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Statement of the Case.
the foregoing items in detail, and has been audited and approved by the company. There is no controversy as to the amount. The only real question is as to what preference or lien, if any, has the intervener.
“ The master is of the opinion that, in doing this work, Mr. Vane was an employé of the company, within the meaning of section 5286, Revised Statutes of Indiana, 1881. He has filed his notice, as required by section 5287, in the counties through which the telegraph is built. This lien covers the following items:
“For stringing wires, 248 miles, $45 per mile
putting in cross-arms from Lake Station
560 00 1,951 12
“I find and report that he has no lien as to the sum of $1298.50 for cash paid for freight, livery, etc.
“Vane's claim accrued prior to the order made by the Supreme Court of New York, November 3, 1884, authorizing the issue of $150,000 of special receivers' certificates, to secure which a trust deed or mortgage was executed, and I report and find that for said sum of $13,771.12 Vane is entitled to priority over the lien of the certificates above named.
“Vane also asserts a right to a common law lien, which he bases on the following facts, which are not controverted: The contract with Vane was made in June, 1881. November 12, 1884, the work was practically done, but the connections were not made. Mr. Vane kept possession of the wires by refusing to allow connections to be made, and turned the ends of the wires down into the ground. He retained such possession
Statement of the Case.
until November 20, 1884, when he delivered possession to the receivers, with an agreement that such delivery was not to impair any rights or liens he might thus have by virtue of such possession. He had such possession when the order allowing the issue of receivers' certificates was made, and also when the certificates were issued, November 11, 1884. I report and find that, by perfecting his claim for a lien under the statute, Mr. Vane waived the right he had, if any, to assert his common law lien.
“In addition there is due to Vane from the receivers, for work done for them, $1898.33. The work was done after the certificates were authorized by the order of November 3, 1884, but before the issue of the certificates issued by subsequent orders. I report and find that for the sum last named Vane should be postponed as to the issue of $150,000 of certificates, but that he should be preferred as to those which were subse quently issued.”
In February, 1886, the receivers filed exceptions to the report of the master, because of his allowance to Vane of a lien for the $13,771.12, on the ground that he was an employé of the defendant, within the meaning of section 5286. The exceptions claimed that Vane was a contractor in his agreement with the defendant, and not its employé; that the item of $600 for putting in cross-arms was not covered by his notice of lien nor by the contract under which the labor was performed; and that he had no lien for that service; and they made a like claim in regard to the item of $1951.12.
Vane filed exceptions to the report because the master had found that he was not entitled to a lien for the $13,771.12, paramount to the holders of receivers' certificates and all other mortgage liens; and had not found that Vane was entitled to a paramount lien over all such other liens for the entire amount of $15,069.62; and had deducted the $500 from the $14,271.12, and not from the $1298.50; and had not awarded a lien for the $1295.50.
The case was heard on these exceptions by Judge Woods, holding the Circuit Court. His opinion, delivered in April, 1886, 27 Fed. Rep. 536, recites the material findings of the
Argument for Appellant.
master, and then says: “ In the opinion of the court, the peti
, tioner had no lien at common law or in equity, and was not an employé of the telegraph company within the meaning of the statute referred to by the master. That statute provides that the employés of any corporation doing business in this State
shall be entitled to have and hold a first and prior lien upon the corporate property, .. and the earnings thereof, for all work and labor done
by such employés for such corporation. To be entitled to the benefits of this statute, and others of like character since enacted, I think it clear that the employé must have been a servant, bound in some degree at least, to the duties of a servant, and not, like the petitioner, a mere contractor, bound only to produce or cause to be produced a certain result, - a result of labor, to be sure, - but free to dispose of his own time and personal efforts according to his pleasure, without responsibility to the other party. In respect to the sums found due the petitioner, the report is confirmed, but, to the allowance of a lien, exceptions sustained.”
In pursuance of this decision, the court made an order overruling the exceptions of Vane, and sustaining so much of the exceptions of the receivers as related to the claim for a lien in favor of Vane, but confirming the report as to amounts found to be due to Vane. The order adjudged that Vane had no lien upon the property of the defendant for the $15,069.62; that that sum was a general floating debt of the defendant, not entitled to any priority ; but that the $1898.33 was a valid debt of the receivers, payable out of any funds in their hands as such, available for payment of the debts of the trust. Vane appealed to this court from so much of the decree as disallowed his claim for a lien for the $15,069.62, and from the overruling of his exceptions and the sustaining of the exceptions of the receivers.
Mr. Addison C. Ilarris for appellant.
I. Vane had a lien under the statutes of Indiana. The policy of the State is to secure the pay of all persons employed as contractors, material men, laborers or otherwise. Colter v.
Argument for Appellant.
Frese, 45 Indiana, 96. Statutes for the benefit of laborers and the like are also liberally construed in this court. Davis v. Alvord, 94 U. S. 545 ; Mining Co. v. Cullins, 104 U. S. 176. Thus the federal and state courts are in accord in this matter.
The history of a remedial act may be inquired into, in order to ascertain the purpose for which it was enacted. Platt v. Union Pacific Railroad, 99 U. S. 48, 60; United States v. Union Pacific Railroad, 91 U. S. 72, 79 ; Maryland v. Railroad Company, 22 Wall. 105, 113; Railway Co. v. Prescott, 16 Wall. 603, 609. Looking at the various laws enacted in Indiana before 1877, we find that all persons engaged in constructing any building (act of 1853), railroad (1873), boat (1863), or any article of personal property; agistors, attorneys, bailees, warehousemen, etc., were protected by the State. The financial distress of that time fell heavily upon the workingmen, and particularly those whose labor was not secured by statute. Labor incorporated into a telegraph line is as much entitled to protection as if done on a building, railroad or boat, or in a law suit. And in morals, those operating a railroad or factory, seem, to many at least, to have as much claim to protection as those engaged in constructing or repairing the plant itself. Labor creates wealth. And for its encouragement and assurance its value is made a charge on that which it creates. The chief purpose of such statutes is to prevent those persons whose labor is indispensable to the continuance of a corporation from abandoning it, and thus suspending its operations whenever they become alarmed by fear of losing their pay. Lehigh Coal &c. Co. v. Central Railroad, 2 Stewart (29 N. J. Eq.) 252; Watson v. Watson Manufacturing Co., 3 Stewart (30 N. J. Eq.) 588.
The “six months' rule” in railway receiverships reposes upon the same wholesome policy. It seems to have been the purpose of the legislature of 1877 to combine these purposes in one general act, the first section of which is now § 5286 Rev. Stats. Ind. under which the master held Vane had a lien.
This act for the first time introduced the word "employé” into the lien laws of this State. In the embezzlement act of 1865 (acts 1865, Spec. Ses. 204), it was used as embracing the
Argument for Appellant.
president, directors, cashier, secretary, treasurer, teller, clerk, bookkeeper, agent and others in the employ of any corporation or person in business. In subsequent criminal statutes it still holds the same place broadened to embrace many other persons. Rev. Stats. 1881, SS 1944, 1946, 1948, 3645.
It is evident the word was not used in any limited sense in this act; although, if Vane had appropriated the wire before it was strung, he might have been guilty of embezzlement. See Ritter v. State, 111 Indiana, 324. The word has recently come to us from a foreign tongue, but receives a broader meaning here than it has in its natural home. Its brevity has led to its adoption into our tongue as it comprehends many classes of persons which otherwise we must name, respectively. A half a century ago it was styled an equivocal word. Bayley, J., in Ripley v. Scaife, 5 B. & C. 167. But it is now in such general use that it is not subject to criticism, and it receives as broad a definition as its common use will warrant. Hogan v. Cushing, 49 Wisconsin, 169; Grainger v. Aynsley, 6 Q. B. D. 182; Mining Co. v. Cullins, ubi sup.; Munger v. Lenroot, 32 Wisconsin, 541; Watson v. Manufacturing Co., ubi sup.; Queen v. Freke, 5 El. & Bl. 944; Woodstock Iron Co. v. Richmond and Danville Extension Co., 129 U. S. 643; Gurney v. Atlantic & Great Western Railway, 58 N. Y. 358; Astor, Petitioner, 50 N. Y. 363; Stryker v. Cassidy, 76 N. Y. 50; Water Co. v. Ware, 16 Wall. 566; Warren v. Sohn, 112 Indiana, 213. II. Vane had also a lien at the common law, or in equity.
The principle of the common law is applied to its full limit in Indiana. Rev. Stats. Indiana, 1881, $ 5304; Holderman v. Manier, 104 Indiana, 118 and cases cited; Darter v. Brown, 48 Indiana, 395; East v. Ferguson, 59 Indiana, 169; Hanna v. Phelps, 7 Indiana, 21; S. C. 63 Am. Dec. 410. That Vane had help does not destroy the lien. Shaw v. Bradley, 59 Michigan, 199, 204 ; Mall v. Tittabawassee Boom Co., 51 Michigan, 377.
The title of the New York Company appears to have been a lease or license, which, under the act of incorporation (Rev. Stats. Ind. 1881, $ 4166), could not continue for a term exceeding fifty years. Such leaseholds are personal property in that