18 Nev. 253 | Nev. | 1884
Lead Opinion
By the Court,
Foreclosure of mechanics’ liens. The Boca Mill Company,
The first question presented is whether Torrey, the lessee, could create a lien upon the premises that would affect the estate of the lessor. Section 1 of the lien law provides that “ every person performing labor upon or furnishing materials * * * to be used in the construction, alteration, or repair of any building, * * * has a hen upon the same for the work or labor done, or materials furnished, by each respectively, whether done or furnished at the instance of the owner of the building or his agent; and every contractor, sub-contractor, architect, builder, or other persons * * * having charge of the construction, alteration, or repairs, either in whole or in part, of any building, or other improvement as aforesaid, shall be held to be the agent of the owner for the purposes of this chapter. ” (Stat. 1875, 122.) It may be conceded for the purposes of this case that to authorize a lien there must be an employment by the owner of the building, or his authorized ageut, and that an employment by a lessee does not constitute the employment contemplated by the statute; and, further, that to constitute the contractor, sub-contractor, architect, builder, or other person the statutory agent of the owner, such person must have been employed, directly or indirectly, at the instance of the owner, or his conventional agent. But the interest of the owner may be subjected to lien claims, notwithstanding the labor and materials have not been furnished at his instance, if, knowing that alterations or repairs are being made or are contemplated, he fail to give notice that he will not be responsible therefor, as provided
“Sec. 9. Every building or other improvement mentioned in section one of this act, constructed upon any lands, with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration, or repair, or the intended construction, alteration, or repair, give-notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon said land, or upon the building or other improvement situate thereon.”
The evidence showed that the corporation had an agent residing in the vicinity of the premises, who personally visited the reduction works and knew that the work was being done and the improvements made. This evidence was prima facie sufficient to charge the corporation with knowledge of the fact. No notice having been given by it that it would not be responsible for the materials and work, it results from the provisions of this section that its estate is chargeable with the liens.
Again, the consideration fbr the lease was that the lessee, “ at- his own cost and expense, * * * make all necessary repairs and improvements in and about said mill and reduction works, and furnish all necessary materials to place the same in good condition for crushing,” etc. The money so used, together with that expended in paying taxes and insurance, the lease provides, “shall be in full payment and satisfaction for'the rent of said premises for the first year.” This of itself shows knowledge on the part of the corporation of the “intended construction, alteration, or repair,” within the meaning of section 9.
A question growing out of the provisions of this section is whether persons performing labor in operating the mill
The question also arises whether the law, as it now stands, contemplates lien-claims for work performed in “carrying on” reduction works. At the session of the legislature of 1869 the following supplement was made to the mechanic’s lien law :
“All foundrymen and boiler-makers, and all other persons performing labor, or furnishing machinery, or boilers, or eastings, or other'material, for the construction, or repairing, or carrying on of any mill, manufactory, or hoisting works, shall have a lien on such mill, .manufactory or hoisting works, for such work or labor done, or for such machinery, or boilers, or castings, or other material furnished by each respectively.” (Stat. 1869, p. 61.)
At the next session the lien law underwent some alterations, but this section was re-enacted without change, save that the italicised word “ for ” was omitted. The employment of this word in the original enactment was unnecessary, and its omission worked no other alteration in the law.
The supplemental law provides for two classes of lien claimants.. One class consists of foundrymen, boiler-makers,
In the year 1875 the law was again revised, and the revision constitutes our present law. The section under consideration was then re-enacted without change other than this:'The italicized word “on” in the following quotation was inserted in lieu of the word “or” in the original enactment. The section as changed stands as follows:
“Sec. 19. All founclrymen and ‘ boiler-makers, and all persons performing labor, or furnishing machinery or boilers, or castings, or other materials for the construction, or repairing, or carrying on of any mill, manufactory, or hoisting ■works, shall have a lien on such mill, manufactory, or hoisting works for such work or labor done on such machinery, or boiler, or castings, or other material furnished by each respectively. * * *” (Stat. 1875, 126.)
If this language be followed the right of lien is restricted to “work and labor done on such machinery, or boiler, or castings, or other materials ” as the lien claimant may have furnished, and is withheld from persons furnishing labor without materials; and, also, from those furnishing the many articles of mining and milling supplies upon which no labor is bestowed by the vendor. The section, as it appears in the published statutes and in the enrolled bill, is delusive. It purports to provide for two distinct classes of lieu claimants, but in fact provides for only one class. No reason can be assigned why the pretended provision for “persons
The principle that courts will disregard clerical errors apparent upon the face of a legislative act has been frequently recognized. In U. S. v. Stern, 5 Blatchf. 513, the court had occasion to consider a statute providing for the indictment of persons convicted of bribery. If effect were given to the clause concerning convictions, the whole act would be rendered meaningless. In order to carry out the intention of congress the clause was disregarded.
A statute of the state of Minnesota, providing for the removal of actions to the supreme court, declared, by its first section, that “a judgment or order in a civil or criminal action in any of the district courts may be removed to the supreme court, as provided in this chapter.” The second section was in these words : “All penal judgments in the district courts may be examined and affirmed, reversed or modified by the supreme court; * * * such examination may be made upon writ of error or appeal as hereinafter provided.” The court held that the manifest design of the statute was to subject all judgments of the district courts to examination by the supreme court; that the second
The meaning attaching to the words “ carrying on,” as used in section 19, was construed by the district court of the United States for this district, in the year 1871, to the effect that a teamster, in hauling quartz to a mill, performed labor for carrying on the mill and was entitled to a lien against it. (In re Hope M. Co. 1 Saw. 710.) In 1875, as before stated, the legislature re-enacted the provision so construed. It has frequently been held that the re-enactment of a statute without substantial alteration, after an authoritative construction has been placed upon it, is a legislative adoption of the construction. The cases in which the rule is announced are generally those in which the construction has been given by the highest court of the state; no ease has falleu under our notice in which the construction was given to'a statute of the state by the courts of the United States. The rule is based upon the presumption that the legislature knew of the construction.
In Hunter v. Truckee Lodge, 14 Nev. 39, this court felt safe in holding that before an official publication of a decision by the supreme court of California “there ought to be
The federal decision to which we have referred was published in the year 1873, in the reports of cases determined by the United States courts within the district embraced by the state of Nevada. If the presumption of knowledge on the part of the legislature is based upon the fact that publicity is given to the construction by publication of the decision, as this court appears to have held, we see no reason why the presumption of legislative adoption of the judicial construction of the statute in this case should not apply with the same force as in the cases decided by the state courts.
Again, courts frequently refer to the history of a statute, and to any circumstance evidencing its object, for the purpose of ascertaining the intention of the legislature. Such reference is based upon the presumption that legislatures are conversant with the subject matter upon which they are acting. The decision in the first of Sawyer’s reports forms part of the history of the lieu law, and it is reasonable and just to assume that in legislating upon the subject of mechanics liens it was not overlooked. Independently of these considerations, we are convinced that persons furnishing labor or materials used in operating the mill are entitled to liens, because, first, the language of the statute so declares; and, second, as stated in another portion of this opinion, the enactment of section 19 was unnecessary, unless its object was to extend the right of lien to these classes of claimants.
The last point made is that’there was no testimony show
The judgment and order of the district court overruling the motion for new trial are affirmed.
Dissenting Opinion
dissenting:
Whether or not any person has a lien on real property depends entirely upon the statute. Our statute, in the cases mentioned therein, only gives liens for labor performed and materials furnished at the instance of the owner or his ageut. “Every contractor, sub-contractor, architect, builder, or other person having charge of any mining claim, or of the construction, alteration, or repairs of auy building or other improvement,” is an ageut of the owner. A contractor is one who enters into a coutract with the owner to perform labor of furnish materials, and is responsible to the owner; a sub-contractor enters into a contract with the contractor aud is responsible to the latter; an “ai’chitect, builder, or other person” .may have charge for the owner, contractor, or sub-contractor. There may be at the same time an owner of the fee and an owner for years, as there was in this case. (Phil. Mech. Liens, 151.) The plaintiff was a contractor with Torrey, the lessee, but not with defendant’s grantor, the owner of the fee. Plaintiff was an agent of Torrey, but not of the Boca Mill Company, nor was Torrey the latter’s agent. A.s agents of the Boca Mill Company,
In Georgia the statute giving all persons employed on steamboats a lien thereon for wages, and for wood and provisions furnished, was so amended as to be applicable to all steam saw mills at or near any of the water-courses in the state, in behalf of all persons who might be employed by the owner or owners, agent or superintendents, for services rendered, or for timber or fire-wood of any description, provisions or supplies, delivered to any such steam saw-mill. The amendment also declared that the same course should be pursued for the recovery of any such claim, as was stated in the original act; provided, the demand for such claim should be first made to the owner or agents of any person having control of any steam saw-mill against which any proceedings might bo had uuder the provisions of said act. (Cobb Dig. Ga. 1851, p. 428.) Construing that statute in Harman v. Allen, 11 Ga. 46, the court said:
“The lien given by the act of 1842, and the summary remedy provided for its enforcement, are in behalf of the persons who are employed by the owner, agent, or superintendent of the mills, or for services rendered, or for supplies of any description which may be furnished the mill. It is clear that the lessee is neither agent nor superintendent in contemplation of the statute. He must, therefore, be the owner of the property, or otherwise the act does not apply to him at all. But he is the qualified owner of the mills, and it was competent for him, as such, to bind the property for the unexpired term for which it was let. Beyond this he could not go. It would be intolerable to hold that he could create liens upon the reversion, ad libitum, for stocks and other materials consumed during his temporary occupancy. It has been contended that the words ‘ agent ’ and ‘superintendent,’ include those who, defacto, control the
.In my judgment the court’s reasoning in that case is ' sound, and it is applicable to this case under section one. S.e.e, also, McCarty v. Carter, 49 Ill. 57; Phil. Mech. Liens, 117.
But sectiou 9 provides that “ every building or other improvement mentioned in section 1, constructed upon any lands with the knowledge of the owner, or the person claiming an interest therein, shall be held to have been constructed at the instance of such owner or person claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person haviug or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration, or repair, or the intended alteration, construction, or repair, give notice that he will not be responsible for the same, by posting a notice in writing to ■ that effect in some conspicuous place upon said land or building or other improvement situate thereon.” If defendant’s grantor had knowledge through its agent of the construction, alteration or repairs made by Torrey, and did not post the required notice within the specified time, then, by the terms of the statute, the materials furnished by plaintiff and the labor performed in repairing or altering the mill must be held to have been furnished or performed at the instance of the Boca Mill Company, and, under section 1, ■ as well as section 9, the interest of that company became burdened with liens for such materials and labor. But for ‘ the labor performed by intervenors in “ carrying on the
Section nineteen of the existing lien law was enacted as an independent statute iu 1869, and was embodied in the present law iu 1875, when section nine was, for the first time, made a part of the law governing liens. I feel satisfied, as before stated, that without the aid of section nine even the plaintiff could not have subjected the interest of the Boca Mill Company to liens for materials furnished and labor performed for Tofrey ; and if I am right in this,.then interveners are not entitled to a lien upon that interest, for labor performed in “carrying on the mill,” because section nine does not declare that such labor shall be held to have been performed at the instance of that company, unless it gave the notice required iu case of construction, alteration, or repair.
Under section nine the Boca Mill Company was bound to give the required notice or have its property subjected to liens for machinery and materials furnished, and for labor performed under contract with Torrey, iu constructing, altering, or repairing the mill. But for the labor performed in running the mill,-no notice was required; audit cannot be said that the owner of the reversion was bound to give notice as to such labor, simply because it had to be given in the matter of materials furnished and labor performed in improving the mill. On the contrary, since the legislature, ex industria, limited the necessity of a notice to one class of claims, the presumption is that the other was not intended to be included.
Section 9 is a harsh law, and it should not be construed to mean more than was plainly intended by the legislature. If a mill is altered or repaired by a lessee, a lien may, with some reason, be given upon the interest of the lessor, unless he gives the notice required; for the value of the property may be, and probably will be, enhanced by the outlay. But before I can say the legislature intended to give a lien upon the mill of a lessor for work performed in
It is provided in section 19, under which intervenors claim their lien, that “all the provisions of this act respecting the mode of filing, recording, securiug, and enforcing the lions of contractors, journeymen, laborers, and others, * * * shall be applicable to this section of this act.”
That is to say, lien claimants, under section 19, shall pursue the same course iu recovering their claims as is required of other lien claimants. I am of opinion, also, that under section 3 of the lien law the liens of intervenors cannot attach to any interest in the land occupied by the mill except Torrey’s.
To the extent stated I dissent.