Lindsay Phelps Company v. Mullen
On August 1, 1893, the plaintiff in error commenced its action of replevin against one of the defendants in error, John H. Mullen, to recover possession of a quantity of logs said to be of the value of $15,000. Mullen answered, alleging that he was the surveyor general of logs and lumber for the fourth district of Minnesota; that as such surveyor general he had scaled and surveyed a large number of logs in a boom belonging to the Minnesota Boom Company, for which service he was entitled to fees amounting to the sum of $11,088.92, and had seized these logs under the statute giving him a lien, to enforce payment thereof, and praying for a return of the property, or, if that could not be had, for judgment for the sum of $11,088.92, together with 10 per cent, $1,108.89, costs of collection as provided by law, and interest. To this answer the plaintiff filed a reply, challenging on several grounds the validity of the claim for fees and lien. Thereafter the state of Minnesota was, on its application, made a party defendant, and answered setting forth in substance that since the filing of the pleadings the defendant Mullen had received from the state of Minnesota the full amount of his fees, and had transferred his claim to the state, and adopting the answer of Mullen, so far as it was applicable. On these pleadings the case went to trial before the court without a jury. No special findings of fact were made, but only a general finding for defendants. A bill of exceptions was preserved, reciting the testimony, showing that at the close the plaintiff requested of the court the following declarations:

'First. That it has not been shown that the logs for which defendants claim fees for scaling in this case ever ran into or through any boom chartered by law and therefore the defendants have no right to the fees claimed or to any lien on the plaintiff's logs therefor; but the court refused to make such declaration; to which ruling and order the plaintiff then and there duly excepted.

'Second. That the defendants have not shown themselves entitled to any lien upon the plaintiff's logs:

a. Because the scale bills, defendants' Exhibits 3 and 4, are not evidence of the scaling of the logs therein described.

'''b. Because it appears affirmatively that the said scale bills were not, nor were either of them, recorded in any book in the office of the surveyor general of that district.c. Because it appears that a very great proportion of the logs mentioned in these scale bills, defendants' Exhibits 3 and 4, were not the plaintiff's logs, and that the work done was not done at the request of the plaintiff or anybody else.

'''d. Because the pretended records of said scale bills were not in fact any record whatever.

'e. Because it does not appear that any of the log marks shown on defendants' scale bills, Exhibits 3 and 4, were ever recorded in the office of the surveyor general of logs and lumber of the fourth lumber district of the state of Minnesota in accordance with the provisions of title 3, of chapter 32, General Statutes of the state of Minnesota.

'But the court refused to make such declaration; to which ruling and order the plaintiff duly excepted.

'Third. That the statute under which the defendants claim a right to scale these logs and recover fees therefor, and to a lien on the plaintiff's logs therefor, is, as applied to the place and business where this scaling was done, an attempted regulation by the state of interstate commerce, and is unconstitutional and void, being in contravention of subdivision 4, of section 8 of article 1 of the Constitution of the United States.'

Upon the general finding the court entered a judgment for the defendants for a return of the property or the payment of the fees, costs, and interest. Thereupon the plaintiff brought the case directly to this court by writ of error on the ground that the laws of Minnesota, under which these fees and lien were claimed, were in contravention of the Constitution of the United States.

The facts developed on the trial, and upon which the questions of law arise, are these: The state of Minnesota was by law divided into five districts for the inspection of logs and lumber. The fourth district was defined as follows: 'The Mississippi river and its tributaries below the outlet of Lake Pepin to the southern line of Wabasha county.' The defendant Mullen was the duly appointed and qualified surveyor general of logs and lumber for this district, and as such performed the services for which the fees and lien were claimed. The Minnesota Boom Company was a corporation organized under the general laws of the state of Minnesota in April, 1889. The purposes for which the corporation was organized are stated in article 1 of its charter:

'The general nature of the corporate business shall be the construction, maintenance, and use of booms, dams, and all other structures of any kind necessary or advantageous for the performance of the logging and lumbering business hereinafter described, upon the Mississippi river, or either bank thereof, between the mouth of the Chippewa river, or a point opposite thereto, and the point where the easterly boundary line of the city of Winona meets the Mississippi river or a point opposite thereto, and also upon, or on any side or bank of, any slough, bayou, branch, or part of the Mississippi river between or connecting with said river at any point between the extreme limits aforesaid. The business of the corporation beside the construction, maintenance, and operation of said structures shall be gathering, driving, booming, storing, assorting, rafting, brailing, and otherwise handling any and all logs, lumber, and timber of any kind, between the limits and upon the waters and territory above stated, for any and all persons having any logs, lumber, or timber upon any of said waters or within said territory, and this corporation shall have the right to charge and receive, and shall charge and receive, from any and all persons upon or in connection with those logs, lumber, or timber for any work or services done by this corporation, a proper sum and compensation by it to be fixed for such work or services, and this corporation shall also do any other business incident to any part of the general business aforesaid.'

It constructed a boom on West Newton Slough, within the limits of the fourth inspection district, above defined. This slough is an arm or minor channel of the Mississippi river, bounded on its southwestern side by the main land, constituting the state of Minnesota, and on the other side by an island, extending up and down the river about 3 miles, and dividing this slough from the main channel of the river. The works of the boom were in this slough, but at the upper end or the island, extending diagonally across the river to the Wisconsin shore, was a structure called a shear boom, so arranged that when closed it turned all the logs coming down the river into the upper end of the boom. When one end of it was released it floated down the stream and thus allowed free passage up and down the main channel. Above the head of this boom the Chippewa river empties into the Mississippi. The Chippewa river is wholly within the limits of the state of Wisconsin, and the logs, which this boom was constructed to secure, and which in fact it did secure, were mainly logs coming out of that river and which had been cut within the limits of the state of Wisconsin.

The statutes of Minnesota, so far as they are pertinent to this inquiry, in reference to booms, scaling, and surveying, are the following:

'Any corporation formed under this title, in whole or in part for the improvement of any stream and driving logs therein, or for holding or handling logs therein, which shall have taken prior possession of such stream, or any considerable portion thereof, upon which portion no other person or corporation has erected any dams or other improvements, and which may have need of improvement of that purpose shall have power to improve such streams and its tributaries by clearing and straightening the channels thereof, closing sloughs, erecting sluiceways, booms of all kinds, side, rolling, sluicing, and flooding dams or otherwise if necessary, but shall in no case, in any manner, materially obstruct or impede navigation upon such stream or erect any dam or other obstruction below the head of steamboat navigation. Every such corporation which shall so improve a stream and so keep in repair, and operate its works so as to render driving logs thereon reasonably practicable and certain, may charge and collect reasonable and uniform tolls upon all logs, lumber, and timber, driven, sluiced, or floated on the same, and may take possession of all logs put into such stream or upon rollways, so as to impede the drive when the owners thereof or their agents shall not have come upon the stream adequately provided with men, teams, and tools for breaking the rollways and driving such logs in season for making a thorough drive down such stream without hindering the main drive; and shall also, at the request of the owner of any logs and timber put into said streams, take charge of the same, and drive the same down and out of such stream, or down such stream so far as their improvements may extend, and charge and collect therefor of the owner or party controlling said logs and timber reasonable charges and expenses for such services. And such corporation shall for all such tolls, costs, and expenses have a lien on the logs for which same was incurred, and may seize, in whoever possession found, and hold a sufficient amount thereof to pay the same, and make sale thereof upon giving ten (10) days' notice in the manner provided for notifying sales on execution upon the judgment of justice of the peace, or may enforce such liens as other liens are enforced by proper proceedings for that purpose, or may ask, demand, sue for, collect, and receive from the owner or owners of such logs the amount due for any such tolls. No injunctional order shall be granted to prevent the use or enjoyment of any such improvement or abate any such dam necessary thereto unless such corporation shall fail for sixty (60) days after judgment, from which no appeal has been taken, to pay any damages recovered for any injury done by or in consequence of its works. Any corporation formed for the improvement of a stream, which is in whole or in part a boundary between this and an adjoining state, and authorized to drive logs or maintain booms or dams in such stream, shall have authority to purchase and hold stock in corporation or corporations, in such adjoining state created for similar purposes upon the same stream, or to consolidate or otherwise unite with such corporation or corporations in such adjoining state, whenever the purposes for which the corporation in this state is organized can be better effected thereby. Provided, That no such purchase or consolidation or other union shall be made without the assent of holders of two thirds (2/3) of the capital stock of such first (1st) named company. Provided, That all dams and other works erected under the authority given by this act shall be so constructed, used, and operated as to facilitate and expedite the driving and handling logs and lumber upon the stream upon which the same may be erected, and the corporation making such improvements hereunder shall have no right to stop logs destined for points below its works on said stream except where dams have been constructed to accumulate water for sluicing logs, and flushing the river below the same, and in such case shall not detain logs in any part of the river so as to form a jam or prevent the prompt delivery of logs destined for points below the works constructed under authority of this act.' Section 2 of chapter 221 of the Laws of the state of Minnesota for the year 1889.

'Each surveyor general, by himself or deputy, shall survey all logs and timber running out of any boom now chartered, or which may hereafter be chartered by law in his district, and at the end of each week, when he has surveyed any such logs or timber, make out and deliver to the owner of such boom, or the managing agent thereof, a true and correct scale bill, stating the date of such survey, the number of logs and pieces of timber, the marks thereon respectively, and the number of feet of each mark so surveyed during the week, and shall sign the same; and he shall immediately record such bill in the books of his office, and, upon being paid his fees for such services, shall deliver the original bill to the owner or managing agent of such boom; and all boomage or fees of such boom on any logs or timber shall be collected in accordance with such survey. and all scale bills heretofore made and signed by any such surveyor general, or the record thereof in the respective offices of such surveyor generals, or copies of such records, duly certified, shall, in all courts of this state, be prima facie evidence of the matters stated in such scale bill, record, or copy.' Section 14 of chapter 32 of the General Statutes of Minnesota for the year A. D. 1866, being now § 2400 of the Statutes of Minnesota of 1894.

'The fees of surveyor generals shall be: For surveying, scale marking, making scale bills and recording the same and posting in the ledger, five cents per thousand feet for all logs and timber required to be surveyed; for surveying lumber, twenty-five cents per thousand feet, for traveling to perform any service more than two miles from their respective offices, five cents per mile going and returning; for recording any log-mark, fifty cents; for making and certifying a copy of any matter which may be of record in his office, or for making any duplicate scale bill, ten cents per folio; for recording any instrument in writing authorized to be recorded in his office, other than scale bills, ten cents per folio, payable when such instrument is presented for record and before it is recorded, and no such instrument shall be deemed to be recorded until it is entered upon the index to the record. And for the purpose of securing to the surveyor general the payment of his fees whether the same are for traveling, surveying, making scale bills, or recording the same or for any or all of such services such surveyor general shall have a lien upon all such logs, timber, or lumber surveyed and marked by him, for the amount due for his services thereon, and may retain such lien by affixing to the scale bill of such logs, timber, or lumber, before the delivery thereof, a true statement of the amount due him thereon, and that he scaled such logs, timber, or lumber, relying upon such lien, and that he claims a lien thereon for such amount, and costs of collection; and thereupon such surveyor general may take actual possession of a sufficient quantity of such logs, timber, or lumber, and may retain the same until he is paid the amount due him thereon, and such logs, timber, or lumber shall not be removed or taken from the possession or control of such surveyor general until such payment is made. If the amount is not paid within sixty days after the delivery of such scale bill, the surveyor general may sell at public auction enough of such logs, timber, or lumber, to pay the amount due him, with the costs of collection, first giving ten days' notice of such sale, by posting up five written notices thereof, one in his office, and one in each of the four most public places in the town or city where the sale is to be made; and at such sale the surveyor general may become the purchaser, The sale may be made by the sheriff or any constable of the county, and the only costs of collection allowed shall be ten per cent on the amount due, for taking care of the property and, to the officer making the sale, ten per cent on the amount payable to the surveyor general.' Section 16 of chapter 32 of the General Statutes of 1866, being § 2402 of the Statutes of 1894.

'The books of record in the surveyor general's office in each district shall be:

'First. A book in which shall be recorded the log-mark of any person desiring to have the same recorded.

'Second. A book in which shall be recorded all bills of sale, mortgages, and orders, and other instruments in writing for the sale, transfer, encumbrance, or delivery of any logs or timber in the same district.

'Third. A book in which shall be recorded the scale bills of all the logs, timber, and lumber surveyed by the surveyor general.

'Fourth. A book, to be kept in ledger form in which shall be posted and recorded, as soon as any logs or timber is surveyed, separately and under their respective marks, all the logs and timber of each particular mark surveyed, together with the date of scale, the number of logs and the number of pieces of timber, to whom scaled, if to anyone, and the number of feet, which book shall be kept posted up so that it will show the matter above stated concerning each mark of logs scaled during each month. And the surveyor general shall make and deliver to any person authorized to demand the same, a certified transcript of said record, as to any mark or marks of logs or timber, upon being paid the fees prescribed in section sixteen of this chapter, and the sum of twenty-five cents for his certificate of the same; and an index of the names and marks contained in each of said books shall also be kept. Any books of the description before named, which have been kept in the office of any such surveyor general and which belong to said office, are hereby declared to be the records of said office, and to have and be of the same validity, force, and effect as if the same had been kept by express authority of law. All the books of record hereinbefore mentioned and authorized to be kept in the office of any surveyor general are hereby declared to be public records, and of as high degree of evidence as the original instrument therein recorded, and shall, in all courts and places in this state, be taken and held to be prima facie evidence of the matters therein stated; and such books shall not be removed from the surveyor general's office, but any paper purporting to be a copy of any matter or thing of record in such office, certified under the hand of the surveyor general or his deputy to be a correct transcript from the records in such office, shall, in all the courts of this state, be received and read as prima facie evidence of the matters and things in such record contained, and of the matters therein stated.' General Statutes 1866, chap. 32, § 17. As amended 1877, chap. 18, § 3, being now § 2403 of the Statutes of Minnesota of 1894.

In addition to these statutes must be noticed chap. 401, Laws of Minnesota, 1895, which is entitled 'An Act for the Relief of John H. Mullen, and to Appropriate Money therefor,' the first two sections of which are as follows:

'§ 1. That the sum of fifteen thousand eight hundred (15,800) dollars be, and the same is hereby, appropriated out of any money in the state treasury not otherwise appropriated for the relief of John H. Mullen for disbursements made and expenses incurred by him while in the performance of his duty as surveyor general of the fourth district of the state of Minnesota, in accordance with the instruction of the governor; and the state auditor is hereby instructed to draw his warrant upon the state treasurer for said amount and deliver the same to said Mullen, and the state treasurer is hereby directed to pay the same.

'§ 2. Before said payment is made said Mullen shall assign to the state of Minnesota any and all claims which he may have for labor performed and expenses and disbursements incurred as such surveyor general, and thereupon the state of Minnesota shall proceed to collect the same in the name of said Mullen or otherwise, as the attorney general may direct, and either by actions now pending or which may hereafter be brought. In case the state of Minnesota shall recover more than the amount hereby appropriated the remainder shall be paid over to said Mullen in the same manner as provided by section one (1) of this act.'

Under the authority of this statute the defendant Mullen received payment of the amount charged for fees, etc., and assigned his claim to the state, and under and by virtue of this assignment the state became a party to this litigation, as heretofore stated.

Newel H. Clapp and Moses E. Clapp for plaintiff in error.

Messrs. Wallace B. Douglas and H. W. Childs for defendants in error.

Mr. Justice Brewer delivered the opinion of the court: 

Notes
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