
    Chapman Valve Manufacturing Company, Appellant, vs. Oconto Water Company, Respondent.
    
      October 30, 1894
    
    
      February 5, 1895.
    
    
      Mechanics’ liens: Waterworks: Public policy.
    
    No mechanics’ lien is given by sec. 3314, B. S., upon a waterworks plant which a city has provided for the protection and convenience of its citizens by a contract with a corporation organized for that purpose; nor does that statute give a lien upon specific machinery (such as valves) furnished and used in the construction of the waterworks, the removal of which would dismantle the plant and, temporarily at least, stop its operation.
    Appeal from a judgment of the circuit court for Oconto county: Samuel D. Hastings, Jb., Circuit Judge.
    
      Affirmed.
    
    The defendant is a corporation organized under ch. 86, R. S., for the purpose of supplying to tbe city of Oconto, AVis., and its inhabitants, water for protection against fire and for domestic, manufacturing, and other purposes. It was authorized by ordinance of the common council of the city of Oconto to construct, operate, and maintain a system of waterworks in that city for thirty years. After its system of Avaterworks had been completed, it was accepted by the common council as being in conformity with the ordinance which authorized its construction. The plaintiff furnished certain valves, which were used in the construction of the defendant’s waterworks plant, for which it has not been paid. It brings this action to enforce a mechanic’s lien against the defendant’s waterworks system or plant, or, if that be denied, then acjamst the valves themselves as machinery. The valves are a necessary part of the system of waterworks. The circuit court held, on grounds of public policy, that the mechanic’s lien laws do not apply to nor give a lien upon the waterworks system or plant of the defendant, and denied the hen, but gave a money judgment to plaintiff for the amount of its claim. From such judgment the plaintiff appeals.
    For the appellant there was a brief by Miller, Noyes <& Miller, and oral argument by Geo. H. Noyes.
    
    They contended, inter alia, that the only question is whether sec. 3314, E. S., is applicable to the claim of the plaintiff. Has the legislature in the enactment of the mechanics’ lien statutes declared that it is against the public policy of this state to enforce a mechanics’ lien against the property of any corporation, private or quasi public? License Tax Cases, 5 Wall. 469; Mallory v. La Crosse Abattoir Co. 80 Wis. 180. The defendant is a private corporation, organized for private gain and engaged in business solely for the benefit of its stockholders. Appeal of Les Moines Water Co. 48 Iowa, 328; Girard P. 8. Co. v. Soutlvwark F. Co. 105 Pa. St. 248. But, assuming that defendant may be classed as a quasi public corporation, the same as railroad, street railway, plank-road, bridge, omnibus, ferry, steamship, river improvement, gas, electric light, telegraph, telephone, canal, steam supply, cold storage, elevator, or purely waterworks companies, it cannot be said that the suspension of its business would injure the public more than that of any, or many, of the others. But it is settled that the mechanics’ lien laws of this state are applicable to such companies and their property. Hill v. L. C. <& M. B. Co. 11 Wis. 214; Pwriell v. Chicago F. <& B. Co. Y4 id. 132. What was said in Wilhinson v. Hoffman, 61 Wis. 631, with reference to the doctrine of “public policy,” was not necessary to the decision, since in that case Wilkinson was a subcontractor and had not complied with sec. 3315, E. S., and was not entitled to a lien under sec. 3328 because nothing was due from the city to the principal contractor at the commencement of the action. The utmost that can be said as to the principle laid down in the opinion in Wilkinson v. Hoffman, is that the property of a municipal corporation engaged in constructing waterworks is not subject to a mechanic’s lien, any more than such municipal corporation is subject to the ordinary process of garnishment. As to a municipal corporation, the statutes pertaining to mechanics’ liens and the statutes of garnishment are placed upon a similar footing. But it will not be claimed that any other corporations of this state, whether quasi public or not, are exempt from garnishment. If not exempt from garnishment there is no reason why they should be exempt from the ordinary laws relating to mechanics’ liens.
    Were this doctrine of public policy applicable to a water company, for any reason, when it is not applicable to a railroad company, it would be so applied subject to the exception stated in Hill v. L. G. <& M. JR. Go. 11 Wis. 223, in regard to specific liens in favor of the vendors or manufacturers created by the very act of acquiring a particular portion of the property. This distinction is recognized in Phillips, Mech. Liens, sec. 182. When plaintiff furnished the materials to defendant in this case, no public service was being done. The plant was not completed until a year later. By the statutes the lien dated from the commencement of the work; and if plaintiff then had a lien, against which the doctrine of public policy could not have been invoked, such lien cannot be impaired by any subsequent acts of the defendant in completing its plant, the plaintiff not having assented to any release or waiver of its lien. Smith v. Shell lake L. Go. 68 Wis. 108. Where a corporation using its property for public purposes proceeds to take up and carry away a portion of the same, such portion becomes subject to execution. Benedict v. Heineberg, 43 Yt. 231; Wilson v. School JDist. 17 Kan. 110, 111. It is just as clear that such property cannot be claimed exempt from the mechanics’ lien laws at any time before it had been devoted to public use, and if before that time a vested lien thereon has been acquired the public use of the same can be exercised only subject to the enforcement of such lien. The statute in terms does not exempt from its operation, tbe building, erection, well, or machinery of a water company organized for constructing and operating a waterworks plant; and public policy does not, for it is against common honesty so to do.
    Eor decisions in other states, see Smith Bridge Go. v. Bowman, 4-1 Ohio St. 3Y; Giant-Powder Go. v. 0. P. P. Go. 4:2 Red. Rep. 4170; Brooks v. BaÁlwcvy Go. 101 U. S. 443; Gcunal Go. v. Gordon, 6 Wall. 561; Girarrd P. S. Go. v. Southwark F. Go. 105 Pa. St. 248;_ McKnight v. Parish of Qra/it, 30 La. Ann. 361; Schwartz v. Saiter, 40 id. 264; Presbyterian Ghureh v. Allison, 10 Pa. St. 413; Board of Education v. Greenebanm, 39 Ill. 610; University of Levñsbxt/rg v. Beber, 43 Pa. St. 305; Beam v. Methodist Ghwch, 3 Clark (Pa. L. J. Rep.), 343; Mcll/vain v. II. c& M. B. Go. 5 Phila. 13; Wilson v. School Dist. 1Y Kan. 104; Badger L. Go. v. Marion W. S., E. L. de P. Go. 48 Kan. 182, 18Y.
    The origin of the doctrine of public policy as applied to quasi public corporations seems traceable to the case of Foster v. Foxoler, 60 Pa. St. 32; but the reasons given in that case are not applicable to states having different statutes. It was there held that as there could be no levy of execution upon the property in question, no mechanic’s lien was intended. But under our statutes the enforcement of the lien is not by execution but by sale under the terms of a decree in equity. R. S. sec. 3324. And in this state an execution may be issued against the property of any corporation. The public policy of Wisconsin respecting the right of creditors to enforce their claims against similar property owned by a municipality is shown by sec. 2982 (subd. 16) providing that fire engines shall be exempt from execution, but not in an action to recover the purchase price thereof.
    The plaintiff furnished machinery in and about the construction of a well, machinery, erection, and buildings, and, under sec. 3314, R. S., is entitled to a lien thereon and upon the piece of land used or designated for use in connection with such well, machinery, building, and erection, everything necessary in the operation of the plant being regarded in law as an entirety. Appeal of Des Moines Water Oo. 48 Iowa, 324; Capital City Q. L. Co. v. Chapter Oak Ins. Co. 51 id. 31; Comm. v. Lowell C. L. Co. 12 Allen, 15; Yellow JR. Imp. Co. v. Wood Co. 81 Wis. 554; Fond du Lao Water Co. v. Fond d/a Lao, 82 id. 322; Providence Cas Go. v. Tlvar-l)er, 2 P. I. 21; State v. Berry, 52 N. J. Law, 308; Fichólas v. Chamberlian, Oro. Jac. 121; Goss v. HeTbimg, 77 Cal. 190; Beatty v. Parker, 141 Mass. 523; Edwards v. Derriekson, 28 N. J. Law, 39; Derriekson v. Edwards, 29 id. 468; Steger v. Arctic B. Co. 89 Tenn. 454; Brooks v. Bailway Co. 101 U. S. 443; Canal Co. v. Cordon, 6 Wall. 561; Kenney v. Apga/r, 93 N. T. 539; Bodley v. Demnead, 1 W. Ya. 249; Hill v. L. C. c& M. B. Co. 11 Wis. 214; Puriell v. Chicago F. c& B. Co. 74 id. 132; Smith Bridge Co. v. Bowman, 41 Ohio St. 37; GicmtrPowder Co. v. O. P. B. Co. 42 Ped. Pep. 470; Cirard P. S. Co. v. Souihwa/rk F. Co. 105 Pa. St. 248. These valves, with the exception of two, were placed under the streets of the city. It may, therefore, be said that they were placed in premises in which the defendant does hot have an interest sufficient for a lien. If this be so, plaintiff is entitled to have and retain his lien on the valves as personal property. Wilson v. Budd, 70 Wis. 98; Paige v. Peters, id. 178; Heath v. Bolles, 73 id. 217; Forth v. La Flesh, id. 520. The United States court for the eastern district of Wisconsin has already established a lien upon the property involved in this action. See opinion of JekkiNs, J., in Far tional F. <& P. Works v. Oconto Water Go. 52 Ped. Pep. 43, affirmed by the court of appeals in Oconto Water Co. v. Fat. F. <& P. Works, 59 id. 19.
    For the respondent there was a brief by Webster & Mar-tmeam, and oral argument by W. II. Webster.
    
    They argued, among other things, that the defendant having nothing but a mere franchise or easement from which its income or revenues are derived, except such lands and works as are appurtenant or essential to the use and enjoyment of the franchise, there is nothing that could be levied upon or taken by an officer in satisfaction of an execution, and hence there is no hen, as mechanics’ lien laws are framed with reference to such property only as is subject to be sold under execution. Bouton v. McDonough Go. 84 Ill. 396; Phillips, Mechanics’ Liens, §§ 1790-181; Dillon, Mun. Oorp. (4th ed.),§ 577. The franchise itself cannot be seized and sold on execution. Freeman, Executions, § 179, and cases cited; Herman, Executions, § 361, and cases cited; 8 Am. & Eng. Enoy. of Law, 634i, and cases cited. The exemption of the franchise extends to all property essentially necessary to enjoy it, whether tangible or intangible. Susquehanna Ganal Go. v. Bonham, 9 "Watts & S. 28; Ghue v. Tide Water G. Go. 24 How. 263. Only a special statute can change the rule. Yellow B. Imp. Go. v. Wood Go. 81 Wis. 554; Herman, Executions, § 361, and cases cited; Gue v. Tide Water 0. Go. 24 How. 263; People v. O’Brien, 111 N. Y. 1; Goe v. G., P. db 1. P. Go. 10 Ohio St. 377; Foster v. Fowler, 60 Pa. St. 27; Gooch v. McGee, 83 N. 0. 59; Anvmcmt v. N. A. da P. T. P. Go. 13 Serg. & R. 210; Pond du Lac W. Go. v. Fond du Lae, 82 Wis. 322. The doctrine that the franchises and corporate rights of a quasi public corporation and the means vested in them which are necessary to the existence and maintenance of the object for which they are created, are incapable of being transferred and granted away by any adverse process against them, prevents the application of mechanics’ lien laws to the property of water companies with corporate rights and property similar to defendant’s. Foster v. Fowler, 60 Pa. St. 27; Kentucky L. db O. Go. v. PTew Albany W. Works, 62 Ind. 63; Guest v. Merion W. Go. 142 Pa. St. 610; MeNecd P. db F. Go. v. Bulloch, 38 Eed. Rep. 565; ECmvison d¡ II. I. Go. v. Oouneil Bluffs G. W. Wm'hs, 25 id. 170; Eufaula Water Go. v. Addyston P. db S. 
      
      Go. 89 Ala. 552. The right of the public, paramount to all others, to enjoy the benefits of an improvement owing its existence solely to a franchise granted by the state, requires that the unity of a franchise and its appurtenant property be not disturbed, for together they are effective to provide the public benefits contemplated as the consideration of the grant; severed both are valueless. For this reason the franchise cannot, without enabling legislation, be voluntary alienated, except with its essential property, even under sec. 1775 or sec. 1748, subd. 7. Goe v. O., P. d 1. B. Go. 10 Ohio St. 877, 378. The property composing the plant would pass, as an incident to the franchise, by a conveyance of the franchise without other words of description. Shamoldn V. B. Go. v. Lvoermore, 47 Pa. St. 469; Pierce ®. Emery, 32 N. H. 484; Phillips v. Winslow, 18 B. Mon. 431; Willmlc v. Morris O. da JB. Go. 4 N. J. Eq. 377; Shi/rley v. Waco T. B. Co. 78 Tex. 131; Parleer v. IV. 0.,B. B. da V. B. Go. 33 Fed. Rep. 693; State <o. N. O. B. Go. 18 Md. 193; 2 Washb. Real Prop. (3d ed.), 269, 270; Fond chi Laxa Water Go. v.Fonddu Lac, 82 Wis. 322. Several considerations seem to place railroad corporations in a class by themselves, distinguishing them from corporations which have a mere franchise and certain easements as their only property, like the defendant. (1) A railroad corporation has an estate in land and not a mere easement. Bailroad Go. «. Lames, 6 Wall. 750; Am-mant v. N. A. da P. T. B. Co. 13 Serg. & R. 210; Denton v. Lwmgston, 9 Johns. 96; Oovinigton D. B. Go. v. Shepherd, 21 How. 112; Macon da W. B. Go. v. Pan-leer, 9 G-a. 393; Leedom ®. Plymouth B. Go. 5 Watts & S. 265; Seymour v. M. d G. T. Go. 10 Ohio. 479; Que <o. T. W. Ganial Go. 24 How. 263; State v. L. da M. B. Go. 4 Humph. 488. (2) Railroad companies, etc., are organized wholly for convenience in traveling and carrying on business, while corporations like the defendant are incorporated, organized, and operated for purposes of public safety and public health. Willdnson v. LEoff-
      
      ■man, 61 Wis. 637. (3) Tbe railroads have no relation witb the state as a state. They operate their roads for all alike, the state and individuals. The state stands to them on the same plaiie with individuals, except, as in times of war, a public necessity arises for the entire appropriation of the road by the state for state purposes. Waterworks companies cannot construct their plant in any city except it be under a franchise or contract with the city to afford the city protection against fire. They have to do with cities as municipalities. They may in addition contract with individuals, but their first duty is to afford the city protection against fire and furnish its inhabitants with wholesome water. (4) The court, in the cases relied on by plaintiff, has not said “ There is no public policy in'this state against enforcing a laborer’s lien against the property of any quasi public corporation for work performed thereon,” but “ of cuny railroad corporation.”
   NbwMAN, J.

The instant case is an action for a statutory lien upon the entire waterworks plant of the defendant, or, if that is denied, upon the valves furnished by the plaintiff, as machinery which may be removed.

In Wilkinson v. Hoffman, 61 Wis. 637, this court held, on grounds of public policy and convenience, that a mechanic’s lien was not given by sec. 3314, R. S., against machinery placed in a building which was a part of a waterworks plant owned by a city and held for public use. It was said that: “ The public inconvenience which wpuld result from having such machinery removed is too obvious and grave to require any discussion. The comfort, health, safety, and property of the citizens would be greatly endangered by allowing the facilities for procuring water to be suspended, even for a short period. In view of the serious consequences which would result by allowing the lien to attach to machinery thus used, and which more than countervails any private advantage, we are inclined to hold that the provision does not apply in the case before us.” And so the court held, “ on grounds of public necessity and convenience,” that a lien was not given by the statute on property so held for public use. '

The city of Oconto has provided for the supply of the water necessary for its protection against fire, and for all the uses of its citizens, by a contract with the defendant, which is a corporation specially organized for that purpose, for the term of thirty years. The defendant’s system of waterworks was constructed under an ordinance of the city, which directed, in considerable detail, the manner of its construction, extent and capacity of the plant, and the manner of its operation. It also gave it a franchise to construct and operate its works for thirty years. After the plant was completed, the city accepted it by an ordinance which declared it to be constructed in accordance with the ordinance and the franchise conferred. In this manner the city provided itself with a system of waterworks for the protection and convenience of its inhabitants. It became and was the waterworks of the city of Oconto. It is manifest that the inconvenience and danger which must result from a stoppage of the operation of the waterworks, or from any interference with their use and operation, to the city and to its inhabitants, would be equally grave and important whether the system was owned and operated by the city or whether the city owned only the right to have it operated for its benefit and for the benefit and protection of its citizens. The effect of enforcing a lien upon the valves, as machinery Avhich might be removed, would be to dismantle the plant and stop its operation for a time at least, and to deprive the city and its inhabitants of its protection and use in either case. So the case comes within the rule of Wilkinson v. Hoffman, 61 Wis. 637, and the lien upon the valves must be denied.

To extend the lien over the entire plant would bring a like .mischief and inconvenience. Tbe 'lien could, by tbe terms of tbe statute, extend only to and include tbe entire plant, vitb all tbe interest which the defendant has in tbe land on which tbe plant is situated. Tbe statute, in terms, gives no more. Tbe defendant has an oral contract with tbe city for tbe purchase of tbe lots on which its piunping works stand, and tbe franchise to lay its main pipes and hydrants in tbe streets. It has no other or further interest in tbe land. Perhaps this is a sufficient interest to support a lien, in an ordinary case, upon tbe plant, with tbe interest in tbe land. But in terms tbe statute gives no more. It gives no lien upon or right to sell tbe franchise to operate tbe works. Whether tbe statute shall be extended by construction to •cases not within its express terms may depend somewhat on its subject matter as related to questions of public policy and convenience. Tbe effects and consequences which may result from an enlarged construction of tbe statute may be •considered in determining its proper construction. If it shall be held that tbe plaintiff has a lien which covers tbe plant, then tbe plant may be sold to satisfy tbe ben. It will then come to a purchaser who has no franchise to operate it, for tbe statute does not give a ben upon tbe franchise. Nor does it provide that tbe franchise sbab fobow tbe plant on sale under a ben judgment. Nor does tbe franchise follow tbe plant by force of tbe rule that tbe incipient follows its principal. If that maxim bas any application, it should be considered that tbe franchise is tbe principal thing. AU other rights spring from tbe franchise. Tbe franchise is a grant in gross of an incorporeal hereditament, and is not appurtenant to any particular land or property. Fond du Lac Water Co. v. Fond du Lac, 82 Wis. 322. It would not follow the plant on sale under a ben judgment. It is neither subject to tbe ben, by provision of tbe statute, nor fobows tbe plant on sale as an incident fobows its principal. It is not appurtenant to the plant. Nor can tbe plant be sold separately from the franchise to operate it. The franchises and corporate rights of a company, and the-means vested in them, which are necessary to the existence and maintenance of the object for which they were created,, are incapable of being granted away or transferred by any act of the company itself, or by any adverse process against' it, — unless it is authorized by a statute. Yellow River Imp. Co. v. Wood Co. 81 Wis. 554; Foster & Co. v. Fowler & Co. 60 Pa. St. 27; 8 Am. & Eng. Ency. of Law, 634, and cases cited in notes. To sell the plant to a purchaser who had no franchise to operate it would work all the public mischief and inconvenience which its total destruction would cause. Besides, a sale of the plant separate from the franchise would be a delusive remedy to the plaintiff. The plant without the franchise is practically without value, a consideration which shows that that cannot be the plaintiff’s remedy. Nor has a court of equity power to extend the lien, over rights not made subject to it by the statute. So it must be held that no mechanic’s lien is given by the statute-upon a waterworks plant which a city has provided for the-protection and convenience of its citizens by a contract with a corporation organized for that purpose.

The court has not overlooked nor failed to appreciate the-force of the.learned and industrious opinion upon these same questions of Mr. Justice JjluKINS in the United States circuit court for the Eastern district of Wisconsin against the same defendant (National F. & P. Works v. Oconto Water Co. 52 Fed. Rep. 43), and affirmed by the circuit court of appeals (Oconto Water Co. v. Nat. F. & P. Works, 7 C. C. A. 603, 59 Fed. Rep. 19). While this court entertains the highest respect for the opinions of those learned courts, and for the distinguished ability of the judges who have pronounced and affirmed that decision, it has yet felt constrained to a different judgment by the force of its former decisions and by the logic of the situation. It is considered that the view it has-taken in this opinion is in accord with the weight of authority and of the better reason.

By the Count.— The judgment of the circuit court is affirmed.

Upon a motion for a rehearing counsel for the appellant contended, inter alia, that the sale of the waterworks plant under a mechanic’s hen would carry with it the franchise to operate it. This is demonstrated by the authorities cited in. the opinion of Judge JeNKINS in 52 Fed. Rep. 43. The franchise is not the principal thing to which everything else is an incident. Farmers' L. & T. Co. v. Comm. Bank, 11 Wis. 207, 214. No case can be found in which it was so held as the point in the case. But the question whether the property or the franchise of a corporation is the principal thing is not at all the test of whether a mechanic’s lien can be enforced for the furnishing of material to the corporation. The test is whether, upon a sale of the property of the corporation against which a judgment upon foreclosure of the lien has been entered, the franchise to use and operate such property would pass to the purchaser as an incident to» such sale. The franchise in question is such a right as “ constitutes property within the usual and common signification of that word.” Mumma v. Potomac Co. 8 Pet. 281-285; People v. O'Brien, 111 N. Y. 2; Sellers v. Union L. Co. 39 Wis. 525; Conway v. Taylor's Ex'r, 1 Black, 603-632. The “ franchises ” referred to in the opinion in this case as being incapable of being granted away or transferred by any act of the company itself or by any adverse process,” etc., are the franchises of being a corporation and not the franchises which the company possesses to operate its plant. This is made clear by the authorities cited. Tha> franchise to exist is entirely distinct from the franchise to construct and operate. The one is incapable of being sold by voluntary or involuntary means without express legislative au-tbority. Tbe other does not require legislative sanction to be either sold or mortgaged or seized and sold by adverse process. The one does not pass as incident or appurtenant to the plant or corporate property; the other does. Memphis & L. R. R. Co. v. Comm'rs, 112 U. S. 609-619; Wright v. M. & St. P. R. Co. 25 Wis. 46; Joy v. J. & M. P. R. Co. 11 Mich. 156; 1 Beach, Priv. Corp. § 362; Ragan v. Aiken, 9 Lea, 609; Neff v. Wolf R. B. Co. 50 Wis. 585; New Orleans, S. F. & L. R. Co. v. Delamore, 114 U. S. 501; Morgan v. Louisiana, 93 id. 217; Lawrence v. M. L. & T. R. & S. Co. 39 La. Ann. 427; Monongahela Nav. Co. v. U. S. 148 U. S. 312; McNeal P. & F. Co. v. Howland, 111 N. C. 615; Wilmington R. R. v. Reid, 13 Wall. 264; Syracuse W. Co. v. Syracuse, 116 N. Y. 167, 182; Gloninger v. P. & C. R. Co. 139 Pa. St. 13; Carpenter v. Black Hawk G. M. Co. 65 N. Y. 43; Lord v. Yonkers F. Gas Co. 99 id. 547; Butler v. Rahm, 46 Md. 541, 547; Meyer v. Johnston, 53 Ala. 237; Metz v. B. C. & P. R. Co. 58 N. Y. 61; Stewart v. Hargrove, 23 Ala. 429; Bank of Middlebury v. Edgerton, 30 Vt. 182, 190; Ludlow v. C. L. R. Co. 1 Flippin, 25; Coe v. C., P. & I. R. Co. 10 Ohio St. 372; Pullan v. C. & C. A. L. R. Co. 4 Biss. 35; Charles River Bridge v. Warren Bridge, 11 Pet. 630. By reference to the laws of this state, cited in the opinion in Nat. F. & P. Works v. Oconto W. Co. 52 Fed. Rep. 54, 55, it appears beyond question that the legislature has in every way possible authorized and sanctioned the right to sell, mortgage, or otherwise dispose of the franchises of a corporation. Whether this means both classes of franchises or not is immaterial. If by such legislation the defendant could by voluntary act dispose of its franchise to build, maintain, and operate the water plant, it is equally certain that such disposition and sale of the franchise can be had by involuntary alienation at the suit of a creditor. That this company had authority, under' the laws of this state, to mortgage its franchise to operate its plant, even separate from its other property, has been, adjudicated in Andrews v. Nat. F. & P. Works, 61 Fed. Rep. 782. A court of equity, without express statutory authority, could place the management of a corporation in the hands of a receiver,, who would have a right to operate its property for the benefit of the public. Louisville Water Co. v. Hamilton, 81 Ky. 517. And under a voluntary assignment the franchise to operate the property would pass to the assignee, with like effect as to a receiver. Garden City B. & T. Co. v. Geilfuss, 86 Wis. 612. "Why, then, would not such franchise pass to the purchaser of the property upon a sale under a judgment for a mechanic’s lien? The city of Oconto, by its ordinance, expressly recognized the right of the company to dispose of the franchise to construct and operate the plant, by authorizing the company, “ its successors and assigns,” to construct, operate, and maintain the waterworks; and the city also reserved the right to purchase the waterworks, together with its “ rights, privileges, and franchises.” Sec. 3229, R. S., providing that the franchises of “ any turnpike or other corporation organized to receive toll ” may be taken on execution, is broad enough to cover the defendant corporation. McNeal F. & P. Co. v. Howland, 111 N. C. 615; McKee v. G. R. & R. L. St. R. Co. 41 Mich. 274; Wis. Tel. Co. v. Oshkosh, 62 Wis. 32.

The motion was denied February 5, 1895.  