Lead Opinion
The appellant commenced this suit on six alleged causes of action which had been assigned to him, and on a seventh in his own favor. A demurrer was sustained to each cause of action and judgment of dismissal was entered, and this appeal was thereupon prosecuted.
One Lee Decker was employed by respondent to take 13,655 railroad ties from where they were stacked on respondent’s right of way and remove them a few hundred feet and load them on to respondent’s cars. In doing the work involved in this contract, Decker employed six men and secured groceries and supplies from appellant for the use of himself and men while doing this work. Decker appears to have failed to pay his men. The men thereupon and within the statutory time filed liens under the provisions of sec. 5125 of the Revised Codes. Respondent contends, and the trial court agreed with it, that this statute does not contemplate or provide a lien of the kind here sought to be enforced.
Section 5125 provides as follows: “Every person performing labor upon, or who shall assist in obtaining or securing, saw-logs, spars, piles, cordwood, or other timber, has a lien upon the same for the work or labor done upon, or in obtaining or securing the same, whether such work or labor was done at the instance of the owner of the same or his agent. The cook shall be regarded as a person who assists in obtaining or securing the timber herein mentioned. ’ ’
It must be remembered that this statute is written in the disjunctive and that the lien contemplated is given to “every person performing labor upon .... saw-logs, spars, piles, cordwood, or other timber” as well as to “every person ....
We think the word “timber” as here used refers to any kind of timber as it may be taken from the forest, whether in a prepared state for the use to which it is to be applied or in the natural and unfinished condition. For example, cord-wood is enumerated preceding the use of the words ‘ ‘ or other timber, ’ ’ and yet cordwood is not a manufactured article. On the other hand, “spars and piles” are enumerated and signify specially prepared pieces of timber for definite purposes. It would be extremely technical and strict to construe the statute as not giving a lien for work upon or in securing ties.
In this case it is alleged that after the ties were loaded on the cars the railroad company eloigned them and scattered them along its right of way in the states of Washington, Idaho and Montana and rendered it impossible for the claimants to identify them or foreclose their lien thereon, and appellants seek personal judgments against the company for damages under the provisions of see. 5140, Rev. Codes. That section provides as follows:
“Any person who shall injure, impair, or destroy, or who shall render difficult, uncertain or impossible of identification, any saw-logs, spars, piles, cordwood, or other timber, upon which there is a lien as herein provided, without the express consent of the person entitled to such lien, shall be liable to the lienholder for the damages to the amount secured by his*442 lien, which may be recovered by civil action against such person.”
It will be observed that the foregoing section 5140 applies to any person who shall injure, impair or destroy or shall render uncertain, difficult, or impossible of identification any of the property on which a lien exists under sec. 5125. The objection that sec. 5140 of the Rev. Codes, as originally enacted and found in the 1899 Sess. Laws, p. 188, is unconstitutional and in violation of sec. 16, art. 3 of the state constitution, is without merit, for the reason that this section was subsequently incorporated in the Revised Codes and was adopted as a part of the entire body of the reyised statutes and as a part of the complete code of laws of the state. It is now too late to raise the sufficiency of the title to a statute originally adopted prior to the date of the adoption of the Revised Codes, where such statute has been incorporated in the general code of laws. (36 Cyc. 1068; Central of Georgia Ry. Co. v. State, 104 Ga. 831, 31 S. E. 531, 42 L. R. A. 518; Kennedy v. Meara, 127 Ga. 68, 56 S. E. 243, 9 Ann. Cas. 396; Christopher v. Mungen, 61 Fla. 513, 55 So. 273.)
Lastly, it is argued that sec. 5140 of the Rev. Codes is unconstitutional and void, for the reason that it is violative of sec. 1 of the fourteenth amendment to the federal constitution, and of sec. 13, art. 1, of the state constitution in that it deprives respondent of its property without due process of law and denies to it the equal protection of the laws. We do not think this objection is well founded. In the first place, under this statute, there is no liability against one who injures, destroys or removes such property, unless there is an existing lien thereon. The statute creates the lien. It specifies the kind of a contract and transaction and the conditions under which a laborer will be entitled to a lien. Whenever, therefore, the owner or purchaser of or contractor for property falling within the purview of this statute employs a laborer or enters into a contract which comes within the terms of the statute, the law at once becomes operative and gives to the party rendering the services or performing the labor a lien. This lien exists by operation of law for the period of
Now, as for the contention that the statute is void because of being arbitrary, we fail to see wherein this contention contains any merit. The court will first determine whether the claimant was entitled to a' lien, and after that fact has been determined, the damages sustained by the lien claimant by reason of eloignment of the property must be determined and assessed in the same way that damages would be determined and assessed in any other case. The fact that this statute may impose an extra burden and hardship upon the owner of the property in that it requires him to ascertain whether any liens exist against the property before removing it, is not a sufficient ground for holding the statute unconstitutional and void. .That might be a good argument to present to the lawmaking body, and it might furnish a reason or justification for the legislature making some exceptions in the law, but they have not done so and the court would not be justified in doing so. It is certainly-within the power of a railroad company, a lumber company, or of an individual to ascertain whether laboring men have been paid before settling with the contractor, and if they fail to do so, they must assume the consequent burdens and obligations which arise under the statute. The law, therefore, undertakes to render a person
The argument advanced that a railroad company would be liable for receiving and shipping ties or other timber product until it can first determine and ascertain whether there are any liens on the property, is unsound. The statute has no application to any such transaction; a common carrier receiving and transporting freight in due course of business would not be liable for impairing, destroying or rendering uncertain or impossible of identification any property on which there is a lien. It does not seem possible that the mere constructive notice which the statute imparts would extend beyond the party first removing or disturbing the property. In other words, the liability is not one that would attach to every subsequent purchaser, bailee or carrier of the property.
This brings us to a consideration of the seventh cause of action which involves the validity and constitutionality of chap. 226 of the 1911 Session Laws (1911 Sess. Laws, p. 727). it is argued by counsel that section 1 of this act violates sec. 1, art. 14, of the federal constitution and sec. 13 of art. 1 of the state constitution. Sec. 1 of chap. 226 of the 1911 Session Laws provides as follows:
“Every person, firm, company or corporation selling or furnishing supplies, groceries, feed or other necessaries to any contractor, boarding-house keeper or other person, firm or corporation to be used upon and while such contractor, board*445 ing-house keeper or other person, firm or corporation, or the employer of such contractor, boarding-house keeper or other person, firm or corporation is engaged in obtaining, securing, cutting or manufacturing saw-logs, spars, piles, cordwood, ties or lumber, has a lien upon the same for the value of the supplies, groceries, feed or other necessaries so furnished.”
Section 2 provides for filing a notice of lien, and the remaining sections provide the procedure to be followed, while section 9, being the last section of the act, provides that, “Any person who shall injure, impair or destroy, or who shall render difficult, uncertain or impossible of identification, any. saw-logs, spars, piles, cordwood, ties or lumber upon which there is a lien, as herein provided, without the written consent of the person entitled to such lien, shall be liable to the lien-holder for the damages of the amount secured by his lien, together with treble damages which may be recovered by civil action against such person.”
We have examined this statute with unusual care and have considered the authorities cited, both in support of and opposition thereto, and over and above all this have considered what must be the practical workings and effect of this statute. We are not going to review authorities here but shall rather briefly state some of the reasons which have led us to reach the conclusion hereafter to be stated.
Lien laws rest on two cardinal principles: First, that the owner of the property on which the lien is claimed has received some benefit or advantage by reason of the service rendered or material or supplies furnished; and, second, that the owner has contracted with someone, who thereby becomes his agent, to render such service or furnish such material or supplies. The statute under consideration, as may be seen from an examination of section 1, above quoted, runs counter to both these principles of lien laws. It attempts to create a lien irrespective of contract and without regard to any benefit either direct or remote which the owner of the property may have received from the supplies furnished. It furnishes the owner of the property no notice and affords him no method of protecting himself against any such claim, and
The judgment in this case will be reversed as .to the first six causes of action prosecuted under section 5125, Rev. Codes, and this case is remanded, with direction to the trial court to overrule the demurrer thereto, and the judgment is affirmed as to the seventh cause of action prosecuted under chap. 226 of the 1911 Sess. Laws. Appellant will be awarded six-sevenths of the taxable costs of this appeal.
Concurrence in Part
Concurring in Part and Dissenting in Part. I concur in the conclusion reached by Chief Justice Ailshie to the effect that sec. 1 of chap. 226 of the Session Laws of 1911, p. 727, is unconstitutional and void, in that it undertakes to deprive one of property without due process of law; and I dissent to that part of Chief Justice Ailshie’s opinion wherein he holds that the plaintiff and his assignors have a valid lien upon said ties for loading them on the ears after they had been manufactured and delivered to the railroad company upon their right of way. All of the work performed upon said ties was done and the ties delivered as a finished timber product, to the respondent. Sec. 5125 provides that “every person performing labor upon, or who shall assist in obtaining or se,curing, saw-logs, spars, piles, cordwood, or other timber, has a lien upon the same for the work or labor done upon, or in obtaining or securing the same.” The legislature
In this ease, all of the work required to complete the ties had been done and the ties delivered to and placed upon the right of way of the defendant. The respondent and his assignors were employed by a person who had a contract with the railroad company to place said ties upon the cars for distribution along the company’s railway lines. They began their work about November 13, 1912, and completed it about December 10, 1912. Thereafter, on January 14, 1913, thirty-five days after they had completed loading the ties, and after the railroad company had moved said ties out of the state, they filed their liens. The railroad company had transported said ties out of the state before the lien was filed, and innocently so, and as I view it, it would be an outrage upon justice to permit the plaintiff to penalize the defendant in three times the value of the wages sought to be recovered, under the facts of this case. It is a monstrous proposition to me to hold that one who loads on the cars certain timber that has been manufactured and delivered to the railroad company for transportation can compel the railroad company to hold the material for thirty-five or sixty days in order to permit him to file a lien.
The clear intent of the legislature in enacting said section 5125 was to give a lien for labor performed in the woods and logging camps, upon timber products before they were delivered as completed products to the owner.
After these ties had been delivered to the company, there was no other labor required to obtain or secure them. The respondent had already “obtained and secured” them. The labor for which appellant claims a lien here was performed subsequently to the time the ties were obtained and secured by the respondent. The respondent and his assignors merely took the ties and placed them on the cars for shipment after they had been “obtained and secured” and delivered into the possession of respondent and piled on its right of way by
If the legislature had desired to give a lien to those who performed labor in loading ties upon the cars, they might have done so; but as I view it, they have not attempted to do that. They were simply attempting to give a lien for the work done in procuring the finished timber products mentioned in said section and delivering them to the owner.
In states having statutes similar to ours, such statutes are regarded as timber lien statutes enacted for the purpose of protecting laborers who produce the finished product, such as cordwood, saw-logs, ties, etc., — those who work in the woods and those who deliver such products, after they are finished, to the owner. (See Jones on Liens, secs. 702-730.) This intent is clearly shown by the phraseology of the statute providing a lien for all those who shall “perform labor upon,” etc., enumerating only the raw products of the woods and the products that are produced in the woods, such as “spars, piles, cordwood or other timber products.” The last part of said section, to wit, “the cook shall be regarded as a person who assists in obtaining or securing the timber herein mentioned,” clearly shows that said statute was intended only to secure those who worked in the woods or in hauling such products to the place where they were to be delivered to the owner.
Under the construction of the provisions of said statute by the majority, railroad construction men who lay these ties in the roadbed and the cooks who prepare their food assist in “obtaining or securing” them. Unless the cooks and tie-layers, and even those who furnished supplies to the railroad construction camps in which these men were working, were paid immediately and simultaneously with the laying of each tie, where the ties were secured from different places and laid indiscriminately, they would be entitled under the construction of the statute to an action for damages against the railway company for commingling the ties and impairing their liens. The legislature could not have intended to thus
Certainly none of the labor performed by the appellant and his assignors was performed upon said ties, according to the allegations of the complaint, before they were completed ties and delivered to the possession of the respondent, and the respondent in no manner assisted in “obtaining or securing” said ties,'within the meaning of those words as used in said statute. It is true the appellant alleges in third paragraph of his complaint that.he “performed labor upon and assisted in obtaining and securing said railroad ties, ’ ’ while the other allegations of the complaint clearly show that that statement is false and'that they did nothing toward “obtaining and securing” said ties.
All over the timber country in the north men have contracts for placing logs, cordwood and lumber upon cars for the purpose of shipping them to different points in the state or out of the state, and the legislature never intended to give a lien, by the provisions of the laborer’s lien law, to persons who place such finished timber products upon the cars for shipment after they have been delivered to the owner. Is it possible or probable that it was intended to give a lien to persons who are employed to load lumber upon a car for shipment out of the state; that such persons have sixty days in which to file a lien, when it is well known by those who load the lumber that it is to be shipped immediately to other parts of the state or out of the state ? And if the owner ships the lumber, that he is penalized in three times the value of the labor? The legislature never intended said lien law should be applied so as to cripple business, as will be done by the construction placed upon the statute by the majority of the court. The action of the trial court in sustaining the demurrer in this case ought to be affirmed.
Dissenting Opinion
Dissenting. — I dissent from the majority of the court in their two opinions upon the question that sec. 1, chap. 226 of the 1911 Sess. Daws (p. 727) violates see. 1,
Section 1 provides: “Every person, firm, company or corporation selling or furnishing supplies, groceries, feed or other necessaries to any contractor, boarding-house keeper or other person, firm or corporation to be used upon and while such contractor, boarding-house keeper or other person, firm or corporation, or the employer of such contractor, boardinghouse keeper or other- person, firm or corporation is engaged in obtaining, securing, cutting or manufacturing saw-logs, spars, piles, cordwood, ties or lumber, has a lien upon the same for the value of the supplies, groceries, feed or other necessaries so furnished. ’ ’
In this ease one Decker was employed by respondent to take railroad ties from where they were stacked on respondent’s right of way and remove them a few hundred feet and load them on to respondent’s cars. In doing the work involved in the contract, Decker employed men and secured groceries and supplies from appellant for the use of himself and men while doing the work. He failed to pay the men, and the men, within the statutory time, filed liens under the provisions of sec. 5125, Rev. Codes. Respondent contends, and the trial court agreed with him, that this statute does not contemplate or provide for a lien of the kind here sought to be enforced.
In connection with this section it is clear that chap. 226 of the Sess. Laws of 1911 has no repealing clause and is not an amendment of sec. 5125. It will-be observed by comparing these two sections that sec. 1 of chap. 226 does not contain “every person performing labor upon,” which is incorporated in sec. '5125, but does provide “every person, firm, company or corporation selling or furnishing supplies, groceries, feed or other necessaries to any contractor, boardinghouse keeper or other person, firm or corporation to be used upon and while such contractor, boarding-house beeper or other person, firm or corporation .... is engaged in obtaining”; then follows the rest of the quotation above given from sec. 1.
The two legislative acts are not repugnant to or in conflict with each other, but the one last passed is the latest expression of the' legislature upon the creation of a lien for selling or furnishing supplies, groceries, feed or other necessaries to any contractor, boarding-house keeper or other person or corporation to be used upon and while such contractor, boarding-house keeper or other person, firm or corporation is engaged in obtaining, etc. So these two acts are the same in effect, except the provisions in sec. 1 of chap. 226 as to furnishing merchandise ■ such as groceries, feed and other necessaries to be used while the contractor is engaged in obtaining, etc. This is not found in sec. 5125. That section provides for a lien for the work and labor upon or in obtaining or securing saw-logs, etc. If both acts by any reasonable construction can be construed together, both should be sustained. (36 Cyc., pp. 1073-1079.)
This same author announces what we think is the true rule on p. 1077: “"When two-statutes cover, in whole or in part, the same subject matter, and are not absolutely irreconcilable, no purpose of repealing being clearly shown, the court, if possible, will give effect to both. Where, however, a later act covers the whole subject of earlier acts and embraces new provisions, and plainly shows that it was intended, not only as a substitute for the earlier acts, but to cover the whole subject then considered by the legislature, and to prescribe the only rules in respect thereto, it operates as a repeal of former statutes relating to such subject matter, even if the former acts are not in all respects .repugnant to the new act. But in order to effect such repeal by implication, it must appear
This rule is also followed by this court in the case of People v. Lytle, 1 Ida. 143.
This subject is annotatéd by the author in the quotations given from Cye., and most of the courts in the different states of the Union have followed the rule quoted above, and we believe that such rule should be adhered to by this court. It has been approved by this court.
In the case of Phillips v. Salmon River Min. & Dev. Co., 9 Ida. 149, 72 Pac. 886, this court, in construing a laborer’s lien as it existed at that time, announced the rule that “the provisions of our lien laws must be liberally construed with a view to effect their objects and promote justice,” and we think the general rule above stated is the correct rule and should be applied in the construction of a statute of the character involved in this case.
In the case of Empire Copper Co. v. Henderson, 15 Ida. 635, 99 Pac. 127, this court held that in construing an act of the legislature the court should ascertain and give effect to the legislative intent where that can be ascertained; but where the language of an enactment is clear and specific as to the subjects upon which a lien is provided for, then the court cannot assume that the legislature included subjects not mentioned in the language of the act, but must accept the act as formulated and adopted by the legislature. (See Holmberg v. Jones, 7 Ida. 752, 65 Pac. 563; 36 Cyc. 1107; Idaho Mutual Co-operative Ins. Co. v. Myer, 10 Ida. 294, 77 Pac. 628.)
In the case of Mara v. Branch (Tex. Civ.), 135 S. W. 661, the court of appeals of Texas, in dealing with merchandise, defines the same as follows: “ ‘Merchandise’ is a term of very extended meaning, and usually conveys the idea of personalty
In the case of Ensign v. Coffelt, 102 Ark. 568, 145 S. W. 231, the supreme court of Arkansas, in construing a statute which makes void notes given in ordinary form for the price of patented machines, etc., holds that it shall not extend to merchants and dealers who sell patented things in the usual course of business; the words “merchant” and “dealer” meaning persons engaged in the business of buying and selling merchandise or other personal property in the usual course of trade.
Sutherland on Statutory Construction, vol. 2, sec. 363, lays down the rule of law as follows:
“The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, ■although it may not be consistent with the strict letter of the statute.....Intent is the spirit which gives life to legislative enactments. In construing statutes, the proper course is to start out and follow the true intent of the legislature and to adopt that sense which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the legislature.”
The rule is generally recognized, by the authorities to be that where a statute enumerates the things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly •mentioned; expressio unius exclusio alterius. (Perkins v. Thornburgh, 10 Cal. 189; Smith v. Randall, 6 Cab 47, 65 Am. Dec. 475.)
In the case of In re Hull, 18 Ida 475, 110 Pac. 256, this court held and stated on p. 279: “We enter upon the consideration of this státute fully conscious of the duty which rests on the court to ascertain what the law is on the subject, and to declare it as we find it rather than as we think it ought to have been. We have no right to add to or take from the law.”
The language used in chap. 226, Session Laws 1911, sec. 1, when read as an entirety, is clear and would seem to furnish its own interpretation, in designating the property upon which liens may be filed by certain persons, firms and corporations for supplies, groceries, feed or other necessaries sold or furnished to any contractor, boarding-house keeper or other person, firm or corporation to be used upon and while such contractor, boarding-house keeper or other person, firm or corporation, or the employer of such contractor, boarding-house keeper or other person, firm or corporation is engaged in obtaining, securing, cutting or manufacturing saw-logs, spars, piles, cordwood, ties or lumber.
If the language used in chap. 226, 1911 Sess. Laws, sec. 1, is unconstitutional, then it results in 'discrimination against the merchant and salesman or the producer of feed and sustenance who is engaged in selling or furnishing supplies, groceries, feed or other necessaries to any contractor, boarding-house keeper, or other person or corporation, to be used upon and while such contractor, boarding-house keeper or other person, firm or corporation is engaged in obtaining, etc., as without the furnishing of such supplies to the men who are doing the labor in obtaining, securing, cutting or manufacturing saw-logs, spars, piles, cordwood, ties or lumber by such merchants or salesmen, such employees so engaged would be deprived of the necessaries of life and would be unable to live without such supplies, and the man who provided them, under the provisions of the statute in question, is justified in claiming a lien, and the statute should not be held void.
I therefore hold that chap. 226, 1911 Sess. Laws, is not in violation of the constitution. Neither is the act beyond the power vested in the legislature in enacting laws providing for mechanics’ liens either for laborers engaged in-obtaining, securing and cutting or manufacturing saw-logs, spars, piles,
My conclusion in this case is that chap. 226 is not unconstitutional, and should be sustained by this court, and that a judgment should be entered in this case accordingly.