lower court, with directions to modify its decree as herein explained, if it shall be found necessary to do so for the preservation of the full rights of the appellants.

SANBORN, Circuit Judge (dissenting). I am unable to concur in the view of the majority that it is the duty of this court to substitute in the act of the legislature of Arkansas of 1895 the use of a mortgage loan in the place of the purpose of it as the test of the superiority of its lien.

The portion of that act which controls this question reads: "That in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act." Acts Ark. 1895, Pp. 217, 220. The opinion of the majority makes it read: "That in all cases where said prior lien or incumbrance or mortgage was given or executed for money or funds which were actually used to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act;" or "that in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act, except in cases in which the money is not used for the purpose for which it was raised." But what warrant have the courts to substitute use for purpose in the statute of Arkansas or to add this exception to the act of its legislature? The legislature of Arkansas said nothing about the use or application of the money raised by these mortgages. That body declared that the purpose of the loan should determine its superiority. Why should the courts strike out the test which the legislature provided and insert another? It is said that this ought to be done to effect the intention of the legislature. But is the intention of that body in adopting a statute to be determined by the opinions of judges as to what it might or ought to have said, or is it to be found in that which is clearly expressed? Is it permissible for the courts to presume or believe that the legislature intended one thing when it clearly expressed another, and are courts allowed to substitute their presumption and belief for the actual legislation? The general rule that it is the purpose of the construction of statutes to learn and give effect to the intention of the legislative body which enacted them is familiar. But this rule is nothing but a broad general proposition, which is limited and qualified by the established rules and principles of the law that peremptorily prohibit the courts from imputing to any legislative body an intention, or from construing or interpolating into a plain statute the expression of an intention, which the legislature has not fairly set forth in the law which it has enacted. The proviso of section 3 which has been quoted is the only portion of this. statute which states, or undertakes to state, the test which shall determine the superiority of the liens of prior mortgages over the subsequent liens of mechanics, and this proviso unequivocally declares that that test shall in all cases be the purpose for which the mortgage

was given. The provision of section 10 that any one interested as mortgagee or trustee may apply to a contractor or a subcontractor for a list of all the parties doing work or furnishing material for improvements and for a statement of the amount due to each of such persons does not seem to me to indicate that the legislature intended by that section to change the test it had plainly declared in section 3. If that body had such an intention it could easily have declared it, and section 10 contains no such declaration. In my opinion that. section has two other objects: (1) To enable mortgagees whose mortgages were not given for the purpose of raising money to make the improvements to protect themselves against subsequent liens, an end which they could only attain by paying off such liens or causing them to be paid; and (2) to furnish a ready way for mortgagees to ascertain the names of the necessary parties to suits for the foreclosure of their mortgages. Whatever may have been its purpose, however, it contains nothing inconsistent with the plain declaration of the proviso of section 3, and, on familiar principles, an inconsistent intention and expression ought not to be construed into section 10 for the purpose of creating a conflict between that section and section 3, which the terms of those sections do not disclose. There is nothing in any of the sections of the act, nothing in the first, second, third, fourth, fifth, or tenth sections, to which the majority refer, which declares in terms that the purpose of the loan shall not be the test of its superiority or that the use of its proceeds shall be. There is nothing in any of these sections or in any part of the act inconsistent with the unambiguous declaration of the proviso of section 3, and therefore nothing, in my opinion, to warrant the repeal or modification of the plain words of that section. The following considerations persuade me to this conclusion:

1. It is the intention expressed in the statute, and that alone, to which courts may give effect. They may not assume or presume purposes and intentions that the terms of the statute do not indicate or express, and then enact provisions to accomplish these supposed intentions. A secret intention cannot be legally interpreted into a statute which is plain and unambiguous, and which does not express it. The legal presumption is that the legislature expressed its intention and its whole intention, that it intended what it expressed, and that it intended nothing more. U. S. v. Wiltberger, 5 Wheat. 76, 94, 5 L. Ed. 37; Bennett v. Worthington, 24 Ark. 487, 494; Tynan v. Walker, 35 Cal. 634, 95 Am. Dec. 152; Alexander v. Worthington, 5 Md. 471; Maxwell v. State, 40 Md. 293; Smith v. State, 66 Md. 215, 7 Atl. 49; Johnson v. Southern Pac. Co. (C. C. A.) 117 Fed. 462; Insurance Co. v. Champlin (C. C. A.) 116 Fed. 858; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 52 C. C. A. 25, 114 Fèd. 77, 81, 57 L. R. A. 696; Railway Co. v. Bagley, 60 Kan. 424, 431, 56 Pac. 759; Woolsey v. Ryan, 59 Kan. 601, 54 Pac. 664; Davie v. Mining Co., 93 Mich. 491, 53 N. W. 625, 24 L. R. A. 357; Vogel v. Pekoc, 157 Ill. 339, 42 N. E. 386, 30 L. R. A. 491; Campbell v. Lambert, 36 La. Ann. 35, 51 Am. Rep. 1; Turnpike Co. v. Coy, 13 Ohio St. 84; Stensgaard v. Smith, 43 Minn. 11, 44 N. W. 669, 19 Am. St. Rep. 205.

In U. S. v. Wiltberger, 5 Wheat. 76, 94, 5 L. Ed. 37, Chief Justice Marshall said:

"The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one, indeed, which would justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must ,authorize us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity or of kindred character with those which are enumerated."

It would not be less dangerous to strike down any or all liens of mortgages which are superior in date and right to mechanics' liens, and which are not denounced by a statute, because they are within the mischief which it was intended to remedy, or within its reason and are of a kindred character with those which it clearly enumerates and invalidates.

In Maxwell v. State, 40 Md. 293, the supreme court of that state said:

"Courts must not, even to give effect to what they may suppose to be the intention of the legislature, put upon the provision of a statute a construction not supported by the words, even although the consequence should be to defeat the object of the act."

In Alexander v. Worthington, 5 Md. 472, that court said:

"The courts cannot imagine an intent, and bend the letter of the act to it." And again in Smith v. State, 66 Md. 215, 7 Atl. 49, it said:

"Even when a court is convinced that the legislature really meant and intended something not expressed by the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language, which is free from ambiguity."

In Tynan v. Walker, 35 Cal. 634, the supreme court of California declared that the argument that the legislature intended to include a case that was not within the terms of a statute because it was within its reason was

-"A most dangerous and pernicious mode of reasoning, which amounts to judicial legislation, and overturns the maxim that courts are authorized to declare the law only, and not to make it. If they may add at all to the exceptions provided for in the statutes, under the pretense that the case before them is of equal equity with those given in the statutes, who is to fix the limit to their interpolation or establish the line between legislative and judicial function? If they may add one to the list of excepted cases, by a parity of reasoning they may add another, and so on until the entire body of the statute has become emasculated and the will of the judiciary substituted for that of the legislature. It is an universal principle of construction that courts must find the intent of the legislature in the statute itself. Unless some ground can be found in the statute for restraining or enlarging the meaning of its general words, they must receive a general construction, and the courts cannot arbitrarily subtract from or add thereto."

And the supreme court of Arkansas, whose legislature enacted this statute, declared in Ex parte Trapnall, 6 Ark. 9, 12, 42 Am. Dec. 676, that:

"Effect must, if possible, be given to the object and intention of the legislature, but to ascertain that object and intention we must first have recourse

to the language employed in the act, and, if that be clear and unambiguous, we can proceed no further in the inquiry."

Apply the rule which these authorities announce to the statute in hand. It declares without uncertainty or doubt that the liens of prior mortgages whose proceeds were raised for the purpose of making improvements upon the mortgaged property are superior to subsequent mechanics' liens. It says "that in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act." The contention is that it intended to except from that declaration the liens of all such prior mortgages the proceeds of which were not actually used to make the improvements. In other words, the argument is that the legislature enacted that the purpose of the loan should be the test of its superiority when it intended to provide that the use of the loan should constitute that test. But the difference between purpose and use is patent in common parlance, in legislation, and in the law. Statutes which authorize the issue of municipal bonds invariably specify the purpose for which they may be issued and sold. If issued for that purpose they are valid; if for any other purpose, they are void. But it is a well-established principle, which has been uniformly and repeatedly sustained by the decisions of this court, that the fact that the proceeds of such bonds have not been used for the purpose for which they have been raised constitutes no defense to the bonds. The test of their validity is the purpose for which the proceeds were obtained, not the use to which they were applied. City of Huron v. Second Ward Sav. Bank, 30 C. C. A. 38, 43, 86 Fed. 272, 277, 49 L. R. A. 534; National Life Ins. Co. v. Board of Education of City of Huron, 10 C. C. A. 637, 644, 62 Fed. 778, 784; West Plains Tp. v. Sage, 16 C. C. A. 553, 566, 69 Fed. 943, 946; Commissioners v. Beal, 113 U. S. 227, 240, 5 Sup. Ct. 433, 28 L. Ed. 966; Cairo v. Zane, 149 U. S. 122, 137, 13 Sup. Ct. 803, 37 L. Ed. 673; Maxcy v. Williamson County Court, 72 Ill. 207. The legislature of Arkansas could not have been ignorant of the difference between purpose and use when it enacted this statute. It had undoubted power to choose whether the purpose of raising the proceeds of the mortgage loans or their use should determine the superiority of the liens of the mortgages. It chose and clearly provided that the purpose should constitute the test. This was a positive declaration that the use should not constitute it, for the expression of one alternative is the exclusion of the other, and it seems to me that it left no tenable ground for the position that the legislature intended. that any other test than that which it plainly expressed should determine the superiority of the liens of such mortgages. The legal presumption becomes conclusive that the legislature meant what it so clearly expressed, and that it meant nothing else.

2. Where the legislature makes no exception from the plain terms of a statute, the conclusive legal presumption is that it intended to make none, and the courts may not lawfully do so. Railway Co. v. B'Shears, 59 Ark. 244, 27 S. W. 2; Shreve v. Cheeseman, 69 Fed. 785, 786, 16 C. C. A. 413, 414; Madden v. Lancaster Co., 12 C. C. A.

566, 573, 65 Fed. 188; Morgan v. City of Des Moines, 8 C. C. A. 569, 60 Fed. 208; McIver v. Ragan, 2 Wheat. 25, 29, 4 L. Ed. 175; Bank v. Dalton, 9 How. 522, 528, 13 L. Ed. 242; Vance v. Vance, 108 U. S. 514, 521, 27 L. Ed. 808. In Railway Co. v. B'Shears, 59 Ark. 237, 244, 27 S. W. 2, the supreme court of Arkansas said:

"Where the statute makes no exceptions, the courts can make none. It might be very just and reasonable and right that the statute should make an exception, such as is contended it does make, or ought to be construed to make; but this was within the power of the legislature, 'and its exercise of the power cannot be restrained or varied by the courts to subserve' convenience, to relieve from hardships, or from requirements that seem unreasonable, or even absurd, where the language is plain and unambiguous. Sims v. Cumby, 53 Ark. 421, 14 S. W. 623; McGaughey v. Brown, 46 Ark. 87; Railway Co. v. Hagan, 42 Ark. 122; Railroad Co. v. Carlley, 39 Ark. 246."

By the proviso of section 3 the legislature enacted that the liens of all prior mortgages which were given for the purpose of raising money to make improvements on the mortgaged property should be superior to the subsequent liens of laborers and materialmen. It made no exception of mortgages the proceeds of which were not actually used for the purpose for which they were raised. It therefore intended to make none, and it is not the province of the courts to do so. The legislature declared that the liens of all mortgages given for the purpose of raising money to make improvements should be superior to the subsequent liens of mechanics. That declaration seems to me to conclusively negative the assumption and decision of the majority that the legislature intended to and did provide that the liens of some of these mortgages should be superior, while the liens of others of them should be inferior to the subsequent liens of mechanics.

3. Construction and interpretation have no place or office where the terms of a statute are clear and certain and its meaning is plain. When its language is unambiguous, and its meaning evident, it must be held to mean what it plainly expresses, and no room is left for construction. In such a case argument from the reason, spirit, or purpose of the legislation, from the mischief it was intended to remedy, from history or analogy, for the purpose of searching out and justifying the interpolation into the statute of new terms, and for the accomplishment of purposes which the lawmaking power did not express, are worse than futile. They serve only to raise doubt and uncertainty where none ought to exist, to confuse and mislead the judgment, and to pervert the statute. Lake Co. v. Rollins, 130 U. S. 662, 670, 9 Sup. Ct. 651, 32 L. Ed. 1060; U. S. v. Hartwell, 6 Wall. 396, 18 L. Ed. 830; Sturges v. Crowninshield, 4 Wheat. 122, 4 L. Ed. 529; Knox Co. v. Morton, 15 C. C. A. 671, 673, 68 Fed. 787, 789; Railroad Co. v. Sage, 17 C. C. A. 553, 565, 71 Fed. 40, 47; Webber v. Railway Co., 38 C. C. A. 79, 83, 97 Fed. 140, 144; Swarts v. Siegel (C. C. A.) 117 Fed. 13; Johnson v. Southern Pac. Co. (C. C. A.) 117 Fed. 462; U. S. v. Fisher, 2 Cranch, 358, 399, 2 L. Ed. 304; Bedsworth v. Bowman, 104 Mo. 44, 49, 15 S. W. 990; Warren v. Paving Co., 115 Mo. 572, 576, 22 S. W. 490; Davenport v. City of Hannibal, 120 Mo. 150, 25 S. W. 364; Witte v. Koeppen, 11 S. D. 598, 79 N. W. 831, 74 Am. St. Rep. 826; Johnson v. Railroad Co., 49 N. Y. 455, 462.