Santa Fe, Prescott and Phoenix Railway Co. v. Arizona Smelting Co.
| Decision Date | 02 April 1910 |
| Docket Number | Civil 1121 |
| Citation | 108 P. 256,13 Ariz. 95 |
| Parties | SANTA FE, PRESCOTT AND PHOENIX RAILWAY COMPANY, a Corporation, Defendant and Appellant, v. ARIZONA SMELTING COMPANY, a Corporation, and J. KEARNEY RICE, Trustee in Bankruptcy of Arizona Smelting Company, Bankrupt, et al., Plaintiffs and Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. Richard E. Sloan Judge. Affirmed.
The Santa Fe, Prescott and Phoenix Railway Company filed a cross-complaint in this suit in the district court, seeking to have its lien established for charges for transportation of ore to the smelting company. A general demurrer to the complaint was sustained, and from judgment entered thereon the railway company has appealed.
T. J Norton, E. W. Camp and Paul Burks, for Appellant.
The whole controversy in this case resolves itself into simply one of interpretation and construction of the Arizona lien law, with reference to labor and supplies furnished to a mill, namely, section 2906 of the Revised Statutes of Arizona of 1901. The wording of that part of the section under which appellant claims that it is entitled to a lien is as follows
The section of the Arizona statutes just quoted is identical with the Nevada statutes, and is found in Cutting's Compiled Laws of Nevada, section 2899. This statute was in 1871 construed by the United States district court as giving a lien to a teamster hauling quartz to a mill, on the ground that he "performed labor for the carrying on of the mill." In re Hope Mining Co., 1 Saw. 710, Fed. Cas. No. 6681, 9 Morr. Min. Rep. 364; Gould v. Wise, 18 Nev. 253, 3 P. 30. After receiving the foregoing construction the statute was adopted by the Arizona legislature and enacted as section 2278, Laws of 1887.
"A smelter is a 'mill' or 'manufactory' within the meaning of the mechanic's lien law." McAllister v. Benson, 2 Ariz. 350, 16 P. 271. "Where the common-law lien gives a remedy and another is provided by statute, the latter is merely cumulative unless expressly or by necessary implication declared exclusive." "Where a right exists at common law and a new remedy is given by statute, the latter is cumulative and either may be pursued." 1 Century Digest, "Actions," No. 273, 2740; Monterey etc. v. Abbott, 77 Cal. 541, 18 P. 113, 20 P. 73; Ward v. Severance, 7 Cal. 126; Roberts v. Landecker, 9 Cal. 262; Carpenter v. Bayfield etc. Ry. Co., 107 Wis. 611, 83 N.W. 765. It has been held by the supreme court of California that a common carrier may deliver freight, thereby waiving any common-law lien which it might have asserted, and then turn around and attach those same goods for freight charges due thereon, the common-law lien for which it had just waived. Wingard v. Banning, 39 Cal. 543. The existence of the common-law lien is not inconsistent with the statutory law; and the waiver of the common-law lien does not affect the statutory lien. Under statutes not nearly so broad as that of Arizona, it has been held that a teamster has a lien for labor performed in hauling materials used in the erection of a building. Hill v. Newman, 38 Pa. 151, 80 Am. Dec. 473; McElwaine v. Hosey, 135 Ind. 481, 35 N.E. 272; Eccleston v. Hetting, 17 Mont. 88, 42 P. 105; McLain v. Hutton, 131 Cal. 132, 61 P. 273, 63 P. 182. We rely upon and are entitled to the benefit of the construction placed upon the Nevada statute prior to its adoption in Arizona.
Vyne & Lamson, Crocker & Wickes, Norris & Ross and Henry L. Hooker, for Appellees.
A common carrier has a lien for freight which amply protects it, and, such being the case, no legislature should be deemed to have created a further remedy except where words are used which admit of no question, and the Arizona statute is not so worded. A special statute has been enacted in Arizona in respect to railroad corporations, wherein, among other things, the common-law lien of a common carrier is recognized and made more effective by the granting of a power of sale, and if it had been the intention of the legislature to provide a further remedy for a railroad company in respect to the collection of its charges for freight, it would have been enacted as a part of this chapter and not as a part of the lien law. There are decisions which clearly hold that common carriers are not such as come within the application of statutes designed to protect those who labor in connection with the carrying on of a plant. Seventh National Bank v. Shenandoah Iron Co., 35 F. 436; Fidelity Insurance Trust & S.D. Co. v. Roanoke Iron Co., 81 F. 439. "A contractor is not a laborer within the meaning of the statute." Klondike Lumber Co. v. Williams Bros., 71 Ark. 334, 75 S.W. 854. Lien statutes, being in derogation of the common law, should be strictly construed. Mushlitt v. Silverman, 50 N.Y. 360; Wagar v. Briscoe, 38 Mich. 587; Culver v. Schroth, 153 Ill. 437, 39 N.E. 115; Davis v. Livingston, 29 Cal. 283; Gale v. Blaikie, 129 Mass. 206.
-- This appeal involves the construction of paragraph 2906 of the Revised Statutes of 1901, which reads as follows: "All foundrymen, boiler-makers, and all persons who labor or furnish machinery, boilers, castings, or other material for the construction, alteration, repairs, or carrying on of any mill, manufactory, or hoisting works at the request of the owner thereof, or his agent, shall have a lien on the same for the amount due him or them therefor." It is the contention of the appellant that, under this statute, it is entitled to have established a lien for freight charges for ore transported by it to the smelting company. It is not claimed by the appellant that it is entitled to a lien by virtue of the provision that all persons who furnish material for the carrying on of a mill are entitled thereto, because the ore transported was not the property of the railroad company, but was transported by it merely as a carrier. The contention is that, by reason of such transportation, the railroad company has labored for the carrying on of the mill. It has been held under a statute giving a lien to any person who performs labor or furnishes material in the erection of a house that a person who hauls lumber to be used in such construction was as much entitled to the benefit of the lien as the materialman who furnished the lumber and the laborers who actually erected the building. Fowler & Guy v. Pompelly, 25 Ky. Law Rep. 615, 76 S.W. 173. It has also been held that under a statute giving a lien for all persons performing labor in the erection of a mill, manufactory, etc., a teamster hauling material to and from a ditch in a public street was entitled to a lien for services incidentally necessary to the erection of a steam heating plant. Wells v. Christian, 165 Ind. 662, 76 N.E. 518. Other cases are also cited where the courts have held that persons hauling materials at the request of the owner and contractor are entitled to the benefits of the statute giving a lien for work in the erection of buildings. In Re Hope Mining Company, 1 Saw. 710, Fed. Cas. No. 6681, 9 Morr. Min. Rep. 364, the United States district court for the district of Nevada held that under a similar statute to the one in question a teamster hauling quartz to the mill was a person performing labor in carrying on the mill, and entitled to the benefit of the lien law. This ruling was afterward followed by the supreme court of Nevada in the case of Gould v. Wise, 18 Nev. 253, 3 P. 30.
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