Ames v. Port Huron Log Driving & Booming Co.

'Campbell J.: The plaintiffs in error replevied certain saw logs, which the defendants in error had taken and sold as the property of the Black River Steam Mill Company (who then owned them) to satisfy an alleged lien, under section six of “An Act to provide for the Formation of Companies for Running, Driving, Booming, and Rafting Logs, Timber-, and Lumber, -and for regulating the Floatage thereof,” approved February 9th, 1855.— 1 Comp. L. p. 624, et secg. [270] The case shows that the defendants, without any contract or request on the part of the Black Fiver Steam Mill Company, took the logs in question, and ran them down Black Fiver to the Mill Company’s boom, where they were taken by the Mill Company’s servants and put inside of the boom, whence they were seized and removed by the defendants, and sold for the expenses of running, and bought in by the de-. fendants. The Mill Company had given a list of log-marks under section eight of the act;, and the sale was regular, if-authorized. The first objection is to the constitutionality of the act of incorporation. We have no doubt that, so far as it provides/ for the formation of companies, and their power to. make contracts, the act is valid. The view we have taken, of this case renders it entirely unnecessary to determine, whether any other portion of the. law is invalid or not. It is also objected, that the affidavit annexed to the articles of association is insufficient, in not setting forth the facts in detail. The law provides for a call, and a meeting in pursuance of published notice, at which meeting articles are to be. subscribed, which are subsequently filed. Directors are to be elected at such meeting, two of whom are required to make an affidavit “setting forth that all prior proceedings of said-association had been in strict conformity with all the pro-, visions of this act”; which affidavit is to be endorsed on, or annexed to, the articles. The object of this affidavit is to provide that no articles shall be filed which were not fairly and openly signed at a public meeting;- and the affidavit is., made' not conclusive, but only presumptive evidence. We think the act is satisfied by an affidavit made strictly according to its terms, and that the law does not require any detailed statement of facts. The affidavit before us contains the recital required by the act, and is in due form. The question next arises whether the defendants had any legal lien upon the logs, which they could enforce by sale, under the act. It is claimed, in their behalf that the deliv-. [271] ery, by tbe clerk of the Steam Mill Company, of a list of log-marks, operated as a contract for the running of all logs so marked. We think this is not so. The first clause of the eighth section provides that the log-driving company shall keep posted up a list of their members, and of all persons whose logs they have contracted to run, with a description of their several marks. The next clause provides that any other person may furnish and have posted a like list, and shall be entitled to thirty days’ notice of the sale of any logs upon which the company may have any lien for services. As the preceding clause had covered all cases of contract, it would be doing violence to the language of the law to hold that the last clause had any reference to contractors, or that filing a list of marks constituted a contract, or a request for any services. Its only object was to entitle the person filing to notice of sale in case, by any casualty, his logs should become so placed as to authorize the log-driving company to assume their management, and thus acquire a lien upon them. Inasmuch as there was no contract, the question next arises whether the case shows such a contingency to have happened as authorized the defendants to assume control over the logs, in order to run them down the river. This was only authorized by the sixth section, in cases where, by reason of logs having been put into the stream without adequate provision for running them without obstruction, some obstruction had actually- been created. In such ease, the log-company was authorized to break the obstruction, and run the logs down, and hold a lien upon them for that service. The case does not show that when the logs were taken in charge, any such accident had occurred, and the act of the defendants was therefore wholly unauthorized, and gave them no claim to compensation under the section referred to. This being so, it is not necessary to inquire into the validity of that section, or into the further questions raised upon the argument. [272] The court below erred in sustaining the claim of the defendants upon the facts of the case, and the judgment below must be reversed, and a new trial granted. The other Justices concurred.