| Ark. | Dec 20, 1902
(after stating the facts). The decision of a question involved in this case was made by this court in case of the Choctaw & Memphis Railroad Company v. Sullivan, 70 Ark. 262" date_filed="1902-03-15" court="Ark." case_name="Choctaw & Memphis Railroad v. Sullivan">70 Ark. 262. In that case it is decided that where cross-ties were furnished by a tie-maker to a sub-contractor, under a contract with the railroad made by the contractor prior to March 31, 1899, there was no lien enforceable against the railroad for the value of the ties so furnished; that the rights of the parties were governed by the law as it existed at the time the contract was made. The act of March 31, 1899, having been passed after the contract was made under which the lien was claimed, had no application.
A motion for reconsideration of that decision was made and argued by able counsel, on the ground that the act of March 31' was simply an extension of a remedy, but upon consideration it Was overruled by the court. We adhere to that decision.
Inasmuch as the contracts in these cases under which the goods, wares and merchandise and supplies were furnished to the sub-contractors were all made before the passage of the act of March 31, 1899, that act has no application to this ease, and there is no lien under that act against the railroad for the goods purchased. Choctaw & Memphis Railroad Co. v. Sullivan, 70 Ark. 262.
The act of March 31* 1899, provides: "Section 1. That section 6251 of Sandels & Hill’s Digest be amended so as to read as follows: Every mechanic, contractor, sub-contractor, builder, artisan, workman, laborer, or other person who shall do or perform any work or labor, or cause to be done or performed any work or labor upon, or furnish any materials, machinery, fixtures or other things toward the building, construction or equipment of any railroad, or to facilitating the operation of any railroad, whether completed or not, and every person who performs work of any kind in the construction or repair of any railroad, whether under contract with the railroad, or with, a contractor or sub-contractor thereof, and every person who furnishes any board, provisions or supplies for any employees or teams of any railroad employed in the construction or repair thereof with the consent or authority of the person authorized to make such construction or repair, and every person who shall sustain loss or damage to person or property from any railroad for which a liability may exist at law, and every person who performs any valuable services, manual or professional, for any railroad by or from which such railroad receives a benefit shall have a lien on said railroad for such labor, materials, machinery, fixtures, board, provisions, supplies, loss, damage and services upon the roadbed, buildings, equipments, income, franchise, right-of-way, and all other appurtenances of said railroad superior and paramount, whether prior in time or not, to that of all persons interested in said railroad as managers, lessees, mortgagees, trustees and beneficiaries under trusts or owners/’
In construing this act in the case of Macon v. Bank of Commerce, in the Pulaski chancery court, in a well considered and able opinion by Judge John Fletcher, as special chancellor, this question is well reasoned. He said: “It may be safely assumed that the purpose of the legislature in this enactment was * * * to give a lien to all those whose work and labor done, or materials furnished have enhanced the value of the railroad,— [to all] persons, whether laborers, contractors, sub-contractors or others, whose labor or materials furnished, or caused to be furnished, have entered into and become part of the structure. * * * The statute, in express terms, creates a lien in favor of ‘every person who furnishes any board, provisions or supplies for any employees or teams of any railroad employed in the construction or repair thereof with the consent or authority of the persons authorized to make such construction or repair. Now, it is evident that, if it had been the intention, to create a lien for such things when furnished the contractor, the legislature would have said so. * * * The things must, by the terms of the statute, be furnished to the employees or teams of the railroad, not to those of the contractor.”
In the case at bar everything was furnished to the employees, teams, etc., of the sub-contractors. The statute, neither in terms nor by implication, creates a lien in favor of one not in privity of contract with the railroad company for anything beyond that which has entered into or become a part of the railroad. Giant-Powder Co. v. Oregon Pac. Ry. Co., 42 Fed. 475.
For the reasons that the articles furnished were furnished under contracts made prior to the passage of the act of March 31,1899, and that there was no privity of contract between the sub-contractors and the railroad, and for the- fact, as shown by the evidence, that none of the materials furnished entered into and became part of the railroad, the decree must be reversed, and the cause dismissed, which is accordingly don.e.