The transcript in the case shows that the appeal was from a definitive sentence, and that it was taken and allowed at the time of the entry of said sentence, and that the court then allowed time in which to perfect the appeal, and this was in our opinion such a compliance with the rules governing appeals in admiralty as to fully meet the objections thereto raised by the first point above quoted, for we are of the opinion that no written petition for an appeal from a definitive sentence or for apostles is required, and that in view of the fact (as will be hereinafter stated) that no action of the appellatory court is required to perfect the appeal, the action of the court below in allowing the appeal and in granting time in which to perfect the same, was sufficient letters dismissory of cause.

As to the second point, we are of the opinion that the rules of the civil law have been so far modified in this country and in this court, by a uniform current of practice, as to make the filing of an appellatory libel in this court unnecessary.

The appeal having been taken and allowed at the time of sentence, and having been perfected within the time then fixed by the court, it was sufficient, in our opinion, under the rules, as interpreted by this court in the case of Brown et al. v. The Steamer Zephyr, 2 West Coast Rep. 51, to meet the objections raised by the third point above stated. It only remains to discuss the point now raised for the first time (the same not having been reserved in the briefs on file) as to the necessity of a monition issuing out of this court to the court below, and specially reserving the point as to whether said objection was taken in time, we would say that we are of the opinion that no monition was necessary, as there has been a uniform practice in this court to take jurisdiction of cases in admiralty, sent up on appeal, without the intervention of such monition; and such has been the practice of the supreme court of the United States as to appeals from this court. The appeal having been perfected by the filing of a bond, properly approved, and the court having in lieu of further apostles directed the entire record to be sent up, was, in our opinion, sufficient to divest said court of the case, and upon the filing of said record here, this court acquired jurisdiction therein. The case is not presented of a refusal on the part of the court below to direct the record to be sent up, and we do not, therefore, now assume to decide as to what would be the correct practice in such a contingency. It follows from what we have said that the motion must be denied, and it is so ordered.

GREENE, C. J., and WINGARD, J., concurred.

Afterward the following opinion was delivered on the merits: HOYT, J. This was an action in admiralty brought by the libelants against the respondents to enforce a lien for certain materials furnished by them and used in the putting in of the boilers and engines of the said steamer Daisy, in the process of her construction as a steamer. To the libel exhibited therein the respondents and

claimants filed their exception and answer, and testimony was taken to show the circumstances under which such materials were furnished, and the only question of fact which is made in the case is as to whether said materials were furnished at the request of the owners of said steamer, or their agents, or at the request of one J. C. Fox, who had a contract for the furnishing and putting in of the machinery, in the construction of which the materials furnished by libelants were used. The conclusion to which we have come as to the law of this case makes it unnecessary for us to decide this question, so far as the decision of this case is concerned; but in view of the fact that the discussion of an important point of law raised in the case was made dependent upon the above-stated question of fact, we have thought it best to decide it, and are of the opinion that, it appearing clearly that said Fox had a contract for the furnishing of the machinery in the construction of which the materials of libelants were used, and that said libelants had notice thereof, and it not appearing that they were ever authorized by the owners of said steamer or their agents to furnish said materials, it follows in contemplation of law that such materials were furnished at the request of said contractor Fox, and the fact that they were without authority, charged to the steamer instead of to Fox could not change the legal liabilities of the parties. Upon the facts above stated two questions of law have been urged by the counsel for claimants,-conclusions against the right of libelants to maintain their action:

First-That the court had no jurisdiction of the subject-matter of the writ.

Second-That the materials having been furnished to the contractor, and by him used in the performance of his contract with the owners of the steamer, the libelants, as to the said steamer and her owners, stand in the relation of sub-contractors, and, therefore, have no lien upon said steamer under the provisions of the laws of this territory relating thereto.

The first point was not argued in the court below, but as it goes to the jurisdiction of the court over the subject-matter of the action it must be fatal to libelants' claim whenever brought to the attention of the court; we therefore proceed to consider it. Was the contract for putting in said machinery a maritime one within the meaning of the law giving courts of admiralty the right to enforce such contracts by proceedings in rem? The answer to the question must, in our opinion, turn upon the fact as to whether the putting in of said machinery was a part of the construction of said steamer as a completed vessel, or was she a completed vessel without the machinery in question? for if the materials were used in the construction of the steamer, then under the well-settled rule as declared by the supreme court of the United States the contract for the furnishing thereof was not a maritime one, and an action in admiralty in rem would not lie to enforce a lien therefor: People's Ferry Company v. Beers et al., 20 How. 399; Roach et al. v. Chapman et al., 22 Id. 129. Was the steamer Daisy a completed vessel at the time the said

machinery was put into her? We think not, for at the time the contract with Fox was made, under which said machinery was furnished, she was, if in existence at all, in existence only as an incomplete hull on the ways, and therefore said contract was within the most restricted construction of the case of Roach et al. v. Chapman et al., above cited, a contract for the construction of the vessel, and therefore not maritime. We, however, place but little stress upon the fact that at the time of the making of the contract the vessel had not yet been launched, as we do not think that the learned judge who pronounced the opinion of the court in the case of the People's Ferry Company v. Beers et al., above referred to, could have intended, by stating as one of the reasons why the contract in that case was not maritime, that "it was a contract made on land to be performed on land," thereby to make that fact the leading one in deciding that the contract in said case was maritime; for if the location of the hull (whether on land or water) was to be decisive as to the character of the contract, it would follow that a contract made one day would be not maritime, which, if made the next day, in exactly the same terms and applying to the same vessel, would be maritime. A contract not maritime would, without any change in its terms or conditions, be changed to a maritime one by the moving of the hull upon which such contract was to take effect, the distance of a few hundred feet. Work which, if done one day, would entitle to a lien in admiralty, would, if done one day earlier, fail to create such lien. Such a construction does not seem to us reasonable, and we do not think that the opinion, taken as a whole, warrants the conclusion that the court so held. In our opinion the material question is this: Were the materials used in the construction of a part of the vessel necessary to her practicable use as a vessel for the purposes for which she was intended? Was she so far the finished creature of her designer as to be reasonably adapted to the use for which she was intended? If she was so far finished, then anything further done upon her would be maritime in its nature; but everything done before such a degree of completion had been reached would be not maritime in its nature. Applying these rules to the case at bar, it becomes evident that it is immaterial as to whether we consider the contract as having been made at the date of the contract with Fox, or at the time when the material actually went into the steamer, as the machinery in the construction of which said materials were used was clearly necessary for the practicable use of the vessel for the purpose for which she was intended and adapted. Besides, libelants have set out in their libel that said materials were used in the building, equipping and furnishing of said steamer, without stating what part of said materials was used for each of said purposes, and, therefore, for the purposes of this question, said libel must be construed as though the entire claim was for the building of said steamer. It follows that, in our opinion, the contract in question was not a maritime one, and that a court of admiralty had no jurisdiction in rem to enforce the same.

But counsel for libelants urge that even if the action cannot be sustained as a suit in admiralty, yet under the territorial statute a proceeding in rem was authorized and that the action ought to be sustained thereunder; but with this claim we cannot agree, as we doubt the power of the legislature to provide for the proceedings had in this action, and are of the opinion that if it has such power, it has never sufficiently exercised the same to justify us in upholding the proceedings had herein, as a proper exercise of the authority of the district court in its capacity as a territorial court. The court below, then, had no jurisdiction of the subject-matter of this action.

This is all we need say in determining the case at bar; but for the reason already stated, and for the further reason that the same has been fully argued by able counsel, we think it our duty to decide the other question of law as above stated upon the hearing herein. Under the lien law of this territory, has a sub-contractor a lien upon a vessel for materials furnished by him to the contractor and used in the construction of the vessel? It is a well-settled rule in the construction of lien laws that the legislature will not be presumed to have intended to provide for the claims of those having no privity with the owners of the property, against which an enforcement of the lien is sought, unless they have made use of language from which their intention to have so extended the law as to cover such claims is clearly manifest. See Phillips on Mechanics' Liens, sec. 45, and cases therein cited. Does the language used in the law of this territory relating thereto clearly show that the legislature intended thereby to provide for a lien in favor of a sub-contractor who, without any privity with the owners thereof, furnished materials for the construction of a vessel? Such an intention does not appear from a literal reading of the statute, as it in terms only gives alien to the one who furnishes the materials, and the contractor is the one who, in contemplation of the law, furnishes the materials, and not the sub-contractor of whom he may have procured the same. Nor is it reasonable to so extend the letter of the statute as to cover such cases, for if the sub-contractor is said to have furnished to the vessel the material put in by the contractor, then the person of whom such sub-contractor procured them may likewise be said to have so furnished them, and as all liens created upon vessels remain in force for the period of three years without any notice thereof being required, it would follow that there might be double or triple liens upon the vessel for the same articles, and these several liens could be allowed to remain dormant, the existence thereof entirely unknown to the owners of the vessel until they were enforced one after another at any time within the said three years.

Not only would such a construction be unreasonable, but the law so construed would be susceptible of working great injustice, and would tend greatly to discourage the industry of ship-building in this territory, and, therefore, not only should the language of the

No. 15-5.

statute be not extended so as to cover the claim of a sub-contractor, but should, if necessary, be very much restricted before being interpreted as the expression of an intention on the part of the legislature to enact a law which would lead to such injustice and hardship as might follow the enforcement of this law thus construed. But we have seen that we can give each word of the statute its ordinary and full meaning without holding that the claims of subcontractors are included therein, and in our opinion it must be so construed, and that, therefore, no lien exists in favor of a sub-contractor for material furnished by him to the contractor for use in the construction of a vessel. This construction has further sanction in the fact that the legislature has in the chapters of the lien law which provide for liens upon other species of property in express terms carefully protected the claims of sub-contractors as such, and has provided for the enforcement of such claims in such a way as to lead to the least possible inconvenience to the owners of such property. It follows from the above conclusions, that had the court below possessed jurisdiction of the subject-matter its decree would be affirmed here, but as it had no such jurisdiction there must be a decree entered here dismissing the libel, with costs of both courts against libelants.

GREENE, C. J., and WINGARD, J., concurred.

On motion to retax costs the following opinion was rendered:

GREENE, C. J. Resolved, That it is the intent of section 823 of the revised statutes of the United States, that recourse to the nation for judicial relief should be under a uniform tariff of fees throughout the entire territory of the United States, and that recourse to the territorial courts in their exercise of the same jurisdiction as circuit and district courts of the United States is recourse to the nation through organs constituted to act in its behalf, and that, therefore, that section and the sections following having specifically provided what the per foliam fee shall be in admiralty cases in the circuit and district courts of the United States, and in absence of other provisions by law what it shall be in the territories, and having in the organic act given to the territorial legislature a general power only to legislate and to legislate solely on rightful subjects not inconsistent with the laws of the United States, the per foliam fee granted by the United States fee bill in these sections is the only one that can be taxed.

Motion granted.

WINGARD, J., and HOYT, J., concurred.