abridge nor take away the power of the state legislature to regulate all matters “affecting the health, good order, morals, peace, and safety of society.”

In Bartemyer v. Iowa, 18 Wall. 129, it was held, in effect, by a united court, that the fourteenth amendment did not abrogate nor...