Birmingham state herald. (Birmingham, Ala.) 1895-1897, 1897-01-31

supreme court in full in the important
case of Drennen a. Co, VS.. the Mercantile
Trust and Deposit company, we, at the
request of many members of the bar, pub
lish the very able and learned dissenting
opinion by Justice I. W. Coleman. This
is one of what are known as the Mary
Lee cases." which have created some stir
not confined to the profession.
The following law firms appear in the
litigation: London & London, Mountjoy
& Tomlinson, Walker, Porter & Walker,
and Campbell & Tillman.
THE DISSENTING OPINION.
The Mary Lee Coal and Railway COM
pany, corporation, authorized by its
charter to own and operate coal mines,
coke ovens and a railway, in Jefferson
county, to secure its bonded indebted
ness, executed a deed of trust to the Mer-
camille Trust and Deposit company, the
appellee, upon all its property, and tolls,
charges, and its income. Having default
ed, the trustee filed bill, praying for
receiver, and foreclosure of the mortgage
Pending the foreclosure bill, the appel
liant, Drennen & Co., by petition, inter-
posed a claim for s14,697.97, and prayed
that it be allowed as a preferred claim.
The basis of this claim Is, that it was
due for repairs and work and labor
done and performed for the defendant.
the Mary Lee Coal and Railway compa-
ny, during the months OF july, August,
September, October and November" pre-
ceding the filing of the bill. OF the
amount claimed, about $S,947 was due for
digging and mining and shipping coal,
and in keeping said mine in operation;
that about $1,000 was due in operating
and repairing said coke ovens, and in
preparing coke for shipment to market,
and about $3.50 was due for operating
and repairing defendants said railroad.
The real issue involved, is whether the
no hn1iaynd IN ~
mu1gated in the case of. Fosdlck VS.
Schall SO U. s., 235, which allowed wages
earned within six months before the APP
pointment of receiver preference and
priority over the bondholders whose
!. debts were secured by a mortgage pre-
ceding the accrual of the claim for wages,
and which doctrine, by that decision and
others since rendered, was expressly linz
tied to public railroads, shall be further
extended, and as extended be applied to
private business corporations, companies
and individual transactions The princl-
pie asserted and the rule adopted for its
application, in the opinion of the court,
logically leads to this result. NO case
has been cited in support of the conten-
ton, and the writer believes 1T is without
precedent
New and useful inventions for the ben
eft of mankind are commendable, but the
province of courts is to apply existing
principles, and not create rules and prin-
ciples which injuriously AFFECT the rights
of parties, acquired by contract. Inc
province and power of courts OF equity
TO intervene for the protection of right,
and prevention of wrong, and to invent
remedies where none exist, to secure
these ends, is one of the most useful at
tributes and the exercise of this power
on proper occasions, has developed into
our present admirable system of equity
jurisprudence, but there is great ana
irreconcilable difference between the APP
plication of remedy and the creation OF
right and priority, which supVerts ana
subordinates existing contractual inter-
est 1t has been truly said, that under
some circumstances courts of equity
may amplify remedies, but cannot dis
pense with legislation, nor amplfy 1uris-
diction. The reasons now assigned iof
this new departure have been obvious to
the judicial mind for century or more,
and the very fact that the conclusion mas
not hitherto been accepted as sound ana
permissible of itself is full of warning to
that conserva tism which should charac-
terize courts of justice Precedents,
though not always entitled to absolute
domina tion when they have become SO
esta blished as to enter into ana become
elements of contract cannot De set aslde
nv courts without inficting injustice.
The legislative department has no au-
thority by it's enactments, 10 impair the
obligation of contracts, and surely courts
of justice ought not by tneir ao!uolc ca
tions adopt and apply principles to ex-
listing contracts which will have the ef-4
feet of an ex post facto legislative enact
ment 1t is unnecessary to cite author-
ity in support OF proposltlon Oh raw,
recognized in all courts, and especially
in This state to the effect that in the ABB
senoe of an agreement to the contrary,
at common law, mortgage upon proper
ay carried with it all subsequent improve
ments repairs and betterments, ana TINS
rule prevails until changed by statute in
courts of equity as well as Jaw IN all
states where the common law exists. NOR
is 1t necessary at this late day TO cite
tthe authorities which have unneio 1he
validity of mortgages, including those OF
railroads upon after acquired property,
and tolls and charges and Incomes. IL
was the prevalence of these rules when
led to the enactment of what are Known
as the mechanics ana materIai .lief ~,
lien laws, and statutes giving priority TOT
labor and supplies and materials, tns
constitutionality and application or
which statutes have undergone so many
exhaustive discussions in the courts OF
the country. In no case that is now re-
called have the se'sta tutes been sustained
in So far as they were intended to dis
place" or subordinate prior liens ana
contracts; nor can there be found a decl-
sion. in my opinion. which demanded or
The owner of a right, vested in him by
virtue OF a prior valid contract, that ne
eoncede something of his rights, as
condition precedent to his obtaining the
aid of the courts OF the country l am
unqualified right of sutton to receiver
IN o proper case, and the terms court
may impose as a condition to the ap-
pointment Of a receiver. nor the power
~ a court to create prior liens for the
preservation of property held by 1t dur
ing the tendency of litigation. The prin-
ciple asserted in the case under consider.
alton goes far beyond all these rules and
regulations incident to the appointment
of receivers and the preservation Of prop
erty 1t is boldly announced as uni
versal principle of abstract equity, not
dependent upon contract nor affected by
contract, land which needs no other JUS
tifcation for its application in any case
than the existence of facts upon which 1T
arises and rests" quote from the opin-
ion Itself as follows: Enough has we
think, been said by ourselves and through
our adoption of the language of Judge
Waite to demonstrate that the equity of
the doctrine lies solely in the fact that
the gross income of the corporation.
which in no good conscience belongs to