Giant-Powder Co. v. Oregon Pac. Ry. Co.

• Citation: 42 F. 470
• Parties: GIANT-POWDER CO. v. OREGON PAC. RY. CO. et al.
• Decision Date: 16 June 1890
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

42 F. 470

GIANT-POWDER CO. v. OREGON PAC. RY. CO. et al.

United States Circuit Court, D. Oregon.

June 16, 1890

Mr George H. Williams, for plaintiff.

Mr. L Flinn, for defendants.

DEADY J.

This suit is brought by the Giant-Powder Company, a corporation of California, against the Oregon Pacific Railway Company and the Wallamet Valley & Coast Railway Company, corporations of Oregon, and James Searle and E. B. Deane, doing business under the firm name of Searle & Deane, citizens of Oregon, to enforce a lien for material on a certain section of the Wallamet Valley & Coast Railway.

It is alleged in the bill that the defendant, the Wallamet Valley &amp Coast Railway Company, is the owner of said railway, which extends from Yaquina bay, Or., eastward through Corvallis into the Cascade mountains. That in 1888 and 1889 said company contracted with the defendant the Oregon Pacific Railway Company to construct said road eastward from Albany, Or. That on August 25, 1888, the Oregon Pacific Railway Company contracted with the defendants Searle & Deane to construct the portion of said road commencing at station numbered 2659, plus 78, in Marion county, and extending from there eastward for 15 miles along the established route of the same; in which contract it was provided that Searle & Deane should furnish all the material and labor for such construction. That Searle & Deane commenced work on the road on September 1, 1888, and completed said section thereof, according to the contract, on January 15, 1889; and there remained due them and unpaid thereon the sum of $111,393.62.

That the plaintiff, between September 26 and December 31, 1888, furnished Seale & Deane 'electrical material, powder, fuse, and caps, necessary and proper materials to use in the prosecution of said work;' and the said defendants (Searle & Deane) agreed to pay the plaintiff the sum of $7,148.82 therefor; that said material was used by Searle & Deane in the construction of said road; and the value thereof, namely, $7,148,82, is now due from them to the plaintiff.

That on January 22, 1889, the plaintiff filed with the clerk of Marion county its claim for such material, under the lien law of Oregon, for the purpose of establishing a lien upon said section of said road, and the land for 30 feet on either side of the center line thereof, which claim was duly recorded; and that the plaintiff has obtained a judgment against Searle & Deane for said money, but nothing has been or can be made on the same.

The prayer of the bill is that it be adjudged that the plaintiff has a lien on said section of the road for the amount due it for said material and costs of suit, including the cost of preparing such lien and a reasonable attorney fee, and that the property may be sold to satisfy the same.

The defendants the railway companies demur to the bill.

On the argument the following points were made in support of the demurrer:

(1) At and prior to the filing of the alleged lien, the law of the state did not give a lien on railways to material-men.

(2) A lien cannot be had on a part or section of a railway.

(3) The material in question did not enter into the construction of the road, but was merely used by the contractors as a part of their plant or means in performing their contract.

Section 1 of the act of February 11, 1885, (Comp. St. 1887, Sec. 3669,) provides that every person 'furnishing material of any kind to be used in the construction * * * of any building, wharf, bridge, ditch, flume, tunnel, fence, machinery, or aqueduct, or any other structure or superstructure, shall have a lien upon the same for the * * * materials furnished * * * at the instance of the owner of the building or other improvement, or his agent; and every contractor * * * shall be held to be the agent of the owner for the purposes of this act.'

Section 5 of the act (Id. Sec. 3673) provides that any material-man desiring to claim the benefit of the act must, within a certain time, 'file with the county clerk of the county in which such building or other improvement, or some part thereof, shall be situated, a claim containing a true statement of his demand,' with the name of the owner of the property, and the person 'to whom he furnished the materials; and also a description of the property to be charged with said lien, sufficient for identification.'

Section 12 of the act (Id. Sec. 3681) declares:

'The words 'building or other improvement,' wherever the same are used in this act, shall be held to include and apply to any wharf, bridge, ditch, flume, tunnel, fence, machinery, aqueduct to create hydraulic power, or for mining or other purposes; and all other structures and superstructures, whenever the same can be made applicable thereto.'

By section 1 of the act of February 25, 1889, (Sess. Laws, 75,) any subcontractor, material-man, or laborer who shall 'furnish to any contractor, to any railroad corporation, any fuel, ties, materials, supplies, or other article or thing, or who shall do or perform any work or labor for such contractor, in conformity with any terms of any contract, express or implied, which such contractor may have made with such railroad corporation, shall have a lien upon all property, real, personal, and mixed, of said railroad corporation.'

This is a most extraordinary act. The lien of the material-man or laborer is declared to exist against all the property of the corporation, including 'personal,' without limit as to situation or place of existence, on the furnishing of materials or the performance of labor, without any record being made of the same, or notice to any one of the claim, except in the case of a laborer, when notice is required to be given to the corporation that he will hold its property for his 'pay.'

It is contended by counsel for the demurrer that the passage of the act of 1889 amounts to a legislative declaration that the act of 1885 did not include or apply to railways.

The subsequent act might have been passed out of abundance of caution, and not upon any well-grounded or serious impression that the former was wanting or insufficient in this respect. Be this as it may, the opinion of the legislative assembly of 1889 as to the scope and purpose of the act of 1885 is of very little moment, and can have no weight in the construction of the latter one, concerning rights and transactions which were vested or transpired before its existence.

The intention of the legislature of 1889 in passing the act of that year is a proper subject of judicial inquiry and determination; but its opinion of the scope and effect of the act of 1885, if it had any, is not material in this case. Considering the peculiar provisions of the act of 1889, the most obvious reason for its passage is that the legislature thereby intended to take the subject of claims against railway corporations for materials and labor furnished, out of the operation of the general lien law of 1885, and put it under this special act, which does not require any notice of the claim to be filed with any clerk or other office, and provides a special proceeding, in which all such claims must be enforced as one in suit.

It must be admitted that, if the legislature intended to include railways in the act of 1885, it is not apparent why so important a subject was not mentioned in the long list of those expressly named.

Still the language of the act is certainly broad and comprehensive enough to include a railway. It is certainly a 'structure,' if not a 'superstructure.' A lien can as conveniently be imposed upon it as upon a 'ditch,' 'flume,' or 'tunnel.' These instances of lienable property are expressly mentioned in the statute; and the scope and operation of this general term, 'structure,' immediately following this specific enumeration, must be ascertained by reference to the latter. The doctrine of noscitur a sociis applies; and the significance of the word 'structure,' in this statute, is indicated by the company it is found in,-- 'ditch,' 'flume,' and 'tunnel.' If the language of the act was 'building or...