Little Rock, Hot Springs & Texas Railway Co. v. Spencer , 65 Ark. 183 ( 1898 )

Hughes, J.

This is an appeal from a decree in chancery declaring a judgment a lien upon the roadbed, etc., of the appellant railway. The judgment was for an amount due for building a part of the road. The lien was decreed under the following statute: “Every mechanic, builder, artisan, workman, laborer, or other person, who shall do or perform any work or labor upon, or furnish any materials, machinery, fixtures or other thing toward the equipment, or to facilitate the operation of any railroad, * * * shall have a lien therefor upon the roadbed, buildings, equipments, income, franchises, and other appurtenances of said railroad,” etc. Sandels & Hill’s Digest, § 6251.

It is contended by the railway company that the appellees made no contract with it, but contracted with one Nelson (as agent for whom it did not appear), and that Nelson was not authorized to contract for the company. Without discussing the evidence in this behalf, suffice it to say that we find from it that this contention is not maintained, and that there was a contract made by the company, through its agent, Nelson, for the building of that part of the road for building which the appellees claim that the railway should pay. It appears from the evidence that the appellees had the work done as contractors, that they furnished the labor and appliances necessary for the work, and paid for the same; but it does not appear that they personally did any labor or work upon the railroad.

Were they entitled to a lien upon the road, under the section of the statute quoted?

It is.not an easy undertaking, frequently, to distinguish between the kind of work and labor which is entitled to a lien, and that which is mere professional and supernumary employment, and not fairly coming within the meaning of the terms used in the statute. It has been held that an architect who furnishes plans and superintends the erection of a building acquires a lien thereon as for work and labor. Stryker v. Cassidy, 76 N. Y. 50; Mut. Benefit L. Ins. Co. v. Rowand, 26 N. J. Eq. 389.

In determining the question under consideration, it is important to look closely to the act of the legislature, and to consider the policy of such legislation and the intent of the legislature in passing the act in question. The act is entitled “An act to protect employees and other persons against railroad companies.” It will be observed that the act gives a lien only to such a mechanic, builder, artisan, workman, laborer, or other person, who shall do or perform any work or labor upon or furnish any materials, machinery, fixtures or other thing toward the equipment or to facilitate the operation of any railroad,” etc. We emphasize the words “who shall do or perform any work or labor.”

In Balch v. N. Y., etc., R. Co., 46 N. Y. 521, it is held that “the term ‘laborer’ cannot be construed as designating one who contracts for and furnishes the labor and services of others, or one who contracts for and furnishes one or more teams for work, whether with or without his own services, or the services of others to take charge of the teams while engaged in the service.” Gurney v. Atlantic, etc., R. Co., 58 N. Y. 358; Aikin v. Wasson, 24 N. Y. 482. In the Lehigh Coal & Nav. Co. v. Cent. R. Co., 29 N. J. Eq. 262, it is held that the right of preference under such a statute “is personal, inhering alone in the person who actually performs labor or service.”

Section 6251 of the digest, above quoted, was intended to secure and protect only the personal earnings of laborers, mechanics, builders, artisans, workmen, or laborers, or other persons who do or perform any work or labor upon any railroad, or furnish any material, machinery, fixtures,or other things toward the equipment, or to facilitate the operation, of any railroad. It does not apply to a contractor who does not actually perform any work or labor. So far as he may actually labor, he may come within the scope and meaning of this statute. That the purpose of this statute was to give a lien to those named in it for the work and labor by them actually performed is apparent. But its provision is limited to such as actually perform work or labor. They are usually poor men, dependent on their daily earnings, and can ill afford to lose this, or indulge in the uncertainties of litigation. The employer or contractor is, as a rule, just the opposite, and, for this reason, the object or purpose of a lien law for one by no means makes an argument for the other. Mohr v. Clark, 3 Wash. Ter. 440; Aikin v. Wasson, 24 N. Y. 482. “The right conferred by a lien in favor of laborers is personal, and cannot be availed of by one who furnishes labor.” 2 Jones, Liens, § 1630.

Considering the language of the statute and the purpose of its enactment, we are constrained to hold that the judgment and decree in the case, in so far as it declares a lien upon the roadbed, etc., of this railway, is erroneous.

So much of the decree of the chancery court as declares a lien upon the roadbed, etc., of the appellant railway is reversed, and, as to this, the cause is dismissed. In all other respects the decree is affirmed.