tainly an objection of that kind, if ever available, cannot be made for the first time in a habeas corpus proceeding.

It was objected in the court below that the original sentence exceeded the authority of the court, in that it required service at hard labor. Upon motion of the government's counsel, that much of the sentence was stricken *out. There is no contention that hard labor has been, or will be, imposed upon the appellants, and, at most, only that part of the sentence in excess of the law will be void. United States v. Pridgeon, 153 U. S. 48, 38 L. ed. 631, 14 Sup. Ct. Rep. 746.

We find no error in the judgments of the Circuit Court in refusing to release the petitioners upon the writs of habeas corpus, and the same will be affirmed.

Affirmed.

(218 U. S. 452.)

UNITED STATES, Plff. in Err.,

V.

ANSONIA BRASS & COPPER COMPANY, American Steel Casting Company, et al.

COURTS (8_394*)-UNITED STATES SUPREME COURT ERROR TO STATE COURT-FEDERAL QUESTION-LIEN ON VESSEL BUILDING FOR UNITED STATES.

1. Claims by the United States, in proceedings under the supply lien law of a state, to establish the rights of creditors furnishing supplies for the construction of vessels building for the United States, that under the contract for the construction of one of the vessels the title vested in the

ply lien law, does not deprive the United States of any right which it had to assert claims to priority under the building contracts or rights existing by reason of the sovereignty of the United States, since the neither the United States nor the claimevident purpose of these sections is that ants to the property shall lose any rights because of the release under the stipulation, but the rights of the parties shall continue to be such as they were before the change of possession.

SHIPPING (§ 18*)—VESSEL BUILDING FOR UNITED STATES-PASSING OF TITLE-APPLICATION OF STATE LIEN LAW.

3. A dredge building for the Federal government became, as fast as paid for, the property of the government, so as not to be subject to seizure or encumbrance under state lien laws, where the ownership clause of the building contract provided that parts paid for were to become the sole property of the United States, and required insurance to be effected by the contractor on behalf of the government to at least the amount of each partial payment, notwithwhich gave the government the right to restanding other provisions in the contract, ject defective work or material, or even the entire dredge, if, upon trial and before final acceptance, it proved defective, and to complete the vessel in the event of the annulment of the contract, and required a bond in the sum of $60,000 for the faithful performance of the contract, and made the contractor responsible for the payment of all liabilities for labor and material incurred in the prosecution of the work. [Ed. Note.-For other cases, see Shipping, Cent. Dig. §§ 50, 51; Dec. Dig. § 18.*]

was reserved to the government under the contracts for building the other vessels, superior to the claim of the supply lien creditors under the state law; that the right of the government to its superior claims could not be affected by, and was not subject to, such law; and that the state had no power to retard, impede, or control the operation of the Federal government in making and carrying out such contracts, are assertions of rights and immunities, the creation of Federal authority, which, when denied by a state court, present a case under U. Š. Rev. Stat. § 709, U. S. Comp. Stat. 1901, p. 575, for a writ of error from the Federal Supreme Court.

[Ed. Note.-For other cases, see Courts, Cent.

Dig. 1049-1077; Dec. Dig. § 394.*]

UNITED STATES (8 58%, New, vol. 10, Key

No. Series)-STIPULATIONS FOR RELEASE OF PROPERTY.

No. Series)-INTERVENTION IN PROCEEDINGS UNDER STATE LIEN LAWS.

4. There is no room for the application of the doctrine governing cases where the United States claims an interest in property lawfully in possession of the court which is administering it, as in equity or in admiralty, and the government intervenes to protect its interest therein, that its rights must be adjudicated in recognition of rights and demands of others interested in the same property, where a vessel, building for the United States, in the hands of a lien law, has been released to the United receiver appointed under the state supply States under a stipulation which fully protects the rights of the United States, which claims the exclusive right and title to the vessel as far as the parts were completed and paid for.

tracts thereafter made shall provide with reference to liens upon such vessels, is one created only by the terms of the contract, and is not an express statutory lien by authority of the United States, which would be superior to any asserted rights under the lien laws of a state.

[Ed. Note. For other cases, see United States, Cent. Dig. 59; Dec. Dig. § 76.*] UNITED STATES (§ 76*)-PRIORITY AS CREDITOR-LIEN FOR PARTIAL PAYMENTS ON VESSEL BUILDING FOR GOVERNMENT.

6. The lien for partial payments, reserved by the Federal government in a contract for the construction of a vessel, cannot be deemed to be intended to be superior to those of contractors for labor and material who have contributed to the work, where the contract required a bond to be given, conditioned for the faithful performance of the contract, and the prompt payment to other persons supplying labor and materials in the prosecution of the

work.

[Ed. Note. For other cases, see United States, Cent. Dig. § 59; Dec. Dig. § 76."]

Messrs. Eppa Hunton, Jr., and R. G. Bickford for defendants in error.

*Mr. Justice Day delivered the opinion of the court:

This is a writ of error to the supreme court of appeals of Virginia. The controversy grows out of contracts made between the United States and the William R. Trigg Company, a corporation organized under the laws of the state of Virginia, carrying on business at Richmond, Virginia, for the construction of certain vessels for the United States, namely, a sea-going suction dredge, called the Benyuard, for the War Department; a revenue cutter, called the Mohawk, for the Treasury Department; and a cruiser, for the Navy Department, called the Galveston. The contract price for the Benyuard, apart from its pumping machinery, was $254,550; for the Mohawk, $217,000; and for the Galveston, $1,027,000. These contracts were dated, for the Ben

7. A contract for the construction of a vessel for the Federal government which contains no provision for the passing of title to the vessel on partial payments, but, on the contrary, stipulates that, on certain conditions, the title shall vest in the government as collateral security, and provides for the release of liens before partial payments shall be required, must be deemed to have been made in recognition of the rights of those furnishing work or material for the vessel to secure their claims by liens, which it is made the duty of the contractor to provide for in order to protect the title of the government.

[Ed. Note.-For other cases, see Shipping, Cent. Dig. §§ 50, 51; Dec. Dig. § 18.]

[No. 458.]

April 20, 1900; and for the Galveston, December 14, 1899.

In December, 1902, S. H. Hawes & Company filed a bill in the chancery court at the city of Richmond, on behalf of them. selves and other creditors, asserting liens under the supply lien law of the state of Virginia, averring the insolvency of the Trigg Company, and asking for the appointment of a receiver, which was accordingly made. The receiver took possession of the property of the Trigg Company, including the vessels above named. Under §§ 3753

and 3754 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 2530) a stipulation was executed by the United States district attorney, on behalf of the United States, for the release and

ber 28, 1910.

IN ERROR to the Supreme Court of Appeals of the State of Virginia to review a judgment which, reversing a judgment of the Chancery Court of the City of Richmond, in that state, held superior to any claim or lien of the Federal government certain liens under the state supply lien law for materials furnished for the construction of certain vessels for the United States. Reversed as to one of the vessels, on the ground that title had passed to the United States, and affirmed as to the other vessels.

on hand applicable thereto.

Thereafter the case proceeded to judg ment, and, on final appeal, to the supreme court of appeals of Virginia, the liens under the supply lien law of the state were held superior to any claim or lien of the gov. ernment. In the case of the Benyuard, two of the five judges of that court* dissented from the opinion of the majority, holding that the title to the Benyuard had passed to the United States under the terms of the contract under which it was constructed. The case is reported in 110 Va. 165, 65 S. E. 538.

It is contended that there is no juris

The facts are stated in the opinion. Mr. Lunsford L. Lewis and Assistant Attorney General Harr for plaintiff in

error.

of the United States Revised Statutes (U. S. Comp. Stat. 1901, p. 575), it is expressly provided that where any right, title, privilege, or immunity claimed under the Constitution, treaty, or statute of the United States, or an authority exercised under the United States, is specially set up or claimed by either party, and the decision is against such right, title, privilege, or immunity, the same may be reexamined and reviewed by writ of error

from this court.

An examination of the record discloses that the government claimed in the case that under the contract the title to the dredge vested in the United States by virtue of the terms of the contract; that a lien was reserved to the United States under the contract for the cutter Mohawk and the cruiser Galveston, which was superior to the claims of the supply liens' creditors under the laws of the state of Virginia. The government further contended that the right of the government to its superior claims upon the vessels, whether of title or lien, could not be affected by, and was not subject to, the lien statutes of the state of Virginia. The government also claimed that the state had no power to retard, impede, or control the operation of the Federal government in making and carrying out such contracts as are herein under consideration.

We think that from this statement of the claims made in the court below on behalf of the United States, assertions were made of rights and immunities which were the creation of Federal authority, and the denial thereof by the judgment of the state court brings the case within the provisions of § 709 of the Revised Statutes of the United States. It is not necessary to lay the foundation for jurisdiction that the claims for Federal rights asserted should be well founded; it is enough if they are substantial claims of Federal rights within the statute, and such as were duly asserted and directly or necessarily denied in the judgment and decision of the state court. Nor do we think there is anything in the stipulation entered into on the part of the government by the United States district attorney, with a view to getting possession of the vessels, which were in the hands of the receiver, which in anywise deprived the government of the right to assert any such immunity and privilege as it has because of the nature and character of the contracts and the lien of the government in the premises.

An examination of these sections, 3753, 8754, shows that they are intended to permit the United States to obtain possession of property claimed by it, when the

same has been seized by judicial proceedings under the laws of the state, and to give to it and to the persons asserting rights in the property protection in their rights, notwithstanding such changes in possession.

In § 3753 it is expressly provided that "nothing herein contained shall, however, be considered as recognizing or conceding any right to enforce by seizure, arrest, attachment, or any judicial process any claim against any property of the United States, or against any property held, owned, or employed by the United States, or by any department thereof, for any public use, or as waiving any objection to any proceeding instituted to enforce any such claim."

Section 3754 provides for the protection of persons asserting claims against such property, and that after final judgment given in the court of last resort, to which the Secretary of the Treasury may deem proper to carry* the proceedings, affirming the rights of the persons asserting claims for the security or satisfaction of which such proceedings were instituted in the state courts against such property, notwithstanding the claims of the United States, the final judgment shall be deemed to all intents and purposes as a final determination of the rights of such persons, and shall entitle such persons, as against the United States, to such right as they would have in case the possession of such property had not been changed. The section provides for the payment of such final judgment out of the treasury of the United States.

The evident purpose of these sections is that neither the United States nor the claimants to the property shall lose any rights because of the release of the property under the stipulation, but, as were the rights of the parties before the change of possession, such they shall continue to be. We do not agree that, by entering into a stipulation which embodied these terms, the United States lost any right which it had to assert claims under the contracts,

or rights by reason of the sovereignty of the United States, if any such exist. We think this court has jurisdiction of this case upon

this writ of error.

Taking up the consideration of the case as to these several vessels, and first as to

the Benyuard, this dredge was constructed under the provisions of a contract which are thus summarized by the master in the Virginia chancery court:

"Materials furnished and the work done by the William R. Trigg Company were to be subject to rigid inspection by an inspector appointed on the part of the gov ernment, his decision to be final as to quantity and quality.

title to the dredge in the event that it ultimately elected to take it over as a purchaser, the ownership in the meantime remaining in the builder until such final decision was made, and the insurance was required for the government's security for the partial payments.

But we cannot agree to this construction of § 212. The ownership clause provides that parts paid for are to become the sole property of the United States (specifications, § 211), insurance was to be provided by the contractor preceding each partial payment, that is, as fast as title vested in the government by reason of the partial payments, insurance was to be effected "to at least the amount of such partial payment, and the property was to be kept insured to at least the aggregate of the payments made until delivery and final acceptance."

It is insisted that the right to reject the dredge or to annul the contract is inconsistent with the passage of title under the provisions of § 211 of the specification, however positive that section may be in terms. Section 9 of the contract provides: "It is further agreed by and between the parties hereto that until final inspection and acceptance hereof, and payment for, all the material and work herein provided for, no prior inspection, payment, or act is to be construed as a waiver of the right of the party of the first part to reject any defective work or material, or to require the fulfilment of any of the terms of this contract."

Let it be conceded that this section gave the government the right to reject defective work or material, or even the entire dredge, if, upon trial and before final acceptance, it proved defective,-is that right inconsistent with the vesting of title in the parts as paid for, as specifically provided in § 211 We think not. It may be that in such contingency the government might reject the dredge. This might be true consistently with the acquirement of title in parts accepted and paid for after inspection. That is, if the whole, upon final trial, proved defective, all, including the restoration of that acquired, might be within the power of the government. See, in this connection, The Poconoket, 67 Fed. 262, 266. The provisions of § 4 look rather to the completion of the vessel by the government in the event of the annulment of the contracts for failure to keep its requirements. In that contingency it is provided that payments shall cease and reserved payments be retained until the final completion and acceptance of the work. In this section the United States is given a remedy for the cost of completion upon the failure of the

contractor to prosecute the work according to the contract.

Nor do we find it inconsistent with the vesting of the title in parts that bond was taken in the sum of $60,000 for the performance of the contract. The United States might well secure itself in this sum, notwithstanding it took title to parts as paid for. Security might nevertheless be required for the faithful doing of the work within the stipulated time. It is also true that the Trigg Company was to be responsible for and pay all liabilities for labor and material incurred in the prosecution of the work. We are at a loss to see any inconsistency between this provision and the passing of the title in parts as paid for. Construing the whole contract, we find nothing in its other provisions which cuts down or lessens the binding force of the clear and distinct provisions of § 211 as to ownership. The parties therein dealt with a specific part of the contract, they expressed themselves clearly upon the subject, and it is not to be presumed, in the absence of clear expression or necessary implication, that they intended to supersede this provision in dealing with other specific or general parts of the agreement.

It is suggested, in this connection, that the contract with the government in the case of the Benyuard is not different in effect than the one passed upon in Clarkson v. Stevens, 106 U. S. 505, 27 L. ed. 139, 1 Sup. Ct. Rep. 200. In that case the contract provided that the materials received at the yard for the construction of the steamer should be distinctly marked with the letters "U. S.," and should become the property of and belong to the United States. There was no provision that title to the vessel should vest in the United States as fast as parts thereof were constructed, and Mr. Justice Matthews, who delivered the opinion of the court, approved the opinion of the court of errors and appeals of New Jersey, expressing the view that the declaration as to the materials excluded the implication sought to be raised as to the title in the unfinished ship; "for," said Mr. Justice Matthews, "the inference is obvious, from the particularity of such a provision, that the larger interest would not be left to mere intendment." P. 516.

In Briggs v. A. Light Boat, 7 Allen, 287, a builder's lien, taken under the Mass

achusetts statute on a light boat being built for the United States, was sustained. In that case the contract made no provision for a lien in favor of the government, or the passing of the title to the boat in progress of construction. Mr. Chief Justice Bigelow, delivering the opinion of