Sanders v. Southern Traction Co. of Illinois

• Decision Date: 29 August 1918
• Docket Number: 927.
• Parties: SANDERS v. SOUTHERN TRACTION CO. OF ILLINOIS et al.
• Court: U.S. District Court — Eastern District of Illinois

253 F. 511

SANDERS v. SOUTHERN TRACTION CO. OF ILLINOIS et al.

No. 927.

United States District Court, E.D. Illinois.

August 29, 1918

John C Slade and Joseph W. Moses, both of Chicago, Ill., for trustee Union Trust & Savings Bank of East St. Louis, Ill.

Rice Lowes & O'Neil, of Chicago, Ill. (Francis M. Lowes, of Chicago, Ill., and Dan McGlynn, of East St. Louis, Ill., of counsel), for defendant Lorimer & Gallagher Co.

ENGLISH District Judge.

The report of the master in chancery having been filed and numerous exceptions taken thereto, August 5, 1918, was set for the date on which arguments were had before court upon questions raised by the exceptors.

At the date of argument it was determined and agreed by counsel that, certain principal questions involved being first determined, other and minor questions would be materially simplified, if not fully determined.

One of the principal and perhaps the most important of all the questions raised by the exceptors is that of 'priority' as between the mortgage lien held by the trustee to secure bonds issued by the railroad company and that of the mechanic's lien claimed by the construction company (Lorimer & Gallagher), which presents the single question of priority as between a prior mortgage lien and mechanic's lien.

In the argument and discussion, which lasted five days, this was the main question touched upon. Other questions were incidentally mentioned, some of which were argued at considerable length but most, if not all, related to the one main question.

I do not deem it necessary at this time, neither do I think counsel expect the court, to consider and pass upon issues other than the one of priority as between the mortgage upon the railroad in question and mechanic's lien filed by the company which constructed and built the railroad.

The mortgage in question was executed, recorded, and delivered at a date prior to the contract entered into, upon which the mechanic's lien is based, and ordinarily is what would be termed a prior lien.

The mechanic's lien in question is authorized by the statute of the state of Illinois, the terms of which attempt to fix the status of mechanics' liens and their priority as to all other liens on railroad against which the mechanics' liens are filed.

This being a lien fixed, determined, defined, and allowed by the statute of the state of Illinois, such statute must necessarily largely determine the question at issue.

The railroad lien act of Illinois (Hurd's Rev. St. 1917, c 82, Sec. 7), which is relied on by counsel for mechanics' liens claimants, is as follows 'Section 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly, that all persons who may have furnished, or who shall hereafter furnish to any railroad corporation now existing, or hereafter to be organized under the laws of this state, any fuel, ties, materials, supplies, or any other article or thing necessary for the construction, maintenance, operation or repair of such roads, by contract with said corporation, or who shall have done and performed, or shall hereafter do and perform any work or labor for such construction, maintenance, operation or repair by like contract, shall be entitled to be paid for the same as part of the current expenses of said road; and in order to secure the same, shall have a lien upon all of the property, real, personal and mixed, of said railroad corporation as against such railroad, and as against all mortgages or other liens which shall accrue after the commencement of the delivery of said articles, or the...