Snyder v. Snyder (Md.).

246

Taylor v. C. M. Robertson Co. (Conn.). Taylor, Newport Waterworks v. (R. I.). Taylor Iron & Steel Co., Stassett v. (N. J.)

534

833

881

Weeks v. News Pub. Co. (Md.).

162

Thresher, Green & Green Co. v. (Pa.). Tourjee v. Matteson, two cases (R. I.)........ Town of Belvidere, Belvidere Water Co. v. (N. J.). Town of Fitzwilliam, Creier v. (N. II.).. 128 Town of Guttenberg, Zeller v. (N. J. Sup.) 466 Town of Montclair, Mee v. (N. J. Sup.).. 764 Town of Norwalk v. Podmore (Conn.). 629 Town of Walpole, Bellows Falls Canal Co. v. (N. H.).. 95

711

Wells, Livermore v. (N. H.).

131

81

West Jersey & S. R. Co., Joyce v. (N. J.) 889 Westlecraft v. Barry (N. J. Sup.).

501

241

W. H. Hughes Co., Roberts v. (Vt.). Whipple, Catlow v. (R. I.).

807

753

Township of Greenwich, Shillingsburg v. (N. J. Sup.).

White v. Fernald-Woodward Co. (N. II.).. 458
Whittemore v. Boston & M. R. R. (N. H.) 125
Wichern v. United States Exp. Co. (N. J.
Sup.)
Wikander v. Uvalde Asphalt Pav. Co. (N.
J. Sup.)...

776

895

644

Township of Neptune, Siciliano v. (N. J. Sup.)

865

Trainor v. Lee (R. I.).

Trustees of Church Rooms Fund of Methodist Episcopal Church, Book Depository of Baltimore Annual Conference of Methodist Episcopal Church v. (Md.).. Trustees of Free Public Library of Newark v. Civil Service Commission of New Jersey (N. J. Sup.)..

Turgeon v. Bean (Me.).

847

Wm. M. Merwin & Sons Co., Sanitary Oyster Carrier & Commission Co. v. (R. I.)

753

Turner, City of Easton v. (Md.)

Turner v. King (Md.).

977

Tyler, Fogg v. (Me.)

.1092

1912.) BAILMENT (§ 18*)-RIGHT TO LIEN-STORAGE OF HAY.

A person, not an innkeeper or warehouseman, nor in the business of storing goods, who permits the property of another to remain on his premises under an agreement that storage is to be paid, but without any agreement for a lien, has no lien for the storage at common law; and hence defendant has no such lien for storing hay, though he has notified plaintiff owner that storage will be claimed.

[Ed. Note. For other cases, see Bailment, Cent. Dig. 88 77-84; Dec. Dig. § 18.*]

Exceptions from Supreme Judicial Court, Franklin County.

Action by Mary E. Lewis against Fred O. Gray for the alleged conversion of certain pressed hay. Plea, the general issue with a brief statement as follows: "That he retained possession of the hay which he then had in possession at the time of the alleged conversion, and refused to deliver same to plaintiff on demand, for the reason that defendant had a claim for storage of said hay, and by reason of said claim for storage a lien on the same to enforce collection of same, which claim for storage plaintiff refused to pay prior to the demanded delivery." Verdict for defendant. The plaintiff excepted to certain rulings. Sustained.

Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ.

Frank W. Butler, of Farmington, for plaintiff. Elmer E. Richards, of Farmington, for defendant.

remained there, storage would be claimed. and there was some evidence introduced tending to show an agreement to pay storage. The question was whether the defendant had a lien on the hay for storage after his notice that storage would be claimed.

The presiding justice gave the jury explicit instructions relating to the question whether there was a contract on the plaintiff's part to pay storage, and then said:

"If they did come to an understanding, if a proposition was made, and assented to by her, that storage should be paid from that time, then I give you this rule, as it lies in my mind at present, that the defendant would be entitled to retain possession of that hay until a fair reasonable price for the storage was made or tendered. We have a class of cases on the subject of liens where things are put into the possession of another to do something to them, to mend them, or repair them, or do work upon them, in which case the one who does the work is entitled to retain them until pay for the work is made to him. And I think, and so rule to you, and it will be your guide in this case, that where one places a thing to be kept, to be stored for pay, under an agreement or an understanding that it is to be paid for, that he is entitled to keep it until he is paid."

It is not claimed that the defendant had any statutory lien, nor that he had any lien on the hay by virtue of any express contract therefor in the nature of a pledge. Did he have a common-law lien, so called-a lien arising under the rules of the common law? We think not. It is quite impossible to find uniform rules by which it may always be determined when a common-law lien results. "Derived from the civil law, and founded on considerations of equity and justice, the rules by which they are governed vary with the grounds on which such rights are given." White v. Smith, 44 N. J. Law, 105, 106, 43 Am. Rep. 347.

Particular liens have always been admit

ted by the common law in favor of those persons, such as innkeepers, carriers, common carriers, and warehousemen, who are bound by law to serve the public in their trades and occupations. And the privilege of a particular lien, the privilege to detain and hold the possession of some particular property of another as security for some debt or obligation, has been extended to other persons, in a variety of cases, where such persons by their labor and skill have impart ed an additional value to the goods. This includes artisans, tradesmen, mechanics, and laborers who receive property (although not obliged to receive it) for the purpose of mending, repairing, and improving its condition for hire, and they have, by the common law, a lien on such property until the reasonable charges for their labor and expenses thereon are paid.

But the defendant, under the facts in this case, cannot be classed with those persons who are allowed liens because they are bound by law to receive and care for the goods of others. He was under no obligation to permit the hay to remain on his premises. He was not a warehouseman, nor in the business of storing goods. He was, at most, a voluntary bailee of the hay under an agreement with the owner that he was to be paid reasonable compensation for its storage. Nor can he be reasonably classed with those persons who are given liens on specific property which has been enhanced in its intrinsic value by their skill and labor bestowed upon it. True, the storage of the hay may properly be regarded as beneficial to its owner, for it may have preserved it from deterioration and destruction, but we do not think it can be held that, by the mere storage of the hay, the defendant has added to its intrinsic value, and thereby become entitled to a lien on it under the application of this rule of the common law.

As suggested above, any effort to subject common-law liens to uniform rules is necessarily unsatisfactory, and therefore it becomes most important, in the determination of whether or not a lien should be admitted in any given case, to examine and consider judicial precedents.

Our attention has not been directed to any case, and we have found none, in any jurisdiction, which decisively admits a lien under facts and circumstances like those in the case at bar. Mr. Lummus, in his recent work on Liens, cited by defendant, says: "There seems to be no good reason for limiting the lien to persons making a business of acting as warehousemen. It seems that any person having possession of the goods and a valid claim for storing them ought to have a lien." Section 73. No authorities, however, are cited which directly support that proposition. In section 76 he cites Schneider v. Dayton, 111 Mich. 396, 69 N. W. 829, as an

that storage would be charged, and the own er of the goods made no reply. But we find upon examination of the report of that case that the notice to the owner of the goods was that the landlord "would insist upon a lien for storage," and the court held that inasmuch as a lien for the storage was claimed in the notice, and the owner did not remove the goods, the lien was assented to.

In Whitlock Co. v. Holway, 92 Me. 414, 42 Atl. 799, cited by the plaintiff, this court said: "But, in the absence of any agreement, the common law does not give to a person, not an innkeeper or warehouseman, a lien on personal property for its storage.” It is suggested that the above-quoted statement is only a dictum, as the case did not really involve that question. There may be merit in that suggestion, for that was a case where a tenant left on the premises a machine the title to which was in the plaintiff, and the question was whether under those circumstances the landlord had a lien on the machine for its storage. But, if that statement be only a dictum, it is, we think, a correct statement of the law as understood and applied by this court, and also in accordance with judicial precedent elsewhere. In Allen v. Ham, 63 Me. 532, it was held that a livery stable keeper, who had a horse in his possession which he had been keeping under an express contract with the owner of the horse to pay one dollar per day for its care and keeping, had no lien at common law on the horse for any care and keeping furnished prior to the passage of Act 1872, c. 27, which provided a statutory lien for pasturing, feeding, and sheltering animals. The court there said: "Not being an innkeeper, or farrier, or trainer, he has no such lien by the common law. Miller v. Marston, 35 Me. 153 [56 Am. Dec. 694]. He has none by any agreement with the respondent amounting to a pledge."

This court having thus held that a stable keeper had no lien at common law for stabling and feeding a horse under an express agreement to pay therefor, a fortiori must it be held that a person who is not a warehouseman, nor in the business of storing goods, but who permits the property of another to remain on his premises, under an agreement that storage is to be paid, has no lien therefor at common law. Stoddard v. Crocker, 100 Me. 450, 62 Atl. 241, may be cited as holding by implication that only warehousemen have a lien at common law for storage.

In Jones on Liens, § 968, it is said: "In some states a person not a warehouseman, and not in the business of storing goods, has no lien on goods for his compensation for storing them, unless there be an express agreement for a lien, or it is the legal duty of one to receive and hold the goods. A mere volunteer under no obligation who ac

In Re Kelly, 18 Fed. 528 (District Court, S. D. N. Y.), it is said: "The authorities in this state hold that a person not being a warehouseman, nor in the business of storing goods, who has articles on private storage, has no lien upon them for his compensation any more than a landlord has on his tenant's goods for rent." See, also, Grinnell v. Cook, 3 Hill (N. Y.) 485, 38 Am. Dec. 663; Rivara v. Ghio, 3 E. D. Smith (N. Y.) 267, 268; Merritt v. Peirano, 10 App. Div. 563, 42 N. Y. Supp. 97; White v. Smith, 44 N. J. Law, 105, 109, 43 Am. Rep. 347; Preston v. Neale, 12 Gray (Mass.) 222.

If it be said that considerations of equity and justice seem to require that there should be a lien wherever a valid claim for storage exists, the answer may be made that such a lien can always be provided for by contract between the parties, and it may be created by legislative enactment.

It is therefore the opinion of the court that the ruling at nisi prius, that the defendant was entitled to a lien for the storage of the hay if there was an understanding or agreement between the parties that the storage was to be paid for, was erroneous, and accordingly the entry must be: Exceptions sustained.

1. STATUTES (§ 235*) - CONSTRUCTION - POLICE POWER-LIBERALITY.

Gen. Laws 1909, c. 238, which created Metropolitan park commissioners, with power to acquire, maintain, and make available to the inhabitants of the district and to the public generally open spaces for exercise and recreation, by purchase or condemnation. contemplates the improvement and conservation of the public health by encouraging outdoor exercise and recreation, and, as an exercise of the police power of the state, is entitled to a liberal construction.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 316; Dec. Dig. § 235.*]

2. TAXATION ($ 40*)-VALIDITY OF STATUTES -TAXING POWER-JUDICIAL AUTHORITY.

by the towns in the district of sums expended benefit of the residents of the cities and towns in the creation of the district, as the particular therein, because of their proximity, are material considerations beyond the benefit to the general public.

[Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 68-89; Dec. Dig. § 40.*] 3. JURY (§ 19*) VALIDITY OF STATUTES TAXING POWER-JUDICIAL AUTHORITY.

And, under Const. art. 1, § 15, which provides that "the right of trial by jury shall remain inviolate," such sections are not void, because they do not give persons assessed the right of trial by jury, as tax assessments have never been subject to revision by jury trial.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 91, 104-133; Dec. Dig. § 19.*] 4. EMINENT DOMAIN (§ 2*) VALIDITY OF STATUTES-TAXING POWER-JUDICIAL AU

THORITY.

that private property shall not be taken for a And Const. art. 1, § 16, which provides public use without just compensation, refers to the exercise of the right of eminent domain and illegal exactions disguised under the name of taxation; and does not require that taxes legally assessed shall carry with them any obligation, other than that a proper application shall be made, and so will not avoid the

sections of the statute noted.

Domain, Cent. Dig. §§ 3-12; Dec. Dig. § 2.*] [Ed. Note.-For other cases, see Eminent 5. CONSTITUTIONAL LAW (§ 63*)-VALIDITY OF STATUTES.

Nor is the statute rendered unconstitutional by the appointment of commissioners to determine the amounts to be repaid to the state, under Const. art. 4, § 2, which provides that the legislative power shall be vested in two houses, the concurrence of which shall be necessary to the enactment of laws, as the duty of such commissioners is not legislative, but merely a matter of arithmetical computation.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 108-114; Dec. Dig. § 63.*]

6. CONSTITUTIONAL LAW (§§ 232, 289*)—VALIDITY OF STATUTES.

Nor is the statute in contravention of Const. U. S. Amend. 14, which provides that no state shall deprive any person of life, liberty, or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws, in that it does not provide for a hearing of the cities and towns of the park district as to the necessity for parks and parkways therein, nor as to the size, style, and cost or expense of maintenance of the same, as municipal corporations are subject to control of the state Legislature, which may cast a burden of improvement upon them without notice or hearing.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 686, 870; Dec. Dig. §§ 232, 289.*]

7. MUNICIPAL CORPORATIONS (§ 64*)-VALIDITY OF STATUTES-RESTRAINTS ON LEGISLATURE-LOCAL SELF-GOVERNMENT.