CALDWELL v. STEINFELD et al., 294 F. 270

GILBERT, Circuit Judge (after stating the facts as above). The appellant contends that the statute applicable to the question whether he is given a lien by the law of Arizona is paragraph 3639, Civ.

Code 1913, which creates a lien for— “one who may labor or furnish materials, machinery, fixtures or tools to be used in the construction, alteration, erection, repair or completion of any building or other structure or improvement whatever.” The appellees contend that the applicable statute is paragraph 3653, which provides: “All persons who may labor or furnish material of any kind in the construction, alteration or repair of any canal, water ditch, flume or aqueduct or reservoir, bridge, fence or other structure or improvement, and to whom money or wages aro due, or owing therefor, shall hereafter have a lien upon the same for such sums as are unpaid.” Both sections are contained in the Revised Statutes of Arizona of 1913, and both were in force at the time of the transactions referred to in the complaint herein.

It seems clear to us that paragraph 3653 is the statute which controls decision in the present case. It refers to and names explicitly the kind of structure or improvement which is described in the complaint, If-paragraph 3639 were the only statute giving a lien, it might be held that the canal and ditches described in the complaint herein were contemplated in the words “other structure or improvement”; but where, as here, there is a specific statute naming a precise form of structure or improvement, it must prevail over a .more general statute under the rule announced in United States v. Chase, 135 U.

S. 255, 260, 10 Sup. Ct. 756, 757 (34 L. Ed. 117), where the court said: “It: is an old and familiar rule tliat, ‘where there is, in the same statute, a particular enactment, and also a general one, which, in its most comprehensive sense, would include what is embraced in the former, the partienlar enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.’ ” So in Townsend v. Little, 109 U. S. 504, 512, 3 Sup. Ct. 357, 362 (27 L.

Ed. 1012), the court referred to the well-settled rule: “That general and specific provisions, in apparent contradiction, whether in the same or different statutes, and without regard to priority of enactment, may subsist together, the specific qualifying and supplying exceptions to the general.” The question remains whether under

section 3653 the appellant may be said to be one who has labored or furnished material of any kind in the construction, alteration, or repair of the irrigation system described in the complaint. We think the question must be answered in the negative.

It seems unanimously to have been held under lien statutes similar to that which is here under consideration that the owner of horses, equipment, or machinery, who furnishes them to another to aid in construction or improvements, or in any work for which a lien is given, but who performs no manual labor or other services in connection therewith, is not entitled to a lien. 17 R. C. L. 1120; Mc-Kinnon v. Red River Lumber Co., 119 Minn. 479. 138 N. W. 781, 42 L. R. A. (N. S.) 872; Potter Mfg. Co. v. A. B. Meyer & Co., 171 Ind. 513, 86 N. E. 837, 131 Am. St. Rep. 267; Lohman v. Peterson, 87 Wis. 227, 58 N.

W. 407; Mabie v. Sines, 92 Mich. 545, 52 N. W. 1007; Edwards v. Waite Lumber Co., 108 Wis. 164, 84 N. W. 150, 81 Am. St. Rep. 884; Richardson v. Hoxie, 90 Me. 227, 38 Atl. 142. The appellant'cites cases arising under surety bonds, such as Multnomah Co. v. United States Fidelity & Guaranty Co., 92 Or. 146, 180 Pac. 104, and Dawson v. Northwestern Const. Co., 137 Minn. 352, 163 N. W. 772, decided by the Supreme Court of Minnesota. In the Oregon case the court affirmed the construction which had been given to the Oregon statute in Multnomah Co. v. United States F., etc., Co., 87 Or. 198, 170 Pac. 525, U. R.

A. 1918C, 685, in which it had been pointed out that the act and the bond under consideration were susceptible of a more liberal construction than the lien statutes, and that the construction of the latter would afford but little assistance in arriving at the intent of the former. So in the Minnesota case the obligor in the bond was to pay all just claims for “all work and labor performed and all skill, tools, machinery, or material furnished,” and the court distinguished the case from its prior decision in McKinnon v. Red River Lumber Co., 119 Minn. 479, 138 N. W. 781, 42 L. R. A. (N.

S.) 872, which we have cited above, and observed that the statute and'bond under consideration in the Dawson Case “used language that is much broader.” The 'decree is affirmed. <§zs>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes