Bates Mach. Co. v. Trenton & N. B. R. Co.

Decision Date30 September 1904
Citation58 A. 935,70 N.J.L. 684
PartiesBATES MACH. CO. v. TRENTON & N. B. R. CO. PHOENIX IRONWORKS CO. v. SAME. HENDERSON & BRO v. SAME.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to Circuit Court, Mercer County.

Actions by the Bates Machine Company, the Phoenix Ironworks Company, and Henderson & Bro. against the Trenton & New Brunswick Railroad Company. Judgments for plaintiffs, and defendant brings error. Judgments in favor of the Phœnix Iron works Company and Henderson & Bro. affirmed, and the judgment for the Bates Machine Company reversed.

William M. Lannlng, for plaintiff in error.

Norman Grey, for defendants in error.

GARRISON, J. The three writs of error that have been argued together bring up records of judgments recovered in actions brought to enforce mechanics' liens.

In the case of the Bates Machine Company, the claimant was a subcontractor with the defendant Henry M. Sciple, the principal contract being between Sciple and a corporation called the Railroad Construction Company. This contract was dated April 5, 1902, and was not filed. The defendant owner, the Trenton & New Brunswick Railroad Company, is the grantee of the Railroad Construction Company under a conveyance dated July 28, 1902. Work under the contract and the furnishing of material by the plaintiff began prior to July 1, 1902.

These dates effectually dispose of the first contention of the plaintiff in error, namely, that "no lien is given by our mechanic's lien act either for labor performed or materials furnished for any building for a railroad company which is essential to the operation of that company's railroad." The argument made in support of this contention has been examined sufficiently to see that, irrespective of its soundness or unsoundness as an abstract proposition, it is not applicable to a case where the corporation in whose behalf it is invoked has become the owner of the property after the right to lien it for the performance of an entire contract had commenced to run, which is the situation here. The proposition that would be pertinent to the facts of the present case, namely, that a subsisting right of lien is rendered unenforceable by the conveyance of the property to a corporation for railroad purposes, has, for obvious reasons, not been advanced. Edwards v. Derrickson, 28 N. J. Law, 39, affirmed Derrickson v. Edwards, 29 N. J. Law, 468, 80 Am. Dec. 220.

The second assignment of error is that the machinery furnished by the claimant was not "for manufacturing purposes," and hence was not a building, under section 8 of the mechanic's lien act (P. L. 1898, p. 538). The machinery furnished by the claimant and set up in the power house of the plaintiff in error consisted of engines, dynamos, and other connected appliances for the production and control of electric power and its adaptation for use upon a trolley system. The contention of the plaintiff in error is that the entire clause, "fixed machinery or gearing or other fixtures for manufacturing purposes," is qualified by the last three words, and hence that it covers only machinery that is used for manufacturing purposes, and that the production of electric power is not a "manufacturing purpose" because "the term 'manufacture' means to make something out of raw materials or out of prepared materials," and "electric power is not a material substance." I am inclined to agree in the statutory construction contended for, but I am unable either to give this restricted meaning to the words "for manufacturing purposes" in this context, or to assent to any conclusion that involves the idea that something that is elicited from its natural source by mechanical processes is not a material substance. The question, however, is not one of scientific terminology, but rather of the sense in which an ordinary term was used by the Legislature in framing an enactment whose sole purpose was to secure to laborers and others payment for furnishing and erecting machinery for manufacturing purposes; a descriptive term that should be given its broadest signification in order to effect what was clearly the legislative will. That the word "manufacture" is no longer limited to something that is made by hand is not more obvious than that by the very necessities of the case it must continue to travel farther and farther from its first meaning in keeping with the growth and progress of the thing for which it continues to stand; so that to make by machinery or by chemical reaction or by any other device known to art has already entirely superseded the original notion of hand fabrication. While its original meaning lasted, however, it necessarily involved the idea of tangibility, but with the elimination of the manual element from the essential meaning of the word there was no longer the slightest justification for the retention of this notion of tangibility as a restriction upon its broadening usefulness, and as a fact it has been entirely dropped from current use when applied to such processes as the manufacture of oxygen, or of carbonic acid, or of nitrous oxide, or of illuminating gas, or of a host of other products totally lacking in tangibility. The essential meaning retained by the word "manufacture," or perhaps that has been acquired by it is that of effecting by art some change in materials or elements as they exist in a state of nature, by which they are rendered more subject to man's control, or more serviceable to his use. A mere appropriation of natural objects without imparting to them this added quality—as in the ease of agriculture, or of the gathering of natural ice—is not manufacture in this current sense; nor is the mere liberation or collection of natural products, such as petroleum or natural gas. But the production of illuminating gas is a manufacture. Nassau Gaslight Co. v. City of Brooklyn, 89 N. Y. 409. So is the making of ice by artificial means. People v. Knickerbocker Ice Co., 99 N. Y. 181, 1 N. E. 669.

Neither the fact, therefore, that the material elements to be acted upon already exist in a state of nature, nor the fact of their intangibility before or after the described change has been impressed upon them, militates against the application of the word "manufacture" to the process by which such change is wrought. In the recent case of People v. Wemple (decided in the New York Court of Appeals) 129 N. Y. 543, 29 N. E. 808, 14 L. R. A. 708, the precise' question we are now considering was before the court as a basis for exemption from taxation, to which, for obvious reasons, a much more stringent rule is applied than to remedial legislation such as our mechanic's lien law. In the opinion in that case Judge O'Brien said: "The true inquiry would seem to be whether the corporation would not be considered in common language as engaged in some manufacturing process. Though granting all that is said by experts and others about electricity as a natural element or force, to say that electricity exists in a state of nature, and that the relator collects or gathers it, does not fully or accurately express the process. According to the common understanding, the electricity or thing that produces the results is generated or produced by the application of power to machinery: that is, by a process purely artificial. Passing by the refinements of scientific discussion, it would seem to be common sense to bold that a corporation that does this is, in every just sense of the term, a manufacturing corporation. The materials from which all manufactured things originate exist in a state of nature, but the manufacturer, by application to these materials of labor and skill, gives to them a new and useful property. The electricity which is generated and transmitted by the operation of the relator is a very different thing from that mysterious element which is said to pervade nature."

Another recent case (Commonwealth v. Northern Electric Light & Power Co., 145 Pa. 105, 22 Atl. 839, 34 L. It A. 107) is cited in certain works of reference as holding the opposite of this view, but, on the contrary, while affirming the judgment of the court below, where such opposite view had been expressed, the reviewing court used this language: "The scientists whose views the learned judge adopted may be right or wrong. We have no need to decide this question. The laws are written ordinarily in the language of the people, and, if this case depended on that question, we should be led to a different conclusion, and bold that the company was a manufacturing company."

In our own state, in the case of In re Consolidated Electric Storage Co. (N. J. Ch.) 26 Atl. 983, it was said that the production of electricity was a manufacturing business; and in Hughes v. Lambertville Electric Light Co., 53 N. J. Eq. 435, 32 Atl. 69, it was expressly held that wires and insulation for the transmission of electric power were subject to lien under the provisions of the very section of the mechanic's lien act that we are now considering. The opinion of Mr Justice Depue in Evening Journal Ass'r v. State Board of Assessors, 47 N. J. Law, 36, 54 Am. Rep. 114, while not directly in point, is valuable for its reference to Dr. Brande's definition of "manufacture." The exact language of the author referred to is: "The province of a manufacturer is to shape or modify materials with a view to the development of those powers and forces which they possess, and which are necessary, useful, or convenient to mankind." Brande & Cox's Dictionary, art. "Manufacture."

It is furthermore of marked significance that in other statutes the Legislature of this state uses the word "manufacture" to mean the production of electric power; as, for instance, "manufacture of electricity for...

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