117 P. 279 | Or. | 1911
Opinion by
The mechanic’s lien law of this State, enacted in 1885 (Section 7416, L. O. L.), gives to mechanics, laborers, and materialmen liens for work or materials furnished in the construction of “any building, wharf, bridge, ditch, flume, tunnel, fence, machinery, or aqueduct, or any structure or superstructure.” On February 25, 1889, another law was enacted, section 1 of which (Section 7429, L. O. L.) provides that:
“Any and all person or persons who shall hereafter as subcontractor, materialman, or laborer furnish to any contractor to any railroad corporation any fuel, ties, materials, supplies, or other article or thing, or who shall do or perform any work or labor for such contractor in conformity with any terms of any contract, express or implied, which such contractor may have made with any such railroad corporation, shall have a lien upon all property, real, personal, and mixed, of said railroad corporation ; provided, such subcontractor, materialman or laborer shall have complied with the proyisi.ons of this act, but the aggregate of all liens hereby authorized shall not in any case exceed the price agreed upon in the original contract to be paid by such corporation to the original contractor. Nor shall such corporation be liable for any greater sum than the amount then actually due by such corporation to said original contractor; and provided further, that no such lien shall take priority over existing liens.”
The lien provided for in this act is to be perfected by serving upon the railroad company a notice of the nature and amount of the lien, and the person at whose request the work or supplies were furnished. In this case the lien is claimed to have been filed under the general law of 1885, and it is contended by defendant: (1) That the
The act of 1889 does not, in terms, refer to the former law; but the emergency clause states:
“Inasmuch as there is now no law upon this subject, and it is of importance to laborers and materialmen, this act shall take effect from and after its approval by the Governor.”
And this it is contended by the defendant is a legislative interpretation of the former law, to the effect that it does not apply to railroad constructions.
These statutes have been before the federal court for construction in two cases. Giant Powder Company v. Oregon Pac. Ry. Co. (C. C.) 42 Fed. 470 (8 L. R. A. 700), in which Judge Deady held that the law of 1885 gives liens upon railroads to contractors, laborers, and material-men, for work and material furnished in their construction, and cites Forbes v. Willamette Falls Electric Co., 19 Or. 61 (23 Pac. 670: 20 Am. St. Rep. 793), as authority for that construction. The same questions were presented in Ban v. Columbia Southern Ry. Co., 109 Fed. 499, before the United States Circuit Court, in which it was conceded that the law of 1885 authorized a lien upon railroads for work and materials furnished in the construction thereof, but that the act of 1889 operated to repeal, by implication, that law, so far as it related to railroads. That case, however, was taken' to the United States Circuit Court of Appeals and was there reversed. 117 Fed. 21 (54 C. C. A. 407). The court, Judge Hawley writing the opinion, held, on the authority of Giant Powder Co. v. Ore. Pac. Ry. Co., 42 Fed. 470 (8 L. R. A. 700), as well as upon the language of the statute itself, that the law of 1885 provides for liens on railroads, and
The apparent scope and purpose of the act of 1889 must be kept in mind in determining it's effect upon the law of 1885. It does not have exclusive application to construction work, if indeed it is intended to include such. It makes no reference to the construction or repair of the road, and the fuel, ties, materials, and supplies for which the lien is given includes such as are used in the operation of the road. The lien is not upon the thing constructed or repaired, as in the act of 1885, but “upon all property real, personal, and mixed, of the company.” The original contractor is not included among those who shall have the lien, nor is the railroad company or its property liable at all events for the debt for which the lien is given, as in the former statute, but only to the extent of its liability to the original contractor at the time notice is given to it; and no provision is made therein for filing with the county clerk a notice of the lien or otherwise giving any notice to the public or other lien claimants.
The decree of the lower court is reversed and remanded for further proceedings. Reversed.