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out a certificate.

Parker-Harris Co. v. Tate.

The conditional seller is not then the owner within the meaning of that word so used.

It is a rule of statutory construction that where the same word is used in a statute more than once, and the meaning is clear at one place, it will ordinarily be construed to have that meaning elsewhere in the act. 2 Lewis' Suth. Stat. Constr. (2d Ed.), p. 758.

In Daugherty v. Thomas, 174 Mich., 371, 140 N. W., 615, 45 L. R. A. (N. S.), 699, Ann. Cas., 1915A, 1163, the court defined the word "owner" in an automobile statute. There the effort of a litigant was to restrict the meaning of the word, while here it is to enlarge it. The court said:

"We hardly need quote authorities to the effect that the owner of the property is the one who has dominion over it, and has a right to enjoy and do with it as he pleases, unless he is prevented by some contract or law which restrains his rights.

As said by Lord Atkinson in a recent case (Samson v. Aitchison, [1912] A. C., 844):

"The duty to control postulates the existence of the right to control. If there is no right to control there con be no duty to control."

A Canadian case called for the construction of an act in respect to who was the "owner" of an automobile responsible for the violation of a legislative act. The court said:

"The purpose of section 19 was to render the person having dominion over the vehicle, and in that sense the owner of it, answerable for any violation in the com

Parker-Harris Co. v. Tate.

mission of which the vehicle was the instrument, by whomsoever it might be driven; and I do not think that it can have been intended to fix the very serious responsiblity, which the section imposes upon one who, like the respondent, at the time the accident happened, had neither the possession of, nor the dominion over, the vehicle, although he may have been technically the owner of it in the sense in which the owner of the legal estate in the land is the owner of land." Wynne v. Dalby, 30 Ontario, 67.

It has been clearly pointed out by this court where a sale, had been made with title retained in the vendor that "the possession, use and profits of the property had passed from the vendor to the purchaser; the vendor was not authorized to exercise any act of ownership or control." over the property (Bank v. Vandyck, 4 Heisk. [51 Tenn.], 617); and that the property had passed under the dominion and control of the vendee, and so far forth that he would be liable on the purchasemoney note notwithstanding loss or destruction of the property. Marion Mfg. Co. v. Buchanan, 118 Tenn., 238, 99 S. W., 984, 8 L. R. A. (N. S.), 590, 12 Ann. Cas., 707.

The governing principle was applied in a case decided by the supreme court of Nebraska (Goff v. Byers, 70 Neb., 1, 96 N. W., 1037), which involved a lien declared by statute in favor of the owner of cultivated land on trespassing animals for damages done by such animals, and a claim of priority for it over the antedating lien of a mortgage. The legislative act pro

Parker-Harris Co. v. Tate.

vided that the person whose property was damaged should have a lien upon the trespassing animals for the full amount of damages and costs, and contained no express provision giving it preference over other liens.

"The statutory lien is given to the person injured to enable him to obtain satisfaction from the person through whose fault or omission of duty the injury was occasioned. A mortgagee without possession could not, of course, be sued in a case of this kind, and it would be an anomaly in the law, if his property could be taken for the satisfaction of a claim upon which he was not personally liable. Under the statute of Alabama giving a lien for damages upon trespassing stock, it was held that the statutory lien was subordinate to the lien of a prior mortgage executed by the owner. The court in Lehman v. Ferrell, 71 Ala., 458, said: 'We think the lien the statute gives on the stock doing damage can only be commensurate with the ownership of the person by whose voluntary permission the stock runs at large. Ballard was the person sued. The lien can only extend to such title and interest as he was the owner of.'

We therefore are of opinion that only the interest of the vendee, as the owner of the automobile, was liable to be attached and subjected. The meaning of section 5 of the statute is that there shall be a lien upon such automobile if driven at the time of the injury by such owner, or any one driving it under him-that is, under him as the one exercising dominion over itwhether it be his chauffeur or servant, or one in charge

Parker-Harris Co. v. Tate.

under a contract of bailment or hire. The last clause, "or any other person using the same by loan, hire or otherwise," was meant to cover broadly an arrangement by which the owner, such as the keeper of a garage, who, exercising his power of control, permits the driver of the machine to run it. The spirit of the provision is to subject that which is owned by him who has it in his own power to select the agency by which the machine is propelled or to be propelled. As we have seen this is the conditional vendee. The statute does not operate a forfeiture or subjection of the interest of one who has it not in his power to protect his interest by any exercise of discretion as to the movements of the machine, or as to who shall move it.

The court of civil appeals refers throughout its opinion to cases in admirality where vessels in collision are proceeded against in rem and subjected regardless of the rights of prior mortgagees or lienors. In such cases, however, the procedure is not according to the common law, but to that part of the civil law system that has been moulded into what is termed the maritime law. However, in such cases, also, the rule appears to be, in accord with what has been noted, that:

"A forfeiture for violation of a statute does not affect liens acquired prior to the illegal act." 26 Cyc., 798, and cases cited.

We think it clear that the statute under review does not undertake to provide for a proceeding in remagainst the automobile as the res. As was said in respect of another of our lien statutes provided to be enforced by attachment:

Parker-Harris Co. v. Tate.

"The Code however, in its provisions, seems evidently, as we think, to contemplate not only that the owner or owners should be parties, but that they should be defendants to the suit in the precise sense in which parties are defendants in other like cases of enforcement of debts. It is not a proceeding in rem,

in which the vessel is defendant." John, 10 Heisk. (57 Tenn.), 503.

Waggoner v. St.

660;

And see Montgomery v. Rich, 3 Tenn. Ch., Pierce v. Lawrence, 16 Lea (84 Tenn.), 572, 1 S. W., 204.

Believing that the statute and the rights of the petitioner have been misconceived, the judgment of the court of civil appeals is reversed, and the cause is remanded to the circuit court for further proceedings. Costs of the appeal will be paid by respondent.

SWIGGART, Special Judge, dissents.