80 Ark. 399 | Ark. | 1906
1. The appellant claims that there is no lien under the railroad lien act in favor of .a materialman who furnishes a subcontractor. In St. Louis, I. M. & So. Ry. Co. v. Love, 74 Ark. 528, the court was called upon to construe this statute, and therein held that the statute “gives a lien * * * (3) to any .person who furnishes material which enters into the construction, equipment or repair of the railroad, whether furnished to the contractor or subcontractor, or directly to the railroad company.” It is pointed out that this exact question was not before the court in the Love case, and that is true; but in construing the statute relating to the question then before the court the whole statute had to be analyzed. ,The exact question above decided is now before the court, and for the reasons given in the Love case the construction there placed upon it is approved.
2. Part of the material went into the construction of appellant’s line of railroad in Arkansas and part of it in the Indian Territory, and the whole debt was enforced as a lien against so much of appellant’s road as lies within this State.
There is no law in the Indian Territory giving liens on railroads for material used in construction. In fact, no railroad lien law. Appellee seeks to sustain the judgment on the theory that the contract was an Arkansas contract, and to be construed and determined by the laws of Arkansas. The contract is imbedded in correspondence between Kelly, the subcontractor, and appellee company. Kelly wrote from different points in Arkansas; appellee wrote from its office in St. Louis, Mo. “The place where an obligation originates is often accidental; is remote, sometimes receding from spot to spot, as we search for it; and is extrinsic to the essence of the engagement, and to its subsequent development and efficiency.” 2 Wharton, Conflict of Laws, § 398. “It is different, however, with the place of performance, which enters into the vitals of the obligation, so far as concerns its fulfillment.” Id., § 399.
In this case there was an express agreement that part of the material should be delivered at Shady Point, I. T., by appellee to Kelly for use in. construction of appellant’s road in the Indian Territory, and part for like purpose for the road in Arkansas at Montreal, Arkansas. Notwithstanding there is but one contract, when it is to be performed in different jurisdictions, the law of each jurisdiction enters into the essence of the performance in the respective jurisdictions. 2 Wharton on Conflict of Laws, § 815a. Therefore the law of this contract was in Arkansas for so much of it as was to be performed in Arkansas, and in the Indian Territory for so much of it as was to be performed in the Indian Territory. Wharton, supra-, Story on Conflict of Laws, § 280, and note.
Liens on real estate and on immovables are governed by the law of the situs of the thing upon which the lien is sought to be enforced. 1 Wharton on Conflict of Laws, § 291.
The fact that liens are provided upon the roadbed, buildings, and equipment of a railroad necessarily classifies such liens as upon immovables, although the lien may also extend to personal property and the franchise, for the road must b'e considered as an entirety. 1 Wharton, Conflict of Laws, § 291; Story on Conflict of Laws, § 447; 2 Jones on Liens, § 1619.
Therefore the law of the Indian Territory would govern as to lien for the material which went into the roadbed in the Indian Territory, and, being no lien law there, there is no ground for enforcing a lien in Arkansas, even if such law had extraterritorial effect.
In Missouri a lien was declared on a railroad in that State for material entering into a bridge in Kansas (St. Louis Bridge, etc., Co. v. Memphis, etc., Rd. Co., 72 Mo. 664); but that decision does not square with the elemental principles involved in the subject. In New York the same question was before the Court of Appeals in regard to a lien sought to be enforced on real estate for material furnished in the construction of an engine used in a starch factory, which material was furnished in Connecticut. The court said: “Such a lien did not exist at common law. It is no part of the contract to be enforced where that can be enforced. It is purely the creature of the statute. The statute has no extraterritorial force. It was intended for the protection of those who performed labor or furnished materials within this State. When this engine was brought into this State and put into this factory, it belonged to this defendant. The plaintiff did not furnish any material 'in this State. It can not, therefore, have the benefit of the statute.” Birmingham Iron Foundry v. Glen Cove Starch Mfg. Co., 78 N. Y. 30.
The above reasoning is a complete answer to the argument that the lex fori should govern and the Arkansas lien statute be invoked for material furnished without the State where suit is brought within the State. The case at bar is much stronger against applying such statute than the New York case, because here the materials went into an easement in real estate in another jurisdiction, and in the New York case the subject-matter of the lien was brought into New York. It is argued that, because the railroad must be treated as an entirety and not sold in parcels in the enforcement of liens against it, the whole debt could be enforced in this suit. The rule of treating the railroad as an entirety extends only to the roadbed and easements within the State. 2 Jones on Liens, § 1619; 1 Wharton on Conflict of Laws, § 2921/2; Ireland v. A., T. & S. F. Ry., 79 Mo. 572; Knapp v. St. Louis, K. C. & N. Ry. Co., 74 Mo. 374; Kansas City, P. & G. Ry. Co. v. Waterworks Imp. Dist., 68 Ark. 376.
There may be exceptions to this rule regarding the franchises, personal property, etc. 1 Wharton, Conflict of Taws, § § 2890 and 292. Even in such instances, not pertinent to this inquiry, the lien laws of the other States are recognized, and sale of the entirety made subject to such local liens. Hand v. S. & C. Rd. Co., 12 S. C. 314.
The judgment in this case was correct in form in fixing a lien on all the property of appellant railroad in the State of Arkansas, but it was erroneous in allowing that lien to be made up of material furnished and used in the construction of appellant’s road in the Indian Territory; and for that error the cause is reversed and remanded.