92

revived." So, too, if the repealing act is declared unconstitutional.93

95

§ 44. As we have seen, the decisions are in conflict as to whether the legislature has constitutional power to destroy liens that have accrued. But all courts agree in construing repealing laws so as to leave existing liens still in force in all cases where such construction is possible. Thus, a mechanic's lien law repealing all acts and parts of acts inconsistent therewith does not destroy liens that have accrued under former statutes, even though the repealing act has no saving clause.96 And where an act creating mechanics' liens takes effect simultaneously with an act repealing all former laws, existing liens not yet in suit are not lost." A provision in the repealing act that it shall not "apply to or affect any lien heretofore acquired," of course, places the preservation of existing liens beyond doubt,"s but it has been held that a clause saving all pending proceedings in courts was not broad enough to preserve liens that had attached, but on which suit had not been begun when the repealing act was passed."9

Construction of Acts in Pari Materia.

§ 45. Where two mechanic's lien acts passed at different times are not so inconsistent that they cannot stand together, and the later act

92 Vau Denburgh v. Greenbush, 66 N. Y. 1; In re Brown's Estate, 25 Atl. 630, 152 Pa. St. 401.

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

94 See ante, § 33.

95 Conner v. Lewis, 16 Me. 268; Pond Mach. Tool Co. v. Robinson, 37 N. W. 99, 38 Minn. 272.

96 In re Hope Min. Co., Fed. Cas. No. 6,681, 1 Sawy. 710. But this case proceeds upon the theory that the legislature has no constitutional power to destroy existing liens.

97 Skyrme v. Mining Co., 8 Nev. 233; Capron v. Strout, 11 Nev. 310.

98 McCrea v. Craig, 23 Cal. 522. And a provision in the general laws that the repeal of a statute shall not affect any proceeding begun under it keeps alive pending mechanic's lien suits when the act on which they are based is repealed pending suit without any saving clause. Morgan v. Chapple, 10 Kan. 216; Garland v. Hickey, 43 N. W. 832, 75 Wis. 178.

99 Woodbury v. Grimes, 1 Colo. 100; Purmort v. Lumber Co., 2 Colo. 470; Hanes v. Wadey, 41 N. W. 222, 73 Mich. 178.

103

does not expressly repeal the former one, the courts usually construe the two acts together as though they were both parts of a single statute.100 Thus, where the later act repealed all inconsistent acts, but contained no limitation on the right of action, it was held that a limitation of 70 days declared by a previous act was still in force; 101 where one act gave a lien on buildings, but declared that oral contracts for more than $1,000 should be void, and another act gave a lien for constructing sidewalks, and contained no requirement of written contracts, it was held that a lien for constructing a sidewalk could be based on an oral contract; 102 and where the former act required a written contract, and the later one was more comprehensive, and included work done under both oral and written contracts, it was held that where the contract was in writing the lien might be acquired under either act.10 Where one act gives courts of law jurisdiction to enforce mechanics' liens, and another act gives such juris. diction to courts of equity, the two acts will stand together, since there is no inconsistency in giving a double remedy.104 Where the former law protects innocent purchasers, and the later law does not, the provision of the former law protecting them remains in force in spite of a clause in the later law repealing the former act so far as its provisions are inconsistent with the later act.10 Where the mechanic's lien law requires disputes between contractor and workmen to be submitted to arbitration without providing any form of submission, the provisions of the general law requiring submissions to arbitration to be in writing applies to submissions under the mechanic's lien act.106 Where one section of an act declares and defines the lien, and other sections declare the rule as to priorities and provide a mode of enforcing the lien, a repeal of the first section, and enactment of another provision in lieu thereof, leave the other provi

100

nd Ry. Co. v. Wilcox, 23 N. E. 506, 122 Ind. 84; Summerville v. Wanu Pa. St. 182; Collins v. Drew, 67 N. Y. 149; Specter v. Stone Co., 34 N. E. 452, 7 Ind. App. 157; Deters v. Renick, 37 Mo. 597.

101 Gilson v. Emery, 11 Gray (Mass.) 430; Colson v. Vose, Id. 431, note.

102 Kreuzberger v. Wingfield, 31 Pac. 109, 96 Cal. 251.

103 Pairo v. Bethell, 75 Va. 825.

104 Colby v. Methodist Episcopal Church, 13 South. 515, 99 Ala. 259.

105 Nunes v. Wellisch, 12 Bush (Ky.) 363.

106 Baxter v. Sisters of Charity, 15 La. Ann. 686.

MECH.LIENS-4

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sions still controlling the lien, as declared in the substituted act.107 Where the later act only repeals a few sections of the previous act, the other sections still remain in force in connection with the later act, 108 even though the later act purports in its title to repeal all of the previous acts.109

DIVISION III. CONFLICT OF LAWS.

Between Later and Earlier Acts.

§ 46. Where the law is changed without destroying existing liens, the question whether such liens are thereafter governed by the old or the new law depends largely upon the time when the change occurs. Where the change occurs after the contract to do the work has been entered into, but before any work has been done under it, the lien is, as a general rule, governed by the new law, even though the act is expressly made to apply only to work done after its passage.110 But where the new law, instead of merely changing the remedy, creates a new right, as where it allows subcontractors to have liens where they had none before, the new law does not apply where the contract was entered into before it went into effect.111 The reason is that a man is supposed to contract with reference to existing laws, not with reference to laws that may thereafter be enacted.113 So, too, for the same reason, a law which makes owners

107 Birmingham Building & Loan Ass'n v. May & Thomas Hardware Co., 13 South. 612, 99 Ala. 276.

108 Colby v. Methodist Episcopal Church, 13 South. 515, 99 Ala. 259; Osborn v. Paper Co., 13 South. 776, 99 Ala. 309.

109 Beaver v. Wilkinson, 37 N. E. 188, 9 Ind. App. 693.

110 Hauptman v. Catlin, 20 N. Y. 247; Sullivan v. Brewster, 1 E. D. Smith (N. Y.) 681, 8 How. Prac. (N. Y.) 207; Miller v. Moore, 1 E. D. Smith, 739; St. Croix Lumber Co. v. Mitchell, 50 N. W. 624, 6 Dak. 215; Wheaton v. Berg, 52 N. W. 926, 50 Minn. 525; Knoxville, C. G. & L. R. Co. v. Hoge (Ky.) 26 S. W. 534; Turney v. Saunders, 5 Ill. 527; Barton v. Steinmitz, 37 Ill. App. 141; Summerlin v. Thompson, 12 South. 667, 31 Fla. 369. Contra, Shuffleton v. Hill, 62 Cal. 483; Bourgette v. Williams, 41 N. W. 229, 73 Mich. 208; Garneau v. Mill Co., 36 Pac. 463, 8 Wash. 467; Parker v. Railroad Co., 115 Mass. 580.

111 O'Neil v. St. Olaf's School, 4 N. W. 47, 26 Minn. 329; Bardwell v. St. Olaf's School, Id.; Donahy v. Clapp, 12 Cush. (Mass.) 440.

112 O'Neil v. St. Olaf's School, 4 N. W. 47, 26 Minn. 329.

liable to subcontractors even in excess of the original contract price of the work does not apply where the original contract was entered into before the law took effect, and where the previous law limited such liens to the amount of the original contract price.113

§ 47. Where the law is changed after the work is begun, but before it is finished, the lien is governed by the new law. If during the progress of the work the existing law is repealed, and a new one enacted in its place, the new law may be regarded as a continuation of the former one; and, though the lien may be fixed by the former law, it may be enforced and established according to the provisions of the new law.115

§ 48. Most of the mechanic's lien statutes require the lien claimant to file a claim, or to serve notice on the landowner, or to do both. Where the lien law is changed after the work has been completed, but before the lien claimant has filed his claim or served his notice, the new law governs as to the time and manner of filing the claim or serving the notice, since, although the lien may accrue before the law goes into effect, yet its enforcement is governed by the provisions of such law.118 But, where an act shortening the time within which the claim may be filed expressly provides that existing rights shall not be affected thereby, a claim for work

113 Hall v. Banks, 48 N. W. 385, 79 Wis. 229.

114 Best v. Baumgardner, 15 Atl. 691, 122 Pa. St. 17; Gordon v. Canal Co., Fed. Cas. No. 5,621, 1 McAll. 513; Kerckhoff-Cuzner Mill & Lumber Co. v. Olmstead, 24 Pac. 648, 85 Cal. 80; Ainslie v. Kohn, 19 Pac. 97, 16 Or. 363; Orman v. Railway Co., 39 Pac. 434, 5 Colo. App. 493; Tell v. Woodruff, 47 N. W. 262, 45 Minn. 10; Hill v. Lovell, 50 N. W. 81, 47 Minn. 293; Hill v. Henry, Id.

115 Willamette Falls Transp. & Mill Co. v. Riley, 1 Or. 183.

116 James v. Van Horn, 39 N. J. Law, 353; Goodbub v. Hornung's Estate, 26 N. E. 770, 127 Ind. 181; Chadbourn v. Williams, 71 N. C. 444; Moore v. Mausert, 49 N. Y. 332; Willim v. Bernheimer, 5 Minn. 288 (Gil. 229); Paine v. Woodworth, 15 Wis. 298; Nixon v. Lodge, 43 Pac. 236, 56 Kan. 298; Main St. Hotel Co. v. Horton Hardware Co., 43 Pac. 769, 56 Kan. 448; Groesbeck v. Barger, 41 Pac. 204, 1 Kan. App. 61; Whittaker Brick Co. v. First Nat. Bank, 43 Pac. 792, 2 Kan. App. 704. But when the law in force when the work was done declared that the lien should attach upon the doing of the work, it was held that a subsequent act which provided that a lien should not attach unless a notice was filed with the register of deeds did not affect the lien in suit. Kirkwood v. Hoxie, 54 N. W. 720, 95 Mich. 62.

done before its passage may be filed within the time limited by the previous law,117 since the privilege of filing a claim for a mechanic's lien is a "right." 118

§ 49. Many instances have occurred where after a lien has become fixed, and a right of action thereon accrued, the law has been changed, either by amendment, or by repeal of the existing law and enactment of a new one in its place. In such case the lien, where it is not destroyed by the repeal, is, as a general rule, to be governed, both as to its extent 119 and the mode 120 and time 121 of enforcing it, by the law in force when it accrued, unless the new law expressly states otherwise. An act allowing redemption from sales to enforce mechanics' liens applies where decree of foreclosure has not been entered at the time of its passage, 122 but does not affect a decree cutting off the right of redemption, entered before the act went into effect.12:

117 Nelson v. Sykes, 46 N. W. 207, 44 Minn. 68; Bardwell v. Mann, 48 N. W. 1120, 46 Minn. 285; Gardner v. Leck, Id.

118 Christman v. Charleville, 36 Mo. 610.

119 Church v. Davis, 9 Watts (Pa.) 304; Berkowsky v. Sable, 43 Ill. App. 410; Hughes v. Russell, Id. 430. Contra, Evans v. Montgomery, 4 Watts & S. (Pa.) 218; O'Conner v. Warner, Id. 223.

120 McCarthy v. Havis, 2 South. 819, 23 Fla. 511; Evans v. Springer, 2 Miles (Pa.) 29; Matlack v. Hoy, Id. 30, note; Welde v. Henderson, 6 N. Y. Supp. 176, 53 Hun, 633; French v. Hussey, 34 N. E. 362, 159 Mass. 206. Contra, Seattle & W. W. R. Co. v. Ah Kow, 3 Pac. 188, 2 Wash. T. 36; Hopkins v. Mill Co.. 39 Pac. 815, 11 Wash. 308; George v. Everhart, 15 N. W. 387, 57 Wis. 397; Fargo v. Helmer, 43 Hun (N. Y.) 17.

The procedure to foreclose a mechanic's lien is governed by the law in force when the petition is filed. Berndt v. Armknecht, 50 Ill. App. 467.

121 Mustin v. Vanhook, 3 Whart. (Pa.) 574; Nystrom v. Mortgage Co., 49 N. W. 394, 47 Minn. 31; Nystrom v. Hamm, 49 N. W. 394, 47 Minn. 33; Fitzpatrick v. Boylan, 57 N. Y. 434.

But on this point the authorities are in conflict and are pretty equally divided, since in the following cases it is held that the provision of law limiting the time for the commencement of suit after filing the account under a mechanic's lien, which was in force at the time of beginning such suit, must prevail over the law of limitation which existed at the time of filing the account: Forcht v. Short (1870) 45 Mo. 377; Hauser v. Hoffman, 32 Mo. 334; Frost v. Ilsley, 54 Me. 345; Phillips v. Mason, 7 Heisk. (Tenn.) 61.

122 Templeton v. Horne, 82 1ll. 491.

123 Knight v. Begole, 56 Ill. 122.