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UNITED STATES, to Use of SABINE & E. T. RY. CO. v. HYATT
PARLANCE, District Judge (after stating the facts as above).
Under the view which we take of this cause, it is unnecessary for us to pass upon certain matters discussed at considerable length in the briefs, such as the question whether the execution of the bond by F. A. Hyatt & Co. to the railway company, the proceedings on that bond in the state court, including the release of a surety on that bond and the granting of time to the principals, operated, quoad the railway company, the discharge of the obligation of the sureties on the bond executed by F. A. Hyatt & Co. to the United States.
These and other matters discussed in the briefs are based upon the assumption that the railway company was a beneficiary of the bond executed to the United States. We are clearly of opinion that the railway-company never had a right of action on tMs bond.
The act of congress approved August 13, 1894 (28 Stat. 278), provides that persons who contract with the United States to perform public work shall 445 add to the usual penal bond an obligation to promptly pay all persons who supply “labor and materials” in the prosecution of the work. It is plain that the railway company did not supply “materials,” for the stone which it carried was not supplied by it.
The question is, did the railway company supply labor to the contractors, ivithin the intendment of the act of congress just mentioned? This labor would consist in carrying the stone, the labor of loading and unloading being performed by the contractors.
The labor which congress intended to protect, by the act under discussion, is evidently labor used directly upon the public work, claims for which would be made by the laborers primarily against the work; thus impeding, possibly, the prosecution of the work and hampering the government officers. Congress could not have intended to include in the term “labor,” as used in this act, the freight charges of a railroad on materials carried by it.
The railroad is abundantly protected by its lien on freight, and congress did not contemplate that a charge for transportation by a railroad would be made against the work, and certainly not when the carrier was fully secured otherwise. We notice, incidentally, that it is apparent that the railway company believed that it had no recourse against the bond executed to the United States, and that it protected itself, and proceeded throughout in accordance with that belief. The judgment of the lower court is affirmed.