The Tyler Tap Railroad Co. v. J. Driscol & Co., 52 Tex. 13

Gould, Associate Justice. Driscol & Co. sued the railroad company for work and labor done and materials furnished under a written contract, to erect the bridges and construct the cattle-guards on defendant’s road between Tyler, in Smith county, and Ferguson, in Upshur county, claiming a mechanic’s lieu on the railroad. Plaintiffs recovered judgment for $1,074.65, foreclosing also the lien claimed on the railroad, including the road-bed, franchise, and chartered powers and privileges, from Tyler to Ferguson.

The railroad company complains of that part of the judgment enforcing-the mechanic’s lien, and maintains that there was no law of the State at the date of the contract or judgment providing for a contractor’s or builder’s lien on railroads. On the part of appellees, the lien is claimed under “An act to provide for and regulate mechanics’, contractors’, builders’, and other liens in the State of Texas,” approved August 7, 1876, and under sections 35 and 37 of

article 16 of the Constitution, which they say give the lien without further legislation.

Section 35 of

article 16 of the Constitution requires the Legislature to pass laws to protect laborers on railroads and other public works against the failure of contractors and subcontractors to pay their wages. We think it manifest that this

section has no reference to contractors or builders, and the law enacted in pursuance of the

section shows that such was the view taken of it by the Legislature. (Rev. Stats., Appendix, p. 6; Aiken v. Wasson, 24 N.Y., 482; Balch v. Yew York and Oswego Railroad Co., 46 N. Y., 521.)

Section 37 of

article 16 reads: “Mechanics, artisans, and material-men of every class shall have a lien upon the buildings and articles made or repaired by them for the value of the labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of their liens.” The law enacted under this

section provides: “That any person or firm, lumber dealer, artisan, or mechanic who may labor or furnish material, machinery, fixtures, and tools to erect any bouse improvement, or to repair any building or any improvement whatever, shall have a lien on such house, building, fixtures, or improvements, and shall also have a lien on the lot or lots, or land necessarily connected therewith, to secure payment for labor done, lumber, material, or fixtures furnished for construction or repairs.” (Eev.

Statutes, title Liens, ch. 2.) The subsequent portions of this act, so far from containing anything showing that structures such as railroads were contemplated, has provisions which show the contrary. The lien given on land in the country extends to fifty acres, and on lots in a town includes the lots upon which the improvements are situated. (Eev. Stats., arts. 3169, 3170.) The person enforcing the lion is allowed to have the land or lots sold, or the improvements only. (Eev.

Statutes, art. 8171.) These provisions are inappropriate and insufficient to designate the extent of a lien on the bed of a railroad, and are inconsistent with the general railroad law, which contemplates the sale of “the entire road-bed, track, franchise, and chartered powers and privileges.” (Eev.

Stats., art. 4262.) The language of the statute does not indicate any intention to give a lien on railroad-beds and corporate franchises, nor are any of its provisions as to the extent of the lieu or the mode of its enforcement such as would be appropriate to such a lien. [Opinion delivered October 17, 1879.] The statute, in our opinion, does not embrace railroad-beds or franchises. Similar statutes have been construed in other States, and have been generally held not to embrace thorn. (Foster v. Fowler, 60 Penn. St., 2’7; La Crosse and Milwaukee Railroad Co. v.

Vanderpool, 11 Wis., 124.) In most of the States there are special statutes regulating ■liens on railroads. (Jones on E. E. Securities, sec. 582 etsaq.) The statute was evidently passed in obedience to

section 37 ■ of

article 16 of the Constitution, and shows the legislative ■ construction of that section. We concur in that construction, and think that the Constitution does not, of itself, impose the dien claimed, nor does it require the Legislature to do so. -Because of - the error of the District Court in enforcing a mechanic’s lien, the judgment is reversed and reformed so as ■to allow the plaintiffs’ moneyed judgment against defendant . to stand, but so as to give them no lien. Eeversed and reformed. [ Justice .Bpniíer did .not .sit in tlfis case.]