179 Ind. 356 | Ind. | 1913
Cause No. 21,854 in this court, entitled Moore-Mansfield Construction Co. v. George A. Buskirk et al., was heretofore ordered consolidated with cause No. 21,823, entitled as above. The principal questions for determination are the same in each case.
The pleadings show that appellee, Indianapolis, Newcastle and Toledo Railway Company, was incorporated un
Afterwards, on November 21, 1906, the installation company, with .the knowledge and consent, and upon the procurement, and for the benefit of the railway company, the construction company, and the incorporators thereof, entered into a written contract with appellant, Moore-Mansfield Construction Company (hereafter termed the Moore Company), for the performance, by the latter, of the labor, and the furnishing of materials, for the construction of the bridges of the new railway line. The Moore Company immediately entered on the performance of the work, pursuant to the contract, and finished the same on November 28, 1907. On November 29, 1907, it filed, in the proper offices, notices of its intention to hold a mechanic’s lien on the railway property.
On November 5, 1907, on the complaint of said installation company, appellee, Union Trust Company, was appointed receiver of the property and assets of the railway company, by the Superior Court of Marion County, and, since that time, has been in possession of said property, as receiver, and managing the trust, under the order of the Superior Court, Room 3.
On July 14, 1908, appellant, Moore Company, filed its petition in Superior Court, Room 3, for leave to bring suit
It is alleged that there is due plaintiff Moore Company, for labor performed and materials furnished, under the contract, the sum of $20,000; that it holds a lien therefor on the railway property; that defendants are asserting liens thereon, but that in fact such liens are junior to that of plaintiffs. There is a prayer for the foreclosure of the lien, and the sale of the railway property, by the sheriff or receiver, to satisfy the same.
Demurrers to the complaint, for insufficient facts, were filed by defendants, and each demurrer was sustained. The plaintiff declined to plead further, and judgment was rendered for the defendants. The errors assigned here are the rulings, on the various demurrers.
The trial court filed a written opinion when it sustained the demurrers, and this opinion is incorporated in the record. It shows that the demurrers were sustained because appellant, Moore Company, was a contractor, and, for that reason, in the opinion of the trial court, not entitled to a lien. While the case-was pending, and before the court’s ruling, the opinion in the Indianapolis, etc., Traction Co. v. Brennan (1910), 174 Ind. 1, 87 N. E. 215, 90 N. E.
The aforementioned installation company, sublet to the Allis-Chalmers Company, the construction of substations and power houses for the railroad, and, thereafter, the same was sublet by said company to appellants Pulse and Porter (cause No. 21,854) by written contract. Thereafter, with
Within one year after the filing of the lien notices, actions to foreclose the liens, alleged to amount to many thousands of dollars, were filed in the Superior Court of Marion County, Room 3, and these actions were pending there, on October 22, 1910, when Buskirk and Smith, mortgage trustees filed in the same court a complaint to foreclose a mortgage on the railway property, given to secure the payment of 4,500 bonds of $1,000 each, and dated, July 1, 1905. The complaint alleges that the mortgage indebtedness is a first lien on the railway property, and prays for a decree of foreclosure and sale of the railroad property.
To this complaint, the appellants, Moore Company, Pulse and Porter, and a great number of others, were made defendants. Appellants, Pulse and Porter, filed a cross-complaint against the plaintiffs, mortgage trustees, alleging the before-recited facts relative to their contract, the performance of work, filing of notices of lien, and actions to foreclose. It further alleges that when the mortgage was executed no part of the railroad had been constructed, and the railway company owned nothing but a right of way; that the mortgage bonds were sold for the express purpose of raising money with which to pay for the construction and equipment of the road, which fact was well known to all the bondholders; that said bondholders also knew that when the mortgage was executed it was the intention of the railway company to employ various persons to perform labor and furnish material under contract, for the construction of the road, including substations and other buildings; that cross-complainants are entitled to a lien on the property,
By timely plea, the Moore Company sought, in so far as it was concerned, to abate the action, and we think the court erred in sustaining the demurrer to its plea. Rehman v. New Albany, etc., R. Co. (1893), 8 Ind. App. 200, 35 N. E. 292. In the same case (appeal No. 21,854, in this court)
Appellantsi, Moore Company, and Pulse and Porter, contend that the right existed in favor of contractors and subcontractors, to enforce a mechanic’s lien; that the opinion of this court, in Indianapolis, etc., Traction Co. v. Brennan, supra, and eases following it, holding that contractors, subcontractors and corporations, performing labor and furnishing materials, pursuant to contracts, are not entitled to a lien, are erroneous and should be overruled. Following the doctrine of the Brennan case are, Fleming v. Greener (1909), 173 Ind. 260, 87 N. E. 719, 90 N. E. 72, 140 Am. St. 254, 21 Ann. Cas. 959; Cleveland, etc., R. Co. v. DeFrees (1909), 173 Ind. 717; Ward v. Yarnelle (1910), 173 Ind. 535, 91 N. E. 7; Korbly v. Loomis (1909), 172 Ind. 352, 88 N. E. 698, 139 Am. St. 379, 19 Ann. Cas. 904. It is further contended by appellants, that if the court shall adhere to the doctrine declared in the Brennan case, the same is not binding on appellants, whose causes of action accrued before that decision, by reason of article 1, §10 of the Federal Constitution, which provides that “no State shall * * * pass any * * * law impairing the obligation of contracts”. It is contended that during the period extending from the November, 1843, term of this court, when the ease of McKinney v. Springer (1843), 6 Blackf. 511, was decided, to February 18, 1909, when the opinion in the Brennan case was
In respect to this proposition, it is asserted by counsel for appellees, among other things, that in no one of the numerous eases decided by this court, wherein liens were enforced in favor of contractors and subcontractors, was the specific question, decided in the Brennan case, ever presented, and consequently the latter case did not declare any rule in conflict with former decisions, within the inhibition of the Federal Constitution. Appellants, Pulse and Porter, make certain claims with reference to their appeal, not involved in that of the Moore Company, but in view of the conclusion we have reached, it is unnecessary to consider such claims. In the Brennan case, supra, appellees, Brennan and another, had entered into a contract with the Indianapolis Northern Traction Company to perform labor and furnish materials in the overhead construction of appellant’s railroad, and the lower court had decreed a lien in their favor, on the railroad property, under the mechanics’ lien act of 1883 (amended in 1889), entitled “An act concerning liens of mechanics, laborers and materialmen.” Acts 1883 p. 140; Acts 1889 p. 257, §8295 &t seq. Burns 1908. In that case, it was contended by appellant (p. 14) that §12 of the act, in so far as it attempts to confer on contractors who do not personally (Italics throughout opinion, ours) perform labor, a lien therefor, on railway property, is, under §19, article 4, of the Constitution of Indiana, void, because contractors cannot be embraced within the title of the enactment. Section 12 of the act of 1883, as amended in 1889, in express terms, purports to confer liens on railway property in favor of con
It was held by this court, in the Brennan case (p. 22) that the term “laborers” used in the title of the act of .1883 cannot be construed to apply to a class of persons known as “ contractors, ’ ’ and was not so intended by the legislature; that to construe the term so as to include contractors, would, to that extent, render it violative of Art. 4, §19, of our Constitution. In support of its ruling that the term “laborer,” as used in the title, was intended only to apply to persons personally performing manual labor, the court cites (p. 19) 2 Jones, Liens (2d ed.) §1630, Century Dictionary definition of “laborer,” and a number of decisions of courts of this, and other states. On petition for rehearing (p. 49) the additional authority of Phillips, Mechanics’ Liens (3d ed.) §157 is cited. By reason of appellants’ contention, we have concluded again to consider the questions decided, and the reasons therefor stated, in the Brennan case.
The lien of mechanics and materialmen, on buildings and land, is a creature of statute, and was unknown either at common law, or in equity. Phillips, Mechanics’ Liens (3d. ed.) §1. Such lien was allowed by the civil law. 1 Domat, Civil Law, by Strahan §§1741, 1724. In France, by the Code Napoleon, masons, architects, contractors, and others employed in building houses, etc., were accorded liens. Code Napoleon, Privileges and Mortgages §2, Art. 2103. The origin of such laws, in America, arose froin the desire to establish and improve, as readily as possible, the city of 'Washington. In 1791, at a meeting of the commissioners appointed for such purpose, both Thomas Jefferson and James Madison were present, and a memorial was adopted urging the General Assembly of Maryland to pass an act securing to master-builders, a lien, on houses erected, and land occupied. The requested law was enacted December 19, 1791. In his valuable treatise on mechanics’ liens, Phillips says in §7: “ The next statute on the subject was passed by * * * Pennsylvania in the year 1803. These statutes, while they contained the germ of all subsequent legislation on the subject, are imperfect and meager in comparison with the state of the law at the present timé [1893]'. The whole subject has been one of gradual growth, extending from imperfect and limited enactments, embarrassed by adverse decisions, to be the settled policy of all the States, and of unquestioned importance. The experiment was at first
Under the title, “Persons Entitled to Lien,” the same author says, in §35: “Although it is declared in some adjudications that the mechanics’ lien is given to secure an industrious and meritorious class, yet on examination it will be found that the privilege is conferred with reference more to the character of the worh done than to the persons who perform it. Unless there is some specific designation of a class as peculiarly entitled to its provisions, the law will include-in its privileges all citizens bestowing their labor or furnishing their materials * * *." Phillips, Mechanics’ Liens (3d ed.) §35. In the following section, (36) under the same title the author says: ‘ ‘ Fortunately the system is gradually assuming perfection; and all those who are most entitled to the exercise of its beneficial provisions, compatible with the ownership of property and the paramount rights of the public, have been generally included within its principles. Each State has so guarded the remedy as to prevent, in a greater or less degree, the evils that would necessarily attend the indiscriminate multiplications of liens on real estate. The contractor seems to be iwdversally secured by the lien. In most of the States, the subcontractor and material-men have either a lien, given them directly on the land and building to secure them whatever may be due for their work and materials, or, as in a majority of laws, a right to notify the owner of their'unpaid claim for work or materials, with a right of lien against the property for any unpaid balance which at the service of the notice may be in his hands and due to the .contractor, or else simply a right of action, without the lien,
In Winder v. Caldwell (1852), 14 How. 434,14 L. Ed. 487, it was held, under an act of congress entitled to secure to “mechanics and others, payment for labor done and materials found, ’ ’ that the same applied only to those whose personal labor has been incorporated into the building, and not to the contractors who employed them. Similar early decisions were made by Pennsylvania courts, relating to statutes of like phraseology. Jones v. Shawhan (1842), 4 Watts & S. 257; Hoatz v. Patterson (1843), 5 Watts & S. 537. Regarding those earlier decisions, Phillips says: “The foregoing decisions have been given to show the construction of the particular phraseology employed. It was found necessary both by Congress, and the legislature of Pennsylvania'to amend their legislation. The former did so, by passing an act taking away the lien of the laborer and materialman, and extending it to the contractor; the latter, by including the contractor in the same provisions as the others.” Phillips, Mechanics’ Liens (3d ed.) §42. Act of Congress, Feb. 2, 1859, 11 Stat. at Large 376; Pa. Act, June 16, 1836.
In Friedlander v. Taintor (1905), 14 N. D. 393, 104 N. W. 527, 116 Am. St. 697, 9 Ann. Cas. 96, the question involved the right of the architect to assert a mechanic’s lien for furnishing plans and superintending the construction of a building, under a statute providing that “any person who shall perform any labor * * * upon any building or other structure upon land * * * under a contract with the owner of such land * * * shall * * * have for his labor done * * * a lien upon such building.” It was
The mechanics’ lien laws of America, in general, reveal the underlying motive of justice and equity in dedicating, primarily, buildings and the land on which they are erected, to the payment of the labor and materials incorporated, and which have given to them an increased value. The purpose is to promote justice and honesty, and to prevent the inequity of an owner enjoying the fruits of the labor and materials -furnished by others, without recompense. Stryker v. Cassidy (1879), 76 N. Y. 50, 32 Am. Rep. 262; Phillips, Mechanics’ Liens (3d ed.) §§9, 10, 35. The lien is sui generis, and bears no analogy to the artizan’s lien on a chattel, for the repair thereof. It bears little analogy to the modem statutory liens on the master’s property intended to secure the payment of wages of a class of employes of manufacturers and others, commonly designated as laborers and servants. Anderson, etc., Assn. v. Thompson (1897), 18 Ind. App. 458, 48 N. E. 259; Stryker v. Cassidy, supra; Tod v. Kentucky Union R. Co. (1892), 52 Fed. 241, 3 C. C. A. 60,
It is evident that among the motives for the enactment of such master and servant statutes, is that of humanity, or charity, for a class of persons poorly equipped for timely discovery of the employers’ approaching, insolvency, and illy able to endure the loss of wages. Such motive is generally not apparent in the enactment of mechanics’ lien laws, although it may have existed in enacting the latter part of §1 of our mechanics’ lien law of 1883 as amended in 1889 (Acts 1883 p. 140, §8295 Burns 1908). The cases of Aikin v. Wasson (1862), 24 N. Y. 482; Wakefield v. Fargo (1882), 90 N. Y. 213, discussed in the Brennan case, supra, (pp. 19, 20) arose under a statute of New York making stockholders of corporations liable for debts that may be due the corporation’s "laborers, servants and apprentices.” In the first case it was held that a contractor for constructing a portion of a railway, and in the latter, that a bookkeeper and general manager of a manufacturing company, was not included in the term "laborers” as found in the statute.
In the case of Stryker v. Cassidy, supra, the plaintiff was an architect claiming a lien under the mechanics’ lien act of New York (similar to ours) giving a lien in favor of "any person who shall perform any labor, or furnish any materials, in building”, etc. It was contended by defendant that the restricted definition of "laborer,” as applying only to manual labor, personally performed, given to the term, by the Court of Appeals, in Aikin v. Wasson, supra, and cases following it, was likewise applicable to persons "performing labor” under the mechanics’ lien act. This contention prevailed in the intermediate appellate court. Stryker v. Cassidy (1877), 10 Hun 18. On appeal to the Court of Appeals, the cause was reversed, and in the opinion, it is said by the latter court: "The act authorizes a lien to be created in favor of ‘any person who shall perform any
The appellees in that case were contractors, and, in 1892, under a contract with appellant, erected some buildings on appellant’s land, for which they were not paid. The value of the labor of appellees’ employes in the erection of the buildings, aggregated more than $2,000. No notice of mechanic’s lien was ever filed. Three years after the buildings were completed the appellant became insolvent, and appellees filed suit to subject the real estate to a lien in their favor for the value of the labor of the employes furnished in the erection of the buildings thereon, under the provisions of the act of 1885. Acts 1885 p. 36. The first section of this statute requires corporations to pay their employes “engaged in manual or mechanical labor” at least once per month. Section 3 provides that all debts due any. person for manual and mechanical labor shall be preferred claims where the property of the corporation passes into the hands of an assignee or receiver. The lower court allowed the lien. The judgment was reversed in the Appellate Court, which, in its opinion, used the following language: “Statutes must have a rational interpretation, to be collected not only from the words used, but from the policy which may be reasonably supposed to have dictated the enactment, and the interpretation should be rigorous or liberal, depending upon the interests with which it deals. * * * Appellees neglected to take advantage of a statute enacted for the protection of contractors, to which class they must certainly belong. * * * The items going to make up exhibit B * # # are for iab0r done and performed by servants and employes of appellees, not of appellants * * *. This claim arises out of work done in completing a contract * * * without filing any notice as is provided by section
In the case of Raynes v. Kokomo Ladder, etc., Co. (1899), 153 Ind. 315, 54 N. E. 1061, a general manager of an insolvent manufacturing company asserted a lien on its property for his services, and relied on the labor act of 1885, heretofore noted (Acts 1885 p. 36, §7058 Burns 1894) and that portion of §7255 Burns 1894, which reads as follows : “and, all claims for wages for mechanics and laborers employed in or about any shop, * * * or manufactory, shall be a first lien upon all the machinery, tools, stock of material or work finished or unfinished, located in or about such shop, * * * or manufactory, or used in the business thereof; and should the person, firm or corporation be in failing circumstances, the above mentioned claims shall be preferred debts, whether notice of lien be filed or not.” The language above quoted did not appear in the mechanics’ lien act of 1883, supra, but was added by the amendment of 1889. Acts 1889 p. 257. It is evident that this amendment of 1889 was intended to apply the substantial provisions of the labor act of 1885, to such factory and mercantile establishments as might be subjected to mechanics’ liens under the general provisions of the act, and therefore the amendment should be construed in like manner with the act of 1885. §7058 Burns 1894, Acts 1885 p. 36. It was held in that case that a general manager of a corporation was not a “laborer” within the meaning of the act of 1885, or the amendment of 1889. Similar acts, relating to master and servant, are found, in recent years, in most of the
The reasons for such decisions are apparent. The motive for such enactments, is the protection of certain classes of persons frequently unable to properly protect themselves. The very language of most of the statutes shows they are only intended to apply to restricted classes of employes, and not to all of them. The protection is extended alike to the furnace man shoveling coal, and to the carpenter repairing or constructing buildings. The lien applies as well to the personal property of the master, as to the real. Generally, no notice is required to be filed relating to a laborer’s intention to assert a lien. In view of the above, many other distinctions between laborers’ statutory liens and mechanics’ liens might be suggested. The analogy between the two classes of statutes is so remote as to make it apparent that a definition of the word “labor”, under either, furnishes but limited assistance in defining the word, when found in the other. The cases of Raynes v. Kokomo Ladder, etc., Co., supra; Anderson, etc., Assn. v. Thompson, supra; Heebner v. Chave (1847), 5 Pa. St. 115; Seider’s Appeal (1863), 46 Pa. St. 57; Wentroth’s Appeal (1876), 82 Pa. St. 469; Pennsylvania, etc., R. Co. v. Leuffer (1877), 84 Pa. St. 168, 24 Am. Rep. 189; Adams v. Goodrich (1875), 55 Ga. 233; Tod v. Kentucky Union R. Co., supra; Henderson v. Nott (1893), 36 Neb. 154, 54 N. W. 87, 38 Am. St. 720; Aikin v. Wasson, supra; Wakefield v. Fargo, supra; Lang v. Simmons (1885), 64 Wis. 525, 25 N. W. 650, and Vane v. Newcombe (1889), 132 U. S. 220, 10 Sup. Ct. 60, 33 L. Ed. 310, cited in the Brennan case (p. 19), involve the definition of laborers as found in labor-employe, or similar statutes, and not such definition under mechanics’ lien laws. In the case of Vane v. Newcombe, supra, appellant had strung large quantities
It was also contended that appellant was entitled to a lien under our mechanics’ lien law of 1883. It was held by the court, Mr. Justice Blatchford delivering the opinion, that appellant was not an employe or laborer of the corporation within the meaning of the act of 1877, but was a contractor, and that he was not entitled to a lien under the mechanics’ lien act of 1883, because he had failed to file the required notice. In the course of the opinion it is said: “This mechanics’ lien statute [1883] gives a lien' upon a building to all persons who perform labor or furnish materials for the construction or repair of the building, even though they do it under a contract, and is not confined to employes of the owner of the building; and it also gives a lien on a manufactory to persons who may have furnished machinery or materials for the manufactory, even though they may have done so under contract with the owner of the manufactory or under contract with the contractor with such owner. * * * In view of these provisions of other lien statutes of Indiana the limited language of §5286 [Acts 1877 p. 27] is very marked, and justifies the interpretation that the provisions of the section are to be confined to a special class of persons.”
The ease of Rogers v. Dexter, etc., R. Co. (1893), 85 Me. 372, 27 Atl. 257, 21 L. R. A. 528, cited in the Brennan case (p. 18) involved an action by a subcontractor against a railroad company, for services of laborers employed by the subcontractor in the construction of a railroad, under a statute which required railroad companies to require sufficient security from contractors for the payment of all labor performed in construction, by persons in their employment.
The case of Mann v. Burt (1886), 35 Kan. 10, 10 Pac. 95, cited in the Brennan case (p. 19) was an action under a statute similar to the Maine law (Rogers v. Dexter, etc., R. Co., supra). Chapter 136, Laws of Kansas, 1872. The cases of Chicago, etc., R. Co. v. Sturgis (1880), 44 Mich. 538, 7 N. W. 213, and Martin v. Michigan, etc., R. Co. (1886), 62 Mich. 458, 29 N. W. 40, involve the construction of a labor statute similar to the Maine and Kansas acts above noted. Michigan Acts 1871 p. 163.
In Michigan, contractors are awarded liens for constructing buildings. Under a statute giving a lien to “persons who perform any labor or services in manufacturing lumber”, the Supreme Court of Michigan held the owner of a sawmill, manufacturing lumber, entitled to a lien on lumber manufactured. Phillips v. Freyer (1890), 80 Mich. 254, 45 N. W. 81. See, also, Black’s Appeal (1890), 83 Mich. 513, 47 N. W. 342.
It is evident that the definition of the word “laborer” found in the Maine, Kansas and Michigan railroad labor acts, can throw but little light on the determination of the meaning of “laborer” as found in the title of our mechanics’ lien law of 1883.
In 2 Jones, Liens (2d ed.) §1630, appears the following statement, cited in the Brennan case: “The right conferred by a lien in favor of laborers is personal, and cannot be availed of by one who furnishes labor.” A consideration of the context shows that the author was not considering the definition of “laborers” generally, or as found in mechanics’ lien laws, but as found in “Special Liens Applicable to
Dano v. M., etc., R. Co. (1872), 27 Ark. 564, was a case under an act giving laborers liens on movable property and also on real estate. The ground of the decision is somewhat obscure, but it may be deemed as holding that the word “laborer” as found in the statute should be given a restricted meaning.
In Little Rock, etc., R. Co. v. Spencer (1898), 65 Ark. 183, 47 S. W. 196, 42 L. R. A. 334, under a statute according a lien to “Every mechanic, builder, artisan, workman, laborer, or other person, who shall do or perform any work or labor upon * * * any railroad,” it was held, in the majority opinion of the court, that a contractor was not embraced within the definition of laborer, or other person, who performs work, but on the contrary only persons personally performing manual labor were intended as beneficiaries. A vigorous dissenting opinion, containing an elaborate collection of authorities, was filed by Wood, J. At the next session of the legislature (1899) the act was so amended as to conform to the construction of the former act as set out in the dissenting opinion. Arkansas Acts 1899 p. 145. Frick Co. v. Norfolk, etc., R. Co. (1898), 86 Fed. 725, 32 C. C. A. 31, also cited in the Brennan case, gives a restricted definition to the word laborer. The reasoning, however, is based onVane v. Newcombe, supra, and Louisville, etc., R. Co. v. Wilson (1891), 138 U. S. 501, 11 Sup. Ct. 405, 34 L. Ed. 1023, which held that attorney’s fees were not embraced within the meaning of “wage of employes”.
The opinion in the Brennan case also quotes (p. 49) a portion of §157, Phillips, Mechanics’ Liens (3d ed.). The matter quoted is erroneously stated to be the author’s view. It is, however, merely a quotation of a portion of the opinion of the court in Hale v. Brown (1880), 59 N. H. 551, 47 Am. Rep. 224. The distinguished author’s own views of the con
The test of the whole matter involved here, however, is, what persons were reasonably intended by the legislators to be included within the phrase “Liens of mechanics, laborers and materialmen.” We have had mechanics’ lien laws since 1834. All of these have given a lien to persons “performing labor on buildings.” What meaning had usually been given the term “laborer,” or its equivalent, “persons performing labor,” by the people, legislatures and courts of Indiana, previous to 1883? If that question can be satisfactorily answered, the problem is solved, for no one will contend that the plain intent of a legislative enactment will be overthrown by a definition of a lexicographer, however eminent. But even that is not here involved, for the word in controversy has definitions to fit either theory, and, consequently, the meaning commonly accorded the word by the people of the state and the different departments of its government, becomes all important. Section 1 of the first act on the subject (1834), defined the persons entitled to a lien as follows: “Sec: 1. Be it enacted by the General As-' sembly of the State of Indiana, That carpenters, joiners, brick and stone masons, plasterers, turners, painters, brick-makers, lumber merchants, and all others performing labor or funishing materials for the construction or repair of any
In 1838, the same section was reenacted, except that the portion thereof which we have italicized, was omitted. R. S. 1838 p. 412. By this amendment, the law was made applicable to all the State, instead of towns. Section 1 of the act, as found in the R. S. 1843, is a copy of the same section in the R. S. 1838. R. S. 1843 p. 776. Section 2 of the act, as found in the R. S. 1843 p. 776, reads as follows: “The provisions of this article shall only extend to work done or materials furnished on new buildings, or to a contract entered into with the owner of any building, for repairs, and not to any contract made with the tenant.” Section 3 provides a method for fixing a personal liability on the owner in favor of subcontractors, journeymen and laborers. Section 4 is as follows: “When any laborer, journeyman, or subcontractor, shall acquire any such lien, the same may be set off by the owner of the building * * * in any action brought against him by the person who otherwise is entitled to recover the same under the contract.” It thus appears, that by §4, the legislature, by necessaiy implication, defined the term “all others performing labor or furnishing materials” as including subcontractors.
The act of 1843 continued in effect until 1852. It will be noted that previous to 1852, no lien was given unless the value of the labor or material equalled $30. In those days the wages of common laborers, who performed manual labor, were very low. If the object of the legislation was solely to protect the manual laborer, and not the contractor, the General Assembly of 1834, and its successors up to 1852' must
Section 1 of the act of 1852 continued in effect until the act of 1883. This proposition is controverted by counsel for appellees who assert that the act of 1852 was repealed by §867 of the act of 1881, entitled “An act concerning proceedings in civil cases.” Acts 1881 p. 240.
In. Woodward v. McLaren (1885), 100 Ind. 586, 588, this court said: “So much of the code of 1852 as authorized the taking and enforcing of liens for work done or material
The act of 1881, was, in the main, a reenactment and revision of the procedure act of 1852. 2 R. S. 1852 p. 27. In the act of 1852, article 36 related to mechanics’ liens. 2 R. S. 1852 p. 181. Article 37 related to liens on boats and water craft. 2 R. S. 1852 p. 183. There is nothing in the act of 1881 relating to either subject. It is scarcely believable that it was intended to abolish such liens. Had such intention existed it would have been more appropriately evidenced by expressly repealing the entire act of 1852. Considering the titles and bodies of the acts of 1852 and 1881, including the repealing clause found in the latter act—§867 •—we do not think that the mechanics’ lien law of 1852 was repealed by the act of 1881.
In the meantime, in 1873 an act was passed, entitled “An Act to give security to persons who contract with railroad corporations to perform work and labor in the construction of railroads.” Acts 1873 p. 187. The act gave a lien to “all persons who, by contract with any railroad corporation * * * shall perform work or labor for any such corporation * * * in * * * grading, building embankments or making excavation for the track * * * and * * * who # * # shall build bridges or trestle work * * * which they may have built pursuant to any contract * * * and upon materials furnished therefor. ” This act is found in the R. S. 1881 under the title Liens of Railroad Contractors. §5301 R. S. 1881.
The revision of 1881 was prepared under the terms of an
It will be noted that this act of 1873 gave no lien on buildings, such as depots, constructed for railroad companies. Counsel for appellants, Pulse and Porter, suggest as the reason for this omission that it was deemed by the legislature that the act of 1852 already gave such lien, and this suggestion appears quite plausible. Our statute (§240 Burns 1908, §240 R. S. 1881) lays down certain rules of construction, the first of which is that words and phrases other than technical ones, shall be taken in their ordinary and usual sense. Regardless of the statute, such rule would obtain as a matter of necessity, because the meaning of words can he determined by no other rule than that of common usage, except where it affirmatively appears that some other meaning is intended. It sometimes happens, however, that in a given locality, a word is taken in a sense peculiar to such place, and in such event, it may be the duty of the courts to give such words a provincial meaning.
How did the people, legislators and courts of Indiana,
In Colter v. Frese (1873), 45 Ind. 96, 104, it was said: “The contractor has the right to a lien, and also to his personal action against the owner. The object of the law was to place the sub-contractor, journeyman, laborer, and material-man upon the same footing with the contractor.” The action in the above ease was to enforce a lien by subcontractors and a lien was adjudged. In the same cause, the constitutionality of the act (1852) was assailed because the subject-matter was not expressed in the title. This conten
Nordyke, Marmon & Co. v. Dixon (1881), 76 Ind. 188, was an action by a corporation against the owner of a building for a personal judgment and to enforce a mechanic’s lien for materials furnished and labor performed, under a contract. Inasmuch as a corporation cannot itself perform labor, in the restricted definition of the word, it could not, under such view, acquire a mechanic’s lien. Ward v. Yarnelle (1910), 173 Ind. 535, 560, 91 N. E. 7. In the Nordyke case, the trial court rendered a personal judgment in favor of plaintiff but denied a lien. The reason therefor is not stated in the opinion. This court reversed the judgment with instructions to render a judgment enforcing a lien.
Section 12 of the act of 1883 takes the place of §1 of the railroad lien act of 1873. In Midland R. Co. v. Wilcox (1890), 122 Ind. 84, 88, 23 N. E. 506, suit was instituted by assignees of contractors for the construction of a railroad, under the act of 1883. In the opinion it is said: “ The question which comes first in logical order, is whether the lien asserted under the construction contract exists and is enforceable. * * * The true construction of the * * * act requires the conclusion that the legislature meant to create a lien that should fully secure contractors, laborers and matericdmen. It is impossible to misconceive the object which the legislature intended to accomplish, and the courts cannot, without a wide departure from principle, .defeat the legislative purpose by a narrow and rigid interpretation. * * * If the original contractors were here the claimants, we should have no doubt as to their right to enforce a lien under the statute.” (Our italics.) On January 7,1909, a few weeks before the decision in the Brennan ease, and while the actions of appellants here, were pending
When the opinion in the Brennan ease was handed down the legislature was in session. It promptly reenacted the act of 1883 under a title sufficiently broad to prevent further dispute, by expressly naming therein contractors, and subcontractors. Acts 1909 p. 295.
On the whole, we believe the reasons are sufficiently urgent as to fairly require the overruling of those decisions, and therefore the cases of Indianapolis, etc., Traction Co. v. Brennan, supra, and the subsequently determined cases following it, in so far as they hold that the act of March 6, 1883, as amended, does not include contractors, subcontractors and corporations among those entitled to liens thereunder, are overruled.
Judgment reversed with instructions to Superior Court,
Note.—Reported in 101 N. E. 296. Reported and annotated in 44 L. R. A. (N. S.) 816. See, also, under (1) 31 Cyc. 332; (2) 27 Cyc. 341; (3) 1 Cyc. 32; (4) 36 Cyc. 1106; (5, 6) 36 Cyc. 1017; (7) 36 Cyc. 1032; (8) 36 Cyc. 1114; (9) 36 Cyc. 1052; (10) 8 Cyc. 736; (11) 36 Cyc. 1153; (12) 36 Cyc. 1019, 1028; (13) 36 Cyc. 1133; (14) 11 Cyc. 746; (15) 11 Cyc. 749. As to what actions in state courts are abated by prior similar action in federal courts, and the reverse instituted to foreclose the one mortgage, see 82 Am. St. 587. As to constitutional provisions in respect of the sufficiency of the title of a statute, and how such apply, see 64 Am. St. 70. As to limitations on the doctrine of stare decisis, see 27 Am. Dec. 631; 73 Am. St. 98. As to the validity of mechanics’ lien laws, see 4 Ann. Cas. 620; Ann. Cas 1912 C 339. The question whether contractors or subcontractors are within the protection of statutes giving liens to “laborers,” “mechanics,” “workmen,” and the like is discussed in a note to Indianapolis, etc., Traction Co. v. Brennan 30 L. R. A. (N. S.) 85, which case is overruled by the reported case. The question suggested, but not decided, in the reported case as to the impairment of the obligation of contract by change of judicial decision, is treated in notes in 5 L. R. A. (N. S.) 860 and 23 L. R. A. (N. S.) 500.