applicable to the whole state adopted. It was held that this latter law was constitutional, even though it gave no right of trial by jury, since the constitutional provision only applied to the right of jury trial as it existed in the state at large.17 When Montana was a territory, it was held that an act providing for the foreclosure of a mechanic's lien by a suit of an equitable nature, and allowing a personal judgment to be rendered therein, was in violation of the organic law of the territory, in that it attempted to blend law and equity together in the same proceeding.18

19

Other Provisions.

§ 26. A statute giving a lien notwithstanding a conveyance made after completion of the work for which the lien is claimed is not unconstitutional, as taking the property of one to pay the debt of another; 1o but a statute providing that the deed of the sheriff on a sale under a lien judgment "shall take precedence of any other title," and that no incumbrance upon land created before or after the making of a contract, or performing labor, or furnishing material, shall operate upon the building erected, or material furnished, until the lien for labor or material is satisfied, is unconstitutional as affecting vested interests.20

Whether an act giving a lien for work done before its passage is constitutional is a question on which the decisions do not agree. The view which is supported by the better reason and the greater weight of authority is that such a law is constitutional, except as against

17 Riggs v. Shannon (Com. Pl.) 16 N. Y. Supp. 939. In a previous case this same law had been held constitutional on the ground that it still allowed mechanic's lien cases to be tried by a jury. Schillinger Fire-Proof Cement & Asphalt Co. v. Arnott (Sup.) 14 N. Y. Supp. 326. As neither decision is by a court of last resort, the construction of this statute can hardly be said to be settled, though the constitutionality of the act is affirmed in both cases.

18 Mochon v. Sullivan, 1 Mont. 470; Simonton v. Kelly, Id. 483; Riale v. Roush, Id. 474.

19 Blauvelt v. Woodworth, 31 N. Y. 285.

20 Meyer v. Berlandi, 40 N. W. 513, 39 Minn. 438. It was held in Townsend Sav. Bank v. Epping, Fed. Cas. No. 14,120, 3 Woods, 390, that the legislature could not make workmen's liens on sawmills paramount to prior mortgages, since that would impair the obligation of contracts.

MECH.LIENS-3

(33)

purchasers or mortgagees for value, since the law merely gives the mechanic an additional remedy, and therefore does not impair the obligation of his contract, though that contract was executed before the law took effect.21

An act allowing a contractor to have a lien even though he had covenanted in his contract to look for his pay solely to the personal responsibility of the owner, leaving the building free of liens, would be unconstitutional, as impairing the obligation of contracts.22

Title of Act.

*

§ 27. The constitutions of several states declare that no law shall embrace more than one subject, which shall be clearly expressed in its title. Under these constitutional provisions, it has been held that an act entitled "An act to revise, simplify and abridge the rules, practice, pleadings and forms in civil cases to abolish distinct forms of action at law, and to provide for the administration of justice in a uniform mode of pleading and practice," is sufficiently broad properly to include a section creating mechanics' liens, and providing for their enforcement, since such a lien is simply one of the means provided to enable the mechanic to collect his account; and that an act entitled "An act giving labor the right of first lien and material furnished a second lien on all property" is sufficiently broad properly to include a section making it criminal for a contractor for any building, on which there is a right of lien under that law in favor of laborers or material men, to receive full payment under his contract and neglect to pay laborers and material men, so that the latter shall impose a lien on the property of the owner.2

Assuming Judicial Functions.

23

§ 28. A mechanic's lien act in which the legislature assumes the judicial function of construing contracts or statutes is unconstitu

21 Bolton v. Johns, 5 Pa. St. 145; O'Brien v. Logan, 9 Pa. St. 97; Colpetzer Trinity Church, 37 N. W. 931, 24 Neb. 113; contra, Kinney v. Sherman, 28 1 520; Bass v. Williams, 41 N. W. 229, 73 Mich. 208.

22 Taylor v. Murphy, 23 Atl. 1134, 148 Pa. St. 337.

23 Hall v. Bunte, 20 Ind. 304.

24 State v. Brachvogel, 36 N. W. 641, 38 Minn. 265.

tional, as invading the province of the judiciary.25

Thus, a section

of the statute declaring that, when any doubt exists as to the construction of the law, it shall be the duty of the court to construe it so as to give the person performing any labor the full amount of his claim over and above costs and attorney's fees, is void on this ground.26 Where the statute provides that the liens shall be enforced in a court of law by proceedings which are strictly legal in their nature, the act is not unconstitutional, as attempting to confer chancery powers upon a common-law court.27

Unconstitutional Amendment.

§ 29. Where the change which a mechanic's lien act seeks to make in the existing law is unconstitutional, the entire act is void, and the law remains as it was before the act was passed.28

Exemptions and Exceptions.

§ 30. Under a constitutional direction to exempt from seizure for debt a reasonable amount of property, the legislature, after exempting homesteads from execution and sale, cannot make them subject to mechanics' liens; 29 and where the constitution creates a homestead right, exempt from execution for debt except for payment of obligations contracted for its purchase, for taxes, for agricultural laborers' liens and for mechanics' liens for work done on the premises, an act attempting to give material men a lien on homesteads is unconstitutional.30 It has been held that an act giving a right to file mechanics' liens in certain cases, except in counties having more than

25 The Aurora Borealis v. Dobbie, 17 Ohio, 125; Titusville Iron Works V. Keystone Oil Co., 15 Atl. 917, 122 Pa. St. 627. But statutes declaring that they should be liberally construed seem to be accepted by the courts. See post, § 39.

26 Meyer v. Berlandi, 40 N. W. 513, 39 Minn. 438.

27 Emerson v. Gainey, 7 South. 526, 26 Fla. 133.

28 John Spry Lumber Co. v. Sault Sav. Bank Loan & Trust Co., 43 N. W. 778, 77 Mich. 199; Titusville Iron Works v. Keystone Oil Co., 15 Atl. 917, 122 Pa. St. 627.

29 Coleman v. Ballandi, 22 Minn. 147; Meyer v. Berlandi, 40 N. W. 513, 39 Minn. 438.

20 Cumming v. Bloodworth, 87 N. C. 83.

200,000 inhabitants, violated a constitutional prohibition against local laws authorizing the creation of liens.31 An act giving a lien to subcontractors does not conflict with the provision of the Missouri bill of rights securing to all "the enjoyment of the gains of their own industry."

33

Mode of Testing Constitutionality.

§ 31. It has been held by one court of intermediate jurisdiction that the constitutionality of a mechanic's lien law cannot be raised on motion to strike out all that part of the complaint that tends to show a lien, and by another that its constitutionality cannot be considered when raised for the first time on appeal.34 Where a judgment enforcing a mechanic's lien was set aside on appeal so far as the lien was concerned, it has been allowed to stand as a personal judgment against the debtor.35

Liens Created by the Constitution.

36

§ 32. The constitutions of some of the states declare that mechanics shall have a lien, and that the legislature shall provide by law for its speedy and efficient enforcement. It has been held that such a provision is self-executing so far as chattels are concerned, but not in regard to real property.37 The supreme court of California once held that this provision did not authorize the legislature to extend the lien beyond the limits that had been set on former statutes by the decisions of the court,38 but that doctrine was afterwards repudiated.39 Such a provision in the constitution does not, however, pre

31 Davis v. Clark, 106 Pa. St. 377.

82 Henry & Coatsworth Co. v. Evans, 10 S. W. 868, 97 Mo. 47.

33 Brien v. Clay, 1 E. D. Smith (N. Y.) 649.

34 Rice v. Carmichael, 34 Pac. 1010, 4 Colo. App. 84.

35 Koepke v. Dyer, 45 N. W. 143, 80 Mich. 311.

36 Campbell v. Fields, 35 Tex. 751.

37 Spinney v. Griffith, 32 Pac. 974, 98 Cal. 149; contra, Camp v. Mayer, 47 Ga. 414.

38 Latson v. Nelson, 11 Pac. Coast Law J. 589.

This case was decided by

the supreme court of California in 1883, but was never reported in the official reports.

39 Kellogg v. Howes, 22 Pac. 509, 81 Cal. 179.

vent the legislature from requiring the lien claimant to file his claim with the county clerk within a limited time, on penalty of losing his lien if he fails to do so, since such an act is merely analogous to the statutes of limitations.* 40

Constitutional Right to Change the Law.

41

§ 33. Some courts hold that a mechanic's lien is a vested right, which the legislature cannot take away after it has once accrued; but the better reason and an equal weight of authority sustain the doctrine that the lien pertains merely to the remedy, and may therefore be taken away by the legislature that created it.42 And, if able to take away the lien altogether, the legislature may, of course, modify it, as by limiting the estate which may be sold to foreclose it to that vested in the person in possession when the building was erected,13 by changing the form of action from legal to equitable,** by imposing new and additional conditions as to notice,45 or by providing for a discharge of the lien upon bond being given by the owner.46 But where the former law provided for a foreclosure of the lien by an action at law, and declared that the building might be sold separate

40 Lee v. Phelps, 54 Tex. 367.

43

41 Weaver v. Sells, 10 Kan. 619; Garneau v. Mill Co., 36 Pac. 463, 8 Wash. 467; In re Hope Min. Co., Fed. Cas. No. 6,681, 1 Sawy. 710; Buser v. Shepard, 8 N. E. 280, 107 Ind. 417; Goodbub v. Hornung's Estate, 26 N. E. 770, 127 Ind. 181; The Gazelle v. Lake, 1 Or. 119; Handel v. Elliott, 60 Tex. 145; Kirkwood V. Hoxie, 54 N. W. 720, 95 Mich. 62; Florence Gas, Electric Light & Power Co. v. Hanby, 13 South. 343, 101 Ala. 15.

42 Woodbury v. Grimes, 1 Cclo. 100; Bangor v. Goding, 35 Me. 73; Frost v. Ilsley, 54 Me. 345; Hanes v. Wadey, 41 N. W. 222, 73 Mich. 178; Bailey v. Mason, 4 Minn. 546 (Gil. 430); Templeton v. Horne, 82 Ill. 491; Donaldson v. O'Connor, 1 E. D. Smith (N. Y.) 695; Dunwell v. Bidwell, 8 Minn. 34 (Gil. 18). The general rule is that any lien created by mere act of legislation has none of the properties of a contract, and may therefore be destroyed by an act of legislation. Martin v. Hewitt, 44 Ala. 418; Watson v. Railroad Co., 47 N. Y.

157.

42 Evans v. Montgomery, 4 Watts & S. (Pa.) 218. The previous law was somewhat ambiguous as to the estate that could be affected by the lien, and it had not been judicially construed on that point. O'Conner v. Warner, Id. 223. 44 George v. Everhart, 15 N. W. 387, 57 Wis. 397. 45 Osborn v. Paper Co., 13 South. 776, 99 Ala. 309. 46 McHugh v. Gault, 48 N. W. 869, 86 Mich. 135.