40.

Construction to Preserve Sense.

41. Construed not to Have Retrospective Effect.

42-44. Construction of Repealing Acts.

45. Construction of Acts in Pari Materia.

DIVISION III.

CONFLICT OF LAWS.

§ 46-49. Between Later and Earlier Acts. 50. Between General and Local Acts.

DIVISION I. CONSTITUTIONALITY.

In General.

§ 22. That mechanic's lien laws are constitutional has been decided in a multitude of cases.1 They have been attacked as depriving per

1 Hicks v. Murray, 43 Cal. 515; Whittier v. Wilbur, 48 Cal. 175; Kellogg v. Howes, 22 Pac. 509, 81 Cal. 170; Hart v. Railroad Co., 121 Mass. 510; Shaw v. Bradley, 26 N. W. 331, 59 Mich. 204; Reilly v. Stephenson, 29 N. W. 99, 62 Mich. 509; Bohn v. McCarthy, 11 N. W. 127, 29 Minn. 25; Laird v. Moonan, 20

3

2

4

sons of their property without due process of law, as being class legislation, as impairing the obligation of contracts, and as interfering with the right of trial by jury; and they have been declared by the courts to be free from all these objections.

As to Subcontractors.

§ 23. But, although these laws have in general been held constitutional, they sometimes contain unconstitutional provisions; so it will be necess: y to examine the subject more in detail. The principal attack on these laws on constitutional grounds has been directed towards the provisions giving liens to subcontractors and material men in the second degree, it being argued that, as there is no privity of contract between them and the owner, it was depriving him of his property without due process of law, to subject it to a lien for the contractor's debts to them. It was probably in order to meet this objection that some of the acts declare that the contractor shall be deemed the agent of the owner, thus bringing the owner and the subcontractor into privity of contract. But even without this provi

N. W. 354, 32 Minn. 358; Bardwell v. Mann, 48 N. W. 1120, 46 Minn. 285; Richardson v. Warwick, 7 How. (Miss.) 131; Dubois' Adm'r v. Wilson's Trustee, 21 Mo. 214; Alvord v. Hendrie, 2 Mont. 115; Merrigan v. English, 22 Pac. 454, 9 Mont. 113; Glacius v. Black, 67 N. Y. 563; Gurney v. Walsham, 19 Atl. 323, 16 R. I. 698; Cole Manuf'g Co. v. Falls, 16 S. W. 1045, 90 Tenn. 466; Purtell v. Bolt Co., 42 N. W. 265, 74 Wis. 132; Van Cleve Glass Co. v. Wamelink, 1 Ohio N. P. 203, 2 Ohio Dec. 163.

2 Bohn v. McCarthy, 11 N. W. 127, 29 Minn. 23; Laird v. Moonan, 20 N. W. 354, 32 Minn. 358; Stapp v. The Clyde, 45 N. W. 430, 43 Minn. 192; Henry & Coatsworth Co. v. Evans, 10 S. W. 868, 97 Mo. 47; Blauvelt v. Woodworth, 31 N. Y. 285; Cole Manuf'g Co. v. Falls, 16 S. W. 1045, 90 Tenn. 466; Mallory v. Abattoir Co., 49 N. W. 1071, 80 Wis. 170.

Quale v. Moon, 48 Cal. 478; Summerlin v. Thompson, 12 South. 667, 31 Fla. 369; Warren v. Sohn, 13 N. E. 863, 112 Ind. 213; Virginia Development Co. v. Crozer Iron Co., 17 S. E. S06, 90 Va. 126.

4 Colpetzer v. Trinity Church, 37 N. W. 931, 24 Neb. 113; Albright v. Smith, 51 N. W. 590, 2 S. D. 577; Id., 54 N. W. 816, 3 S. D. 631; Spokane Manufacturing & Lumber Co. v. McChesney, 21 Pac. 198, 1 Wash. St. 609.

Gull River Lumber Co. v. Keefe, 41 N. W. 743, 6 Dak. 160; Riggs v. Shannon (Com. Pl.) 16 N. Y. Supp. 939; Schillinger Fire-Proof Cement & Asphalt Co. v. Arnott (Sup.) 14 N. Y. Supp. 326.

See ante, § 19.

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sion the acts giving these persons liens are not unconstitutional,' since, when the owner enters into contract with the contractor, he does so with constructive knowledge of the law, and the provisions of the mechanic's lien law enter into and form part of his contract. And it makes no difference that the statute allows subcontractors to have liens aggregating more than the entire contract price named in the original contract, or that it allows them a lien in certain cases even though the owner has paid the contractor in full.10 But it is possible for an act to go too far in this direction. Thus, an act which has been repeatedly pronounced unconstitutional by the courts was passed by the legislature of Michigan in 1887. This gave a lien to subcontractors and material men in the second degree for any material or labor furnished under any contract, express or implied, written or unwritten, whether conforming to the original contract or not, and declared that such lien should not be defeated by any contract between the owner and contractor, nor by any payment by the owner to the contractor. In passing on this statute, the court said: "This stat

7 Merrigan v. English, 22 Pac. 454, 9 Mont. 113.

8 Whittier v. Wilbur, 48 Cal. 175; Hart v. Railroad Co., 121 Mass. 510; Bohn v. McCarthy, 11 N. W. 127, 29 Minn. 25; Laird v. Moonan, 20 N. W. 354, 32 Minn. 358; Bardwell v. Mann, 48 N. W. 1120, 46 Minn. 285; Gurney v. Walsham, 19 Atl. 323, 16 R. I. 698.

9 Bardwell v. Mann, 48 N. W. 1120, 46 Minn. 285; Gardner v. Leck, 48 N. W. 1120, 46 Minn. 285; Henry & Coatsworth Co. v. Evans, 10 S. W. 868, 97 Mo. 47; Mallory v. Abattoir Co., 49 N. W. 1071, 80 Wis. 170. In the case of Dore v. Sellers, 27 Cal. 593, it was said that it was not within the power of the legislature to give a lien exceeding the sum to become due the contractor, and in the case of Whittier v. Wilbur, 48 Cal. 175, it was decided that a statute giving a lien to material men in the second degree was constitutional provided the aggregate liens did not exceed the contract price as agreed on between the owner and the contractor. But in the later case of Kellogg v. Howes, 22 Pac. 509, 81 Cal. 170, the court abandoned the theory of its earlier decisions, and held that under a statute that declared that if the contract should not be recorded it should be wholly void, and the owner shall be deemed to have contracted directly with the material men in the second degree, the latter might have liens measured only by the value of the materials they furnish.

10 Gurney v. Walsham, 19 Atl. 323, 16 R. I. 698; Laird v. Moonan, 20 N. W. 354, 32 Minn. 358; Henry & Coatsworth Co. v. Evans, 10 S. W. 868, 97 Mo. 47; Nor does such a statute impair the obligation of contracts. Albright v. Smith, 54 N. W. 816, 3 S. D. 631; Spokane Manufacturing & Lumber Co. v. McChesney, 21 Pac. 198, 1 Wash. St. 609.

ute is made for the express purpose of enabling strangers to the title to subject it to sale for obligations to which the owner never became bound, and in which he has no part whatever. It strikes at the foundations of all property in land. There is no constitutional way for divesting a man's title except by his own act or default. Here his own act is not required, and his freedom from default is no defense. He may pay in full, in advance, or otherwise, for all he has contracted for. He may contract for a house built in a certain way and of certain materials, and may have to pay for what he never bargained for, and what his building contractor had no right to put off upon him. The original contract plays no part in the matter except as a fact which binds no one, and has no significance.

Such a gross perversion of all the essential rights of property is so plain that no explanation can make it plainer." 11

Unconstitutional Provisions.

§ 24. The following acts have been held unconstitutional, as depriving persons of their property without due process of law: An act authorizing the service of summons in suits to foreclose mechanics' liens by publication "upon all parties to the action against whom no personal judgment is sought," whether they are in the state or not; 12 an act providing that the fact that the person performing labor or furnishing material was not enjoined by law from performing labor or furnishing material by the person in whom the title was vested at the time, shall be conclusive evidence that such labor was performed, or labor furnished by and with the owner's consent; an act providing that any person performing labor or furnishing materials for a railroad company shall have the first immediate lien on the whole of the latter's property, and, on filing a sworn statement of the claim, and giving bond, shall be entitled to an injunction, "enjoining and prohibiting the operation, use, or occupancy of the property created in

13

11 John Spry Lumber Co. v. Sault Sav. Bank Loan & Trust Co., 43 N. W. 778, 77 Mich. 199; Mellis v. Race, 43 N. W. 1033, 78 Mich. 80; Snell v. Race, 44 N. W. 286, 78 Mich. 334.

12 Bardwell v. Collins, 46 N. W. 315, 44 Minn. 97.

13 Meyer v. Berlandi, 40 N. W. 513, 39 Minn. 438; Randolph v. Supply Co. (Ala.) 17 South. 721.

whole or in part by the party asking for the injunction, which injunction shall not be dissolved until the court is satisfied that the claim has been adjusted and paid in full;" 1 and an act allowing judgment to be entered on the claimant's ex parte affidavit without notice to the owner.15

Whether a statutory provision giving attorney's fees to one who succeeds in establishing a mechanic's lien, but not to one who successfully defends a suit brought for that purpose, is unconstitutional, as interfering with the equal administration of justice, is uncertain.16

Trial by Jury.

§ 25. The tendency of modern statutes in regard to mechanics' liens is to have them enforced by a foreclosure proceeding of an equitable nature, in analogy to foreclosures of mortgages. In a recent case in Dakota the constitutionality of a law of this kind was attacked because it did not provide for a jury trial, it being argued that it violated the constitutional provision which declares that in suits at common law the right of jury trial shall be preserved; but the court held that a proceeding to enforce a mechanic's lien was not a suit at common law, but was a statutory action in the nature of an equitable proceeding, and therefore not within the purview of the constitutional provision.* The New York constitution of 1846 declared that "trial by jury in all cases in which it has been heretofore used shall remain inviolate forever." At that time there was in force a local mechanic's lien law confined to New York City, which provided for jury trial upon foreclosure of the lien. After the adoption of the constitution this law was repealed, and a general mechanic's lien law

14 Creech v. Railroad Co., 29 Wkly. Law Bul. 112. This decision, however, is merely that of a trial court.

15 Flint River Steamboat Co. v. Roberts, 2 Fla. 102. This was a law giving liens on steamboats.

16 Such a provision was held constitutional by a divided court in Wortman v. Kleinschmidt, 30 Pac. 280, 12 Mont. 316, and Helena Steam-Heating & Supply Co. v. Wells, 40 Pac. 78, 16 Mont. 65, but its unconstitutionality has been declared in Grand Rapids Chair Co. v. Runnels, 43 N. W. 1006, 77 Mich. 104; and Randolph v. Supply Co. (Ala.) 17 South. 721. And see the able dissenting opinion of De Witt, J., in Wortman v. Kleinschmidt, supra.

* Gull River Lumber Co. v. Keefe, 41 N. W. 743, 6 Dak. 160.