146 P. 510 | Ariz. | 1915
Appellant, as the assignee of numerous laborers who worked upon appellee’s mining claims, instituted this action for the purpose of fastening a miner’s lien upon said mining claims. The important allegations of the complaint are: that appellee is the owner of mining claims; that on March 6, 1912, he entered into a bond, option or contract of sale of mining claims to W. R. Layne, who thereafter, on March 18, 1912, assigned the agreement of sale to the Border Mines Company, and by the terms of said agreement the Border Mines Company “was permitted to go upon said mining claims and to work and develop the same”; that during the months of August, September, October, November and December, 1912, and January, 1913, the Border Mines Company employed miners and laborers in and about said mines, whom it promised to pay; that the Border Mines Company failed to pay such laborers and miners, whereupon the appellant made out his claim of lien for the labor and work of said employees and served a copy thereof on the Border Mines Company, and also filed the same as provided hy law. The appellee’s demurrer to the complaint was sustained, and, the appellant standing upon his complaint and. refusing to amend, judg
Appellant contends that his complaint stated facts sufficient to entitle him to a foreclosure of his claim of lien: First, under the law as it existed in the Revised Statutes of 1901, chapter 2, title 40, before • amendment; and, second, in any event under said law as it was amended by chapter 66, first session of the legislature of 1912, carried forward into the Civil Code of 1913, as section 3654. The statute, before it was amended, read as follows:
“2904 (Sec. 25). All miners, laborers and others who may labor, and all persons who may furnish material of any kind, designed or used in or upon any mine or mining claim, and to whom any sum is due for such labor or material, shall have a lien upon the same for such sums as are unpaid.”
This section with others, bearing on the same subject matter, in the'chapter of _ which it is a part, has been construed as not giving a lien to miners and laborers who labor on mining property, unless they do so at the request of the owner or his agent. Eaman v. Bashford, 4 Ariz. 199, 37 Pac. 24; Gates v. Fredericks, 5 Ariz. 343, 52 Pac. 1118; Hadley Co. v. Cummings, 7 Ariz. 258, 64 Pac. 443; Griffin v. Hurley, 7 Ariz. 399, 65 Pac. 147; Bogan v. Roy, 10 Ariz. 237, 86 Pac. 13.
The contract of sale, or option or bond, as the pleader calls it, between Noon and Layne or his assignee, the Border Mines Company, is not set forth in the complaint, and is not before us. We are therefore unable to say whether its terms bring it within the rule laid down in Eaman v. Bashford, supra. The mere fact of such a contract, or option or bond, by the terms of which the proposed purchaser was permitted to enter upon, work and develop the mines, with no further or additional powers over the property, would not constitute the proposed purchaser the agent of the owner in the employment of labor. See cases, supra. The allegations of the complaint go no further than that;
The above-quoted section of the statute was, however, amended, the amendment taking effect on December 5, 1912, some eight months after the contract, option or bond from appellee to the assignor of the Border Mines Company, so as to entitle the miners and laborers who worked on said mines to a lien for -their unpaid wages, providing its application to
“3654. All miners, laborers and others who may labor, and all persons who may furnish material of any kind, designed or used, in or upon any mine, or mining claim, and to whom any sum is due for such labor or material, shall have a lien upon the same for such sums as are unpaid. And said lien, for labor performed, or material furnished, shall attach to said mine, or mining claim, whenever said labor was performed, or said material was furnished in or upon said mine, or mining claim, under any of the following conditions:
“ (1) Under or by virtue of a contract between the person performing such labor, or furnishing said material, and the owner of said mining claim, or his agent, trustee, receiver, contractor or contractors.
“ (2) Under or by virtue of a contract between the person performing such labor, or furnishing said material, and the lessee of said mine, or mining claim, or his agent, or contractor, where the terms of the lease from the owner of said mine or mining claim, to said lessee, permit said lessee to develop or work said mine, or mining claim.
“(3) Under or by virtue of a contract between persons performing said labor, or furnishing said material, and any person or corporation having an option to buy, or contract to purchase said mine, or mining claim, from the owner thereof, where said option or contract permits the person, or corporation, having said option to buy, or contract to purchase, to go upon said mine, or mining claim, and to work or develop the same.”
The decisions of the predecessor of this court, to the effect that miners and laborers upon a mine were not entitled to a lien for their wages, unless employed by the owner or his agent, were well known to the legislature, and the amended statute, we may reasonably assume, was passed for the specific purpose of avoiding the effect of such decisions and making it as certain as possible that the miner and laborer should be paid for his labor.
But the serious question, as intimated above, is as to whether this amended law can be applied to the facts of this case. At the time that the contract of sale was entered into, the appellee, as well- as all concerned, knew that miners and
In Andrews & Johnson Co. v. Atwood, 167 Ill. 249, 47 N. E. 387, the court said:
“It is a familiar rule that the law in force at the time a contract is executed 'enters into and forms a part of the contract. ’ ’
The facts in this case involved the rights of a sub-subcontractor to a lien. Under the law at the time of the execution of the builder’s contract, a sub-subcontractor was not entitled to a lien. But, before he had furnished material and performed labor, the law had been enlarged so as to include him as one entitled to a lien. The court said:
“The new act confers upon claimants rights heretofore unknown to the law, and at the same time it subjects the property of the owner to new liabilities. But if the construction contended for should .be given the act of 1895, and it should
The text law is stated by Jones on Liens, volume 2, section 1184a, third edition,' to be:
‘ ‘ The statute in force at the time a building contract is executed governs the rights of the parties in a proceeding to enforce a claim for a mechanic’s lien thereunder. Thus, though a lien is sought to be enforced after the passage of a new law, the law, as it stood at the time the contract was made, will govern the rights of the parties. But the remedy is controlled by the law in force at the time suit is brought to enforce the lien.”
In Gardner v. Resumption Co., 4 Colo. App. 271, 35 Pac. 674, the plaintiff claimed a lien by virtue of a statute that went into effect after the date of his contract of employment, but before he had labored on defendant’s mines. It was held that he was not entitled to a lien; the court saying:
“It is a matter of common learning, as a general proposition, that a statute cannot be given a retroactive effect, and be made operative to affect rights and interests vested prior to its enactment. The construction for which the plaintiff contends would work a violation of this very well-settled principle.”
We are aware that there are cases apparently holding a contrary view to what we have, announced as the law. In 8 Cyc. 1006, it is said:
An examination of the cases cited by the author to sustain the text discloses an entirely different state of facts from the facts in the instant ease. In those cases, the owner was the paymaster and had the right and power to protect himself by seeing to it that those who labored on or furnished material for his building were paid. Appellee had entered into •contract by which- he had agreed to sell, and under the terms of which he was to receive money instead of paying out money. There was no law, at the time he entered into the contract of sale, providing that miners and laborers working on his mine should have lien for their services when employed by the proposed purchaser, unless the latter was in fact or in law his agent. It is argued bjr the appellant that the amended law is merely remedial, and even though retroactive, does not impair the obligation of contract. As was said in National Surety Co. v. Architectural Co., 226 U. S. 276, 283, 57 L. Ed. 221, 33 Sup. Ct. Rep. 17, 19:
“The decision must turn, we think, upon the familiar distinction between a law which enlarges, abridges, or modifies the obligation of a contract, and a law which merely modifies the remedy, by changing the time or the method in which the remedy shall be pursued, without substantial interference with the obligation of the contract itself. As Chief Justice MARSHALL observed in Ogden v. Saunders, 12 Wheat. 213, 349 [6 L. Ed. 606], the obligation and the remedy originate at different times. ‘The obligation to perform is coeval with the undertaking to perform; it originates with the contract itself, and operates anterior to the time of performance. The remedy acts upon a broken contract, and enforces a pre-existing obligation.’ ”
Judgment is affirmed.
FRANKLIN and CUNNINGHAM, JJ., concur.