to recover the fund from the association was that it was the trustee of a fund created by the benefit certificate, and the legal heirs were the beneficiaries or the cestuis que trustent, and that, as a consequence of the failure of the beneficiaries contemplated by the parties, he, as administrator of the estate of the trustor, would be entitled to recover the trust fund; but the court said that the member had no property in the fund other than a power of appointment, and, having no property in the certificate, there was no right or interest upon which a trust could be impressed. And it has been held that, upon the death of a member of a mutual benefit association organized for the purpose of giving assistance and relief to the dependents of its deceased members, a by-law of which provided that the association would pay the benefit as directed in the certificate of membership, which was sixty days. after the member's death, the administrator of a member's estate cannot recover the fund, where there has been no designation of a beneficiary in the membership certificate, and where the member dies without leaving legal heirs. Eastman v. Provident Mut. Relief Asso. (1883) 62 N. H. 555. The court stated that it was no part of the objects of the association to provide a fund for the payment of a deceased member's debts, or that the benefit should escheat to the state in case there were no heirs, but that the charter and by-laws showed that the understanding of the parties was that the association was to pay to no person except such as the member should direct by entry upon the certificate, and the power of appointment, not being exercised in his lifetime, becomes inoperative upon his death, and the company or association is not bound to pay anyone. Smith v. Hatke (1913) 115 Va. 230, 78 S. E. 584, involved the distribution of a fund due on a certificate of membership in a voluntary benefit association; the contract provided that the fund was to be paid to such beneficiary as might be designated by the subscriber, and gave the subscriber the right to change the name of the beneficiary upon due notice; the court stated that it had been repeatedly held under similar certificates that neither the estate of the subscriber nor his next of kin had any interest whatsoever in the fund, where he failed to designate a beneficiary, or where the beneficiary designated predeceased the subscriber, but in all such cases the donation reverted to the association. That question was, however, not before the court, inasmuch as the association was not a party to the litigation, which was a contest between the administrator of the member and the person named in the certificate as beneficiary, who, it was claimed, had no insurable interest in the life of the member. A provision in the by-laws of a mutual benefit association that where a member fails to designate any person as beneficiary, the society wil not be responsible for the payment of the death contribution, is applicable where the beneficiary designated in the certificate is ineligible, and the society will not be liable for the amount thereof, upon the death of the member. Walker v. Young Men's St. Michael's Mut. Aid & Benev. Asso. (1921) 148 La. 961, 88 So. 232. Where the by-laws of a benefit society provide that in the event of the member's death "his widow or beneficiary may receive as a death benefit" a specified sum, the administrator, the uncle of a deceased member, who died intestate leaving neither widow nor beneficiary, cannot recover the benefit fund. Alexander v. Page (1914) 150 N. Y. Supp. 104. And where there is a constitutional provision of a society providing that 'there shall be paid upon the death of any member" a specified sum, and a second provision that the sum is to be paid to the person designated as beneficiary, or, in case of no designation, to the widow, child, or dependent relatives of the member, in case the member dies without leaving a wife, child, or relative dependent on his support, and without designating a beneficiary, the deceased's administratrix, his sister, has no authority 1. It is not within the constitutional power of the legislature to enact a valid statute abrogating a contract of special deposit between a highway district and a bank, making in lieu thereof a contract of general deposit whereby the title to the highway district's money is passed to the bank, and such money becomes a part of its general assets, subject to distribution among its depositors and creditors in case of insolvency, imposing upon the highway district the status of a creditor entitled to receive only its pro rata share of the assets of the bank upon liquidation. [See note on this question beginning on page 790.] 3. Prior to the enactment of chap. 42, Sess. Laws 1921, the funds of a highway district illegally deposited in a bank upon general deposit remained. the property of the district; the title thereto did not pass to the bank, neither did the relationship of debtor and creditor arise between the bank and the district. In contemplation of law the bank received such funds impressed with a trust for the use of the true owner, and neither the illegal act of the treasurer of the district nor that Headnotes by BUDGE, J. 4. In the instant case, when the funds of the highway district were deposited by its treasurer in the bank, the law created a contract of special deposit, and the highway district, being a municipal corporation, was legally empowered to make this contract of special deposit, and none other. The highway district acquired a vested right in this contract of special deposit made in its behalf by its treasurer. [See 6 R. C. L. 855; 2 R. C. L. Supp. 229; 4 R. C. L. Supp. 447.] Constitutional law remedy as part of contract. 5. The remedy to enforce a contract is a part of the contract, and any subsequent law of the state which so affects that remedy as to substantially impair and lessen the value of the contract is such an impairment of the obligation of a contract as to bring it within the inhibition of § 10, art. 1, of the Federal Constitution, and of § 16, art. 1, of the Constitution of this state. See 6 R. C. L. 355 et seq.; 2 R. C. L. Supp. 100; 4 R. C. L. Supp. 407.] -altering terms and changing duties. 6. The obligation of a contract is impaired by a statute which alters its terms by imposing new conditions or dispensing with existing conditions, or which adds new duties, or releases or lessens any part of the contractual obligation, or substantially defeats its ends. [See 6 R. C. L. 328; 2 R. C. L. Supp. 94.] -protection of public contracts. 7. The inhibitions of the state and Federal Constitutions with regard to impairing the obligations of contracts extended to contracts made by a state or municipal corporation. [See 6 R. C. L. 333, 345; 2 R. C. L. Supp. 95.] - validity of law affecting deposit of municipal funds. 8. Held, that chapter 42, Sess. Laws 1921, is unconstitutional and void in so far as it purports to affect, or is sought to be applied to, contracts of deposit of funds of municipal corporations made before its enactment, so as to impair the obligation of such contracts. APPEAL by defendant from a judgment of the District Court for Clearwater County (Steele, J.) in favor of plaintiff in an action brought to enforce an alleged trust upon the general funds and estate of the defendant bank. Affirmed. The facts are stated in the opinion Mr. F. S. Randall, for appellant: Banks are regulated under and by authority of the police power of the state. 7 C. J. 480; Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A. (N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487; Assaria State Bank v. Dolley, 219 U. S. 121, 55 L. ed. 123, 31 Sup. Ct. Rep. 189; State Sav. & Commercial Bank v. Anderson, 165 Cal. 437, L.R.A.1915E, 675, 132 Pac. 755; 3 R. C. L. 379, § 5. ex This police power has been pressly reserved in the Idaho Constitution, art. 11, § 8. Sandpoint Water & Light Co. v. Sandpoint, 31 Idaho, 498, L.R.A.1918F, 1106, P.U.R.1918F, 737, 173 Pac. 972. Under such authority the legislature had power to pass the statute complained of and held unconstitutional. Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A. (N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487: Assaria State Bank v. Dolley, 219 U. S. 121, 55 L. ed. 123, 31 Sun. Ct. Rep. 189; State ex rel. Goodsill v. Woodmansee, 1 N. D. 246, 11 L.R.A. 420, 46 N. W. 970; Sandpoint Water & Light Co. v. Sandpoint, supra; Idaho Power & Light Co. v. Blomquist, 26 Idaho, 222, 141 Pac. 1083, Ann. Cas. 1916E, 282; 28 Cyc. 131, notes 10-12; 12 C. J. 991, 1003, 1038, 1041, 1197, §§ 623, 664. of the court. Petitioner by its acts has elected to abide by the law complained of. Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A. (N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 489; Assaria State Bank v. Dolley, 219 U. S. 121, 55 L. ed. 123, 31 Sup. Ct. Rep. 189; 7 C. J. 630, 631; Kaesemeyer v. Smith, 22 Idaho, 1, 43 L.R.A. (N.S.) 100, 123 Pac. 943; Yellowstone County v. First Trust & Sav. Bank, 46 Mont. 439, 128 Pac. 596; State v. Thum, 6 Idaho, 323, 55 Pac. 858. Messrs. Tannahill & Leeper, for respondent: As to vested rights in property and contract rights, the highway district is protected by the Constitutions of the United States and of the state of Idaho. 6 Enc. U. S. Sup. Ct. Rep. 844, 845; 12 C. J. 1008, ¶ 632; Grogan v. San Francisco, 18 Cal. 590; Tippecanoe County v. Lucas, 93 U. S. 108, 23 L. ed. 822; Re Greene, 55 App. Div. 475, 67 N. Y. Supp. 291; Board of Education v. Blodgett, 155 Ill. 450, 31 L.R.A. 70, 46 Am. St. Rep. 350, 40 N. E. 1025; Milam County v. Bateman, 54 Tex. 166; Mt. Hope Cemetery v. Boston, 158 Mass. 512, 35 Am. St. Rep. 518, 33 N. E. 695; State ex rel. Wheeler v. Foley, 30 Minn. 357, 15 N. W. 375; Wooster v. Plymouth, 62 N. H. 210; State, Millburn Twp., Prosecutors, v. South Orange, 55 N. J. L. 258, 26 Atl. 75. The money was deposited by the (35 Idaho, 797, 209 Pac. 449.) highway district upon special deposit and was held in trust by the bank for the use and benefit of the highway district. State v. Thum, 6 Idaho, 329, 55 Pac. 858; First Nat. Bank v. C. Bunting & Co. 7 Idaho, 27, 59 Pac. 929, 1106; Re Bank of Nampa, 29 Idaho, 174, 157 Pac. 1117. The existing law enters into and becomes a part of all contracts. Long v. Owen, 21 Idaho, 243, 121 Pac. 99, Ann. Cas. 1913D, 465; 6 R. C. L. p. 855, ¶ 243; 13 C. J. p. 560, ¶ 523; Harris v. Walker, 199 Ala. 51, 74 So. 40; Walker v. J. B. McCrary Co. 197 Ala. 638, 73 So. 342; Armour Packing Co. v. United States, 14 L.R.A. (N.S.) 400, 82 C. C. A. 135, 153 Fed. 1; Rees v. Watertown, 19 Wall. 107, 22 L. ed. 72; Von Hoffman v. Quincy, 4 Wall. 535, 18 L. ed. 403; Koshkonong v. Burton, 104 U. S. 668, 26 L. ed. 886; Fiske v. Jefferson, 116 U. S. 131, 29 L. ed. 587, 6 Sup. Ct. Rep. 329; Ogden v. Saunders, 12 Wheat. 213, 6 L. ed. 606; United States v. Ansonia Brass & Copper Co. 218 U. S. 452, 54 L. ed. 1107, 31 Sup. Ct. Rep. 49; Seaboard Air Line R. Co. v. Railroad Commission, 155 Fed. 792; Weinrich Estate Co. v. A. J. Johnston Co. 28 Cal. App. 144, 151 Pac. 667; Marshall v. Wentz, 28 Cal. App. 540, 153 Pac. 244; Marshall v. Popert, 28 Cal. App. 551, 153 Pac. 247, 156 Pac. 881; Bailey Ornamental Iron Co. v. Goldschmidt, 33 Cal. App. 661, 166 Pac. 363; Western Lumber & Pole Co. v. Golden, 23 Colo. App. 461, 130 Pac. 1027; Lynch v. Baltimore & O. S. W. R. Co. 240 Ill. 567, 88 N. E. 1034; Metropolitan L. Ins. Co. v. Johnson, 49 Ind. App. 233, 94 N. E. 785; Graves v. Howard, 159 N. C. 594, 75 S. E. 998, Ann. Cas. 1914C, 565; Knight v. Clinkscales, 51 Okla. 508, 152 Pac. 133; Guilford Lumber Mfg. Co. v. Holladay, 178 N.. C. 417, 100 S. E. 597; Greek-American Produce Co. v. Illinois C. R. Co. 4 Ala. App. 377, 58 So. 994; State ex rel. Ellis v. Tampa Waterworks Co. 56 Fla. 858, 19 L.R.A. (N.S.) 183, 47 So. 358; McCaskill v. Union Naval Stores Co. 59 Fla. 571, 52 So. 961; Simons v. Kosciusko Bldg. Loan & Sav. Asso. 180 Ind. 335, 103 N. E. 2; Straus v. Yeager, 48 Ind. App. 448, 93 N. E. 877; Kessler v. Clayes 147 Mo. App. 88, 125 S. W. 799; Snider v. Yarbrough, 43 Mont. 203, 115 Pac. 411; J. B. Watkins & Co. v. Kobeila, 84 Neb. 422, 121 N. W. 448; Eckert & Co. v. Pathe Freres, 184 App. Div. 937, 170 N. Y. Supp. 1089; People v. Metropoli tan Surety Co. 211 N. Y. 107, 105 N. E. 99, affirming 159 App. Div. 929, 143' N. Y. Supp. 1136; Missouri, K. & T. Co. v. Walston, 37 Okla. 517, 133 Pac. 42; Muller v. McCann, 50 Okla. 710, 151 Pac. 621; Weight v. Bailey, 45 Utah, 584, 147 Pac. 899; Wright v. Computing Scale Co. 47 Wash. 107, 91 Pac. 571; Leiendecker v. Etna Indemnity Co. 52 Wash. 609, 101 Pac. 219; Manvell v. Weaver, 53 Wash. 408, 102 Pac. 36; Pross v. Excelsior Cleaning & Dyeing Co. 110 Misc. 195, 179 N. Y. Supp. 176; Lorando v. Gethro, 228 Mass. 181, 1 A.L.R. 1374, 117 N. E. 185; County Bd. of Edu. v. Littrell, 173 Ky. 78, 190 S. W. 465; Farley v. Board of Education, 62 Okla. 181, 162 Pac. 797. The remedy is a part of the contract and cannot be impaired. Edwards v. Kearzey, 96 U. S. 607, 24 L. ed. 799; Rees v. Watertown, 19 Wall. 107, 22 L. ed. 72; Wilder v. Campbell, 4 Idaho, 695, 43 Pac. 677; Welsh v. Cross, 146 Cal. 621, 106 Am. St. Rep. 63, 81 Pac. 229, 2 Ann. Cas. 796. A special deposit is a bailment, title to which remains in the depositor and which is held in trust for him. 3 R. C. L. pp. 517, 522, ¶¶ 146, 150; Bolles, Bkg. p. 434, ¶ 436; Morse, Banks & Bkg. pp. 423, 436, ¶¶ 190, 205. The status of the deposit was fixed when made. Harris v. Walker, 199 Ala. 51, 74 So. 40; Walker v. J. B. McCrary Co. 197 Ala. 638, 73 So. 342. The contract of special bailment cannot be impaired by a subsequent legislative act. Fletcher v. Peck, 6 Cranch, 87, 3 L. ed. 162; Edwards v. Kearzey, 96 U. S. 595, 24 L. ed. 793; Harris v. Walker and Walker v. J. B. McCrary Co. supra; State ex rel. Miller v. Buttzville State Bank, 26 N. D. 196, 144 N. W. 105. Section 13 of chapter 14 of the 1921 Session Laws impairs the obligation of this contract. 12 C. J. pp. 1056-1058, ¶¶ 699, 702, 703, 705; 7 R. C. L. p. 324, ¶ 313. The action of the commissioner under the statute will deprive the highway district of a vested estate in property without compensation and without due process of law. 12 C. J. p. 596, ¶ 486. Rights of property of municipal corporations, when vested, may not be disturbed. Grogan v. San Francisco, 18 Cal. 590; 28 Cyc. 279; 12 C. J. pp. 596, 971, 1219,486, 540, 994; State Hospital v. Robertson, 115 Va. 527, 79 S. E. 1064; Harris v. Walker, 199 Ala. 51, 74 So. 40; Re Greene, 55 App. Div. 475, 67 N. Y. Supp. 291; Tippecanoe County v. Lucas, 93 U. S. 108, 23 L. ed. 822. By the operation of the statute the highway district is deprived of equal protection of the law. 12 C. J. p. 128, 1144, 1145, 1183, ¶ 855; Chicago, M. & St. P. R. Co. v. Westby, 47 L.R.A. (N.S.) 97, 102 C. C. A. 65, 178 Fed. 619; Bedford Quarries Co. v. Bough, 168 Ind. 671, 14 L.R.A. (N.S.) 418, 80 N. E. 529; State v. Crosson, 33 Idaho, 140, 190 Pac. 922; State v. Horn, 27 Idaho, 794, 152 Pac. 275. The operation of this law is such as to divert public money to the payment of the debts of private corporations and away from its dedicated purpose. Atkinson v. Ada County, 18 Idaho, 282, 28 L.R.A. (N.S.) 412, 108 Pac. 1046; McDonald v. Doust, 11 Idaho, 24, 69 L.R.A. 220, 81 Pac. 60; School Dist. v. Twin Falls County Mut. F. Ins. Co. 30 Idaho, 400, 164 Pac. 1174; Conlin v. San Francisco, 114 Cal. 404, 33 L.R.A. 752, 46 Pac. 279; State v. Fitzpatrick, 5 Idaho, 499, 51 Pac. 112; Re Greene, 55 App. Div. 475, 67 N. Y. Supp. 291; Tippecanoe County v. Lucas, 93 U. S. 108, 23 L. ed. 822. Mr. James F. Ailshie, amicus curiæ. Budge, J., delivered the opinion of the court: This action was brought by respondent, in accordance with the provisions of § 11, p. 60, chap. 42, Sess. Laws 1921, to enforce a trust in the sum of $16,191.43 upon the general funds and estate of the Fidelity State Bank of Orofino. The facts in this case are stipulated as follows: "(1) That the petitioner herein, the North Fork highway district, is a highway district and a public corporation organized and existing under and by virtue of the provisions of chapter 66 of the Compiled Statutes of the state of Idaho. cumbency have come into his possession and control. "(3) That prior to the 8th day of April, 1921, the Fidelity State Bank of Orofino was a banking corporation organized and existing under and by virtue of the laws of the state of Idaho, and engaged in the general banking business in said state, with its principal place of business at Orofino, Idaho. "(4) That on September 1, 1920, there was on deposit in the Fidelity State Bank of Orofino certain moneys which had been derived by the said highway district from the sale of highway bonds theretofore duly and legally issued and sold as provided by the provisions of chapter 66 of the Compiled Statutes of the state of Idaho, which said funds were obtained for the purpose of improving and building roads and highways within the North Fork highway district. That the said funds were deposited by M. Le Baron as secretary-treasurer of the said North Fork highway district, and the said deposit was carried by the said bank under the following title: 'North Fork High, Dist. Imp. Fund, M. Le Baron, Sec'y-Treas., Cavendish, Idaho.' That on September 1, 1920, the said deposit amounted to the sum of $17,383.65. That thereafter, on or about the 8th day of September, 1920, there was withdrawn from the said North Fork highway district improvement fund deposit the sum of $10,000, which said sum was deposited in the same bank upon time certificates of deposit. . . . That the said $10,000 so evidenced by the said certificates of deposit was a credit in favor of this applicant in the said bank at the time of the closing of its doors on, to wit, the 8th day of April, 1921. That on April 8, 1921, there was due as accrued interest on said certificates of deposit the sum of $333.28. That thereafter, between the 1st day of September, 1920, and the 8th day of April, 1921, certain funds derived from the sale of bonds from the said highway district were deposited by the said M. Le Baron, |