Vane v. Newcombe/Opinion of the Court

It is contended for Vane that he has a lien under section 1 of the Act of 1877, (section 5286, Rev. St.) That section gives a first and prior lien upon the corporate property of any corporation doing business in Indiana, whether organized under the laws of that state or otherwise, and upon the earnings of such corporation, to its employes, for all work and labor done and performed by them for the corporation, from the date of their employment by it. It seems clear to us that Vane was a contractor with the company, and not an employe, within the meaning of the statute. We think the distinction pointed out by the circuit court is a sound one, namely, that to be an employe within the meaning of the statute Vane 'must have been a servant, bound in some degree, at least, to the duties of a servant, and not,' as he was, 'a mere contractor, bound only to produce, or cause to be produced, a certain result,-a result of labor, to be sure,-but free to dispose of his own time and personal efforts according to his pleasure, without responsibility to the other party.' It is to be noted that the statute gives a lien to employes of the corporation only for work and labor done and performed by them for the corporation. It does not give a lien for the value of materials furnished, nor for advances of money made. It is confined to work and labor done and performed, and to work and labor done and performed by employes of the corporation, and to work and labor done and performed by employes of the corporation for the corporation. In this respect there is a marked difference between the provisions of section 5286 and the provisions of section 15 of the Act of March 8, 1879, (Laws 1879, p. 22; section 5471, Rev. St. 1881,) which gives a lien, in coal mines, on the mine, 'and all machinery and fixtures connected therewith, including scales, coal-bank cars, and everything used in and about the mine,' to 'the miners and other persons employed and working in and about the mines, and the owners of the land or other persons interested in the rental or royalty on the coal mined therein,' 'for work and labor performed within two months, and the owner of the land, for royalty on coal taken out from under his land, for any length of time not exceeding two months.' This miners' statute gives a lien to all persons 'employed and working in and about the mines,' for work and labor performed by them, without stating that they must be employes of the owners of the mine, or of the persons working it, or of the persons owning the machinery and fixtures, and without stating that they may not be persons working in and about the mine, employed by contractors doing work under contract for the owners of the mine, or for the owners of the machinery and fixtures. The general mechanics' lien law of Indiana, (section 5293, Rev. St. 1881,) subsequently reenacted by the act of March 6, 1883, (Laws 1883, p. 140,) provided that 'mechanics, and all persons performing labor or furnishing materials for the construction or repair of any building, or who may have furnished any engine or other machinery for any mill, distillery, or other manufactory, may have a lien separately or jointly upon the building which they may have constructed or repaired, or upon any buildings, mill, distillery, or other manufactory for which they may have furnished materials of any description, and on the interest of the owner in the lot or land on which it stands, to the extent of the value of any labor done or materials furnished, or for both.' This mechanic's lien statute gives a lien upon a building to all persons who perform labor or furnish materials for the construction or repair of the building, even though they do it under a contract, and is not confined to employes of the owner of the building; and it also gives a lien upon a manufactory to persons who may have furnished machinery or materials for the manufactory, even though they may have done so under contract with the owner of the manufactory, or under contract with the contractor with such owner. The supreme court of Indiana, in Colter v. Frese, 45 Ind. 96, in 1873, in construing that statute, which was section 647 of the then existing Revised Statutes, held that a person who furnished materials, not to the owner, but to the contractor, for the erection of a new building, could acquire and enforce a lien on the building, and on the interest of the owner of the land on which the building stood, to the extent of the value of the materials furnished.

In view of these provisions of other lien statutes of Indiana, the limited language of section 5286 is very marked, and justifies the interpretation that the provisions of that section are to be confined to a special class of persons. It is a rule of interpretation recognized by the supreme court of Indiana in Stout v. Board, 107 Ind. 343, 348, 8 N. E. Rep. 224, that 'in case of doubt or uncertainty, acts in pari materia, passed either before or after, and whether repealed or still in force, may be referred to in order to discern the intent of the legislature in the use of particular terms, or in the enactment of particular provisions, and, within the reason of the same rule, contemporaneous legislation, not precisely in pari materia, may be referred to for the same purpose.' The view above taken of the statute under consideration is supported by adjudged cases. In Aikin v. Wasson, 24 N. Y. 482, in 1862, it was held that a contractor for the construction of part of a railroad was not a laborer or servant, within the provision of the general railroad at of New York, making stockholders of a railroad corporation personally liable 'for all the debts due or owing to any of its laborers and servants for services performed for such corporation.' In Munger v. Lenroot, 32 Wis. 541, in 1873, under a statute which gave a lien on logs or timber for the amount due for his labor or services, to any person who did or performed any work or services in cutting, felling, hauling, driving, running, rafting, booming, cribbing, or towing such logs or timber, it was held that such person was entitled to such lien, not only when employed by the owner of the logs or of the land from which they were cut, but also when employed by a contractor under such owner. The court was of the opinion that the legislature intended to give the lien absolutely to the laborer, regardless of the question whether he had rendered the services under a contract with the general owner or not. This decision was based upon the special language of the statute, in not excluding a person employed by a contractor. In Wakefield v. Fargo, 90 N. Y. 213, in 1882, it was held that a person employed by a corporation, at a yearly salary, as a book keeper and general manager, was not a laborer, servant, or apprentice, within the provisions of a statute of New York making the stockholders of the corporation 'liable for all debts that may be due and owing to their laborers, servants, and apprentices for services performed for such corporation.' The view taken by the court was that the services referred to were menial or manual services; that he who performed them must be of a class who usually looked to the reward of a day's labor or service for immediate or present support, from whom the company did not expect credit, and to whom its future ability to pay was of no consequence,-one who was responsible for no independent action, but who did a day's work or a stated job under the direction of a superior; that the word 'servant' must be limited by the more specific words 'laborer' and 'apprentice,' with which it was associated, and be held to comprehend only persons performing the same kind of service that was due from laborers and apprentices; and that a general manager was not ejusdem generis with an apprentice or laborer. In Gurney v. Railway Co., 58 N. Y. 358, in 1874, a case relied on by the appellant, a receiver of a railroad company was directed by an order of court to pay out of moneys in his hands 'arrearages owing to the laborers and employes' of the company 'for labor and services actually done in connection with' the company's road. Claim was made by a counselor at law for professional services as counsel for the railroad company, rendered prior to the appointment of the receiver. The question raised was whether the language of the order covered employes who had not been in the stated and regular employment of the company. The court held that, in view of the special language of the order, it included the claim for the professional services. It appeared that the order was made as the result of negotiations in regard to which the counsel under whose advice the order was obtained testified that the word 'employes' was used in the negotiations 'not in any particular or strict sense, but according to its ordinary and general meaning, as including attorney's compensation as well as that of other persons employed by the corporation.' The decision appears to have gone upon the ground that the person who made the claim had rendered 'services' in connection with the railroad, and was consequently an employe, within the meaning of the order. We are, therefore, of opinion that Vane had no lien under the act of March, 1877, (section 5286, Rev. St.)

It is further contended that Vane had a lien by virtue of the general mechanic's lien law, before referred to, which was re-enacted by the act of March 6, 1883, (Laws 1883, p. 140; Elliott's Supp. 1889, §§ 1688, 1690,) in the following language: 'Section 1. Be it enacted by the general assembly of the state of Indiana, that mechanics, and all persons performing labor or furnishing material or machinery for erecting, altering, repairing, or removing any house, mill, manufactory, or other building, bridge, reservoir, system of water-works, or other structure, may have a lien, separately or jointly, upon the house, mill, manufactory or other building, bridge, reservoir, system of water-works or other structure, which they may have erected, altered, repaired, or removed, or for which they may have furnished material or machinery of any description, and on the interest of the owner of the lot or land on which it stands, or with which it is connected, to the extent of the value of any labor done or materials or machinery furnished, or both.' 'Sec. 3. Any person wishing to acquire such lien upon any property, whether his claim be due or not, shall file in the recorder's office of the county, at any time within sixty days after the performing of such labor or furnishing such materials or machinery, notice of his intention to hold a lien upon such property for the amount of his claim, specifically setting forth therein the amount claimed, and giving a substantial description of such lot or land on which the house, mill, manufactory, or other building, bridge, reservoir, system of water-works, or other structure may stand or be connected with, or to which it may be removed. Any description of the lot or land in a notice of lien will be sufficient, if, from such description, or any reference therein, the lot or land can be identified.' In regard to this, it is sufficient to say that the notice of lien filed by Vane in September, 1884, did not comply with section 3 of the statute, in regard to a description of the 'lot or land' on which the structure stood upon which he claimed a lien.

A common-law lien and an equitable lien are also claimed. As to the common-law lien, the master reported 'that, by perfecting his claim for a lien under the statute, Mr. Vane waived the right he had, if any, to assert his common-law lien.' We concur in this view, as to the personal property and earnings of the corporation. As to the poles and wires, they were real estate, on which there could be no lien at common law. In addition to this, Vane gave up any right he had to a common-law lien, as to the wires, by giving up possession of them on November 19, 1884. The lien referred to in the paper of that date, signed by the receivers, as a lien claimed by Vane, was the statutory lien which he had attempted to secure by his notice dated September 15, 1884. Nor do we see any ground for saying that he had or retained an equitable lien.

It is also claimed that the instrument of November 19, 1884, fixed a lien upon the property. We do not so understand it. It conferred no new right upon Vane. It only refers to such lien, if any, as existed,-to a lien claimed by him. Where it speaks of 'the lien of the said Vane,' it refers to what it had before spoken of as the lien claimed by him. The purport of the paper is simply that the use of the wires by the receivers shall not be construed as impairing or interfering with the lien claimed by Vane, that is, with any lien which existed under the statute under which he had given and filed his notices, dated September 15, 1884.

Decree affirmed.