by a bond or other security, or he may made such a contract as will allow him to withhold from the contractor, for the period of 60 days after the completion of the work, enough to protect the property from liens for work or material performed or furnished by persons other than the original contractor. There are many other states whose mechanic's lien laws are similar in their main features to ours, and many of them have been construed by the supreme courts of those states, and those decisions are in harmony with the conclusions herein enunciated. We append a few extracts from some of them.

In the case of Barnard v. McKenzie, 4 Colo. 251, the court says: "Laws giving mechanics and material-men a lien on real property their labor or capital has contributed to improve and enhance in value are founded in manifest equity. Such legistion is in behalf of a large and meritorious class, poorly able, as a rule, to sustain loss, and little qualified to secure themselves against it by safeguards of their own suggestion. Notwithstanding the lien was unknown to the common law, and is purely the creation of the statute, in view of its equitable character, we think the statute giving it should be liberally construed so as to advance its objects." The case of Gardner v. Leck, 48 N. W. Rep. 1120, (decided by the supreme court of Minnesota, June 8, 1891.) was when the mechanic's lien law of that state was vigorously assailed on the ground that under it the character, the quantity of the labor or material which may be charged upon the property is in no way limited by the contract between the owner and the original contractor; that laborers, material men and subcontractors are not required to pay any attention whatever to the terms of the contract with the owner; that their liens may in the aggregate far exceed the contract price; that it takes out of the owner's hands the power to say who shall be his agents with authority to charge his property, and gives that authority to subcontractors whom he has never employed.

After stating the above as the grounds upon which the constitutionality of the law was attacked, the court says: "This question is not a new one, but has been frequently raised and

*

met in the case of lien laws of various states which contain the same general features, and, while the policy of such laws has been often questioned, yet, so far as we have discovered, they have always been upheld as valid. That while no man can be deprived of his property without his consent, and while the basis of the right to a lien against property is the consent of the owner, yet the contract of the owner with the contractor, made under and subject to the provisions of an existing lien law, is evidence of the authority of the latter to charge the property with the liabilities incurred by him in performing his contract, and operates by virtue of the statute as authority to do so." The same principle is well stated by Chief Justice SHAW, in Donahy v. Clapp, 12 Cush. 440, as follows: "Such a contract by force of the existing law when it was made, of which the owner is presumed to be cognizant, gives his irrevocable power to his contractor to charge and bind his estate; and, when such power is executed by the actual making of such subcontract, it is in law the act of the owner, hypothecating his own estate to the extent of the price of such labor." In the case of Parker v. Bell, 7 Gray, 429, it was held under a statute not unlike our own, that a plasterer employed by a builder, who has made a written contract with the owner of land to build a house thereon, is entitled to a lien on the house and land. The court says: "The object of the provision of the statute is to create and preserve to the laborer security for the payment of the wages which he earns. It is manifest, from a consideration of the provisions of the successive statutes in relation to the lien of mechanics upon the estates upon which their labor has been expended, that the legislatures have regarded it as a sound and just principle that all thsse who have, by consent of the owner, or in pursuance of cor tracts with him for that purpose, contributed to increase the value of his property, should have an interest in it until their respective claims for such services shall have been paid and discharged." White v. Miller, 18 Pa. St. 52, it was held that one who furnished lumber and window-sash to a contractor to be used in the erection of a building, had a lien therefor. Chief Justice GIB

In

SON, in delivering the opinion of the court, said: "As soon as owners of lots cease to be their own builders, they put it in the power of persons employed by them to occasion losses to mechanics and material men which they ought not to bear; and it was to remedy this mischief that the legislature established the principle that materials and labor are to be considered as having been furnished on the credit of the building, and not of the contractor. The principle is not only a just, but a convenient, one. Whether the builder be the agent of the owner, or an independent contractor, his appointment to the job creates a confidence in him which was not had before; and the consequences of a false confidence ought not to be borne by those who had no hand in occasioning it.

the legislature bear hard on the owner.

Nor does the rule of
He has it in his power

to determine the price of the building while there are outstanding charges against it, or to stipulate for security against those that might afterward turn up; and, if he use common prudence, any loss which occurs will eventually fall on the author of it. If he do not, he cannot charge the mechanic or material-man with the consequences of his own supineness." See. also, Lee v. Burke, 66 Pa. St. 336; Blauvelt v. Woodworth, 31 N. Y. 285; Morrison v. Handcock, 40 Mo. 561; McCrea v. Craig, 23 Cal. 522; Sodini v. Winter, 32 Md. 136; Colpetzer v. Church, (Neb.) 37 N. W. Rep. 931.

The third objection urged by the appellant is that the item of "glass for front" was not purchased under the same contract as the other material for which the lien is sought to be enforced, and consequently cannot be included in it. The referee finds that plaintiffs first agreed with Smith Bros. to furnish all the lumber and building material specified in the account, except the item for "glass for front;" that afterwards, but on the same day on which such other items were agreed to be furnished, they further agreed to furnish the glass for the front; and that subsequently, on the 27th day of September, 1884, it was furnished at the agreed price. The question then arises, do these findings show a separate and distinct contract of sale for this item, and should respondents, as appellant contends,

have filed a separate lien claim for it, which was not done? The law is perhaps well settled that, when work is performed or material furnished under distinct contracts, each must stand on its own merits, and the lien must be filed under each contract within the time limited. Livermore v. Wright. 33 Mo. 31; Phil. Mech. Liens, § 324. But when several agreements relate to the same premises, calling for similar kinds of work or the furnishing of material for the same building, the whole will constitute one transaction to do a stipulated piece of work and to furnish certain materials. Under these circumstances the material may be treated as furnished under one agreement, and each one existing contemporaneously with the other. The ma terials and lumber in the case at bar were purchased and used for the same purposes as the "glass for front." viz: the erection of a store building. The latter was contracted for subsequently, and, before the materials were all furnished under the first agreement, the "glass for front" was obtained and used. Then, so far as concerns the construction and application of the lien law, the furnishing of all the material, together with the glass for front," may be deemed to have been substantially continuous and indistinguishable, rather than independant transactions. Miller v. Bachelder, 117 Mass. 179; Lumber Co. v, Murphy, 64 Iowa, 165, 19 N. W. Rep. 898; Skyrme v. Mining Co. 8 Nev. 219; Rush v. Able, 90 Pa. St. 153; Sash and Door Manuf'g Co. v. Norwegian Seminary, (Minn.) 47 N. W. Rep. 796; Mellor v. Valentine, 3 Colo. 255. If the facts had shown that the materials had been furnished for different purposes, as for instance, a part of them for constructing a house, and the balance at a subsequent time for altering or repairing it, or that such an interval of time had elapsed that it could not with propriety have been called one account, the items must be regarded as constituting two or more accounts, and furnished for two or more distinct purposes, and as two or more separate and entire contracts, and would be governed by the rules heretofore stated. The filing of the account within the statutory time, when the subcontractor treated the furnishing of the lumber, building material, and the glass for front" as an entirety,

we think entitles him to the statutory lien on this item, the same as the other items of the account. No substantial error appearing in the trial of the cause in the court below, the judgment is affirmed. All the judges concurring.

TRIPP V. RINGSRUD, Secretary of State.

Sections 413, 414, Comp. Laws, require the librarian of the state to deliver one copy of Dakota Supreme Court Reports to each of certain courts and officers of the state and United States. Section 415 provides that, should the full compliance with the act exhaust the supply of the volumes therein specified, "the secretary is hereby authorized and directed to purchase a sufficient number of copies of the same heretofore published, or to be published, to comply with the provisions of this act." Held, that the act has a prospective as well as present operation, and applies to future volumes of the Reports to be issued, as well as those on hand, and that the object of Section 415, Comp. Laws, was to provide for a contingency; that is, should the supply on hand be exhausted before the persons and courts named had been supplied, they could be provided with them.

(Syllabus by the Court.

Opinion filed March 16, 1892.)

Appeal from circuit court, Union county. Hon. D. HANEY, Judge. Acting for and at the request of Hon. E. G. SMITH, judge of the First circuit.

Proceeding by mandamus to compel the secretary of state of South Dakota to purchase Volume 6 of the Decisions of the Supreme Court of Dakota. Defendant demurred. Judgment for plaintiff. Defendant appeals. Affirmed.

The facts are fully stated in the opinion.

Robert Dollard, Attorney General, for appellant.

Appropriations made under the territorial laws were binding on the state and so regarded until the passage of the omnibus appropriation bill of 1891. State v. Hickman. 9 Mont. 370; 23 Pac. 740; State v. Kenney, 26 Pac. 196; Gilbert v. Moody, 25 Pac. 1092.

VOL. 2, S. D.-38