Walker v. Mississippi Val. & W. Ry. Co.

DILLON, Circuit Judge, delivered the opinion of the court, orally. THE COURT held- 1. That it was competent for the legislature, and within the legitimate scope of legislative power, to provide in the act, entitled “An act to protect contractors, sub-contractors and laborers in their claims against railroad companies or corporations, contractors or subcontractors,” approved March 21st, 1873 (Sess. Acts 1S73, p. 58), that the lien given by the act should be prior to all mortgages or incum-brances placed upon the railroad property subsequent to the passage of the act. There is no constitutional objection to such a provision. Phil. Mech. Liens, pp. 46, 47, § 30; Stonewall Jackson Loan & Building Ass’n v. McGruder. 43 Ga. 9; Hildebrand’s Appeal, 39 Pa. St. 133; Blauvelt v. Woodworth, 31 N. Y. 285; Hicks v. Murray, 43 Gal. 515; Davis v. Bilsland, 18 Wall. [85 U. S.] 659. 2. The lien given by the lien act is prior to all mortgages or incumbrances placed upon the railroad and its property subsequent to March 21, 1873, the date of the approval of the law. The phrase “subsequent to the passage of this act,” and in the second section of the act, means subsequent to the approval by the governor. And a mortgage lien placed upon the railroad and its property between the date of the approval of the act, to-wit: — March 21st, 1873, and June 19th, 1S73, the end of ninety days after the approval, is subordinate and inferior to the lien of the contractor, laborer or material-man acquired under the lien act. As to the meaning of the phrase “passage of an act,” see In re Tebbetts [Case No. 13,817] opinion of Judge Story; Johnson v. Fay, 16 Gray, 144. And as to when an act is passed, Logan v. State, 3 Heisk. 442; Wartman v. City of Philadelphia, 33 Pa. St. 202; People v. Clark, 1 Cal. 406; Brainard v. Bushnell, 11 Conn. 17; In re Richardson [Case No. 11,777].