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Argument for Appellant.
State. McCarty v. Burnet, 84 Indiana, 23; Schee v. Wiseman, 79 Indiana, 389; Meni v. Rathbone, 21 Indiana, 454, 466; Cade v. Brownlee, 15 Indiana, 369; S. C. 77 Am. Dec. 595; Duchane v. Goodtitle, 1 Blackford, 117. In Boston Safe Deposit & Trust Co. v. Bankers' and Merchants' Telegraph Co., 36 Fed. Rep. 288, it was held that this very property did not become realty, but remained personalty.
That liens are favored in law, see Ilolderman v. Manier, 10+ Indiana, 118; Green v. Farmer, 4 Burrow, 2214; Jacobs v. Latour, 5 Bing. 130; Ariuns v. Brickley, 65 Wisconsin, 26; Hall v. Tittabawassee Boom Co., 51 Michigan, 377; Webber v. Cogswell, 2 Canada Sup. Ct. 15; Williams v. Allsup, 10 C. B. (N. S.) 417; Ilammond v. Danielson, 126 Mass. 294 ; Townsend v. Newell, 14 Pick. 332.
The Roman law and the laws of nations drawing their jurisprudence from that source award such liens graciously. And the harsher rules of the English law are being liberalized until now courts and legislatures lend a willing hand to assist the laborer to obtain the price of his hire.
This wholesome equity has been adopted in the operation of railways in this country. Fosdick v. Schall, 99 U. S. 235; Miltenberger v. Logansport Railway, 106 U. S. 286; Barton v. Barbour, 104 U. S. 126; Ilale v. Frost, 99 U.S. 389; Gilbert v. Washington City &c. Railroud, 33 Gratt. 586; Turner v. Indianapolis &c. Railway, 8 Bissell, 315; Union Trust Co. v. Walker, 107 U.S. 596; Farmers' Loan and Trust Co. v. Railroad, 33 Fed. Rep. 778; Union Trust Co. v. Souther, 107 U. S. 591; Burnham v. Boven, 111 U. S. 776; Union Trust Co. v. Illinois Midland Railway, 117 U. S. 434; Blair v. Railroad Co., 22 Fed. Rep. 471.
It is equally applicable to a telegraph line.
III. Lastly, we insist that the arrangement of November 19, 1884, fixed a lien on the property. Vane's accounts had been stated; his mechanic's liens had been filed, and of course known to Doolittle and the receivers. It was known to every one connected with the management of the line that Vane was holding possession of the six wires for his pay. Vane told Doolittle so, and the agreement made by the receivers recites it.
Opinion of the Court.
The receivers wanted the use of the wires. They had no money. This is shown by the insolvency of the company, and the acts of the receivers soon after in inducing the courts to issue receivers' certificates. This agreement was written by Doolittle, the Chicago counsel for the receivers. It was made to induce Vane to yield up possession. They knew he believed it recognized his claim on the wires. It was made in the presence of that assertion. The words are: “It is expressly understood that such use of said wires shall not be construed in any way or to any extent as impairing or interfering with the lien of said Vane thereon.” Vane was induced to alter his position by this contract. It is too late, it is believed, in a court of conscience or elsewhere, to interpolate into the contract words so as to make it read : “By surrendering possession, Vane's lien shall not be destroyed, if he has any.” Norris v. Williams, 1 Cr. & Mees. 842; Perry v. Board of Missions, 102 N. Y.99; Payne v. Wilson, 74 N. Y. 348; Unity &c. Banking Association v. King, 25 Beavan, 72; Clarke v. Southwick, 1 Curtis, 297; Gregory v. Morris, 96 U. S. 619; Pinch v. Anthony, 8 Allen, 536; Pavy's Case, 1 Ch. Div. 631.
Mr. Robert J. Ingersoll, for appellees, submitted on his brief.
MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the court.
It is contended for Vane that he has a lien under section 1 of the act of 1877. (Section 5286 of the Revised Statutes.) That section gives a first and prior lien upon the corporate property of any corporation doing business in Indiana, whether organized under the laws of that State or otherwise, and upon the earnings of such corpomtion, to its employés, for all work and labor done and performed by them for the corporation, from the date of their employment by it.
It seems clear to us that Vane was a contractor with the company, and not an employé within the meaning of the statute. We think the distinction pointed out by the Circuit
Opinion of the Court.
Court is a sound one, namely, that to be an employé within the meaning of the statute Vane “must have been a servant, bound in some degree at least to the duties of a servant, and not,” as he was, “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."
It is to be noted that the statute gives a lien to employés of the corporation only for work and labor done and performed by them for the corporation. It does not give a lien for the value of materials furnished, nor for advances of money made. It is confined to work and labor done and performed, and to work and labor done and performed by employés of the corporation, and to work and labor done and performed by employés of the corporation for the corporation.
In this respect there is a marked difference between the provisions of section 5286 and the provisions of section 15 the act of March 8, 1879, (Laws of 1879, 22; $ 5471 of the Revised Statutes of 1881,) which gives a lien, in coal mines, on the mine "and all machinery and fixtures connected therewith, including scales, coal-bank cars, and everything used in and about the mine” to “the miners and other persons employed and working in and about the mines, and the owners of the land or other persons interested in the rental or royalty on the coal mined therein,” “ for work and labor performed within two months, and the owner of the land, for royalty on coal taken out from under his land, for any length of time not exceeding two months.” This miners' statute gives a lien to all persons "employed and working in and about the mines,” for work and labor performed by them, without stating that they must be employés of the owners of the mine, or of the persons working it, or of the persons owning the machinery and fixtures, and without stating that they may not be persons working in and about the mine employed by contractors doing work under contract for the owners of the mine or for the owners of the machinery and fixtures.
The general mechanics' lien law of Indiana ($ 5293 of the
Opinion of the Court.
Revised Statutes of 1881), subsequently re-enacted by the act of March 6, 1883, Laws of 1883, 140, provided that “ mechanics, and all persons performing labor or furnishing materials for the construction or repair, or who may have furnished any engine or other machinery for any mill, distillery, or other manufactory, may have a lien separately or jointly upon the building which they may have constructed or repaired, or upon any buildings, mill, distillery, or other manufactory for which they may have furnished materials of any description, and on the interest of the owner in the lot or land on which it stands, to the extent of the value of any labor done or materials furnished, or for both.” This mechanics' lien statute gives a lien upon a building to all persons who perform labor or furnish materials for the construction or repair of the building, even though they do it under a contract, and is not confined to employés of the owner of the building; and it also gives a lien upon a manufactory to persons who may have furnished machinery or materials for the manufactory, even though they may have done so under contract with the owner of the manufactory or under contract with the contractor with such owner.
The Supreme Court of Indiana, in Colter v. Frese, 45 Indiana, 96, in 1873, in construing that statute, which was section 647 of the then existing Revised Statutes, held that a person who furnished materials, not to the owner, but to the contractor, for the erection of a new building, could acquire and enforce a lien on the building, and on the interest of the owner of the land on which the building stood, to the extent of the value of the materials furnished.
In view of these provisions of other lien statutes of Indiana, the limited language of section 5286 is very marked, and justifies the interpretation that the provisions of that section are to be confined to a special class of persons. It is a rule of interpretation recognized by the Supreme Court of Indiana, in Stout v. Board of Commissioners, 107 Indiana, 343, 348, that “in cases of doubt or uncertainty, acts in pari materia, passed either before or after, and whether repealed or still in force, may be referred to in order to discern the intent of the legislature in the use of particular terms, or in the enactment of
Opinion of the Court.
particular provisions, and, within the reason of the same rule, contemporaneous legislation, not precisely in pari materia, may be referred to for the same purpose."
The view above taken of the statute under consideration is supported by adjudged cases. In Aikin v. Wasson, 24 N. Y. 482, in 1862, it was held that a contractor for the construction of part of a railroad was not a laborer or servant, within the provision of the general railroad act of New York, making stockholders of a railroad corporation personally liable “for all the debts due or owing to any of its laborers and servants, for services performed for such corporation.”
In Munger v. Lenroot, 32 Wisconsin, 541, in 1873, under a statute which gave a lien on logs or timber, for the amount due for his labor or services, to any person who did or performed any work or services in cutting, felling, hauling, driving, running, rafting, booming, cribbing, or towing such logs or timber, it was held that such person was entitled to such lien, not only when employed by the owner of the logs or of the land from which they were cut, but also when employed by a contractor under such owner. The court was of the opinion that the legislature intended to give the lien absolutely to the laborer, regardless of the question whether he had rendered the services under a contract with the general owner or not. This decision was based upon the special language of the statute, in not excluding a person employed by a contractor.
In Wakefield v. Fargo, 90 N. Y. 213, in 1882, it was held that a person employed by a corporation, at a yearly salary, as a bookkeeper and general manager, was not a laborer, servant, or apprentice, within the provisions of a statute of New York making the stockholders of the corporation "liable for all debts that may be due and owing to their laborers, servants and apprentices for services performed for such corporation.” The view taken by the court was that the services referred to were menial or manual services; that he who performed them must be of a class who usually looked to the reward of a day's labor or service for immediate or present support, from whom the company did not expect credit, and to whom its future ability to pay was of no consequence, one who was responsible for