48 Kan. 187 | Kan. | 1892
The opinion of the court was delivered by
On the first consideration of this case; it was decided that the poles and wires attached to an electric light plant and premises were appurtenances of the same, within the meaning of the mechanics’ lien statute, and that persons who furnished labor or material for such appurtenances were entitled to a lien on the whole. Our attention is now called to another question, which was not.considered, but which is fairly in the record, viz.: Is the property of an •electric light company, having a franchise from the city to
It is contended that this corporation, like a railroad company, is an instrumentality of the public, authorized and established for the convenience and benefit of the public, and that, on the. grounds of public policy and necessity, its operation should not be disturbed or its property subjected to a lien at the instance of a laborer or material-man who has contributed to the building of its plant. If it were conceded that the railroad company and the electric light company are to be placed in the same class of corporations, we would still think that there was no public policy nor necessity which required an exemption of their property from liability to the ordinary process of law or to a mechanic’s lien.
The general rule is, that the public property of a municipal corporation is not subject to seizure and sale; and it is generally held that a mechanic’s lien cannot be enforced against property which is not subject'to sale on execution. The reason for this exemption is, that such corporations are instrumentalities of the government itself, and the seizure and sale of the public property would interrupt and suspend the functions of government, and also that other provisions have been made by law for the collection and payment of public obligations. Corporations, however, such as the one claiming exemption here, although they serve the public convenience to some extent, are not organized merely for public advantage, but are operated largely for the private benefit of the incorporators. In this state such corporations may mortgage or sell their property; and the general rule is, that property of a corporation which may be sold under a mortgage or specific lien given by the owner may be subjected to a mechanic’s lien. If a corporation may, by its voluntary act in creating a specific lien, subject its property to seizure and sale, it is difficult to find any substantial objection to allowing and enforcing the claim of a laborer or material man against the same property under the mechanics’ lien law.
In some of the states, notably Pennsylvania, (Foster v.
The rehearing will be denied.