action be commenced within that time to enforce the same" (Laws 1890, c. 30) -and containing a clause formally repealing the old act, the latter having been passed in 1888. Notwithstanding such repeal, the Supreme Court construed the new statute as a continuation of the old one, with the modifications as provided in the new act, saying (164 U. S. 11, 17 Sup. Ct. 9, 41 L. Ed. 327): "Upon comparing the two acts of 1888 and 1890 together, it is seen that they both legislate upon the same subject, and in many cases the provisions of the two statutes are similar and almost identical. Although there is a formal repeal of the old by the new statute, still there never has been a moment of time since the passage of the act of 1888 when these similar provisions have not been in force. Notwithstanding, therefore, this formal repeal, it is, as we think, entirely correct to say that the new act should be construed as a continuation of the old with the modification contained in the new act." And the court held that the 90 days allowed by the act of 1888 after the filing of the claim of lien, for the commencement of an action to enforce it, was extended by section 21 of the act of 1890 to one year, and that as such extension became effective before the work in that case was completed and the claim of lien filed, suit for the labor lien claimed was not required to be commenced before the expiration of one year from the time of the filing of the claim, the court saying: "The two acts in question here are of a similar nature, relating to the same general subject-matter, and making provisions for the creation and enforcement of mechanic's liens. The new act of 1890, although in terms repealing the earlier act, is yet in truth, and for the reasons already given, a continuation of that act with the modifications as provided in the new one. One of those modifications is the extension of the time in which to commence the action to foreclose the lien after the filing of the statement which claims it. Where at the time of the passage of the new act the proposed lienor has only entered upon the execution of his contract and has not yet completed the work under it, we think that at least as to him the provision enlarging the time in which to commence the action to foreclose the lien is applicable, and there is no retroactive effect thereby given to that provision of the new act. "It may be asked what effect is given under this construction to the language of the proviso contained in section 32 of the act of 1890, already quoted. The answer is that the mere enlargement of the time in which to commence the action, at least in a case where the time had not yet arrived in which to file any statement of the plaintiff's claim for a lien, does not affect any right or remedy provided for in the old act. The right, as that term is used in the statute, consisted of the right of sale of the property in order, if necessary, to obtain payment of the money due the contractor. The remedy consisted of the taking of certain proceedings by which this sale was to be accomplished. Prior to the arrival of the time when one of these steps was to be taken, an alteration of the statute by which the time to take that step might be enlarged was not an alteration of the 'right' or of the 'remedy,' as those terms are used in the statute, nor did it in any way affect either; it was simply an alteration of the mere procedure in the course of an employment of a remedy, the remedy itself remaining untouched or unaffected by such alteration. In this case such an enlargement of time to commence an action was given before the time had arrived in which the action could have been commenced under the old statute. The new statute was prospective in its operation, even as applied to this case. Of course, if the new act had curtailed the time in which to bring the action, after the time had commenced to run under the old statute, totally different considerations would spring up, and what was a mere alteration of procedure, having really nothing to do with a remedy in the one case, might, in the other, most seriously affect it, and hence come within the proviso in question. Under the facts of this case the right or remedy of the plaintiff was not touched, or, in the language of the proviso, was not 'affected' by the enlargement of the time in which to commence the action, and therefore the proviso did not take the plaintiff's case out of the application of the section in the new act providing such enlarged time. "Under the construction given by us to the act of 1890, as a continuation of that of 1888, with modifications, the question as to which act the lien is claimed under is not specially material. In effect, it is one act, and those labors, etc., which were performed before the passage of the act of 1890 are added to those performed thereafter. The lien is really claimed by virtue of the fact that at the time when the contract was entered into the statute of Utah provided such a right or remedy, and although the action to foreclose the lien was commenced under the provisions of the act of 1890, yet the right itself commenced under the old act. That right is not affected by any provision of the new act, and although it is claimed that the right and the remedy must go together under the old act, as they are preserved in the same language, yet, for the reasons already given, the time in which to commence the action is no part of the 'remedy' as that word, is used in the proviso, and an extension of that time may be provided for in the new act without in any way affecting the right or remedy of the lienor where the facts are the same as in this case. "It may be assumed that where a statute creates a right not known to the common law, and provides a remedy for the enforcement of such right, and limits the time within which the remedy must be pursued, the remedy in such case forms a part of the right, and must be pursued within the time prescribed, or else the right and remedy are both lost; but it does not, therefore, follow that the plaintiff's right to a lien and to maintain this action must be based solely upon the act of 1888. "We must bear in mind the position of the plaintiff when the act of 1890 was passed. He had not then completed his contract, and could not therefore file any statement of claim, nor could he commence any action. The particular time in which he would be allowed to commence his action (provided a sufficient time in fact were given) was, under such circumstances, mere matter of procedure as distinguished from remedy. The remedy would not thereby be altered, because the remedy consisted in filing the statement and in commencing the action. The time in which to do either would be matter of procedure only. Hence, when the act of 1890 was passed, which enlarged the time in which to commence the action already provided for, such enlargement did not affect any right or remedy of the plaintiff. It did not affect either, because the provision applied only to procedure and not to right or remedy, and therefore the plaintiff could avail himself of the time given him by the act of 1890 in which to commence his action as one of the steps in procedure by which the remedy for a violation of the contract by the enforcement of foreclosure of the lien would be accomplished. "We conclude that the lien of the plaintiff was valid and superior to the mortgage of the Mortgage Trust Company." There has been no modification of the Idaho statute expressly declaring that no mechanic's or materialman's lien shall bind any property for a longer period than six months after the claim has been filed, unless proceedings be commenced in a proper court within that time to enforce such lien, or if a credit be given, then within six months after the expiration of such credit, nor for a longer period than two years from the time that the work is completed or credit given, unless proceedings to enforce the same shall have been commenced. Under similar statutes the Supreme Courts of several of the states have held that the time specified for the commencement of action for the enforcement of such liens enters into and is a part of the right of lien. See Davis v. Bartz, 65 Wash. 395, 118 Pac. 334; Dunphy v. Riddle, 86 Ill. 22; Crowl v. Nagle, 86 Ill. 437; McGraw v. Bayard, 96 Ill. 146; Smith v. Hurd, 50 Minn. 503, 52 N. W. 922, 36 Am. St. Rep. 661; Falconer v. Cochran, 68 Minn. 405, 71 N. W. 386; Hokanson v. Gunderson, 54 Minn. 499, 56 N. W. 172, 40 Am. St. Rep. 354; Deming-Colborn, etc., v. Union Nat., etc., 151 Ind. 463, 51 N. È. 936; Union Nat., etc., v. Helberg, 152 Ind. 139, 51 N. E. 916; Stoermer v. People's Savings Bk., 152 Ind. 104, 52 N. E. 606; Green v. Sanford, 34 Neb. 363, 51 N. W. 967; Ballard v. Thompson, 40 Neb. 529, 58 N. W. 1133; Jaicks v. Sullivan, 126 Mo. 177, 30 S. W. 890; Badger L. Co. v. Staley, 141 Mo. App. 295, 125 S. W. 779. Decisions based upon statutes which do not make the requirements in respect to the time of the commencement of suit a part of the right to the lien claimed are inapplicable. [2] The Idaho statute does not, in terms, prescribe who shall be made parties to the action thereby required to be brought; but we agree with the learned judge of the court below that it necessarily means that it must be brought against all of those whose rights, estates, or interests are claimed to be adverse and subordinate; otherwise they could not be concluded. In the instant case the trustee was manifestly entitled to contest the amount, the validity, and the priority of the lien claimed for labor and material, and, of course, to its day in court for that purpose. But at the time it was called upon to do so the life of the appellant's lien had ended by the very terms of the statute which created it. As said by the court below: "The argument that the limitation does not apply to a mortgage because the validity and amount of a mechanic's lien may be established in a suit between the claimant and the owner of the property alone, and that the only issue in which the mortgagee is interested, namely, the date or relative dignity of the lien, may be tried out in a subsequent suit to redeem, in so far as it has any force at all, rests upon an erroneous assumption, which is that the mortgagee has no right to question the amount or validity of the claim of lien. These are issues which the incumbrancer, equally with the owner, may raise, and for that purpose the mortgagee is entitled to his day in court. If, for instance, a lien were asserted for the value of material which was never furnished for use in a structure covered by the mortgage, it must be clear that the mortgagee may, by showing the fact, defeat the lien, or reduce the amount thereof." In Hassall v. Wilcox, 130 U. S. 493, 9 Sup. Ct. 590, 32 L. Ed. 1001, a statute of Texas, passed in 1879, gave a lien for wages to mechanics and laborers, on a railroad, prior to all other liens, and authorized its enforcement, in a suit, by a judgment for the sale of the railroad, and provided that it should not be necessary to make other lienholders defendants, but that they might intervene and become parties. It did not provide for any notice by publication. In 1882, a railroad in Texas was mortgaged to secure bonds. In 1884, a creditor of the railroad company holding such labor claims, in a suit against it alone, in a court of the state, obtained a judgment for his claim and lien, and for the sale of the railroad. In a suit afterwards brought by a bondholder, in the Circuit Court of the United States, to have the rights of the creditors of the company ascertained, and a receiver appointed, it was referred to a master to report on the priority of claims. The creditor by judgment presented his claim; it was objected to by the bondholder as fraudulent and embracing amounts not covered by the statutory lien. The master reported that the claim included amounts which were not a lien, as well as amounts which were, but did not separate them; that the claim was a valid one against the company, but that it was not a lien entitled to priority. The court, on exceptions, awarded priority of lien to the claim, for the full amount of the judgment. It was held, among other things, that the bondholders were not bound by the judgment rendered in the suit to which they were not made parties. So here, the trustee is not bound by the judgment obtained by the appellant against the owner of the property, and the lien of the appellant having, by the express provision of the statute creating it, ended long prior to the time when the appellant attempted to assert it as against the trustee, we hold that it was then without any life. The judgment is affirmed. (222 Fed. 789) CITY OF WICHITA v. WICHITA WATER CO. et al. No. 4177. 1. EQUITY 373-HEARING ON BILL AND ANSWER-ISSUES. Where complainant sets a cause down for hearing on bill and answer, all allegations of the answer well pleaded are admitted, and only questions of law are presented for determination. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 711-713; Dec. Dig. 373.] 2. WATERS AND WATER COURSES 203-WATER COMPANIES-ORDINANCE GRANTING FRANCHISE "CONTRACT." The passage of an ordinance granting a franchise to a water company and its acceptance by the company create a "contract" under the law of Kansas, and so far as it fixes rates to be paid to the company for water it is a private contract. [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. §§ 289-299; Dec. Dig. ~203. For other definitions, see Words and Phrases, First and Second Series, Contract.] 3. WATERS AND WATER COURSES 203-WATER COMPANIES ORDINANCE PRESCRIBING RATES-CONSTRUCTION. Under an ordinance granting a franchise to a water company and prescribing a schedule of maximum rates to be charged by the company, in which it was provided that water for churches should be free and that rates for motors should be "special," the company cannot be required to furnish free water to churches for motors to provide power for operating organs. [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. §§ 289-299; Dec. Dig. 203.] 4. WATERS AND WATER COURSES 203-WATER COMPANIES-RIGHT TO CHARGE FOR CONNECTIONS. In the absence of any statutory provision, or provision in the ordinance granting its franchise, on the subject, a water company may lawfully make a reasonable charge to intending consumers for extending their service pipes from the curb line and connecting them with its mains. [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. §§ 289-299; Dec. Dig. 203.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 138 C.C.A.-22 5. WATERS AND WATER COURSES 203-WATER COMPANIES-CONTRACT MADE BY FRANCHISE ORDINANCE-PRACTICAL CONSTRUCTION BY PARTIES. Where a water company, operating under the contract made by the ordinance granting its franchise, made certain charges to consumers from the time it commenced operations, which were paid without objection for nearly 30 years, it amounted to a practical construction of the contract by the parties acting thereunder, which should have great weight, if its terms are of doubtful meaning with respect to the right to make such charges. [Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. §§ 289-299; Dec. Dig. 203.] Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge. Suit in equity by the City of Wichita against the Wichita Water Company and others. Decree for defendants, and complainant appeals. Affirmed. This suit is by the city of Wichita, a municipal corporation of the state of Kansas, against the Wichita Water Company, a Delaware corporation, to restrain the latter from charging or collecting for water furnished by it to churches of the city, and from refusing to connect with its water mains the service pipes of its inhabitants who desire to be furnished with water without the payment of charges therefor, in alleged violation of the ordinance of the city under which the water company and its predecessors were granted the right to construct, maintain, and operate its system of waterworks within the corporate limits of said city. The hearing, which was upon bill and answer, resulted in a decree dismissing the bill at plaintiff's cost, and the city appeals. Earl Blake, of Wichita, Kan. (Robert C. Foulston, of Wichita, Kan., on the brief), for appellant. David Smyth, of Wichita, Kan. (J. W. Smyth and Holmes & Yankey, all of Wichita, Kan., on the brief), for appellees. Before SANBORN, Circuit Judge, and TRIEBER and REED, District Judges. REED, District Judge (after stating the facts as above). The material allegations of the bill are that in September, 1882, the plaintiff, a city of the first class in the state of Kansas, by its Ordinance No. 266 duly passed, granted to one J. A. Jones, his associates and assigns, for the term of 40 years, the right to construct, maintain, and operate a system of waterworks within the corporate limits of said city for the purpose of supplying to the city and its inhabitants "water for domestic and sanitary purposes and for the better protection of the city against disaster from fire," and to charge and receive therefor compensation within the limit of maximum rates fixed by said ordinance; that Jones and his associates in interest accepted said ordinance in writing, and pursuant to its terms constructed a system of waterworks in the city, which is now owned and operated by the defendant water company; that by said ordinance Jones, for himself and his assigns, agreed to furnish water for the city For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |