Concurring in Part and Dissenting in Part. I concur in the conclusion reached by Chief Justice Ailshie to the effect that sec. 1 of chap. 226 of the Session Laws of 1911, p. 727, is unconstitutional and void, in that it undertakes to deprive one of property without due process of law; and I dissent to that part of Chief Justice Ailshie’s opinion wherein he holds that the plaintiff and his assignors have a valid lien upon said ties for loading them on the ears after they had been manufactured and delivered to the railroad company upon their right of way. All of the work performed upon said ties was done and the ties delivered as a finished timber product, to the respondent. Sec. 5125 provides that “every person performing labor upon, or who shall assist in obtaining or se,curing, saw-logs, spars, piles, cordwood, or other timber, has a lien upon the same for the work or labor done upon, or in obtaining or securing the same.” The legislature *448in enacting that section did not have in view, and did not intend to provide for, a lien npon the timber products there referred to, for work and labor upon them after they had been delivered to the owner as finished products.
In this ease, all of the work required to complete the ties had been done and the ties delivered to and placed upon the right of way of the defendant. The respondent and his assignors were employed by a person who had a contract with the railroad company to place said ties upon the cars for distribution along the company’s railway lines. They began their work about November 13, 1912, and completed it about December 10, 1912. Thereafter, on January 14, 1913, thirty-five days after they had completed loading the ties, and after the railroad company had moved said ties out of the state, they filed their liens. The railroad company had transported said ties out of the state before the lien was filed, and innocently so, and as I view it, it would be an outrage upon justice to permit the plaintiff to penalize the defendant in three times the value of the wages sought to be recovered, under the facts of this case. It is a monstrous proposition to me to hold that one who loads on the cars certain timber that has been manufactured and delivered to the railroad company for transportation can compel the railroad company to hold the material for thirty-five or sixty days in order to permit him to file a lien.
The clear intent of the legislature in enacting said section 5125 was to give a lien for labor performed in the woods and logging camps, upon timber products before they were delivered as completed products to the owner.
After these ties had been delivered to the company, there was no other labor required to obtain or secure them. The respondent had already “obtained and secured” them. The labor for which appellant claims a lien here was performed subsequently to the time the ties were obtained and secured by the respondent. The respondent and his assignors merely took the ties and placed them on the cars for shipment after they had been “obtained and secured” and delivered into the possession of respondent and piled on its right of way by *449other parties. Those ties were in the possession of the respondent and were completed timber products before the appellant performed any labor in connection with them.
If the legislature had desired to give a lien to those who performed labor in loading ties upon the cars, they might have done so; but as I view it, they have not attempted to do that. They were simply attempting to give a lien for the work done in procuring the finished timber products mentioned in said section and delivering them to the owner.
In states having statutes similar to ours, such statutes are regarded as timber lien statutes enacted for the purpose of protecting laborers who produce the finished product, such as cordwood, saw-logs, ties, etc., — those who work in the woods and those who deliver such products, after they are finished, to the owner. (See Jones on Liens, secs. 702-730.) This intent is clearly shown by the phraseology of the statute providing a lien for all those who shall “perform labor upon,” etc., enumerating only the raw products of the woods and the products that are produced in the woods, such as “spars, piles, cordwood or other timber products.” The last part of said section, to wit, “the cook shall be regarded as a person who assists in obtaining or securing the timber herein mentioned,” clearly shows that said statute was intended only to secure those who worked in the woods or in hauling such products to the place where they were to be delivered to the owner.
Under the construction of the provisions of said statute by the majority, railroad construction men who lay these ties in the roadbed and the cooks who prepare their food assist in “obtaining or securing” them. Unless the cooks and tie-layers, and even those who furnished supplies to the railroad construction camps in which these men were working, were paid immediately and simultaneously with the laying of each tie, where the ties were secured from different places and laid indiscriminately, they would be entitled under the construction of the statute to an action for damages against the railway company for commingling the ties and impairing their liens. The legislature could not have intended to thus *450cripple business operations, without requiring each person to notify the company as soon as the work was done that he had not been paid for his labor.
Certainly none of the labor performed by the appellant and his assignors was performed upon said ties, according to the allegations of the complaint, before they were completed ties and delivered to the possession of the respondent, and the respondent in no manner assisted in “obtaining or securing” said ties,'within the meaning of those words as used in said statute. It is true the appellant alleges in third paragraph of his complaint that.he “performed labor upon and assisted in obtaining and securing said railroad ties, ’ ’ while the other allegations of the complaint clearly show that that statement is false and'that they did nothing toward “obtaining and securing” said ties.
All over the timber country in the north men have contracts for placing logs, cordwood and lumber upon cars for the purpose of shipping them to different points in the state or out of the state, and the legislature never intended to give a lien, by the provisions of the laborer’s lien law, to persons who place such finished timber products upon the cars for shipment after they have been delivered to the owner. Is it possible or probable that it was intended to give a lien to persons who are employed to load lumber upon a car for shipment out of the state; that such persons have sixty days in which to file a lien, when it is well known by those who load the lumber that it is to be shipped immediately to other parts of the state or out of the state ? And if the owner ships the lumber, that he is penalized in three times the value of the labor? The legislature never intended said lien law should be applied so as to cripple business, as will be done by the construction placed upon the statute by the majority of the court. The action of the trial court in sustaining the demurrer in this case ought to be affirmed.