Foster & Co. v. Fowler & Co. ( 1869 )

The opinion of the court was delivered, by

Thompson, C. J.

This was a case of an attachment-execution, issued by Fowler & Co. against Joseph L. Lowry, and served on the Monongahela Water Company, an alleged debtor of Lowry, as garnishee. There was an interpleader issue ordered by the court between the plaintiffs and defendants in error, and another party, to try who was entitled to the money due by the company to Lowry. Fowler & Co. claimed it by virtue of the service of an execution-attachment on the 10th of May 1866; Foster & Co., by virtue of a mechanics’ lien against the company filed June 6th 1866, for materials furnished Lowry, the contractor of the company, for building a pumping-engine; and David Lowry claimed it under an alleged assignment by Joseph L. Lówry of all interest in his contract with the company, dated the 19th of December 1865. The jury found against the validity of the assignment on the facts, and also against Foster & Co., on the charge of the court that the mechanics’ lien filed by them was not operative against the company, and in favor of Fowler & Co., and that the sum of $2327.72 remained due the defendant, Joseph L. Lowry, by the company, applicable to their writ. The case here, however, is exclusively between the plaintiffs and defendants in error, and turns upon the question whether a mechanic’s lien is valid in law against property essential to the operations of the company. We are assuming nothing in stating the proposition thus, for undoubtedly the pumping-engine and engine-house of the company, would be absolutely necessary to raise water to the company’s reservoirs, in order to supply the districts intended to be supplied with water. It was to these the lien, if any, attached — to property vital to the objects of the corporation, and which, if it might be deprived of by execution on such a lien, would stop or suspend the operation of the works altogether, to the great deterioration, and perhaps destruction of the stock, to the injury of the inhabitants relying on the works for water; and to the company, by rendering the balance of the works worthless. The question is, therefore, a grave one, whether the mechanic’s lien, in a case precisely of this nature, is a remedy to secure a material-man; because if it be clearly so, we need not vex ourselves with contemplating embarrassing consequences; the law injures no one, even if such consequences follow its provisions.

In the able argument of the learned counsel of the plaintiffs in error, it was claimed that, we should consider the question of lien without reference to its possible enforcement. This would be too abstract and unpractical; for the lien abstractly is nothing — its consequences or results, everything. The fruits of a lien are what the plaintiffs in error are contending for. We cannot, therefore, look at the question of lien, without reference to the legal consequences of it; and if they would necessarily contravene settled principles, it is evident that such an effect should not be given, and was not intended by the law; and if it be incapable of the practical results assigned by law to it, it is inoperative, is no lien. We must, therefore, regard the consequences of holding the claim filed to be a lien, one of which, and the principal one, is, that by virtue of it, the property bound by it would be subject to a sale on a levari facias, and then would follow the depreciation of the stock, the inconvenience to the public, and injury to the remaining property of the company, already referred to. We do not agree with the learned counsel, therefore, that in considering the question of lien we ought to ignore the possibility of its enforcement. The entry of the claim is parcel of a legal remedy, the whole of which remedy it is necessary to consider in order to determine whether it is a proper remedy, in any given case.

Most people acquainted at all with corporate action, understand that corporations, other than municipal, which are purely public, naturally divide into public and private corporations; that is, into those that are agencies of the public directly affecting it, and those which only affect it indirectly, by adding to its prosperity in developing its natural resources, or in improving its mental or moral qualities. Of the former, are corporations for the building of bridges, turnpike roads, railroads, canals, and the like. The public is directly interested in the results to be produced by such corporations, in the facilities afforded to travel and the movements of trade and commerce. It is well settled that this use is not to be disturbed by the seizure of any part of their property essential to their active operations, by creditors. They must recover their debts by sequestering their earnings, allowing them to progress with their undertaking, to accommodate the public. This direct benefit to, and accommodation of the public, very clearly distinguish this class of corporations from the second class, viz.: private corporations, or those in which the public is but indirectly interested, such as mining and manufacturing, or coal and iron companies, &e., or libraries, literary societies, schools, and the like. Whether they progress or cease, the public is not directly affected, and hence liens are enforceable against them without, as a general' thing, any regard to the effect upon their operations. How this is to be done in given cases is in no way germane to the subject of this opinion, and need not be further noticed.

_ We make the classification referred to in order the more readily to determine to which the corporation in question properly belongs. That the legislature regarded it in the light of a public corporation as above defined, we think will be apparent from a very slight analysis of the objects of its creation and its powers.

By the 7th section of the act of incorporation, we learn that the object in view, and to be accomplished by the company, was the introduction into the boroughs of Birmingham, East Birmingham and South Pittsburg, of a sufficient supply of Monongahela river water, for the use of the inhabitants of those boroughs, and for the supply of hydrants and fire-plugs, for the extinguishment of fires accidentally occurring therein.

The corporators were to do this under their charter, in preference to, and instead of, the boroughs in their corporate capacities, and to enable them to accomplish the enterprise effectually they were, as a company, invested by the act with the right of eminent domain, for the acquisition of necessary and suitable grounds for the erection of buildings and sites for reservoirs, and with the right and privilege of entering upon the lands of private owners, to dig and lay down water-pipes or mains therein, and to enter thereon at all times to repair or renew the same. The company was also authorized to borrow money in order to accomplish the work, and to mortgage or pledge the property and effects of the corporation for its repayment. A provision is also contained in the charter for the eventual transfer of the works to the municipal corporations above mentioned. It is thus not only a public corporation in its powers and purposes, but is subject to become municipal property.

It will hardly be disputed that the operations of this corporation were to supply not a convenience only, but a matter of prime necessity directly to the public, and to be regarded as directly affecting the public. It is, in this aspect, as important to the public as are convenient roads and highways, which, when constructed by companies, are always regarded as the works of public corporations. That this is the light in which such an undertaking as this is to be regarded, we have the authority of this court. In The Borough of Harrisburg v. Crangle, 3 W. & S. 461, the right of eminent domain conferred on the borough authorities, along with the power granted to erect waterworks by the Act of 26th March 1839, was fully and unhesitatingly affirmed by this court, and to it we refer. The fact that the power was conferred on the borough authorities to engage in an enterprise confessedly not within the scope of their municipal powers, placed them in the category of private adventurers, and thus the decision stands as authority, that the purpose was a public one, and authorized the grant of eminent domain to it; and if so in that case, it is in this.

It is something, also, that the legislature regarded this as a public corporation by giving it the power of eminent domain. Still, if it were not essentially so in its nature, the power would not make it so. The power itself would fall. Private property cannot be taken on any terms by legislative authority for private purposes. This is effectually prohibited by the 10th section of article I. of the Constitution of the United States. But we think the power was properly conceded to the purpose in this case, it being public in its nature and design.

Regarding the corporation of the Monongahela "Water Company, therefore, as a public corporation, it stands on the principles announced in Ammant v. The Turnpike Co., 13 S. & R. 210; The Turnpike Co. v. Wallace, 8 Watts 316; and The Susquehanna Canal Co. v. Bonham, 3 W. & S. 27. In this last case, Sergeant, J., said “the privileges granted to corporations’to construct turnpike roads, canals, &c., are conferred with a view to the public use and accommodation, and they cannot voluntarily deprive themselves of the lands and real estate, and franchises which are necessary for that purpose; nor can they be taken from them by execution and sold by a creditor, because to permit it would defeat the whole object of the charter, by taking the improvements out of the hands of the corporation and destroying their use and benefit.”

As a mechanic’s lien is the foundation for process of sale, we should yield the principle thus clearly stated, by holding it applicable to erections of works of the description we are considering, having settled its object and use to be public. We think the remark of Lowrie, J., in Williams v. The Controllers, 6 Harris 275, is in point here, “ that where there can be no execution, there can be no action;” and that is as true in this ease, if we are right in the character we have assigned to this corporation, as it was in that.

We are thus carried to the conclusion that the mechanic’s claim filed in this case was no lien, and that the court below was right in so holding. This may operate hardly on the plaintiffs in error, unless they have a remedy against the company, which they undoubtedly have, if they can establish their claim as a debt against it; the hardship of the case, however afflicting it may be, must not be permitted to attract us away from principles well settled, and of the utmost importance to the public generally. We must, therefore, affirm this judgment.

Judgment affirmed.