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Is it not arbitrary, oppressive, and unjust to take one's property without affording him any opportunity to show the insufficiency of the very thing that forms the basis of the proceedings under which the taking is to occur,—without allowing him to show that the petition required by the statute as a condition precedent to the organization of the district, without which there could be no district, no assessment, no sale, na conveyance, never, in fact, existed ? Surely, upon that vital, all-important question, the owner is entitled to be heard; and, just as surely, to take his property without affording him that opportunity is arbitrary, oppressive, and unjust. Assessments in California for the purpose of reclaiming overflowed and swamp lands, to which the supreme court of California, in the cases cited, likened the irrigation districts, are enforced by suits in which, as held by the supreme court of the United States in Hagar v. Reclamation Dist., supra, the owner may set up, by way of defense, all his objections to the validity of the proceedings, and he is, therefore, in such proceedings, afforded “due process of law.” In the present case, however, as has been shown, the owner whose property is authorized to be taken is not afforded any opportunity whatever, at any time or place, before any board or tribunal, to question the sufficiency of the very thing that lies at the foundation of the whole proceedings. This vital objection to the legislation in question is in no manner answered by the fact that, by a supplemental act of the legislature of California approved March 16, 1889 (St. Cal. 1889, pp. 212, 213), the board of directors of any irrigation district is authorized to commence a special proceeding in a superior court of the county in which the lands or some portion thereof are situated, in which, after the publication of notice of the proceeding, any person interested may come in and contest the legality and validity of “each and all of the proceedings for the organization of said district under the provisions of the said act, from and including the petition for the organization of the district, and all other proceedings which may affect the legality or validity of said bonds and the order for the sale and the sale thereof." Such a proceeding may or may not be instituted by the board of directors of the district, and was not instituted in the present instance, so far as appears from the bill. No man's constitutional rights can depend upon an option which may or may not be exercised by another.

Apart from the objections already considered, which go to the validity of the statute itself, it would be difficult, I think, if not impossible, to sustain its applicability to a case where there is no stream or body of water in existence from which the district can obtain water with which to irrigate the lands within the district, and where, according to the averments of the bill, the proposition is to take private property to build works to catch and distribute, for the purposes of irrigation, rain and flood water, which may or may not come in sufficient volume. It would seem quite unreasonable to hold that private property can be taken for any such experimental purpose, especially where, as here, according to the allegations of the bill, one piece of land within the district designed to be thus irrigated belongs to the United States and another to the state of California, both of which are exempt from assessment, but whose inclusion for irrigation purposes adds $9,000 to the amount for which bonds have been authorized, and which, when issued, will be a lien upon the property of the complainant Maria King Bradley, and under which it may be sold and conveyed. The fact that vast sums of money have been invested in works constructed under and in pursuance of this legislation, and that bonds running into the millions have been issued and sold thereunder, and that many individuals may not otherwise be able to secure water for the irrigation of their respective tracts of land, and that the validity of the legislation has been several times sustained by the supreme court of the state, while demanding on the part of this court great care and caution in the consideration of the case, and casting upon it a very grave responsibility, cannot justify it in failing to declare invalid legislation which, in its judgment, violates those principles of the constitution of the United States which protect the private property of every person against forcible taking without due process of law and for any other than a lawful purpose. Such questions are not to be determined by considerations of expediency or hardship. Unfortunate as it will be if losses result to investors, and desirable as it undoubtedly is, in this section of the country, that irrigation facilities be improved and extended, it is far more important that the provisions of that great charter, which is the sheet anchor of safety, be in all things observed and enforced. The views above expressed render it unnecessary to consider other objections urged on the part of the complainants. Demurrer overruled, with leave to the defendants to answer within the usual time.


(Circuit Court of Appeals, Ninth Circuit. June 24, 1895.)



The lien law of Washington (1 Hill's Ann. Code, § 1663) provides that every person performing labor or furnishing materials for the construction of any building, railroad, or other structure has a lien upon the same for such labor or materials, and (section 1665) that the land upon which any building, improvement, or structure is constructed, or the interest therein of the person who caused such building, etc., to be constructed, shall be subject to the lien. Hold, following the decisions of the supreme court of Washington, that a material man who furnishes materials for the construction of a street railway can obtain no lien upon the structure in

the streets of a city. 2. SAME-POWER IIOI'SE OF CABLE ROAD.

Hold, further, that a material man who furnishes materials for the construction of the tracks and conduit of such railway, operated by cable, can obtain no lien upon the power house from which the cable is operated, and the land on which it stands, though owned by the railway company and essential to the operation of the road, none of the materials furnished

having been used in the building or upon the land. 8. SAME_WHO ARE MATERIAL MEN.

Plaintiff sold certain materials for the construction of a street railway to one H., and accepted his note in part payment therefor, knowing at the time that the materials were to be used in the construction of defendant's railway, and that H. had a contract with defendant, made through one of its directors, who also participated in the negotiations with plaintiff, for the sale to defendant of the materials so purchased from plaintiff. Held, that plaintiff was not entitled to a lien for such materials upon defendant's property. Appeal from the Circuit Court of the United States for the Northern Division of the District of Washington.

This was a suit by the Pacific Rolling Mills Company against the James Street Construction Company to foreclose a mechanic's lien. The circuit court dismissed the bill. 61 Fed. 476. Complainant appeals. Affirmed.

T. Z. Blakeman, for appellant.
Lorenzo S. B. Sawyer, for appellee.

Before MCKENNA and GILBERT, Circuit Judges, and KNOWLES, District Judge.

GILBERT, Circuit Judge. The Pacific Rolling Mills Company brought a suit to foreclose a mechanic's lien for a balance of $6, 731.22 against the street cable railway and power house of the James Street Construction Company, of Seattle, and the lots on which the power house was erected. The lien so claimed is for materials furnished for and used in the construction of the street cable railway, and it consisted of rails, slot steel, bolts, plates, and shims. All the materials so furnished and used went to the construction of the cable railway in the streets, and none thereof was used in the improvement upon the lots where the power house was erected. tiations for the sale of the materials were opened by one C. L. Hamilton, of Seattle, who first telegraphed to the complainant for prices. He thereafter telegraphed again, instructing the complainant to send its answer to J. D. Lowman, of Seattle. The complainant wired its terms to Lowman. Negotiations were continued until they resulted in a sale of the materials from the complainant to C. L. Hamilton for a purchase price of about $13,000. Lowman was a director and was the manager of the defendant. That fact was known to the complainant, and was referred to in the correspondence. The complainant also knew that the materials were to be used in the construction of the defendant's cable railway. It also appeared in one of Lowman's dispatches to the complainant before the sale that he used these words: “Before contracting with Hamilton I had him wire you requesting answer to me to know if you would fill his orders. Receiving affirmative reply, I contracted same day with him, rail at fifty-five twenty-three," etc. When the material was shipped by the complainant, it was consigned to Lowman, at Seattle, by Hamilton's direction. The shipping receipts, with a draft attached for one-half the purchase price, to wit, $6,485.31, were mailed to the Puget Sound National Bank, at Seattle, with instructions to collect the draft on delivery of the receipts, and to take Hamilton's note at 60 days for the other half of the purchase price. The material arrived at Seattle on August 25, 1890. Lowman and Hamilton called at the bank to get the draft and the shipping receipts. It was after banking hours, and the cashier declined to de

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liver the same. Later, on the same day, Lowman called at the bank, and stated that it was a strange proceeding for Hamilton to receive the bill of lading and give his note. To this the cashier agreed, and thereupon he telegraphed to the complainant's bank in California for information and instructions. On August 26th Lowman telegraphed to the complainant, saying: "Hamilton says you have taken his note and released iron; wants me to pay him. Shall I do so?” During the same day, and before receiving an answer to this telegram, which did not arrive until the 27th, Lowman and Hamilton went to the bank. In the meantime the bank had received an answer from the complainant's bank in San Francisco, as follows: “Our collection Hamilton of the 19th, $12,970, accept one-half cash, note balance in sixty days.” Lowman and Hamilton were thereupon informed by the cashier of the Seattle bank that such were the terms on which the shipping receipts were sent. Accordingly, the shipping receipts were delivered to Lowman upon the payment of the draft by Hamilton and the execution of Hamilton's note for the other half of the purchase price. At the same time, Lowman paid Hamilton $8,074.85 in cash and delivered to him the note of the defendant for the remainder of the purchase price, which note was subsequently paid. On the 27th Lowman received the answer to his dispatch of the day before, informing him that in taking Hamilton's note for one-half the value of materials at 60 days the complainant did not relinquish its right to file a lien in case of nonpayment of the note. On the trial in the circuit court, it was held that the complainant had no lien upon any of the defendant's property, and the bill was dismissed.

On the appeal to this court, the question principally discussed is whether or not the law of the state of Washington gives to the complainant a lien which may be enforced, either against the railway or against the lots upon which the power house stands, or against both. The lien law of Washington (1 Kill's Ann. Code, § 1663) provides as follows:

“Every person performing labor upon, or furnishing materials to be used in the construction, alteration, or repair of any mining claim, building, wharf, bridge, ditch, dike, flume, tunnel, fence, machinery, railroad, wagon-road, aqueduct to create hydraulic power, or any other structure, or wbo performs labor in any mine or mining claim, has a lien upon the same for the work or labor done, or materials furnished by each, respectively, (whether done or furnished at the instance of the owner of the building or other improvement, or his agent), and every contractor, sub-contractor, architect, builder, or person having charge of the construction, alteration or repair either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner for the purposes of this chapter."

It was held in Kellogg v. Littell, 1 Wash. St. 408, 25 Pac. 461, that there can be no lien upon a building separate from the land whereon the same is situate; and in Railroad Co. v. Johnson, 2 Wash. St. 113, 25 Pac. 1084, it was held that unless there can be a lien upon the land there can be none upon the structure, and that no lien is given under the lien law for materials which enter into the construction of a cable railway, since the person or company constructing the same has no interest in the land; but the fee thereof is vested in the city for the public use, the railway company having only the easement of use and a license to occupy and a franchise to collect fares; and it was further held that a street cable railway is not a railroad, and is not within the purview of the lien law. The decision of the highest court of a state in regard to the meaning of the statutes of that state is to be considered the law of that state, under the requirement of section 721 of the Revised Statutes. Leffingwell v. Warren, 2 Black, 599; Luther v. Borden, 7 How. 40; Post v. Supervisors, 105 U. S. 667; Bucher v. Railroad Co., 125 Ú. S. 555, 8 Sup. Ct. 974. It is contended by the appellant that the construction so given to the law of Washington by the supreme court of that state is not conclusive upon this court; that a decision so made in February, 1891, does not control the decision of rights which accrued in the preceding year; and it is said that federal courts will not give a retroactive effect to the construction of state statutes adopted by the state courts. It is true that in certain cases the federal courts have declined to give to the decisions of the state courts a retroactive effect; but, in order that a decision may be subject to objection because retroactive, there must have been a prior ruling of the state court holding the reverse of the later construction, under which former ruling, and upon the theory that the decision of the court has the same effect as statute law, rights shall have become vested. It is held, indeed, that, where the state courts have in one line of decisions given a construction to state laws and have subsequently overruled such decisions, and adopted a different construction, the federal courts will not adopt the new interpretation so as to affect rights that accrued before it became announced as the law of the state courts. Douglass v. County of Pike, 101 U. S. 686; Carroll County v. Smith, 111 U. S. 562, 4 Sup. Ct. 539. But in the state of Washington there have been no conflicting decisions upon the construction of the words of the lien law which are involved in this case. The cases cited from the decisions of that state do not overrule prior decisions of the same court. They contain only the court's opinion of the meaning of the law from the time the statute was promulgated. Their effect is to declare that the meaning therein given to the lien law was its meaning at the time of its enactment and at all times since. The federal court, in following that construction, as it is bound to do, does not give a retroactive effect to the construction given by the supreme court of Washington, but it adopts the meaning of the law as the same has been declared by the state court. Said the court, in Leffingwell v. Warren, supra:

“The construction given to a statute of a state by the highest tribunal of such state is regarded as a part of the statute, and is as binding upon the courts of the United States as the text."

Under the lien law of Washington, therefore, as expounded by the courts of that state, a material man who furnishes material for the construction of a street railway can obtain no lien upon the structure in the streets of a city.

A question of more difficulty concerns the further contention of the appellant that the defendant's power house and the lots whereon the same is constructed, and which are used in connection with the cable road, are subject to the lien. It is argued that the case of

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