27 Colo. 187 | Colo. | 1900
delivered the opinion of the courti
“ Appeals may be taken to the district court of the same county, from all final judgments and decrees of the county court, * * * by any person aggrieved by any such final judgment or decree; ” etc.
It will be seen that this statute provides that an appeal may be taken by any person aggrieved. Davidson and Himebaugh were affected by the judgment and decree only in so far as it established a lien against their property; and were not concerned with, or directly affected by, that portion which adjudged a personal liability against Smith, Outcalt and Clayton. If it should be held that, as a condition to their right to have so much of the controversy as affected their rights tried de novo in the district court, it was essential that all the defendants in the county court should join in the appeal, or that in case of the refusal of any to join, it was incumbent
“ In all suits for the foreclosure of liens provided for in this act in which the plaintiff shall obtain a judgment and decree of foreclosure against the property described in said lien, there shall be taxed as costs in addition to the costs already provided for in such cases, a reasonable sum as attorney fee to be fixed by the court at the time of rendering such judgment and decree.”
It will be seen that this section imposes a penalty upon the defendant for exercising, in this class of cases, the common right of making a defense, which is accorded to every other litigant in the courts, by subjecting him to the payment of the plaintiff’s attorney’s fees if he is successful, without giv-i ing him (the defendant) a reciprocal right if he is victorious. As furnishing support for this character of legislation, we are referred to the following cases, wherein statutes allowing an attorney’s fee to plaintiff in actions against railroad com
An examination of these cases discloses that the statutes there under consideration required the railroad company to fence its right of way, and provided penalties for the nonperformance of this statutory duty; among them, an attorney’s fee; but no such reason underlies the legislation in question. The attorney’s fee allowed by the foregoing provisions of our statute is not in the nature of a penalty for the violation of any statutory duty, but a punishment for the failure to pay the claim of the lienor, and cannot be sustained upon the principle announced in those cases. Its validity, therefore, depends upon whether it violates any provision of our constitution. Section 6 of our bill of rights enacts: “ That courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and that right and justice should be administered without sale, denial or delay.”
In Durkee v. City of Janesville, 28 Wis. 464, an act that exempted the city of Janesville from the payment of costs in any action brought against it to set aside any assessment or tax deed, or to prevent the collection of taxes in said city, was held to conflict with section 9, article 1 of the constitution of Wisconsin, which was substantially like the foregoing section of our bill of rights. Chief Justice Dixon, in discussing the construction and effect to be given to that provision, said :
“ It is obvious there can be no certain remedy in the laws, where the legislature may prescribe one rule for one suitor or class of suitors in the courts, and another for all others under like circumstances, or may discriminate between parties to the same suit, giving one most unjust pecuniary advantage over the other. Parties thus discriminated against would not obtain justice freely, and without being obliged to purchase it. To the extent of such discrimination they would be obliged*193 to buy justice and pay for it, thus making it a matter of purchase to those who could afford to pay, contrary to the letter and spirit of this provision. Certainty of remedy implies uniformity of remedy and equality of rights and privileges in all things respecting it, which can only be obtained by general laws, equally binding upon every member of the community. The language denotes that there can be but one remedy for all similar cases, which must operate upon all persons or parties alike, and be equally free and favorable to all.”
In South & North Ala. Ry. Co. v. Morris, 65 Ala. 193, a statute which imposed upon an unsuccessful appellant a reasonable attorney fee, incurred by reason of taking an appeal from a decision rendered by a justice of the peace in a suit against railroad companies for damages to livestock, notwithstanding it gave the same right to both parties, was held to be in conflict with the 14th amendment to the constitution of the United States and section 14 of their bill of rights, which is identical with section 6 of ours. It is there said:
“ The clear legal effect of these provisions is to place all persons, natural and corporate, as near as practicable, upon a basis of equality in the enforcement and defense of their rights in courts of justice in this state, except so far as may be otherwise provided in the constitution. This right, though subject to legislative regulation, cannot be impaired or destroyed-under the guise or device of being regulated. Justice cannot ■ be sold, or denied, by the exaction of a pecuniary consideration for its enjoyment from one, when it is given freely and open handed to another, without money and without price. Nor can it be permitted that litigants shall be debarred from the free exercise of this constitutional right, by the imposition of arbitrary, unjust and odious discriminations, perpetrated under color of establishing peculiar rules for a particular occupation. Unequal, partial and discriminatory legislation, which secures this right to some favored class or classes, and denies it to others, who are thus excluded from that equal protection designed to be secured by the general law of the land,*194 is in clear’ and manifest opposition to the letter and the spirit ■of the foregoing constitutional provisions.”
Tn Chicago, St. Louis, etc., Ry. Co. v. Moss, 60 Miss. 641, a similar statute was adjudged unconstitutional, the court saying:
“The right of appeal cannot be fettered and clogged with reference to the parties litigant or the attitude they occupy as plaintiff or defendant. All litigants, whether plaintiff or defendant, should be regarded with equal favor by the law, and before the tribunals for administering it, and should have the same right to appeal with others similarly situated. All must have the equal protection of the law, and its instrumentalities. The same rule must exist for all in the same circumstances.”
In Gulf, Colo. & Santa Fé Ry. Co. v. Ellis, 165 U. S. 150, an act of the legislature of Texas, which provided that any person having a valid bona fide claim for personal services, or for damages, overcharges on freight or claims for stock killed or injured by the trains of any railway company, that did not exceed $50.00, might present the same for payment by filing it .with the station agent of such corporation in any county where suit might be instituted; and if, after the expiration of thirty days after such presentation such claim had not been paid or satisfied, he might immediately institute suit thereon m proper court; and if he should obtain judgment for the full amount of his claim, he should be entitled to recover the amount of such claim and all costs, and in addition thereto, a reasonable attorney fee, not to exceed $ 10.00, to be assessed or awarded by the court or jury trying the issue, was held to be unconstitutional. Mr. Justice Brewer, who delivered the opinion of the court, said:
“ The act singles out a certain class of debtors and punishes them when for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts as other litigants under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attor*195 ney’s fees of the successful plaintiff; if it terminates in their favor, they recover no attorney’s fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the courts upon equal terms. They must pay attorney’s fees if wrong; they do not recover any if right, while their adversaries recover if right, and pay nothing if wrong. In the suits, therefore, to which they are parties, they are discriminated against and are not treated as others. They do not stand equal before the law. They do not receive its equal protection. All this is obvious from a mere inspection of the statute.”
And after a thorough and exhaustive review of all the cases bearing upon the subject, he held the act to be unconstitutional because it operated to deprive the railway companies of property without due process of law, and denied to them the equal protection of the law in that it singled them out of all citizens and corporations and required them to pay, in certain cases, attorney’s fees to parties successfully suing them, while it gives to them no like or corresponding benefit. To the same effect are Joliffe v. Brown, 14 Wash. 155, Coal Co. v. Rosser, 53 Ohio St. 12, State v. Fire Creek Coal & Coke Co., 33 W. Va. 188, and others that might be cited.
In but few of the states are statutes allowing attorney’s fees in this class of cases to be found. In California such legislation has been upheld by the supreme court, but in none of the cases has its constitutionality been presented, discussed or determined. In the following cases its constitutionality was directly challenged and passed upon. In Grand Rapids Chair Co. v. Runnels, 77 Mich. 104, a statute which allowed $5.00 attorney’s fees as part of plaintiff’s costs in a log lien suit, was held to be illegal and unauthorized for the reasons stated in Wilder v. C. & W. M. Ry. Co., 70 Mich. 382; Schut v. C. & W. M. Ry. Co., 70 Mich. 433 ; Lafferty v. C. & W. M. Ry. Co., 71 Mich. 35. In Wilder v. C. & W. M. Ry. Co., the court, in discussing the question, says:
“ This inequality and injustice cannot be sustained upon*196 any principle known to the law. It is repugnant to our form of government, and out of harmony with the genius of our free institutions. The legislature cannot give to one party in litigation such privileges as will arm him with special and important pecuniary advantages over his antagonist. ”
In Randolph v. Builders & Painters Supply Co., 106 Ala. 501, the provision allowing attorney’s fees was held to be in violation of section 14 of their bill of rights, which, as above stated, is identical with section 6 of ours, “in that it allows afee to the plaintiff’s attorney for prosecuting his suit successfully, whereas, a like fee is not allowed the defendant’s attorney, in case the plaintiff fails in his suit, and on that account it is discriminative and class legislation. ”
In Wortman v. Klienschmidt, 12 Mont. 316, the constitutionality of the act was upheld by a divided court, the majority opinion being delivered by Blake, C. J. But we think the able dissenting opinion of DeWitt, Justice, is better supported by reason and authority.
In Ivall v. Willis, 17 Wash. 645, a loggers’ lien act which provided an attorney’s fee for the person claiming the lien, was upheld, the court observing that such act was clearly distinguishable from the statute under consideration in Joliffe v. Brown, supra, which provided for an attorney’s fee to plaintiff in case of recovery against the railway company for killing stock, and which was there declared unconstitutional because it did not provide for the payment of a like fee by plaintiff in case he should be unsuccessful, for the reason that the attorney’s fee provided by the latter was compensation to plaintiff for expenditures necessarily made by him in the foreclosure of his lien, and allowable upon the same principle that costs are allowed. It is difficult to see how the designation of such fee as costs obviates the objection that it confers upon the plaintiff a right that is denied to defendant, and that it is an “ attempt to grant special privileges and advantages to one class of litigants, at the expense, and to the detriment, of another.”
Appellee lays some stress upon the fact that-Mr. Justice
We think this character of legislation is prohibited by sec
8. The principal and controlling question presented by appellants’ assignments of error is whether, under the pleadings and facts of this case, the court below erred in holding that a lien attached against Clayton’s interest by reason of his connection with, and apparent interest in, the operations of the mine. A mechanic’s or miner’s lien is the creature of the statute, and attaches only by virtue of work being done or materials furnished under a contract, express or implied, with the owner of the property upon which the lien is claimed, and the burden of proving such contract rests upon the party asserting it; and he must ascertain for himself that the party with whom he deals holds such a relation to the work being done, and the property upon which the same is done, as will entitle him to claim a lien for the work or material which he furnishes. Rico R. & M. Co. v. Musgrave, 14 Colo. 79; Tritch v. Norton, 10 Colo. 337 ; Henry v. Bond, 55 N. W. Rep. 643; Brown v. Cowan, 110 Pa. St. 588.
In this case there is an entire absence of evidence tending to show that the mine was being worked under any contract or arrangement by virtue of which Clayton was in any way made liable for the labor performed or merchandise furnished, or that there existed any contract which directly or indirectly obligated him to pay for the same, or that the lien claimants or their assignors performed the work or delivered the merchandise sued for, relying upon his personal credit. But, on the other hand, it is clearly established that the property was being operated by Smith and Outcalt, under a lease in which Clayton had no interest, and the labor was performed and the merchandise furnished exclusively for
But aside from this, the question of estoppel was neither raised by the pleadings nor supported by the evidence. That the facts constituting an estoppel in pais must be especially pleaded is well settled. De Votie v. McGerr, 15 Colo. 467; Gaynor and Standley v. Clements, 16 Colo. 209; Prewitt v. Lambert, 19 Colo. 7.
The complaint avers that Smith, Outcalt and Clayton made and entered into an agreement with the parties performing labor upon the Yulcan mine, and that the goods, wares and merchandise were supplied to defendants to be used for the working, preservation and development of said Yulcan mine, thus predicating their right to relief as against Clayton upon direct agreements between him and the persons for whose labor and material the liens are claimed. The answer of these appellants denied these allegations and any and all indebtedness on the part of Clayton. The parties went to trial upon these issues. The testimony wholly failing to show a contract of employment by Clayton, appellees undertook to show such a participation in the business as would raise an implied contract on his part. Not only was this testimony inadmissible under the issues formed by the pleadings, but was, we think, clearly insufficient to raise any implied assumpsit. It at most disclosed acts on his part within the scope of his employment, and wholly fails to show that in any instance the parties performed the labor or furnished the materials, relying upon his liability as a party in interest, or upon his personal credit, or that they were induced so to do by his acts or apparent connection with the business. To entitle a party to invoke the doctrine of estoppel, he must actually have been misled and induced to act to his prejudice by reason of another’s conduct, he having on his part exercised due diligence to ascertain the truth. In Moore v. Bowman, 47 N. H. 494, the doctrine is thus concisely stated:
“ To have this effect, however, the defendant must actually have been misled by the plaintiff’s conduct, and induced*201 thereby to change his position. If he is not so misled * * * and with a reasonable use of means within his reach he might have ascertained the fact, he could not set up an estoppel. The truth is, the party setting up an estoppel is himself bound to the exercise of good faith and due diligence to ascertain the truth.” Douglas v. Craig, 13 S. C. 371; 2 Herman on Estoppel, § 969.
If it can be held that a lien can be created against the interest of an owner of property in this state, in the absence of any contract on his part, by reason of his conduct, it is manifest that the facts disclosed by this record are insufficient to work such a result.
We are, therefore, of the opinion that in the circumstances of this case, no lien was created against Clayton’s interest in the mine, and the court below erred in adjudging a lien against such interest. For the foregoing reasons, the decree of the court below is reversed, and the cause remanded, with directions to enter judgment in favor of appellants.
jReversed.