Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-13

IL is contended ny the defendant is q
legislative Interpretation of the for
mer law, to the effect that it does
not apply to railroad construction.
These statutes have been before
the federal court for construction in
two cases: Giant Powder Company v.
Oregon Pac. Ry. Co. 40 Fed. 470, in
which Judge Deadly 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. 81, as authority for that
construction. The same questions
were presented in Ban V. Columbia
Southern Ry. Co., before the United
States circuit court, 109 Fed. 499, in
which it was conceded that the law
of 1885 authorized lien upon rail-
roads for which and materials fur
| nished 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 ap-
peals and was there reversed: Q17
Fed &C. c. Al 2D The court, Judge
Hawley, writing the opinion, held, on
the authority of Giant Powder Co. v.
) Ore. Pac. Ry, Co., as well as upon
the language of the statute itself,
that the law of 1885 provides for liens
on railroads; and further holding
that the act of 1889 does not super
sede or repeal by implication the
former law. Also Elliott adopts the
views of these cases and says, that
whether the word Structure, of the
law of 1885, will include railroads
will depend very largely upon the
/ context, under the maxim noscitur
sociis, and the phrase any other
structure has been held to include
railroad when preceded by a specific
enumeration of works or property of
a somewhat similar character" (El-
lott on R. R. Ed. Sec. 1861
The apparent scope and purpose of
the act of 1889 must be kept in mind
in determining its effect upon the law
of 1885. 1t does not have exclusive
application to construction work, il
indeed it is intended to include such.
struction 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 prop
erty real, personal, and mixed, of
the company" The original contrac-
tor is not included among those who
shall have the lien, nor is the rail-
road company or it's property liable
at all events for the debt for which
the lien is given, as in the former
staute, but only to the extent Of it's
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 claim
ants.
The text indicates that the law is
intended to secure only to laborers
and others furnishing the labor and
supplies to the contractor the means
of enforcing payment out of any
money due to him. Therefore, the
act of 1889 does not take the place of
the former law, but is for a different
purpose and does not give the relief
intended by the law of 1885.
This is also the opinion of Judge
Hawley in the Ban case, at page "a.
4 A careful reading of Sec 1 of the act
shows that the emergency clause is
not an Interpretation of the law of
1885, but it states the fact, there be-
ing no other law for such a lien as
is here provided. Some courts have
held that because railroads are pub
lie service enterprises that, there
fore, general lien laws are not ap-
plicable to them: Tod v. Kentucky
Union Ry. Co., So Fed. 241; Crawford
" Tilden, 13 Ont. L. Rep. 1863; e A.
& E. Ann. c. 260 But it is no.
where suggested that the legislature
may not make them subject to such
liens: Nelson V. The Iowa Eastern
Ry. Co., A Iowa II; Pennsylvania
Steel Co. v. Potts Lumber Co., GO
Fed IL; Elliott on r. R. e ed) Sec
1867. And if the language of the
statute is broad enough to include
them there is no reason why it should
not be so applied. This is the hold
ing in Dunavant v. Railroad, 122 N
c. 999, although it had been previous
ly held in Buncombe County Com. "
Tommey, lis U. S. 122, that the North
Carolina statute did not extend to
railroads. In Hill ct al " La Crosse
etc., Co., II Wis. 214, 224, in speak
ing of the general lien law it is said
, "the object was to furnish a protec-
; ton to those who expended their la
Dor and materials in improving the
. property of others. Is there anything
in public policy that requires, OF
. should permit railroads to be bull
} at the expense of defeating this OBJ
ject? If there is, we fail to perceive
it, and shall recognize no such policy
} till the legislature enacts it into q
positive law. But where q
. railroad company have no disposition
to exempt them from its provision.
In Purtell V. Chicago Forge, etc.
Co. IA Wis. 1872, in speaking of lieI
on bridge, it is said, there is nc
public policy prevailing in this
; state against enforcing a laborer's
lien upon any bridge or other struc.
ture of railroad company, for worl
; performed thereon, no matter wheth.
er such structure is or is not part anG
parcel of the railway, or to what ex-
} tent the enforcement of lien there.
on may interfere with or impede the
operation of the railway or the ex-
ercise of the company of its corpor-
ate franchises. On the contrary, the
public policy of this state is to en-.