(dissenting).' — I cannot yield- my ■assent to the construction given by the majority of the court to section 1309, Code 1873. Whatever may be said of the other portions of the act in which this section first appeared, or of its context in the Code of 1873, it must be admitted that there is-, nothing in the language of this particular section to restrict its meaning to any class or kind of railways. It may be conceded that when, this statute wa.s first enacted there were no street railways in Iowa, .and that urban railways, as they now exist, were not- within the contemplation of the most speculative member of the Ninth General Assembly. But this is not the only, or, indeed, the best test to apply in order to ascertain the legislative intent as embodied in this section. By its enactment the general assembly sought to- correct an evil caused, not by a particular kind of railways, but by a certain' class of mortgages, and these instruments .are the same in character, whether executed by' commercial or street railways. They are always for very large amounts. They cover all species of railway property, including money on hand and future earnings or profits. If they can be set *539up as a bar to the satisfaction of a judgment in favor of one who has suffered injury to person or property through the negligence of the railway company, then cuch involuntary creditor is practically denied all relief. To say that the judgment creditor can sell, subject to the mortgage, or redeem from it, would be to add ridicule to wrong. In this case, the mortgage debt exceeds five hundred thousand dollars* and the judgment amounts to but three thousand five hundred dollars. This was the evil, as f view it, that the general assembly sought to remedy by the adoption of this provision. Being remedial in its character, the section ■should receive a broad and liberal construction. In interpreting such statutes, it is said: “The old law, the mischief, and the remedy, must be kept in mind. That which is within the mischief intended to be remedied is considered within the statute* though not within the letter; and that which is not within the mischief is not within the statute, though within the letter.” Stephens v. Railroad Co., 36 Iowa, 327; Haskel v. City of Burlington, 30 Iowa, 232; The “Kentucky” v. Brooks, 1 G. Greene, 398; Kaiser v. Seaton, 62 Iowa, 463; 23 Am. & Eng. Enc. Law, p. 414, and cases collected. Here the railway mortgage is clearly within the mischief, and just as clearly within the letter of this remedial section. To restrict the statute to a particular class of “mischief makers,” rather than apply it to the “mischief,” by whomsoever done, is to adopt a narrow and illiberal rule of construction. The fact that this section is found in the statutes- among the provisions that relate admittedly to commercial railways only, or that the other sections of the chapter in which it was originally enacted could apply only to-railways operated with steam as a motive power, ought not to cojitrol us. Cook v. Association, 74 Iowa, 746. In this case an act of three sections was considered. The first -and second sections were general in terms. The third section,' by *540its language, was confined tó fire insurance companies only. But, because section 2 was remedial in character, we held it to apply to life insurance companies also. In Iowa Union Tel. Co. v. Board of Equalization, 67 Iowa, 250, it was held that telephone companies could be taxed under the statutes providing for the taxation of telegraph companies. Neither should it make any ■difference, in our interpretation of the statute, that the section has been amended by the Code so as expressly to include moirtgages-made by street railways, for it was not the province of the Twenty-sixth General Assembly to give a construction to' existing laws that should in any way bind this court, or even influence its action.
II. Another thought that we may well conceive to have been in the legislative mind when section 1309 was originally adopted is that, if these mortgages could be used as shields to protect the railways from the consequences of their own negligence, it would take away one of the strongest incentives such carriers have for the exercise of diligence and care in the operation of their roads. This consideration applies with equal force to street railways.
We are not called upon here, in giving priority to the judgment, to go as far as was done in' the case of City of Clinton v. Clinton & L. H. Ry. Co., supra, cited by the majority. In that case a horse railway'was given the benefit of the provisions of the general right of way act (article 3, chapter 55, Revision 1860), which according to its literal reading, seems to apply only to commercial railways. The court in that case adopted a more liberal construction in order to confer a right than we are willing to do in order to afford a remedy. Keeping in mind the character of this section, and the fact that the mortgage’ in controversy is within both its letter and spirit, and it seems to me impossible to *541invoice 'any rule of law that will sustain the conclusion of the majority. I think the judgment below should have been reversed.