36 F. 197 | D. Minnesota | 1888
1. The questions presented by the record in this cause, both of law and fact, are numerous, and in many instances difficult of solution. The master to whom the cause was referred has given to all "the questions arising on the record very careful consideration, and by the Very clear and able statement of his findings a.nd conclusions, set forth in his report, has greatly lessened the burden that would otherwise have been imposed upon the court. Exceptions to the report have been filed on behalf of several parties, which require for their decision an examination and determination of several mooted questions arising under the maritime law and the statutes of the state' of Minnesota. The steamer Menominie was formerly owned by the Knapp, Stout & Co. Company, a corporation organized under the laws of the state of Wisconsin, but doing business also in the state of Iowa, in which state part of the company’s officers resided. The boat was enrolled at Dubuque, Iowa. Subsequently a contract for the sale thereof was entered into between the Knapp, Stout & Co. Company and the Matt Clark Transportation Company, a corporation organized under the laws of the state of Minnesota, and located at the town of Stillwater. By the terms of the contract of sale, which was duly recorded in the office of the surveyor of customs at Dubuque, Iowa, the title remained in the Knapp, Stout & Co. Company until the purchase price was fully paid, which has not yet been done, but the possession and full control of the vessel was delivered over to the Matt Clark Transportation Company. The several claims of the seamen, material-men, and others, nowin controversy, arose after the delivery of the boat to the transportation company, and while it was engaged in the business of that coihpany. The master finds, under the facts shown in his evidence, that the boat must be deemed to have been the property of the transportation company, and its home port to have been in the state of Minnesota at the time the claims of the several libelants herein arose, and in this finding I concur.
It further appears that supplies were furnished and labor done upon this vessel at its home port, and the question arises whether the creditors have a lien therefor upon the vessel. The labor and material being furnished at the home port, a maritime lien therefor does not arise. The Lottawanna, 21 Wall. 558; The Albany, 4 Dill. 439. If a lien exists, it must be found in the provisions of the state statutes. Chapter 83, Gen. St. Minn. 1878, enacts that “every boat or vessel used in the navigating of the waters of this state is liable — First. Eor all debts contracted by the master, owner, agent, or assignee thereof, on account of supplies furnished for the use of such boat or vessel, on account of work done or service rendered on board or for the benefit of such boat or vessel, or on
“A maritime lien, unlike a lien at common law, may, in many instances, exist without possession of the thing upon which it is asserted, either actual or constructive. It confers, however, upon its holder such a right in the thing that he may subject It to condemnation and sale to satisfy his claim for damages. ”
Bouvier defines a “lien” to be “a hold or claim which one has upon the property of another as a security for some debt or charge.” When, therefore, a statute declares that under certain circumstances a person shall have a lien upon a certain class of property for a debt or charge due, what is meant is that the person shall have the right to hold the property for, or subject it to, the payment of the claim or charge. On the other hand, if the statute declares that the person shall have the right, under the given circumstances, to hold certain property for, or subject it to, the payment of a certain claim or charge, this, in like manner, creates and confers a lien, although the word “lien” may not be used in the statute. It is the right to hold or subject the property to the pay
It is, however, argued with much force that, it having been held that the state legislature had not the right to enact that the lien thus created should be enforced by a proceeding in rem, the whole statute must be held invalid and void. In the case of The Edith, 94 U. S. 519, this exact question was suggested by the supreme court, but was not decided. The general rule is-that, “where a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed the legislature would have passed the one without the other. * * * If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sus tained.” Cooley, Const. Lim. 215. What was the purpose of the leg islature in enacting the act in question? It having been held that by th« maritime law no lien existed for supplies furnished to or labor done upon a domestic vessel, persons furnishing the same in Minnesota to vessels belonging to that state could not hold the boat liable for claims due them. To remedy this, and to place persons furnishing supplies and labor to domestic vessels on an equality with those furnishing the same to foreign vessels, the statute was enacted. The creation of a lien upon a domestic vessel for claims of the character named was a subject-matter wholly within the legislative power of the state, and the legislature had the undoubted right to declare that for claims due for supplies or labor furnished to domestic vessels a lien should exist upon the vessel. The main object of the statute, to-wit, the creation of the lien, was within the power of the state legislature. Having created the lien, as it had a right to do, the legislature then undertook to provide a means by which such lien-might be enforced in the state courts. The means provided fail of effect because it is held that the state cannot confer the right to entertain a proceeding in rein upon the state courts in cases involving vessels used upon the navigable waters of the United States. The lien created by the statute may be enforced without resort to the courts of the state; that is, by a proceeding in rein in the courts of the United States. Can it be held
In Bank v. Dudley's Lessee, 2 Pet. 492, in discussing the effect of the occupying claimants law of Ohio, the supreme court held that the provisions of the state law in regard to the appointment of commissioners to assess the damages could not be enforced in a law case in the United States court, yet the general benefit of the statute could be saved to the occupant by an application on the equity side of the court; it being held that, “if any part of the act be unconstitutional,- the provisions of that part may be disregarded, while full effect will be given to such as are not repugnant to the constitution of the United States, or of the state, or to the ordinances of'1'787.” The principle recognized in this case, that the remedy provided in the statute could not be followed in the United States courts because it deprived a party of a trial by jury ip a law case, ■yet that the substantial right created by the statute could be made effect
In Fletcher v. Morey, 2 Story, 555, it was held that a lien or equitable claim constituting a charge in rem could be created by agreement, and that such lien was valid, although no remedy for its enforcement was provided by the state statutes, the rule being that courts should strive 'to so construe statutes that effect shall be given thereto, rather than that they should be held void. It being clear that the main purpose in the enactment of the statute in question was to create a lien for supplies furnished and labor done on domestic vessels, and as this purpose is wholly free from constitutional objection, I deem it the better course to hold that the portions of the statute creating the lien are separable from those providing a remedy, and that the invalidity of the latter does not render the former also void, for the reason that the lion thus created can be enforced in the admiralty courts, and thus the substantive right created by the statute is preserved for the protection of those for whose benefit the statute was enacted.
2. It is further urged that this statute 'touching the liability of boats and vessels has been abrogated by the subsequent statutes on the subject of mechanics’ liens. Chapter 90, Gen. St. 1878, provides, inter alia, that “whoever performs labor or furnishes materials or machinery for erecting', constructing,.altering, orrepah'ing any house, mill, manufactory, or other building or appurtenances, or for constructing, altering, or repairing any boat, vessel, or other water-craft, by virtue of a contract with the owner or agent thereof, shall have alien to secure the payment of the same upon such house, mill, manufactory, or other building and appurtenances, and upon such boat, vessel, or other water-craft,’’etc. This statute does not expressly repeal the act touching boats and vessels, but it is claimed that it is- inconsistent therewith, and therefore repeals it by implication. The rule applicable in determining whether such is the ‘effect of the latter statute is that “when there are two acts or provisions of law relating to the same subject, effect is to be given to both, if that is practicable. If the two are repugnant, the latter will' operate as a repeal to the' former to the extent of the repugnancy. But the second act -will not operate as áuch repeal merely because it may repeat some of the provisions of the first one, and omit others, or add new provisions. In such cases, the later act will operate as a repeal only where it plainly appears that it was intended as a substitute-for the first act. As Mr. Justice Story says; ‘It may be merely affirmative, or cumulative, or auxiliary.’” Railway Co. v. U. S., 127 U. S. 406, 8 Sup. Ct. Rep. 1194; Wood v. U. S., 16 Pet. 342. The mechanic’s lien law by its'terms includes labor and materials expended-in constructing, altering, or repairing boats or vessels; and -is therefore mainly,- if not wholly, applicable to boats in the process of construction, or-when- laid up for repairs; or, in othei words, when the same are not-upon the navigable waters. Furthermore, the mechanic’s lien law- does not, apply to Supplies furnished to or labor done in and about the boat in the navigating the isarne. The one applies to labof
The first section of chapter 83 of the Statutes of Minnesota being then in force, it follows that persons who have furnished supplies for the use of the boat, or have done work or rendered services on board the same or for the benefit thereof, or have done labor or furnished materials in repairing, fitting out, furnishing, or equipping the same, are entitled to a lien for the sums due them, provided proceedings for the enforcement of the lien have been brought within one year after the cause of action accrued to them, — this being the express limitation found in the statute; and it is applicable to proceedings for the enforcement of such statutory liens in the United States courts as well as to proceedings in the state courts. The Edith, 94 U. S. 519. Subdivision 4, § 1, c. 83, provides that the cause of action shall accrue against the vessel when the contract' for the work done or services rendered is fully performed. If, therefore, any of the libelants herein claiming liens under the state statute have failed to file their libels, original or by intervention, within one year from the time the cause of action accrued, the right to a lien no longer exists.
3. The master disallows an item of $132.50 in the claim filed on behalf of the E. M. Dickey Company. This money was advanced at the request of the master of the vessel, to release it from a seizure by the United States marshal at Dubuque, on a libel filed to recover that amount for coal furnished at Le Claire, Iowa, by other parties. As I understand the report of the master, he disallows this item on the ground that the E. M. Dickey Company should have alleged and proved that the parties furnishing the coal had a valid lien upon the vessel, thus placing the right of the Dickey Company on the same footing as though it had bought out the claim of the Lo Claire parties, and succeeded to their rights and no more. The facts are, however, that the money was advanced at the request of the master to relieve the boat from an actual
4. The question of priority of the several liens for supplies and for la- ' bor done as between liens created by the maritime law and by the state statute has been discussed by counsel, and may now become of import\ance, in view of the fact that the right to a lien under the state statute is recognized. Without attempting a review of the conflicting authorities on this subject, I shall content myself with a brief statement of what on principle seems to me to be'the Correct rule on this subject. In the first place, the state cannot by legislation control the rule to be followed by