237 F. 574 | 8th Cir. | 1916
The codification of 1915 is therefore laid aside, and recourse is had to the Compiled Laws of New Mexico of 1897. The act of the territorial Legislature of New Mexico which authorized the compilation of 1897 in section 7 declares that:
“When the said laws have been printed and are ready for distribution, the Governor shall issue his proclamation announcing such fact, and thirty days after the date of such proclamation said compilation shall go into effect, and thereafter the laws so compiled shall be received by all the courts and officers of this territory, and shall in all respects be as valid and as binding as original enrolled acts approved and filed in the office of the secretary of the territory as now provided by law.” Laws 1897, c. 43.
Title 24 of the Compiled Laws of New Mexico of 1897 treats of the subject of liens in a single chapter, in sections 2216-2248. Sections 2217 and 2218 provide that every person performing labor upon or furnishing materials to be used in the construction, alteration, or repair of any building, wharf, bridge, etc., has a lien thereon and upon the land upon which it stands for the labor or materials. ' Section 2221 provides that every person claiming the benefit of the act creating the-lien shall, within a time specified, file for record with the county recorder a claim containing a statement of his demands. Section 2223 requires the recorder to make a record of such claims and an index thereof. Provision is made for suits to enforce the liens. The sections of the statute determinative of the issue are 2228 and 2238. The former requires the court in every case in which different liens are asserted against any property to declare in its judgment—
“the rank of each lien or class of liens, which, shall be in the following order, viz.: First. All persons other than the original contractors and subcontractors. Second. The subcontractors. Third. The original contractors. And the proceeds of the sale of the property must be applied to each lien, or class of liens, in the order of its rank. * * * ”
Section 2238 reads:
“All liens shall take effect as to the different persons who may have liens, from the time of filing the same for record, priority in time giving priority in right, should the property not be of sufficient value to pay all the liens created on it.”
No express repeal of section 2238 has been found among the laws of New Mexico, and repeals by implication are not favored. “All statutes in pari materia are to be read and considered together as if they formed part of the same statute.” Potter’s 'Dwarris on Statutes, 145. Thus read, these two sections provide that the three classes shall have the relation between themselves' prescribed by section 2228, and that the lienholders in the same class shall have priority in the order of the filing of their respective claims for liens.
When there are two acts upon the same subject, they must stand together, if possible; if the two are repugnant in any of their provisions, the later act operates as a repeal of the earlier one, so far, and only so far, as its provisions are repugnant to those of the earlier act. In re Henderson’s Tobacco, 11 Wall. 652, 657, 20 L. Ed. 235; Frost v. Wenie, 157 U. S. 46, 57, 58, 15 Sup. Ct. 532, 39 L. Ed. 614; Board of Com’rs v. Ætna Life Ins. Co., 32 C. C. A. 585, 590, 90 Fed. 222, 227; City Realty Co. v. Robinson Contracting Co. (C. C.) 183 Fed. 176, 181; Hemmer v. United States, 123 C. C. A. 194, 201, 204 Fed. 898, 905; Soliss v. General Electric Co 129 C. C. A. 548, 552, 213 Fed. 204, 208. Section 2228 is repugnant to section 2238 only so far
The referee, Mr. David W. Elliott, ruled that the liens under consideration in this case should be paid out of the proceeds of the property 'subject to them in the order of the filing for record of the claims for them; the court below reversed that ruling and ordered them paid pro rata.
The order of the District Court is vacated and set aside, with directions to cause the liens to be paid in the order of the filing for record of the claims for them.