Andrews v. St. Louis Tunnel R.R. Co.

• Decision Date: 09 December 1884
• Citation: 16 Mo.App. 299
• Parties: JAMES ANDREWS, Defendant in Error, v. ST. LOUIS TUNNEL RAILROAD COMPANY ET AL., Plaintiffs in Error.
• Court: Missouri Court of Appeals

16 Mo.App. 299

JAMES ANDREWS, Defendant in Error,

v.ST. LOUIS TUNNEL RAILROAD COMPANY ET AL., Plaintiffs in Error.

St. Louis Court of Appeals, Missouri.

Dec. 9, 1884.

APPEAL from the St. Louis Circuit Court,

Reversed and jugdment.

WELLS H. BLODGETT, for the plaintiffs in error: The act of March 21, 1873, took effect ninety days after its passage, because no other time was therein appointed.--Wag. Stats. 1872, p. 894, sect. 4. It is not sufficient that certain parts of the act might bear a construction which would, taken separately, give those parts effect at an earlier period. The legislature must direct when the act as a whole shall take effect.-- Wheeler v. Chubbuck, 16 Ill. 261; Board ofSupervisors, etc., v. Keady, 34 Ill. 293; The State v. Little Rock, etc., R. R. Co., 31 Ark. 701. The words “prior to the passage of this act,” had before their introduction into this law been judicially construed to have reference to the time of the taking effect of the law, and not to the date of passage.-- Charles & Blow v. Lamberson, 1 Iowa, 435; Rogers v. Vass, 6 Iowa, 405; Graham v. Springfield, 21 Me. 58; Jackman v. Garland, 64 Me. 133. If the act did not go into effect until ninety days after its passage, or until June 19, 1873, then the plaintiff can have no lien, because he began work under his contract on April 21, and what he did before the act took effect can not be separated from what he did afterwards.-- Donahy v. Clark, 12 Cush. 440; Edgar v. Salisbury, 17 Mo. 270; National Bank of Salem v. Redmon, 57 Me. 405; Baker v. Fessenden, 71 Me. 292. The bonds secured were negotiable by the law merchant without the words “value received.”-- Gargier v. Mieville, 3 B. & C. 45; Hatch v. Frayes, 11 A. & E. 702; McLeod v. Snee, 2 Ld. Ray. 1481; Mercer County v. Hackett, 1 Wall. 83; Cota v. Burk, 7 Metc. (Mass.) 588; Stevens v. Blunt, 7 Mass. 240. If the bonds were negotiable, then they were good in the hands of any innocent holder for value.-- Murray v. Lardner, 2 Wall. 110; Consolidated Association v. Numa Avegno, 28 La. An. 552; City of Elizabeth v. Force, 20 N. J. Eq. 587; Spooner v. Holmes, 102 Mass. 503. When delivered the bonds took effect from their date by relation.-- Snaith v. Mingay, 1 M. & S. (K. B.) 87; Powell v. Waters, 8 Cow. 670; Huston v. Young, 33 Me. 85. If the bonds were negotiable, then by whatever title parties took the bonds, by that title they took the security.-- Logan v. Smith, 62 Mo. 455; Goodfellow v. Stillwell, 3 Mo. 17. Purchasers were not bound to inquire whether the bonds were issued simultaneously with the execution of the mortgage by which they are secured.-- Jones on Railroad Securities, sect. 210.

JOHN C. BROWN, of counsel for the plaintiffs in error.

ROMBAUER & GOLDSMITH and A. G. COCHRAN, for the defendant in error: What construction shall be placed upon these words, “subsequent to the passage of this act.” There can be no doubt that an act is passed when it receives a majority of the votes of both houses and is approved by the governor.-- Logan v. The State, 3 Heisk. 442; Wantmann v. City of Phila., 33 Pa. St. 202; The People v. Clark, 1 Cal. 406; Brainard v. Bushnell, 11 Conn. 17; In re Richardson, 2 Story, 580; Baker v. Compton, 52 Texas, 258. If the act of March 21st did not take effect until ninety days after the date of its passage, the defendant in error would still clearly be entitled to his lien.-- Walker v. Railway Co., 2 Cent. L. J. 481; Hauptmann v. Catlin, 20 N. Y. 250. “The act applies, where a contract for a building was made before its passage, to a claim for labor or materials supplied after its passage in performance of the contract.”-- Sullivan v. Brewster, 1 E. D. Smith, 681; Miller v. Moore, 1 E. D. Smith, 739. “The doctrine as to mechanics' liens now is that the statute is highly remedial in its nature, and should receive a liberal construction to advance the just and beneficent objects had in view in its passage.”-- De Witt v. Smith, 63 Mo. 263; Putnam v. Ross, 46 Mo. 337; Aster v. Rabenau, 46 Mo. 599; Dewitt v. Smith, 63 Mo. 263; Morgan v. Railroad Co., 76 Mo. 172. “All the plaintiff is required to show is the fact that the materials were furnished for the purpose of being used in constructing the building.”-- Morrison v. Hancock, 40 Mo. 561. Even if there were some objectionable items in the account they are easily separable from other items to which there can be no objection, and for those latter respondent would have a lien.-- Edgar v. Salisbury, 17 Mo. 273; Allen v. Mining and Smelting Co., 73 Mo. 688. It is a well settled doctrine in regard to mortgages securing future advances that ““““where the mortgagee is not bound to make the advances, and has actual notice of a later encumbrance upon the property for an existing debt or liability, such later encumbrance will take precedence of the mortgage, as to all advances made after such notice.”-- Frye v. Bank of Ill., 11 Ill. 367; Spader v. Lawler, 17 Ohio, 371; Hughes v. Worley, 1 Bibb, 200; Bell v. Fleming, 11 N. J. Eq. 13, 490; Boswell v. Goodwin, 31 Conn. 74; Bank of Montgomery Co.'s Appeal, 36 Pa. St. 170; Ter Hoven v. Kerns, 2 Barr, 96; Parker v. Jacoby, 3 Grant (Pa.) 300. “The proper object of a bill in equity to foreclose a mortgage is to cut off all rights subsequent to the mortgage. The rights of any one so interested, not made a party to the bill, are not affected by the decree of foreclosure and the sale under it, but he may redeem as before the sale.”-- Rogers v. Holyoke, 14 Minn. 220; Gould v. Wheeler, 28 F. N. Eq. 541; Stewart v. Johnston, 30 Ohio St. 24; Murdock v. Ford, 17 Ind. 52; Farwell v. Murphy, 2 Wis. 533; Shaw v. Heesey, 48 Iowa, 468; Carpentier v. Brenham, 40 Cal. 221.

LEWIS, P. J., delivered the opinion of the court.

The plaintiff, under a contract with the defendant Tunnel Railroad Company, dated April 21, 1873, constructed its tunnel and railway from Third Street to the south line of Market Street, in the city of St. Louis. His account for labor and materials furnished amounted to $661,576.65, of which sum the tunnel company paid him $583,147.42, leaving unpaid a balance of $78,429.23. For this balance he asks judgment, with a lien on the tunnel and railway property, under an act of the general assembly, approved March 21, 1873, and transcribed into the Revised Statutes at sections 3200 and the sixteen there next following. There is no dispute about the plaintiff's right to a general judgment for the amount claimed, with interest; but the defendants, the Tunnel Railroad Company, and Barton Bates and Charles Tracy, trustees as hereinafter shown, resist the imposition of the lien.

One objection raised against the lien rests on the ground that some items in the account filed are not proper subjects of a lien under the law. These items may not appear to have been for either labor or materials incorporated in the actual construction of the tunnel, the road-bed or the railway. But, for aught that this record shows, every one was for labor or material as essential to the construction, or to some duty to the public arising from its practical necessities, and specially stipulated for in the contract as were the rails, the ties, or any material or labor used in the work. No lien could be claimed for them, if they were severable from the construction to be duly performed under the contract, or if they were set up as independent demands resting upon their own merits, without reference to the contract or the work contracted for. The items here objected to are chiefly for taking down houses on the line of the tunnel, for temporary bridges, sewers, water and gas pipes, etc., necessary to the public convenience while the work was progressing, or after its completion, and specifically provided for in the contract. The weight of authority in similar cases is decidedly in favor of the lien. Hazard P. Co. v. Byrns, 21 How. Pr. 189; Winslow v. Urquhart, 39 Wis. 268; Vandegrift and Forman's Appeal, 83 Pa. St. 127; Willamette Co. v. Renick, 1 Ore. 169. We remark upon this point, not because it may influence our determination of the cause before us, but chiefly for the purpose of explaining or modifying, if need be, what was said by this court in Knapp v. Railway Co. (6 Mo. App. 205). The principal point decided in that case was, that a lien for work done upon a railroad must cover the whole road, and not a part of it alone. In this conclusion we were sustained by the supreme court. 74 Mo. 374. But a remark was incidentally made from which it might be inferred that, in our view, nothing can be made the subject of a lien, whether provided for in the contract or not, which is not visibly incorporated in the structure itself, as it stands when completed. We wish to be understood as holding, with the authorities above cited, that labor or materials not incorporated in the structure may properly be covered by the lien, if necessary to the work and provided for in the contract. It is only when one of these conditions fails, or both of them, that the objection may prevail. The point is not well taken in the present case, as was properly held by the learned judge of the circuit court.

Many questions which appear to arise on the present appeal have been very ably argued by the counsel on both sides. Their materiality, however, wholly depends on the correctness of the circuit court's ruling on the proper construction of the statute from which the plaintiff infers a right of lien. If it be found necessary to reverse that ruling, the plaintiff's lien claim must fail, whatever may be true of some other propositions on which he relies.

The act provides: “Section 1. All persons who shall do any work or labor in constructing or improving the road-bed, rolling stock, station houses, depots, bridges, or culverts of any railroad company incorporated under the laws of this state, or owning or operating a railroad within this state and all persons who shall furnish ties, fuel, bridges, or materials to such railroad company,...