Shull v. The Fontanet Co-Operative Mining Association et al. 1. N. Pierce, for appellant. A. M. Higgins, R. B. Stimson, S. C. Stimson and L. D. Thomas, for appellees. OLDS, C. J.-The appellee the Fontanet Co-Operative Mining Association was the owner of certain real estate, coal mines and personal property in Vigo county. On the 9th day of September, 1885, it conveyed, and by written instrument transferred and sold, to appellee Foley the said real and personal property owned by the company in trust. By the terms of the trust, Foley was authorized and empowered to take possession of said property, operate the coal mines so conveyed, and to pay out of the net proceeds of said mines the debts of said association, and to use all the resources, funds and securities so conveyed and transferred to him, independent of all directions or control of said association, for the purpose of developing and equipping said mines. By the terms of the trust, the only interest in said property reserved to said association was the right to the residue thereof after said debts had been paid, and said Foley had reimbursed himself for his labor and expenditures in the execution of said trust. Among the debts said trustee was to pay was a mortgage of $1,000 on the property conveyed, executed by said Fontanet association to Blackford Condit on the 20th day of August, 1885, and duly recorded September 10th, 1885, which mortgage was duly assigned to the defendant Milton S. Durham, and was by him duly foreclosed by decree of the Vigo Circuit Court; also a lien upon the said property for material and labor furnished to said association and used in opening and developing said mine, for $420.63, in favor of the appellee Joseph D.Carter, and duly recorded August 29th, 1885, which lien was duly foreclosed by said Carter by decree of the Vigo Circuit Court, October 11th, 1886. The appellee Schnenker also had a valid claim for labor ren Shull v. The Fontanet Co-Operative Mining Association et al. dered to said mining association in said mine for the sum of $100. Foley took possession of said property under said trust September 9th, 1885, and in the execution of said trust expended of his own funds $5,000 for necessary costs and expenditures in the execution of said trust, which was secured to him by the pledge and possession of said property, by the terms of the trust, and by a mortgage thereon. On the 13th day of November, 1886, said Foley, by decree of the Vigo Circuit Court, duly foreclosed his said pledge and mortgage upon all of said property against said mining association, subject to the liens of the claims of Durham, Carter and Schnenker; Schnenker's claim having been foreclosed in the same action. On the 10th day of December, 1886, Foley duly caused an order of sale to be issued upon his said decree by virtue of which all the property of the Fontanet association was duly sold to the appellee the Coal Bluff Mining Company, subject to the claims of Durham, Carter and Schnenker, which claims the Coal Bluff Company purchased and held, and the Coal Bluff Company had no notice of appellant's claim. The appellant was employed by Foley after Foley received the assignment of the property of the Fontanet Company, and worked in the coal mines from November, 1885, to April, 1886, his wages amounting to $130.44, which were not paid by Foley, and he was not made a party to any of the suits for foreclosure of liens upon the property. The appellant brings this suit, alleging the employment, the performance of the services, and that his claim is due and unpaid; asking to have a lien declared in his favor upon the property; making the appellees parties defendant, alleging they have, or claim to have, some interest in the property adverse to his. The appellees, other than the Coal Bluff Mining Company, answer by denial. The Coal Bluff Mining Company Shull v. The Fontanet Co-Operative Mining Association et al. answers, alleging the facts as above set out. The appellant demurred to the answer, the demurrer was overruled, and exceptions were taken, and judgment rendered upon the demurrer. This ruling is assigned as error. The property of the Fontanet Association passed into the hands of Foley as assignee, with authority to run and operate the coal mine. By section 1598, Elliott's Supplement, it is made the duty of the assignee to pay all debts due for manual labor before paying any other claims except the legitimate costs and expenses. The fair interpretation of this section is that the costs and expenses incurred by the assignee are made a preferred claim and prior lien upon the property to all other claims, even to those for labor incurred prior to the property being transferred to the assignee. The expense of operating the mine incurred by Foley was part of the costs and expense incurred by him. The assignment was made for the purpose of and power given to Foley to develop and operate the mine. The appellant's work was for labor in the mine performed for the assignee, Foley, and is a preferred claim. Appellant's claim stands in the same relation to the property as does all the other expense incurred by Foley, and the appellant is entitled to share with Foley in the proceeds of the property of the company. The fact that Foley paid the other expenses incurred while operating the mine, and foreclosed his lien, not making the appellant a party, does not cut the appellant out from recovering what is justly due him for labor performed in the mine, developing and operating the mining property. If the assignee, Foley, had closed up the business and paid the claims it would have been his duty to have first paid the expenses incurred by him, including the claims for manual labor in operating the mine, and next to have paid off the claims for manual labor incurred prior to the assignment. The fact that he operated the mine for a time, or spent a large amount of labor and means in developing the mining Hyland, Auditor, et al. v. The Brazil Block Coal Company. property, and before realizing a sum as profits sufficient to pay the expense incurred he abandoned the trust, and sued and recovered what was due him individually, did not deprive laborers, whose claims had not been paid, of the right to have their claims adjusted and paid out of the funds in the order of their priority. This is in accordance with the equitable rights of laborers performing services for the betterment of property, or conducting a business rendered advantageous only by their labor, independent of any statute. See Farmers Loan and Trust Co. v. Canada, etc., R. W. Co., 127 Ind. 250, and authorities therein cited. The court erred in overruling the demurrer to the answer of the Coal Bluff Mining Company. The judgment is reversed, at the costs of the appellees, with instructions to sustain the demurrer to the answer of the Coal Bluff Mining Company, and for further proceedings in accordance with this opinion. Filed Feb. 18, 1891; petition for a rehearing overruled May 22, 1891. No. 15,431. HYLAND, AUDITOR, ET AL. v. THE BRAZIL BLOCK COAL TAXES.-Board of Equalization.-Organization.—Time of Meeting.-A board SAME.-Assessment of Mining Corporations by Board of Equalization.- Notice of Meeting. Under the tax law of 1881, no special notice of the time of the meeting of the board of equalization is required to be given to a mining corporation, for the purpose of assessing its property rights, where such corporation has made and delivered to the proper officer a schedule of its property for appraisement and taxation. Such a corporation is bound to take notice of the time and place of the meeting of such board. 128 335 129 68 128 335 131 152 133 537 133 649 128 335 135 597 128 335 140 348 141 161 128 335 144 277 128 335 150 221 128 335 159 185 128 335 163 604 128 335 168 366 Hyland, Auditor, et al. v. The Brazil Block Coal Company. SAME.-Assessing Capital Stock of Mining Corporation.-Where all the tangible property of a mining corporation is duly returned for taxation, and it represents the entire capital of the corporation, the capital stock could not be assessed for taxation under the tax law of 1881 and its amendments. SAME.-Tender of Amount Due.-Injunction.— Assessment of Capital Stock.-In a proceeding to enjoin the collection of a tax assessed upon the capital stock of a mining corporation, it is not necessary to first make a tender of the amount of tax due upon its tangible property, where such property is fully returned and fairly valued. SAME.-Power of Board of Equalization.-The board of equalization can not make property of any kind subject to assessment for taxation if there is no statute conferring that authority upon it. STATUTE.-Re-Enactment.--Effect.-The re-enactment of a statute makes the statute as re-enacted the law of the State. From the Clay Circuit Court. W. B. Schwartz, J. A. McNutt and H. Teter, for appellants. G. A. Knight and A. W. Knight, for appellee. ELLIOTT, J.-The complaint of the appellee alleges that it is a mining corporation organized under the laws of this State; that its nominal capital stock is $619,300; that on the 1st day of April, 1889, its entire capital was invested in real and personal property in the counties of Clay, Owen and Parke; that it had no surplus capital or accumulations of any kind; that on the day named its capital stock had neither a market value nor an actual value over and above that of its tangible property; that its entire capital stock was represented by its tangible property, and was of no greater value than that property; that it listed for taxation all of its personal property, rights, credits, money and effects in the counties named, and in the several townships therein; that all of its personal property was appraised at its fair cash value; that, in addition to listing its tangible personal property, it made out and delivered to the assessor of the township, wherein its principal office was located, a sworn statement of its capital stock, as required by section 6357, R. S. 1881; that in such sworn statement it fixed the value |