:lQ6
n:DERAL REPORTER,
vol. 42.
me, my rIght .to pass upon this motioh ·must, be viewed .as if I pa<;lggne to, .Colorado, or remain.ed there in the fir-st Jnstlmce, to hear the motion. Unpleasant as it is to act under even the imputation of assuming 'autpority, I feel constrained to proceed in this matter under an im" sense of official duty. As the consideration .of this motion in,vc;>ly!'!s pot only a review of the questions of law in the case, but the issues of fact, as well as thEl official and personal conduct of the..trlal judge, it at once becomes apparent that there is,altrlost a. neceshe should pass upon this motion, as also the hill of exceptions, if t()be presented in the case. Respecting what has been brought on this motion touching indications of partiality at J may be indulged simply. to say that both litigants ltnd counsel side. were entire strangers to me, when the trial begun, and my with them was limited to the court-room. ,If collisions court and counsel occurred, it was doubtless attributable to mutHalJnisqonception. Two temperaments much alike"each impelled by a pf now and then produce antagonisms 'OJ ore apparent I am satistled that, counsel did his duty t and did it well, on and no laI;lgllagecould exprElSS my sehs60f :regret if I felt ally' occasion.£or the thought that the scales of justice were un'by the court. The court tded the casea,$ best it could; and, .if to plaintiffs' prejudice"it will' bringnQ, regret to the court perto Bee the wrong righted by an appeal tOiahi,gher court, or upon a sUPsMuent trial, should the plaintiffs see fit to resort to' either. The remegy,being left to, plaintiff8 either to appeal or bring anotheraca year, under the provisions of the Colorado statute, I feel ICli:S;hesitancy ill following my judgment in denying the motion for new. trial·. , ,l; ,
CENTBAJi. ·'l'au8T
Co.
OF N'EW YORK'll. SHEFFIELD,
Ry. Co. et al. : '
&B. I"
COAL, IRON
&
. "1
(Circw£t Oourt, N. D. Aktl;>ama, N. D. .:' ':.' ,n" " -:' '! ; · ," Mnms.
12, 1890.) l
1.
, .A,coW,)',Il.ineis an improvement onlll,\lq, 'Within the of Code Ala., 1886, 5 '8018, 'giVing a lien to every ,mechanic or otHer person doing. or furnishing J;Ila: terilll,fi;Jwres, ol'machinery "for any bUilding or iInpr<lvement on land,''' a "material. "it not" fixtures.or wachinery, " within the mealiiBg'6! Code Ala.1886,§ 8018J giving a lien for "any material, fixture!!; engine, 'Qrnuwhinery ";furnished lor any building or improvement on land. ' ' "
B. " .
to the Master's Report. ": tM;Centra.l Company of New York against the Sheffield Railway Company, others. ,Interventi<>;n Mining Car-Whelll.CoPlpany·. . ,Roquemore, ,fVhite for intervenor., H 1, B. Lawrence Cooper, for defendants.
d:i
,"",'_
,:" ,
CENTRAL TRUST CO; 11. SHEFFIELD & B. COAL,lRON & RY.OO.
107
PARDEE, J. The intervenor came intO this court to have recognized and enforced a lien claimed on Q certain coal mine, and on the machinery, equipment, and fixtures therein, especially on 240 coal-cars, all of which is in the custody of this court. Under a specific contract, the intervenor furnished to the. owners of the mine cars specifically adapted for use in the mine; and for the furnishing and equipment thereof"It is agreed that said cars are now in use in said mine as a part of the equipment thereof, and are used to haul coal from where it is mined to the opening or mouth of the mine, upon an iron track j and they are propelled or drawn by machinery at the mouth of the mine, or pushed by hand, or drawn by mules, and are not adapted to any other use or transportation, or used in any other manner."
The case shows that the laws of the state of Alabama with regard to recording a lien were complied with. In short, the joint answer of the complainant, defendant, and the receiver, to the intervention, admits the entire cuse as claimed for the intervenor ex:cept as to the lien. The intervention was referred to a special master to report upon the amount due, and as to the character and extent of intervenor's lien. The master has reported against the intervenor on the question of lien on the ground that a coal mine js not a building or improvement, within the meaning of section 3018, Code Ala. 1886. As a further reason for his report, the master doubts if the cars are such "material," "fixtures," or "machinery" as come within the purview of the said statute. Intervenor's lien is claimed under section 3018, Code Ala. 1886, as follows: "Every mechanic or other person who shall do or perform any work or labor boiler, or machinery for, any upon, or furnish any material,fixtures, building or improvement on land, or for repairing the same, under or by virtue of any contract with th.e owner or proprietor thereof, or his agent, trustee, contractor, or sub-contractor,upoll complying with the provision of this chapter shall have a lien therefol' on snch buillling or improvement, and on the land on which the same is situated," etc. The first question presented is whether or not the coal mine, as set forth and described in the intervention and exhibits, is such an improvement upon land as comes within the meaning of the statute just quoted; it being contended on one side that the word "improvemfJnt" in the statute must be limited in its meaning to buildings and things ejusdem genwj in other words, that an improvement upon land which is not in the nature of a building is not an improvement within the meaning of the statute. On the other hand, it is claimed that, in the proper construction. of the statute,the word "improvement" is not at all limited by the word "building" preceding it, but that it is to be taken as extending the class of constructions which may be the subject of a lien, rather than limiting such class. . It is said that this point has never been settled by thejurisprl,ldence of the state of Alabama, and is that extent a new. question. The question wall before the supreme court of the state in the, case of Iron- Works v. Dorman, 78 Ala. 218, but was not passed upon; the lien being defeated for failure in description of land subject to liert.. An examination of the legislation and jurisprudence of the state with
108
FEDERAL REPORTER, "01.
42.
reference to this mattar of liens will, however, decidedly aid in reaching Rcoi-rect decision. Section 3101 of the Code oH867 provides as follows: "Mechanics and builders have a prior lien upon the tract, parcel, or lot of land on which buildings are erected by them, and on the buildings so erected, for the price agreed on, or compensation to be paid, and materials used in the construction thereof, unless surety be given to such builders for the performance of the contract, or an agreement be made, In writing, waiving the lien." In 1873; (Acts Ala. 1872-73, p. 117,) the said section 3101 of the Code of18()7 was amended so as to read as follows: '" Mechanics and builders have a prior lien upon the tract,parcel, or lot of l;:Lnd on which buildings; inclosures, or fixtures are erected by them, and on the buildings, inclosures, or lixtures for the price agreed upon, or compensation to be paid, and materials used in the construction thereof, unless there be agreement in writing waiving the lien," etc. ,Thil;l'actextended the cause of the from "buildings" to "buildings, fixtures," and the subject of the lien from "land" and "builMngs" to "land," "buildings, inclosures, or fixtures." In 1876, the law was again amended so as to read as follows: iI)echanic or other person who shall do or 'pel'form' any work 01' lao l'ior'uprlri" tir furnish any material, fixtures, engine, boiler, or machinery for, allY bnilc!lillg, erection, or improvement upon land, or for repairing the same,' underorrby virtue of any contract with the owner or propriet()I' thereof, or his agent, tJ;'ustee, contractor, or subcontractor, upon complying with the provisions of this chapter shall have, for. his w\>rk or labor done, 01' materials, engine, boiler, 01' machinery furnished, alien, to,the extent and in the maiillerby this chapter provided, upon such building, erection, or improvements and upon the land belonging to such owner 01' proprietor, on whicn the same are situated, to the extent of one acre, "etc. Section 3440, Code'Ala. 1876· . This a,ct extended the, s:ubject of the lien from "land," "buildings, inclosures, or fixtures" to "land," "building, erection, or improvement." The next change that seems to have been made in the law is made by section 3018 of the Code of 1886, supra, in which the statute' last quoted is amended by striking ont the word "erection," sothat the statute reads, "for any-building or improvement on land," and by further striking out the "for his work or labor done, or materials, fixtures, engin,e, DoUer, or machinery furnished," in that part of the section describing extent of the lien, so as to read, "shall have a lien," etc. The changes !hade at this time were in codifying, and do not appear to materially the scope and effect of the act of 1876. In the case Ex parte Schmidt, 62 Ala. 252, the supreme court of the state of Alabama, in considering the proper construction of the mechanic's lien under the Code of 1876, said: , "Ou r present statutory s)"stem, deli ning and declaring liens of mechanics, em· ployes, and material·men for buildings, erections, or improvements upon lands, or for repairing the same, are of recent enactment, and their construction, in the main, remains to be settled. Such liens were unknown to the common law, and hence are purely of statutory creation. They are to be construed as other Il.tatutes introductive of a new policy are construed; and, while it is not p,ermissible, under the guise of interpretation,to extend the provisions of the
CENTRAL TRUST
CO,
fl. SHEFFIlilLD , .tH. C()AL, IRON .t BY. CO. .
,.-at
!nactments to cases not provided for, it is equally unjust and unauthorized;to '.lmasculate the statutes by a narrow or strict construction of their beneficial provisions. Their general policy was and is to secure to the artisan and laborer the just reward of his labor. and the lien conferred is somewhat ana· logous in its aims to the equitable lien of a vendor for unpaid purchase money of land sold. It is inequitable, says the law, that one shall enjoy another's lanus and not pay the prom ised price. So the policy of the statute we arp considering declares that it is inequitable that one shall enjoy another's goods, or the prodncts of his labor and skill, without making just compensation thBrefQr. The same reason which upholds the policy of the one vindicates the justice of the other. Our legislative policy for the last thirty years, and the over· throw of private fortunes consequent upon our late civil war, have had the effect to place much of the property of the country in fiduciary hands; and the beneficiaries of many estates, while they could and did enjoy the produ!lts of their properLy, were left without power to fasLen a charge upon it by any contract of thl'irs. This, in many instances, worked great hardship arid flicted grievous wrong; and our very liberal exemption statutes, in the ab': sence of a special waiver, have placed the entire property of milch the larger part of our population beyond' the reach of legal process. The, manifest and deplored re!lult of all this has been that the hOI)est toil of the laborer, and the merchandis.e of lhe material-man, by a faithless. ness in some cases highly culpable. These considerations, no doubt, influenced the legislature indeclaringthe very Iiberatand system of liens, now found upon our statute.b'ook. It is our duty, in construing these stat': utes, to give to the language its natural import and scope, and· thUs carry into effect the intention of the ,legislature as far as it can be gathered from :tIle employed."
If the changes made in the statute from 1867 to 1886 are considered, and the statute itself is considered and construed in the light of the dedsion of the supreme court, just quoted, it seems clear. that the lien granted is not to be restricted to material, etc., fUl'I;lished for any jng or improvement of the kind and nature .asa building upon land, but rather that the words "buildingor improvement," in the law, are used independently I and as having a difi'f;lrent meaning; and; ifuot independent of each other, thell that the word "improvement" is of the greater significance, and has the larger meaning; otherwise the aCt of 1876 is useless, for the act of 1873, under the description of arid included improvements that were, of the same .kindand nature as buildings. The decision in Ex parte Schmidt, supra, is in mony with Copeland v. Kelwe, by the same court, reported inEi7 AJa·. ,594, which latter Case is cited by the master as favoring a strict. c()nstruction of the statute... Neither case proposes to go outside the language of the. statute to find its meaning, but the former case does make use of the light furnished by the history.of tbe state to show the meaning of the words used in the statute, which is no more going out-: side the statute than would be a resort to' a. dictionary; Statutes like the one in harid are in derogation of the common law I and courts havE1 been inclined to construe them strictly; but the better opinion now is that these statutes are highly remedial" and should be construed so as to carry out the objects in view. See Ex parte Schmidt. 8upra; De Witt v, Smith,· 63 Mo. 263; Ta{Jgurd v. BuckTno/6,42 7,7 j' Buchanan v. Smith,
43:yisil: ,WeathersbY 'V. Sinclair, ld. 189; Putnam v. Ross, 46 Mo. 337; Bullock V" Horn, HObio 7 N. E. Rep. 737.. At the time the 1878 was passed was known to have immense mineral.;resources awaiting development" and wanting capital therefor. Mechanics' 'liens were restricted to buildings and things ejusdeTn generis. The new law, in terms, extended the lien to all improvements on land. If is given its ordinary meaning, the new law is extenliecl to cover the construction of coal and irqn mines; and thereby grellt ;help is 'given' to the owners. of mineral lands to develop their property, and such development increases the general prosperity of the state. There was no reason why capital and labor put into the coal and iron in4ustries should not be encouraged and protected, as well as in other works. improvements. A going coal mine is not'merely a hole in the grou,tld.' ... .It is made ,up of shafts, drifts, slopes, engines.' machinery, tracks, scales, etc.; and, taken as a thing, if not a building, it is uaquestionablyanimprovement, and an improvement on land. into consideration the importance and condition of the mines and mining'interests of the state in 1876, it is a fair presumption that the ,intention in the act of 1876 was mainly to extend the lien of mechanil:;sand material-men for work and material so as to aid in the dev;elopwent or.the resour<;:es. However this may be, it clearly appears.to me that the coal mine, described in the intervention and exhibits is an improvement, within the meaning of the terms used in section 3018 of the Alabama Code, and. that for material, fixtures, engine; boiler,or machinery fmonished therefor,a lien res,ults to material,,:iththe requirements of the . The questIOn remamsas to' whether the coal-cars, as furmshed under the contract bY intervenor, 'are " material,"" fixtures," or " machinery," within the meaning of said section 3018. "There is good authority at the present 'day for holding rolling stock of a railroad to be; in a general 2 Wall. 647, note. And sense, "',fixtures." See brief of Matt many C8&e8 to that effed rtHty he cited where the question arose generally under mbrtgages.· In Alabama the question is not decided. Whether in this case can be consideredmachipery, as they have no motive pc>wer; and" are propelled by machinery, or pushed by hand, or by mules," query? . "Marhine.A contrivance which serves to apply 6r regulate moving power; or, it is a, tool, more or less compliwhi9h is used to render useful natural instruments." Bouv. Law Didt.. "'fhetermmachine includes every mech,anicaldevice,or combination c:>f:mechanical powers and devices, to perform some function and produc6ll.certain effect or result." Piper v. BroWn,4 Fish. Pat. Cas. 175. Material, however, isa word of Such general import that I see no diffiCUlty in making it cover the cars in question. ' "Material includes everytningbtwhichll.ny'thing is maq,e." See Bouv. J.Jaw Diet. n is a'conbeded fact· in .this case that the contract with intervenor stipulated that the coal-cars were to be'furnished for the equipment of used fOf thafplirpose. As the mine ready the particular mine, for operation is wi improvement on land; and the coal-cars are a ncces-
lJNITED :STATES .".
,Ill
sary part of the mine, considered as an entirety, the coal-cars were material fon·the iwprpvement, within statqte. T.1l,e intervenor should have judgment recognizing its lien as prayed for. The master's report should be reformed and amended so as to conform to the views herein expressed, and, as so amended, should be approved and con,firmedj' aha. an' order to that' effect will be entered; " ,. . ," .
UNITED STATES 11. BOtJLIGNY, (Circuit 'H'l1SBAND
E, D. ,PROPERTY·
1890.)
:1>
.A. wife having inhel'ite<!money, and the community being indebted to bel', her payment lIuch (Jebt, conveyed certJlin land to her. This land was afterwaHls "exchanged for ,another piece ,of lalld, title to which was made to the hushand,thougha.fterwardshushand and wife, and the person w1th Whom the,excl1-an,;te hllod. ):leen in a notarial act, that the, trm,1sfer .'Xall illtended to have been to t,he wlfe, and that the land transferred exchanged for 'her, parapb.ernal.estate., "Held" that the land belonged-to'the community, aad' was tp the husband.
F. L. Richardson, for intervenor and Mrs,. Judi(fe, tbirdopponent. Wm. Grant, U. S. Atty. ".' ", ..
J. The, facts,. as follows: The, third opponent claims the which on thar it is phernal The eVIdence shows thatslle qad mherlted money; th,at th,ecdinmuhity was indebted to her; and that, inpaymentofher debt"the to hera piece ,oheal property.' This, property sqe1in doortridc#on'wiih her husbaIid;exchanged {or al,l{)ther piece, which is the property'seized berein. In the cClllveyance through whic4 the, exchl1nge was effected the title to the land seized was made to the husband alone. Subsequently the third opponent and and the party with whom the exchange had been made, united in a notarial act, declaring that the transfer of the piece of property seized herein was intended to have been to tbe wife, and that it was exchanged for her paraphernal property. Upon these facts, the real estate in question belongs to the community, and is subject to the writ against the husband. Comeau v. Fontenot, 19 La. 406; PfJrcyv. Percy, 9 La. Ann.l85. The general principle of our law is that, if a purchase be made by the husband in his own name, the property, though bought with the wife's funds, belongs to the community, and the price or value constitutes a legal debt in her favor against the community. Seel Hen. Dig. tit. "Marriage," XIII. (b,) 2. par. 10, (p. 883.) The two cases referred to above show that this principle applies and controls in case of an exchange. There must be judgment against the third opponent, and in favor of plaintiff, without prejudice to her right to claim a lien and privilege upon the proceeds arising from the sale of the property.