PENNSYLVANIA STEEIlCO. 'D. J. E. 'POT'l'S SALT & LUMBER CO.
tention, why they did not have an adequi!t¢:remedy at law to reach the assigned property at the time this proceeding was instituted. In May v. Tenney, supra, it was· held that in Colorado a general transfer of property by a debtor for the benefit of a preferred creditor does not, if found to be in violation of the policy of the state as expressed in its legisl,ation, become a general assignment for the benefit of all creditors without preference, but is entirely void. According to that view of the case, it follows that, if the bill of sale to Cranston was within the provisions of the assignment act, it was a void instrument, and in that event the property conveyed was subject to attachment in Cranston's hands, and he might have been compelled to account for the proceeds thereof by garnishment process. But, be this as it may, our conclusion is that the bill of complaint did not show that the conveyance to Cranston was within the purview of the assignment act, and, so holding, the decree of the circuit courUs affirmed.
PBNNSYLVANIA STEEL CO. v.J. E. POTTS SALT & LUMBER (Circuit.Cqurt of Appeais, Sixth Circuit. No. 196.
MECHANICS' LIENS-CONSTRUCTION OF RAILROAD.
cu. et lU.
July 3, 1894.)
Acts .Mich. p. 293, § 1, giving one who builds any house, building, machinery, wharf, or structure a lien thereon, an,d on the lot or piece of land, not exceeding a quarter section, or, if in an incorporatecl not exceeding the lot on which the improvement is made, does not give a lien for the materials l1sed in the construction of a railroad.
Appeal from the Circuit Court for the Eastern Di'strict of Michigan. Suit by the Pennsylvania Steel Company against J. E. Potts Salt. & Lumber Company and others to enforce a lien. Decree for defendants. Oomplainant ·appeals. Affirmed.
The J. E. Potts, Salt & Lumber Company was a corporation organized under the laws of Michigan for the purpose, among others, of carrying on a lumber and logging busiQ.c:ss in that state. Incident to such business, it owned or was interested in extensive tracts of land in the counties of Oscoda, losco, Alcona, and Ogemaw, on which it carried on its operations. 'For the pur" pose of facilitating the getting out of the timber from the WOodS to.a convenient place for manufacture and shipment, it caused to be organized the Potts Logging Railway Company, under the train railway act, being No. 148 of the Laws of Michigan of 1855, and that company built a railroad ftom Au Sable to Pottsi a distance of 37 miles, and from thence constructed spurs of track in various directions into the different locations from which the logs were to be taken. These spurs were in the main temporary constructions, and were taken up and moved to other locations when the special pose had been subserved or the exigencies of the business required. The' entire property of the railway company in fact and in substance belonged to the Salt & Lumber Company, but, while the principal purpose and business of the railway company was to act as an auxiliary of the Salt & Lumber Company, it yet engaged in the carriage of mails and passengers in the ordinary modes of railway business. In August, 1890, the complainant, the Pennsylvania Steel under a contract with the. Salt & Lumber Company, furnished WO tons of steel rails, together with t'l1eir fasteD.1n'gti,· for the use of the IJbgging Railway Company, and to be laid on its roadbed.
iaid pJ.'incipally on the spurs above referred was Soon after that' date, the sa.It & Lumber Company' became embarrassed, and was unable to, at least did not, pay this debt. On March 6, 1891, the Steel Company flJ\:ld l.ts claim of lien on the railroad and the lands on which it was laid, in tlJ,e·. register's office in each of the counties of Oscoda, losco, Alcona, and for the price of the material so furnished. The railtOlid is therein described as extending from Au Sable to Potts, and through or over a strip ofland·l00 feet or more in width, across certain townships of given numbers apd.,P'Jlges. No other or JDore definite de$criptiop. of the land was given in this of lien. Questions of title and ownership of the lands sought in'tbi$proceeding to be to the complainant's claim of lien are invohtedj' but, in the view' taken of thematn question' decIded, it Is not material! to detail a statement of them. . On the 27th of November, 1890, on a bUI Jllel1.in the state circuit court for Wayne county by certaill defendants in .the1?resent suIt agai;O$t. the Bank ot Montreal and other mortgagees of the . Salt.& Lumber the defendants Harmon and Tisdale were appOinted receivers of the propertY' covered by the mortgages. These mortgages had. been given prior to the creatIon of the debt to complainant, on the lands on whIch the complainantassElrts its lien. In July, 1891, the receivers sold the property to another defendant herein, the Au Sable & Northwestern Railway Company, with a guaranty against the complainant's claim. On the 29th day of November, 1890, the Salt & Lumber Company made a general assignment for the benefit of their creditors, and, the designatedassignees having declined, Harmon and 'l'isdale were appointed ascircuit court. The present complainant, havsignees by the Wayne ing obtained leave from the state court, filed its bill in the United States circuit court for the eastern distrIct of MIchIgan against the receivers and assIgnees above named, joining the other parties in interest as' defendants. The cause afterwardscaIJle on to be heard upon pleadings and proofs. The cIrctfitcourt, being of opInIon that the lien claImed by the complainant was not:snstahi.able under the laws of MichIgan, dismissed the bill, and the complainant brIngs the case here by appeal.
to. .The agreed'
Bowen, Douglas & Whiting, for appellant. AJfred. . Lucking, for appellees. Before TAFT and LURTON, Circuit Judges, and SEVERENS, District J"udge. SEVERENS, District Judge, having made the foregoing statement of· the case, delivered the opinion of the court The statutes of Michigan have, from.. the time when it was a territory, afforded to those furnishing labor or materials in the construction,of buildings ()n the lands of others a lien for the price and value thereof on the land itself. By successive enactments, the scope of provision for the creation and enforcement of such considerably extended... At the time when the materials were furnished and the proceedings were taken in the present case to enforce a lien therefor, the act of 1885, found at page 293 of Session. Laws of th!J,t year,. was in force; .and the prin(lipal to .ll\:! determined is whether that act is broad enough tQ thecomplainaJit to.a lieu in the circumstances shown by the recOtd in the case. Section 1, upon which the question turns, . . . .'
shall, in pursuance' of contract, express or implied, hMUself as contractor, l¥Jdrf;be owner,part owner, lessee, or any ,con1;ract opotherwise,any Intw:est in real es.improve, repair, or ornament, oJ." In, ()r
PENNSYLVANIA STEEL CO. V. J. E. POTTS SALT & LUMBER CO.
who shall furnish any labor or materials in and for building, altering, im· proving, repairing, erecting, beautifying or ornamenting, or putting in, any house, building, machinery, wharf or structure · · · shall have a lien therefor upon such house, bUilding, machinery, wharf or other structure and its appurtenances, and also upon the entire interest of such owner, part owner, lessee or person holding under land contract or otherwise, in and to the lot or piece of land, not exceeding one·quarter section of land, or if in any incorporated village, not exceeding the lot or lots upon which said improvement is made to the extent of the right, title and interest of such owner," etc.
The industry of counsel for both parties, of which there is abundant evidence in their briefs, has not discovered any decision of the supreme court of the state especially adapted to aid us in the construction of this statute, and recourse has been had to decisions in the federal courts and in other state courts upon statutes more or less similar to that of Michigan. In the absence of any controlling decision in the state court, the case of Commissioners v. Tommey, 115 U. S. 122, 5 Sup. Ct. 626, 1186, may be regarded as a leading authority in the solution of the question involved. That case involved the construction of the statute of North Carolina, which enacted that "every building built, ·rebuilt, repaired or improved, together with the necessary lot on which said building may be situated, and every lot, farm or vessel, or any kind of property, real or personal, shall be subject to a lien," etc. The bill was filed for the purpose of foreclosing a mortgage upon a railroad, and some of the defendants claimed liens for labor and materials furnished in its construction. But it was held by the supreme court that the language of the act was not adequate to express an intention to give a lien upon a public improvement of that character. In the words of the act then under consideration, there was no such limitation as that found in the Michigan statute in respect to the amount of the land made subject to the lien. The conclusion there reached strongly negatives the construction which the complainant seeks to impose upon the section of the act in question. By the statute of Ohio, a lien was given for labor and materials upon "any house, mill, manufactory or other building, appurtenances, fixtures, bridge or other structure and on the interest of the owner of the same, in the lot of land on which they stand, or may be removed to." In the case of Rutherfoord v. Railroad 00., 35 Ohio St. 559, the supreme court of that state had occasion to construe their statute upon proceedings taken to enforce a lien for materials furnished for the construction or repair of a railroad. It was held that the statute could not be extended to include a railroad. It was admitted that a railroad was a "structure," in a general sense, but that, giving effect to the implications to be drawn from the context, it could not be held to be such within the intention of the legislature; and it was said, among other things, that to call a strip of land for a right of way for a railroad from Oincinnati to Portsmouth a "lot of land" would be a misnomer. The statute of Kentucky provides a lien for "erecting, altering or repairing a house, building or other structure · · · or for an improvement in any manner of real estate." In Graham v. Railway 00.,14 Bush, 425, it was held that this language did not include a railroad. A like decision was made
court ';of'illexas: Driscol, 52 Tex. a aJ:i!;lsap. ,or mechalllc who1Piay 1abi;lrorf«ttllsh matetla\,machmery, fixtnresand tools, or to repair or anY' irupr?vementwhatever, shall have a lien; [email protected]
J. E. "POTtS BAtT & LUMBER CO.
wharf, bridge, ditch, flume, aqueduct, tunnel, fence, machinery, railroad, wagon road or other structure." 'There it will be observed that the words in context with the term "other structure" were very widely inclusive. In Central Trust Co. v. Sheffield & B. Coal, Iron &"Ry. Co., 42 Fed. 106, it was held by the United States circuit court in Alabama that the words of the statute there, giving- a lien "for any building or improvement on land," were wide enough to include a coal mine, and that coal cars furnished for use therein were materials for the improvement. The case of Neilson v. Railway Co., 44 Iowll, 71, does not furnish much aid, as railroads were expressly subjected to liens by the laws of Iowa.. The Iowa statute was also under examination in the case of Brooks v. Railway Co., 101 U. S.443, referred to in 115 U. S., at page 129, and 5 Sup. Ct.626, 1186, where it is said, quoting the express terms of the act: "The legislat\ve will was there expressed so clearly as to give no room for interpretation." The other cases cited by counsel for complainant are: Ex parte Schmidt, 62 Ala. 252; Dewitt v. Smith, 63 Mo. 263; Taggard v. Buckmore, 42 Me. 77; Buchanan v. Smith, 43 Miss. 90; Weathersby v. Sinclair, Id. 189; Putnam v. Ross, 46 Mo. 337; Bullock v. Horn, 44 Ohio St. 420, 7 N. E. 737. We have examinedth'em aU,but find none of them more in point than those alread:t' considered. In most of the'statutes of the several states, the subject of the lien is localized within restricted limits; in others, it is of an extended character; and in some, railroads are expressly mentioned. We are not disposed to question the proposition that such statutes, though they are in contravention of the common law, shOuld be fairly and liberally construed; but we cannot extend them beyond the bOunds of the purpose of the legislature, as gathered from the words employed. Upon general principles of construction, we do not think that the words "other structure," following, as they do, in the Michigan statute, such limited and localizing words as ''house, building, machinery, wharf," can reasonably be held to include a railroad. This conclusion appears to us to be strongly fortified by the restriction of the lien in the latter part of the section to "the lot or piece of land not exceeding one quarter section of land, or if in a village not exceeding the lot or lots" on which the improvement is made. Giving all these considerations their just weight, it seems clear to us that the complainant has no lien, and therefore that his suit must fail. It is suggested by counsel for complainant that the statute gives an independent lien upon the "structure," and a further one upon the land upon which it is built. We do not find it necessary to decide this point, or whether, if it is well taken, the statement of lien which was filed would support the claim of a lien upon the material composing the structure; for we are of the opinion that the structure for which the complainant furnished the material is not such a one as the statute contemplates, and it is only for material furnished for such a purpose that a lien is afforded. The result of these views is in accordance with the conclusion of the court below, :and its decree is therefore affirmed.
np:maALREPORTE1h vol. 63.
DOUGLASS et al. v. BYRNES et al. (OircultCourt, D. Nevada. No. 574.
EMINENT DOMAIN....,.. CONDEMNATION PROCEEDINGS V4CATING REPOR;r. _.MISCONDUOT OF COMMIS-
July 9, 1894.)
The report, of ,commissioners to assess damages In condemnation proceedings\VUl be set aside where it appears that one of the commissioners, after enfurhYg 'Upon his duties, was retained by one of the parties to the "as i attQl,'ney, to defend a suit against him, even though the attorz;teyfor the other party may have known the fact,. and did not complain until the report was filed.
This was a petition by J.M. Douglass and others against J. D. Bryne$ and others forthe condemnation of a right of way for the construction of a mining tunnel. Petitioners moved to set aside the report of the commissioners. F. M. ,Hll.ffaketand J. L, Wines, for plaintiffs. W. E.F. E. L. Oampbell, for Judge. Petitioners move the court to set aside the report (there is a majority and minority report) of the upon the ground, among others, of irregularity in the of Commissioner,C. E. Mack, who was selected appointed by the court, as a "disinterested person/' to and assess the compensation. to be paid defendants by for the right of way condemned for the purpose of constructingatm;l.llel under the provisions of the "Act to encourage the milling,smelting or reduction of ores in the state otNevada."Gen. St. Nev. § 261; Douglass v. Byrnes, 59 Fed. 29. " , The fact is that this cmnmissioner, previoul!lt:o the time ofbis appointment, had acted as an attorney for one of the defendants, ,which wasUnkn.own to petitioners or their attorneys, or to the court; but it affirmatively ;appears _ that said .c(}mmissioner was not regularly employed for said defendant,apc:J,! had only been specially retained to try two cases' in the justice's :court, and that his employment for, and business with, was ended and settledprjor to his appointment as a cOJiWD.issioner. , If the conduct of this commissioner had "been in aU other, respects fair, impartial, and, disinterested, this alleged irregularity, would not be Of sufficientgl,'avity to the court in the report upon this ,gcround;but tl16 further fact appears that after his appointmentas.a, and after he had, taken the oath to "honestlY,faitbfuIIY,and impartially perform the dl,luesimposed" upon him as arcpmmissi()ner (Gen. St. Nev. ,§262)"and after all the tegtimony in. this proceeding had been taken, but before the 1i;p.al argument, he accepted 3; retainer and actedaa an attorney for "the same defendant in the trial of another cause ,in the. justice's .court. The -fact of such emploY/llentwas known to petitioners' counsel. No objection was made t() this conduct upon the part of