concurring specially.
Where the holder of a contract lien upon the -property of ‘an insolvent chartered railroad company seeks, through the aid of a court of equity, to have such lien set up and established, invoking in his behalf the full exercise of its-chancery powers, he thereby, relatively to all persons who-may be equitably interested, submits himself to do complete equity; and if there be charges upon the property in favor of other persons which have not in strict law a lien, but which are superior in equity to' the- claim or demand represented in the contract lien sought to be enforced, tbe court,, in adjusting the rights- of the respective parties, has the inherent power to decree a preference in favor of the former, even though the effect of such preference be to- postpone the-payment of the sum secured by the contract lien -to the satisfaction of the equitable charge; and this is true whether-the holder of the contract lien appeared in the proceeding as an original plaintiff, or was subsequently -admitted as-such by intervention, and it is likewise true whether the-proceeding be instituted under section 2716 et seq. of the-Civil Code, or under the general law authorizing the filing-of petitions in equity.
In so far as the doctrine of the ease cited as controlling-in -the present case contravenes -the principle above announced, it is, in my -opinion, unsound, and being under-review, should ibe overruled, and to that extent I dissent' from the judgment of the court; but inasmuch as a majority of the court are of the opinion that the decision in the case-cited should stand as law, I concur in the opinion that it is-controlling upon the questions made in the present case,.. *540.■and am, therefore, constrained to concur in the judgment ■of affirmance.