The decree below, ordering a sale of the mortgaged property, must have proceeded upon the ground that, under the laws of North Carolina, these defendants acquired no lien whatever upon the property of the railroad company. The contention here is that some of the defendants acquired a lien as well under a statute passed in 1873, regulating sales under mortgages given by companies upon all their works and property, as under the act called the workmen's lien law of 1870; and that one of the defendants has a lien under the former, while others have liens under the latter statute. The main inquiry now is whether the court below correctly interpreted those statutes. It is necessary, to a clear understanding of the case, that their provisions be examined in detail.

2

By the constitution of North Carolina of 1868, the general assembly of that state was required to "provide, by proper legislation, for giving to mechanics and laborers an adequate lien on the subject-matter of their labor." Art. 14, § 4.

Subsequently, by an act approved March 28, 1870, entitled "An act for the protection of mechanics and other laborers, materials," etc., it was provided "that every building built, rebuilt, repaired, or improved, together with the necessary lots on which said building may be situated, and every lot, farm, or vessel, or any kind of property not herein enumerated, shall be subject to a lien for the payment of all debts contracted for work done on the same or material furnished," (section 1;) that "any mechanic or citizen, who shall make, alter, or repair any article of personal property, at the request of the owner or legal possessor of such property, shall have a lien upon such property so made, altered, or repaired, for his just and reasonable charge for his work done and material furnished, and may hold and retain possession of the same until such just and reasonable charges shall be paid," etc., (section 3;) that "all claims under $200 may be filed in the office of the nearest magistrate, if over $200, in the office of the superior court clerk in any county where the labor has been performed or the material furnished," (section 4;) that proceedings to enforce the lien created must be commenced in the courts of justice of the peace, and in the superior courts, according to their jurisdiction; and, upon judgment being rendered in favor of the claimant, an execution for the collection and enforcement thereof may issue in the same manner as upon other judgments in actions arising upon contracts for the recovery of money. Pub. Laws, N. C. c. 206, p. 253; Battle's Revisal, N. C. c. 65, p. 563.

By a general statute, approved February 8, 1872, entitled "An act to authorize the formation of railroad companies and to regulate the same," provision was made for the formation, by any number of persons, not less than 25, of corporations for the purpose of constructing, maintaining, and operating railroads. This statute contains 66 sections, and prescribes the mode in which a company may be organized under it; what its articles of association shall contain; what shall be the amount of its capital stock, and in what way; 'subscribed; when it shall become a corporation, with the powers and privileges therein granted; to what extent its stockholders shall be liable for the debts of the company; when it shall be liable to laborers for the amount due them from contractors for the construction of any part of the road; the mode in which it may, by condemnation, acquire real estate needed for the purposes of its incorporation; an annual report to the governor showing its operations and conditions in every respect; when and under what circumstances the legislature may alter or reduce its rates of freight, fare, or other profits; and many other duties respecting the operation and management of its railroad and other property. Pub. Laws N. C. 1871-72, c. 138; Battle's Revisal, c. 99. Corporations formed under that statute are given power to do various things, involving the raising and expenditure of money, and also "from time to time to borrow such sums of money as may be necessary for completing and finishing or operating their railroad, and to issue and dispose of their

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bonds for any amount so borrowed, and to mortgage their corporate property and franchises to secure the payment or [of] any debt contracted for the purposes aforesaid," etc. The statute further declares that "all existing railroad corporations within this state shall respectively have and possess all the powers and privileges" therein specified.

On the twelfth of February, 1872, the general assembly of North Carolina passed another statute providing for the formation of "private corporations for any purpose not unlawful" by three or more persons. Pub. Laws N. C. 1871-72, c. 199. At its subsequent session an act was approved, March 1, 1873, entitled "An act to regulate mortgages by corporations, and to regulate sales under them." As the present case depends largely upon the construction to be given to the provisions of that statute, its first and third sections (the second and other sections being immaterial in the determination of any question here involved) are given entire, as follows:

"Section 1. If a sale be made under a deed of trust or mortgage executed by any company on all its works and property, and there be a conveyance pursuant thereto, such sale and conveyance shall pass to the purchaser at the sale not only the works and property of the company as they were at the time of making the deed of trust or mortgage, but any works which the company may, after that time and before the sale, have constructed, and all other property of which it may be possessed at the time of the sale other than debts due to it. Upon such conveyance to the purchaser, the said company shall, ipso facto, be dissolved, and the said purchaser shall forthwith be a corporation by any name which may be set forth in the said conveyance, or in any writing signed by him and recorded in the same manner in which the conveyance shall be recorded."

"Sec. 3. When such corporation shall expire or be dissolved, or its corporate rights and privileges shall have ceased, all its works and property and debts due to it shall be subject to the payment of debts due by it, and then to distribution among the members according to their respective interests; and such corporation may sue and be sued as before for the purpose of collecting debts due to it, prosecuting rights under previous contracts with it, and enforcing its liabilities and distributing the proceeds of its works, property, and debts among those entitled thereto: provided, that all debts and contracts of any corporation, prior to or at the time of the execution of any mortgage or deed of trust by such corporation, shall have a first lien upon the property, rights, and franchises of said corporation, and shall be paid off or secured before such mortgage or deed of trust shall be registered." Pub. Laws N. C. 1872-73, c. 131; Battle's Revisal, c. 26, §§ 46, 48.

S. F. Phillips, for appellants. Wm. E. Earle, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

The first question to be considered is whether the act of 1870 gives a lien to mechanics or contractors upon the property of a railroad corporation, for work performed or materials*furnished in and about the construction of its road, or of its bridges constituting a part of its line. We are of opinion that no such statutory lien exists in North Carolina, or was intended to be given by the act of 1870. In reaching this conclusion, we are not aided by any direct decision of the question by the supreme court of North Carolina. Reference was made by counsel to Whitaker v. Smith, 81 N. C. 340, where it was held that an overseer is not entitled, under that act, to a lien, for his wages, upon the employe's crop or land over which he has superintendence. After alluding to the constitutional requirement that laws be enacted to give to mechanics and laborers an adequate lien on the subject-matter of their labor, the court said: “A very large proportion of the laboring population of the state had just recently been released from thraldom, and thrown upon their own resources, perfectly ignorant of the common business transactions

of social life, and this provision of the constitution, and the acts passed to carry it into effect, were intended to give protection to that class of persons who were totally dependent upon their manual labor for subsistence. The law was designed exclusively for mechanics and laborers." If such be the effect of the act of 1870, there is strong reason to hold that a mere contractor for the construction of a railroad, or of railroad bridges, is not entitled to the lien given by it. But, without accepting as conclusive an opinion delivered after the rights of the parties had become fixed, (Burgess v. Seligman, 107 U. S. 33; S. C. 2 SUP. CT. REP. 10,) we rest our interpretation of the statute upon the ground that it has no reference to work done or materials furnished in the construction of railroads. The words of the act are scarcely adequate to express a purpose to give a lien upon a public improvement of that character. The words "building," "lot," "farm," and "any kind of property not herein enumerated," are too limited in their scope to justify the conclusion that the legislature had any intention, by that act, to give a lien upon railroad property. This view is strengthened by the circumstance that, by the subsequent act providing for the organization of railroad companies and regulating, their affairs, no saving is made of liens in behalf of mechanics and laborers, and express power is given to such corporations to borrow, from time to time, any sums necessary for completing and furnishing or operating their railroads upon bonds secured by mortgage upon their corporate property and franchises. Indeed, the idea of a lien in favor of laborers actually performing work in the construction of a railroad seems to have been intentionally excluded; for, when the railroad contractor fails to pay such laborers, the company, upon notice, may become bound to do so; but no lien is given therefor upon the property of the corporation.

Apart, however, from these considerations, we are of opinion that a law giving to mechanics and laborers a lien on buildings, including the lot or ground upon which they stand, or a lien upon a lot or farm, or other property, for work done thereon, or for materials furnished in the construction or repair of buildings, should not be interpreted as giving a lien upon the roadway, bridges, or other property of a railroad company that may be essential in the operation and maintenance of its road. In North Carolina, as in most, if not in all the states, railroads, although constructed for the private emolument of those engaged in such enterprises, are highways which have been established, under the authority of law, primarily for the convenience and benefit of the public. The general statute of February 8, 1872, authorized the formation of corporations to construct, maintain, and operate railroads "for public use in the conveyance of persons and property, or for the purpose of maintaining and operating any unincorporated railroad already constructed for the like public use." Battle's Revisal, c. 99, § 1. The pecuniary profit derived by those who project and operate them is the reward which they receive for maintaining a public highway. Municipal taxation to aid in their construction has been maintained only upon the ground that they are, in a large sense, instrumentalities or agencies for the purpose of accomplishing public ends. Upon that ground rests the authority of the state to invest them with the right of eminent domain in the condemnation of private property, and to prescribe, from time to time, in the interest of the public, reasonable regulations for their control and management. Taylor v. Ypsilanti, 105 U. S. 68, 69. Such being the relations existing in North Carolina between these corporations and the public, it should not be presumed that the legislature intended to subject them to the operation of ordinary lien laws, enacted for the benefit of those performing labor and furnishing materials in the construction, repair, or improvement of what the statute of 1870 designates as buildings, or who perform labor upon lots, farms, and other property belonging to private persons, and having no connection with public objects. A different construction of the statute would enable parties having

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liens for amounts within the jurisdiction of justices of the peace to destroy a public highway, and defeat the important objects which the state intended to subserve by its construction. No such intention should be imputed to the legislature, unless the words of the statute clearly require it to be done.

There is nothing, it may be observed in this connection, in Brooks v. Railway Co. 101 U. S. 443, in conflict with the views here expressed. The decision in that case rests upon the construction given to the mechanics' lien law of Iowa by the supreme court of that state. Besides, the Iowa statute, in terms, included, among those entitled to the lien it gave, "contractors, subcontractors, material furnishers, mechanics, and laborers engaged in the construction of any railroad or other work of internal improvement." Rev. St. Iowa, 1860, § 1846. The legislative will was there expressed so clearly as to leave no room for interpretation of the statute.

It is, however, contended that the proviso of the third section of the act of March 1, 1873, is sufficient to sustain the lien asserted by such of the appellants as were contractors and mechanics. That act, as we have seen, regulates sales under deeds of trust or mortgages "executed by any company on all its works and property," and provides for the purchaser becoming a corporation, with all the franchises, rights, and conveyances of, and subject to the duties imposed upon, the original corporation. In connection with a general provision for the disposition of the assets of corporations which shall expire or be dissolved, or whos corporate rights and privileges shall cease, it is declared "that all debts and contracts of any corporation, prior to or at the time of the execution of any mortgage or deed of trust by such corporation, shall have a first lien upon the property, rights, and franchises of said corporation, and shall be paid off or secured before such mortgage or deed of trust shall be registered."

It must be admitted that the broad language of this act gives some support to the proposition that it was intended to apply to all corporations, including those formed for the construction and operation of railroads. But there are reasons of great weight that have brought us to the conclusion that such is not its proper interpretation. The language of the proviso in question is fully satisfied by restricting its operation to merely private corporations, which may be formed by three or more persons. And to this may be added the important consideration, that any other interpretation might defeat the express power given to railroad corporations to raise money for completing and finishing, or operating their roads, upon bonds to be secured by mortgage upon their property and franchises; for such bonds, in the very nature of things, could not be readily, if at all, disposed of, if the lien given by the railroad mortgage is subordinate to a lien for “all debts and contracts," of whatever nature, "existing prior to and at the time of the execution" of such mortgage. Did the legislature intend that the power of a railroad corporation to mortgage all of its property and franchises for money with which to complete or operate a road for public use should be exercised, subject to the condition that every creditor it had at the time of the mortgage, no matter how his debt originated, nor whether there was an agreement for a lien, should have a first lien upon the corporate property and franchises? If this construction should be adopted, it would follow that mechanics and laborers would acquire, as between them and the holders of mortgage bonds, a first lien for work done or materials furnished to the railroad company without filing a claim therefor, as required by the act of 1870; and this, although the legislature had in that act refrained from using language that necessarily gives them a lien upon railroad property and franchises. We are of opinion that the proviso of the third section of the act of 1873 has no application to deeds of trust or mortgage given by railroad corporations.

This view is strengthened by the history of the compilation of the statutes of North Carolina, known as "Battle's Revisal." At the same session of the

(113 U. S. 550)

legislature at which the railroad act of 1872 and the private corporation act of the same year were passed, another statute was enacted providing for the publication of the public statutes under the supervision of William H. Battle, who was directed "to collate, digest, and compile all the public statute laws of the state," distributing them under such titles, divisions, and sections as he deemed most convenient and proper to render them "more plain and easy to be understood." Acts N. C. 1871-72, p. 373. His revision was reported to the legislature in 1873, and was formally approved, to take effect January 1, 1874. Upon looking into that revision we find that the act of 1872, relating to private corporations, and that of 1873, in reference to sales of property under deeds of trust, or mortgages executed by "any company on all its works and property," are consolidated in one chapter under the title of "Corporations," simply; the former constituting sections 1 to 44, inclusive, of that *itle, and the latter act constituting sections 45 to 49, inclusive; while the act of 1872, in reference to railroad corporations organized for public use, is placed under the separate title of "Railroad Companies." We have thus what may not unreasonably be regarded as a legislative indication of the original purpose of the act of 1873, viz., to make provisions for sales of property covered by deeds of trust or mortgages executed by merely private corporations, formed by three or more persons, leaving the rights of parties, in respect of like instruments executed by railroad companies organized for public purposes, subject to the terms of those instruments and the general principles of law. While Mr. Battle had no power, by any mode of revision, to change the words, or to modify the meaning of the statutes themselves, (Sikes v. Bladen Co., 72 N. C. 34; State v. Cunningham, Id. 469; State v. Taylor, 76 N. C. 64,) he had no authority to arrange them under their appropriate titles; and, when the legislature approved his placing the act of 1873 in direct connection with that of 1872, relating exclusively to private corporations, that fact is not without weight in determining the scope and effect of the original act of 1873. This circumstance would be entitled to very little weight, if the language of the last-named act necessarily embraced all corporations, public and private, and was not, as we have said, fully satisfied by restricting its operation to private corporations, as indicated by the revision in question.

In view of what has been said, the issue made by the county of Buncombe, as a stockholder of the company, in reference to Inman's conduct as trustee, need not be examined. Upon the facts disclosed, the county does not seem to be in any position to question the decree in favor of the appellees. There is no error in the record, and the decree is affirmed.

FUSSELL v. GREGG and others."

(February 2, 1885.)

1. TITLE TO LAND-BILL IN EQUITY-RELIEF.

To give a court of equity jurisdiction of a cause, the nature of the relief asked must be equitable, even when the suit is based on an equitable title.

2. SAME EQUITY-UNITED STATES COURT-ASSUMPTION OF CONTROL OVER SURVEYOR.

A court of the United States sitting in equity cannot control a person in the discharge of his duties as principal surveyor, or take charge of the records of his office, or declare their effect to be other than what appears upon their face.

3. SAME-VIRGINIA MILITARY DISTRICT IN THE STATE OF OHIO-GRANT-CONDITIONS ATTACHED BY LAW.

A warrant for 200 acres of land in "the Virginia military district, in the state of Ohio," having, in the year 1822, been granted to an individual by the state of Virginia, by reason of the failure of the grantee and his legal representatives to make return of the survey to the general land-office within the time prescribed by the several acts of congress on that subject, the entry and the survey became vacated,

'S. C. 8 Fed. Rep. 384.