Phœnix Iron Co. v. Roanoke Bridge Co.

BROWN, J. The defendant is a corporation, chartered under the laws of Virginia, and has been declared insolvent, and receivers appointed in that State for its assets. The Virginia receiver, J. H. Schon-ley, and Jacob Battle were appointed ancillary receivers for the assets of the corporation in this State by order made in this proceeding. A petition is filed by Simon Foss and others whose names are -in section 4 of the decree of Garter, judge, setting out their debts against the said defendant, and asking to be declared preferential creditors under section 1206 of the Revisal, which reads as follows: “Wages for two months lien on assets. In case of the insolvency of any corporation, the laborers and workmen and all persons doing labor or service of whatever character in the regular employment of such corporation, shall have a first and prior lien upon the assets thereof for the amount of wages due to them respectively for all labor, work, and services done, performed or rendered within two months next preceding the date when proceedings in insolvency shall be actually instituted *513 and begun against such insolvent corporation, which lien shall be prior to all other liens that can or may be acquired upon or against such assets.” It is useless to consider the right of the receivers to appeal in a case of this kind, as the same- point is involved in the appeal of the Manufacturers Finance Company, and we will, therefore, consider the question on its merits. It appears from the findings of fact that the defendant contracted with the board of commissioners of Lenoir County to construct a bridge across Neuse Eiver; that the defendant employed, in the work of construction one of its regularly organized construction crews, together with certain unskilled helpers, hired for stipulated wages by the foreman in charge of the work. In order to secure the transportation from its point of delivery along the railroad to the bridge of the structural steel, cement, and much of the stone entering into the construction of said bridge, the foreman of defendant entered into a contract with the petitioners, Simon Foss and others, citizens of Lenoir County, to transport the said material at' the contract price of 1214 to 15 cents per hundred pounds; that a similar contract was made with others for the transportation of other material entering into the construction of said bridge by water from New Bern to the said bridge site. These petitioners, according to the sworn affidavits filed, setting out their indebtedness, furnished teams and wagons, some furnishing one team, and some furnishing as many as four, together with the drivers for the said teams, and hauled the said material at the contract price above named, from its point of delivery along the railroad to the bridge site. The amounts due them are set out in the report of the receivers and in the affidavits filed by the said petitioners. • His Honor held that the claims of the petitioners came within the purview of the statute, and that they were entitled to a decree giving them preference over other creditors in the distribution of the North Carolina assets of the corporation. In this we think there is error. The language of the statute is plain and free from ambiguity and expresses a single, definite and sensible meaning. This meaning is conclusively presumed to be the meaning which the Legislature intended to convey. The language used is admirably fitted to give expression to the legislative intent with respect to the favored class of creditors to which it undertakes to accord preferential treatment in the distribution of the assets of insolvent corporations, and small latitude is afforded for speculation. The favored creditors are “laborers and workmen and all persons doing labor or service of whatever character in the regular employment of certain corporations *514 In Rogers v. Dexter and P. Railroad Co., 85 Me., 372, 21 L. R. A., 528, it is said: “Etymologically tbe word ‘laborer’ may include any person wbo performs physical or mental labor under any circumstances, but its popular meaning is more .limited. Tbe farmer toiling on bis own farm, tbe blacksmith working in bis own shop, tbe tailor making clothes for bis own customer is not called a laborer. One wbo performs physical labor, however severe, in bis own service or business is not a laborer in tbe common business sense. A contractor, wbo tabes tbe chance of profit or loss, is not a laborer in that sense. In tbe language of tbe business world, a laborer is one wbo labors with bis physical powers, in tbe service and under the direction of another, for fixed wages. This is tbe common meaning of tbe word, and hence its meaning in tbe statute.” See, also, Indianapolis Co. v. Brennan, 30 L. R. A., N. S., 85. In that case tbe Supreme Court of Indiana, construing a similar statute to ours, says, after quoting tbe Rogers case, supra: “Quotations in support of our contention might be made from many of tbe other authorities hereinbefore cited, but to do so is unnecessary, and would only serve to extend this opinion. It must follow, and we so bold, that tbe term ‘laborers’ as used in tbe title of tbe act in question, cannot be interpreted or construed to apply to' a class of persons denominated and known as contractors, and was not so intended by tbe Legislature.” See, also Moore v. Industrial Co., 138 N. C., 304; Alexander v. Parrow, 151 N. C., 320. In Fortier v. Delgado, 59 C. C. A., 180, 122 Fed., 604, it was held that contractors for tbe work of loading sugar cane onto cars at a certain price per ton are not workmen or laborers employed on a plantation, within tbe meaning of a statute giving preference to their wages. In Moyer v. State Co., 71 Pa., 293, 298 (8 Words and Phrases, page 7523), it was held that tbe term “mechanics, workmen, and laborers employed by tbe company,” in an act incorporating a slate company, which provides that tbe stockholders shall be individually liable for debts due mechanics, workmen, and laborers employed by tbe company, does not include a teamster using bis own! team and contributing bis own time in hauling slate for tbe company for certain compensation, nor of a wa'gonmaker repairing wagons for tbe company.” See, also, Louisville, Evansville and St. Louis Railroad Co. v. Wilson, 138 U. S., 501 (34 L. Ed.), 1023, 1025; 5 Labatt Master and Servant (2 Ed.), sec. 1946a. Tbe term “wages,” in its legal as well as in its popular sense, has been defined in many cases, and .means tbe compensation given by a master or employer to a hired person or employee. Tbe law contem *515 plates a hiring. Upon this theory, the word “wages” as used in the Pennsylvania statute of 9 April, 1872, relating to liens for wages, was declared by the Supreme Court of Pennsylvania to imply a hiring, and the relation of employer and employee, master and servant, and the preference given by the act cannot inure to the benefit of a contractor who does work or employs -others to do it at a contract price. Diller v. Frantz, 17 Pa. Ca. Ct. R., 306; 8 Words and Phrases, 7369. See, also, 5 Labatt Master and Servant (2 Ed.), sec. 1940; 2 Lewis Southerland Statutory Construction, sec. 422. In Vane v. Newcombe & Smith, Receivers of Bankers and Merchants Telegraph Co., 132 U. S., 220 (33 L. Ed.), 310, the plaintiff, having contracted with the company to string, at a stipulated price per mile, telegraph wires, to be furnished by the company, on and along a line of poles owned by it, upon the completion of such undertaking, sought, in pursuance of the provisions of Revised Statutes of Indiana, secs. 5286 and 5287, giving employees of corporations “a first and prior lien upon the property of such corporation, and the earnings thereof, for all work and labor done and performed,” to assert a lien for the amount due him under said contract. In discussing the matter, Mr. Justice Blatclv-ford, speaking for a unanimous Court, said: “The case was heard on these exceptions (to report of master) by Judge Woods, holding the Circuit Court. His opinion recites the material findings of the master, and then says: ‘In the opinion of the Court, the petitioner had no lien at common law or in equity, and was not an employee of the telegraph company within the meaning of the statute referred to by the master. To be entitled to the benefits of this stature, and other of like character since' enacted, I think it clear that the employee must have been a servant, bound in some degree at least to the duties of a servant, and not, like the petitioner, 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, but without responsibility to the other party. In respect to the sums found due the petitioner, the report is confirmed ; but, to the allowance of a lien, exceptions sustained.’ ” See, also, Todd v. R. R., 18 L. R. A., 305; In re Clark, 52 N. W. Rep., 637; In re Bookbinding Co., 42 Atlanta, 575; People v. Remington, 45 Hum., 329; Littlefield v. Morrill, 97 Me., 505; In re Stryker, 158 N. Y., 526. It is useless to quote further authorities. They are practically unanimous in holding that under the facts of this ease the petitioners were not servants or employees of the defendant, but were contractors furnishing, not only their own labor and the labor of others, but that of their teams and wagons, all of which entered into the making up of the contract price for the transportation of material to the bridge site. *516 We are of opinion that under tbe statute the petitioners are not entitled to preference over other creditors of the defendant. Let the costs be taxed against said petitioners, whose names are set out in section 4 of the decree of Judge Garter. The judgment of the Superior Court is Reversed.