161 F. 241 | 9th Cir. | 1908
(after stating the facts as above).
The principal question here presented is whether a laborer’s lien created by the Alaskan Code extends to and binds the interest of the owner of a mining claim for improvements made thereon under the direction of a lessee with the owner’s knowledge, and in the absence of a disclaimer of responsibility by the latter. By section 262, it is provided that one who performs labor or furnishes material for construction or development of a building, mine, etc., shall have a lien thereon for-work done or material furnished at the instance of the owner of the building or other improvement, and that every contractor, subcontractor, architect, builder, or other person having charge of such construction shall be held to be the agent of the owner. The object of section 263 is to declare to what land
It is assigned as error that the court refused to' permit the appellant to amend his answer by adding thereto the allegation that Clyne, Runner, Lungvich, and Saitz were necessary parties to the final determination of the suit. This application was made when the cause came on for trial on November 8, 1906. The appellee objected to'the amendment for the reason that it had not been suggested when the pleadings were made up, and for the further reason that the additional parties so named in the application were then out of the jurisdiction of the court and could not be served. The complaint had been filed on February 21,
Error is assigned to the allowance of attorney’s fees to the appellee in the judgment in the court below. Section 270 of the Civil Code of Alaska (Act Cong. June 6, 1900, c. 786, 31 Stat. 536) provides that, in all suits to enforce such liens, the court, on entering judgment for the plaintiff, shall allow as part of the costs all moneys paid for the filing and recording of the lien, and also a reasonable amount as attorney’s fees. It is contended that this provision for attorney’s fees is unconstitutional. Counsel for the appellant cite the recent decision of the Supreme Court of California in Builders’ Supply Depot v. O’Connor, 150 Cal. 265, 88 P. 982, in which that court held a similar provision of the statutes of California violative of the state Constitution, as well as of the fourteenth amendment to the federal Constitution, which guaranties to every person the equal protection of the laws. But in the present case the fourteenth amendment has no application for its prohibitions are addressed to the states only. No state shall deny to “any person within its jurisdiction” the equal protection of the laws. The only obligation resting on the United States is to see that the states do not deny that right. Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588.
That such a statute is violative of state Constitutions has also been held in Randolph v. Supply Co., 106 Ala. 501, 17 So. 721, Davidson v. Jennings, 27 Colo. 187, 60 P. 354, 48 L.R.A. 340, 83 Am.St.Rep. 49, and Chair Co. v. Runnels, 77 Mich. 104, 43 N.W. 1006. But, the reverse has been held in Dell v. Marvin, 41 Fla. 221, 26 So. 188, 45 L.R.A. 201, 79 Am.St.Rep. 171, Duckwall v. Jones, 156 Ind. 682, 58 N.E. 1055, 60 N.E. 797, Robert
It is the purpose of the lien law to secure “priority of payment of the price and value of work performed and materials furnished in erecting and repairing a building or other structure.” Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 136, 12 S.Ct. 181, 35 L.Ed. 961. In harmony with this purpose and with the above-quoted utterance of the Supreme Court in Gulf, Colorado & Santa Fé Ry. v. Ellis, Congress has provided for the protection of the lien claimant by authorizing the court to allow him a reasonable attorney’s fee in case the payment of his lien is unsuccessfully resisted. We find no ground for saying that such a law is unconstitutional.
Without merit, also, is the contention that the lien claimants should have no lien for the time and labor devoted to cleaning üp and washing the gold taken out of the
The decree is affirmed.