Reeves & Co. v. Russell

148 N.W. 654 | N.D. | 1914

Lead Opinion

Goss, J.

Plaintiff corporation brings this action to foreclose its. chattel mortgage upon a threshing engine, and to determine priority of liens thereon, and particularly as against a blacksmith’s lien filed against the engine by Boyle Brothers, defendants. Plaintiff sold the engine to one Russell in 1906, taking a mortgage back, which was duly filed and has been renewed, and admittedly is, and always has been, a valid lien upon the property. On April 11, 1911, Russell wrote plaintiff for its. written consent to a sale of the mortgaged engine, receiving a reply dated April 15, 1911, in effect withholding consent until it could investigate and until certain conditions were complied with. Russell, however, took no further steps to obtain such written consent, and sold it to Arbogast, for valuable consideration, who bought with notice of the encumbrance. Arbogast thereafter consulted Boyle Brothers, machinists, at Jamestown, as to repairing the engine, and one of them Avent to Russell’s place, where the machine still remained, and inspected the same as to the probable cost of overhauling, rebuilding, and putting it in suitable condition, and made an estimate that to do so would cost in the neighborhood of $800. Defendants Boyle Brothers, were then engaged by Arbogast, with the knowledge and acquiescence of Bussell, to move the engine to the machine shop of Boyle Brothers for repairs, and rebuilding the engine, which was thereafter completed at an expense for labor, material, and repairs and incidental expenses, totaling $882.11, and incurred between April 27 and May 26, 1911, and for which amount a blacksmith’s lien was soon filed by Boyle Brothers against Arbogast, Bussell, and the Beeves Company, by the filing of an affidavit of lien, accompanied with an itemized and verified statement of all labor and items of material and charge entering into the account. Written notice of this was at once given. Blaintiff thereupon demanded possession from Boyle Brothers, who had at all times since the completion of the work retained possession of the engine, and upon their refusal thereof the property was taken under warrant of foreclosure. Boyle Brothers in defense pleaded their artisan’s lien and possession for the purpose of foreclosure thereof, and asked that their lien, claimed both under § 6295, Bev. Codes 1905, and chap. 168, Laws of 1907, be adjudged to be a prior lien to the mortgage of the plaintiffs. With this question of priority of liens, plaintiff seeks to raise the following questions: (1) Whether an artisan’s lien takes priority over a mortgage of record on the property liened; and (2) whether chap. 168 of the Session Laws of 1907, amending § 6295, Bev. Codes 1905, passed after this mortgage lien had accrued, and in express terms declaring that “said lien shall have priority over all other liens, chattel mortgages, or encumbrances against said personal property,” and providing the method for the perfecting of the artisan’s lien without retention of possession of property, is constitutional. Appellant asserts said chap. 168 to be unconstitutional on several grounds alleged. Bor reasons hereinafter stated we find it unnecessary to pass upon any constitutional question, so any statement of appellant’s claims in this respect is needless.

Section 6295, Bev. Codes 1905, which does not declare priority of an artisan’s lien over recorded mortgages or encumbrances, was the only statute on the subject in 1906, at the time plaintiff’s lien became effective. Chapter 168, Laws of 1907, became effective a year after this mortgage was given, and in express terms granted artisans’ liens priority over mortgages. Whether this priority is granted as to mortgages taken and in force before its passage is one question arising, but for the purposes of this suit we shall assume the statute to be retrospective in this instance, and as in terms making the artisan’s lien superior to the mortgage lien. Whether the statute is thus retrospective or not is immaterial under the law controlling this decision. In construing statutes on liens, the first consideration is whether the lien is one given at common law, or is instead dependent for its existence solely upon the terms of the statute. Where the statute is merely declaratory of the common law it is construed together with, and in the light of, the common law; the legislature being presumed to know the common law on the subject and to enact the statute as merely declaratory thereof, and to be so interpreted in the light of its origin and common-law definition where the statute does not depart from the governing common-law principles. And this here applies, as artisans’ liens are a creation of the common law, and not a special lien originating under, and dependent upon, statute for its creation and existence. This is ably discussed and is the settled law of this state under the opinion of this court by Justice.Corliss in Garr v. Clements, where the artisan’s lien law declared by chap. 88 of-the Laws of 1890, was sustained as constitutional on the ground (equally applicable to the legislation before us) that the statute merely declared the existing law on the same subject, or, in other words, that, without the statute, the lien of the common law would exist under the facts of that case the same as with it, and that portion of the Laws of 1890 corresponding to chap. 168 of the Laws of 1907, granting priority to the artisan’s lien, was not innovation, and did not create any new rights not already enjoyed and in existence at common law at the time the statute became operative. This statute of 1890 was repealed by the enactment of the Code of 1895 (see ¶ 12, p. 1519) § 6295, taking its place as § 4844 of the Code of 1895. But chap. 88 of the Laws of 1890 (almost identical with chap. 168 of the Laws of 1907) was passed upon in Garr v. Clements, 4 N. D. 559, 62 N. W. 640. Our earliest enactment on the subject was subdiv. 2 of § 1814 of the Revised Codes of Dakota territory 1877, which, like § 6295, Rev. Codes 1905, did not, even by inference, declare the artisan’s lien to ,be a prior lien to the mortgage. The same was, nevertheless, in Garr v. Clements, held superior to the mortgage lien as entitled at common law to such priority, though the statute of 1890 was the one directly passed upon; and such holding and the reasoning upon which it is based are equally applicable to § 6295^ Rev. Codes 1905, which section must be held to grant the artisan a superior lien to that of the mortgagee, evén though the same is not declared by statute: And such was the law in 1906, when plaintiff took this mortgage. So, without any reference to chap. 168, Laws of 1907, plaintiff’s mortgage must be held to be subordinate to the lien of defendants, as such was the law at the time the mortgage was taken, where the party entitled to the lien has retained possession, as have defendants, at all times after the completion of the work. And this is decisive of the rights of appellant, as chap. 168 of the Laws of 1907, if applicable, is but declaratory of the equivalent of § 6295, Rev. Codes 1905, as supplemented by "the common law concerning priority, which by express terms it purports to amend. It consists, among other things, in declaring the procedure necessary for the perfection and foreclosure of the lien, the notice therein provided for perhaps being inspired by what is said in Garr v. Clements, 4 N. D. 559, on page 564, 62 N. W. 640, where a defect in the statute of 1890, in failing to provide notice to be given to mortgagees of record, is pointed out. It is not necessary, therefore, to pass upon the constitutionality of chap. 168 of the Session Laws of 1907, although defendants have also perfected their lien by filing their lien statement and account thereunder. It may be assumed that such statute is unconstitutional and void in its entirety, but yet Boyle Brothers are entitled to prevail under their lien, dependent on possession, which would then be valid under § 6295, Rev. Codes 1905, they having at all times, after completion of this work, retained possession of the personal property upon which the work was performed under a claim of lien therefor, demanding payment of their charges for labor, material, and repairs. If § 168 is constitutional, Boyle Brothers, having strictly complied therewith, are then certainly entitled to prevail, as possessing a prior lien, not only declared by common law, but expressly defined by chap. 168, Laws of 1907. Plaintiff is thus caught upon one horn or the other of the dilemma, one or the other of which he must choose. Hence he is in no position to exact a holding upon the feonstitutionality of the law of 1907, as any discussion thereof must be unnecessary to a decision. Under such circumstances, it is the duty of the court to refrain from passing upon constitutional questions. This likewise disposes of whether’ appellant waived its rights under its mortgage. The holding that the artisan’s lien in any event is prior to the mortgage lien is the equivalent of deciding that appellant had no rights to waive under its mortgage. Nor is there any merit in appellant’s contention that Arbogast, in buying the mortgaged property without written consent having been given the mortgagor to sell the same, could acquire no right ór interest sufficient to constitute him an implied agent of the mortgagee, as is the owner of mortgaged property, for the authorization of repairs thereto, whose act as such binds the mortgagee and subordinates the mortgage lien to that of the artisan. Russell acquiesced in the contract for repairing, though the same was wholly immaterial, as Arbogast, by purchase from Russell, became the owner of said property, and as such enjoyed all rights formerly possessed by Russell. True, the sale hy Russell without written consent of the plaintiff constituted commission of a crime by the seller under § 9442, Rev. Codes 1905, but no liability, civil or criminal, unless arising by implied contract from provisions of the mortgage of record (Ellestad v. Northwestern Elevator Co. 6 N. D. 88 — 93, 69 N. W. 44) was assumed by the purchaser by a mere purchase of mortgaged property. Sanford v. Duluth & D. Elevator Co. 2 N. D. 6-10, 48 N. W. 434; Black v. Minneapolis & N. Elevator Co. 7 N. D. 129-134, 73 N. W. 90; Willard v. Monarch Elevator Co. 10 N. D. 400-407, 87 N. W. 996; Gorder v. Hilliboe, 17 N. D. 281 — 284, 115 N. W. 843; Taugher v. Northwestern P. R. Co. 21 N. D. 111, 112, 129 N. W. 747. And Arbogast therefore became owner thereof, and as such could repair the property and subject it to an artisan’s lien for repairs so authorized. The judgment appealed from is affirmed.

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Rehearing

On Petition for Rehearing.

Goss, J.

Appellants filed a petition for rehearing, challenging as judicial legislation consideration by the court of the common law priority of this common-law artisan’s lien, and maintaining that because of § 6295, Rev. Codes 1905, in terms recognizing an artisan’s lien but silent on its priority, the court must find that no priority of such lien can exist, and that any priority must be given by statute under § 6138, Rev. Codes 1905, the general statute concerning priority of liens, providing that, “other things being equal, different liens upon the same property have priority according to the time of their creation, except in cases of bottomry and respondentia.” In other words appellant asserts that in the determination of this question we are limited to a construction of statutes, and cannot resort to the common-law rights of the parties to determine the question of priority where the statute is silent thereon; and counsel cite in support of that contention § 4006, Eev. Codes 1905, a provision of the Civil Code, reading: “In this state there is no common law in any case where the law is declared by the Codes,” and also cite § 10,509; Eev. Codes 1905, next to the last provision of the Code of Criminal Procedure, providing that “the provisions of this Code, so far as they are the same as existing statutes, must be construed as continuations thereof, and not as new enactments.” From these statutes, appellant reasons that there can be no common law on artisan’s liens, the Code having spoken on the subject by the declaration therein providing for such a lien, and that, treating § 10,509 as a general provision applicable to all the Codes and all Code provisions, the statutes are to be considered as continuations of statutes, but not as continuations of the common law in all instances civil and criminal. To emphasize this claim, appellant has cited § 4 of the Civil Code of California reading : “The provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments.” Under this California Code provision, and its construction by the courts of that state — Quist v. Sandman, 154 Cal. 748, 99 Pac. 204, at pages 207, 208; Michaelson v. Fish, 1 Cal. App. 116, 81 Pac. 662; Lux v. Haggin, 69 Cal. 255, at page 384, 10 Pac. 674; and Sharon v. Sharon, 75 Cal. 1, at page 13, 16 Pac. 345 — statutes are but continuations of the basic common law, a determination of rights under which- necessitates consideration of both the common law and the statute, where the statute is either silent or ambiguous. But appellant parallels this provision of the Civil Code of California with § 10,509, Rev. Codes 1905, a portion of our Code of Criminal Procedure, nearly identical, but omitting the phrase of the California Civil Code provision of “or the common law,” and therefore contends that in this state in no instance are the statutes to be considered as continuations of the common law. It is urged that the common law is excluded by our Code provision 4006, reading: “In this state there is no common law in any case where the law is declared by the Codes.” This decision then narrows to the question of whether the common-law priority still exists notwithstanding § 6295, declaring a lien in the possessor of the property with the right of possession until the charges for repairs are paid, but silent on the question of priority of such lien unless governed by § 6138, declaring priority of liens according to time of creation “other things being equal,” and § 6124, Eev. Codes 1905, that “the rule of the common law that statutes in derogation thereof are to be strictly construed has no application to this Code. This Code establishes the law of this state respecting the subjects to which it relates, and its provisions are to be liberally construed with a view to effect its objects and to promote justice.” In its last analysis the decision resolves to whether the provisions of our Civil Code are to be considered as continuations of the common law as well as continuations of statute; or whether, on the contrary, the fact that a common-law lien has been declared by statute makes all rights thereunder dependent solely on the statute, without regard to common-law incidents, rights, or history, in which ease a priority that would here exist under the same circumstances at common law as an incident to the same lien given by common law as here declared, also by statute, would be negatived and defeated by the mere silence of the statute on priority. If the statute is to be considered as but a continuation of the common-law lien, without regard to common-law priority, the priority still exists, the statute then declaring the lien and the common law defining priority. If the statute is not a continuation of the common law, but works an abolition of all common law on the subject, inclusive of the incident of priority, then some general statute must be found conferring priority, the particular statute giving none, otherwise there is no priority of artisans’ liens over earlier liens.

The conclusions in the main opinion are sustained by all authority, and appellant’s attack thereon loses all force in the face of the fact that common law is by statute, §§ 4003, 4004, and 4005, Eev. Codes 1905, declared to be the basic law thereby requiring statutory enactment, to be considered as but a continuation of the common law as to civil rights and liabilities. Section 4003 reads: “The will of the sovereign power is expressed (4) by the decisions of the tribunals enforcing those rules which, though not enacted, form what is known as customary or common law.” And § 4005 declares what shall be evidence of such common law. By statute the provisions of the Civil Code are to be considered as but continuations of the common law as well as other statutes, and no distinction exists in this respect between this state and California, notwithstanding § 10,509, Bev. Codes 1905. Plainly this provision of the.Code of Criminal Procedure can have no relation to or bearing upon the question of whether the provisions of the Civil Code and civil statutes are to be considered as continuations of the common law. Each of the seven Codes was passed as a separate bill in the Be-vision of 1895, and as an entirety. The term “Code” as used in many places in each of the seven Codes must refer solely to the Code of which it was a part at the time of its enactment, and this provision has reference to criminal procedure, and is not a general provision applicable to all of the seven Codes as separately enacted. The Code provisions relative to crimes and criminal procedure, as §§ 8531 — 8535—8538 and 10,509, prescribe a different rule as to such than generally applies to civil rights and remedies. Our penal statutes undertake to and do define all our crimes, and our Code of Criminal Procedure in the main declares the process of administration of our penal statutes. But it is vastly different as to civil rights and liabilities, to completely codify which would be an absolute impossibility. Manifestly civil statutes must be regarded as they have always been construed to be, but continuations, affirmances, modifications, or repeals of basic common law governing principles, and to be interpreted in the light of the common law as has been done for generations. If authority is needed for our conclusions, the following will suffice:

Unless otherwise provided by statute, all “statutes are to be interpreted in the light of the common law, with reference to the principles of the common law in force at the time of their passage.” “The presumption against an intent to alter the existing law beyond the immediate scope and object of the enactment under construction applies as well where the existing law is statutory as where it is promulgated by decisions.” “The principle is recognized that an intent to alter the common law beyond the evident purpose of the act is not to be presumed. It has indeed been expressly laid down that ‘statutes are not presumed to make any alteration in the common law further or otherwise than the act does expressly declare; therefore in all general matters the law presumes the act did not intend to make any alteration; for if the parliament had that design they would have expressed it in the act’ that 'the rules of the common law are not to be changed by doubtful implication.’” Endlich, Interpretation of Statutes, § 127. "First in importance ... is the consideration of what was the rule at the common law, 'to know what the common law was before the making of a statute whereby it may be seen whether the statute was introductory of a new law or only affirmative of the common law, is the very lock and key to set open the windows of the statute.’ Further, as a x’ule of expositioxx, statutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the legislature ixxtexxded to xxiake any ixxnovation upon the common law further than the case absolutely reqxxired. The law rather ixxfex-s that the act did not intexxd to make axxy alteration other than what is specified and besides that has beexx plainly pronoxxnced; for if the parliament had had that design it is naturally said they would have expressed it,” Potter’s Dwarris oxx Statutes axxd Constitutions,, p. 185, concerning which rule that author quotes Chancellor Kent as follows: "This has been the language of courts in every age; and whexx we .consider the constant, vehement, axxd exalted eulogy which the ancient sages bestowed upon the common law as the perfection of xnason axxd the best birthright and xxoblest inheritance of the subject, we cannot be surprised at the great sanction givexx to this rule of construction.” Sections 454, 455, of 2 Lewis’s Sutherlaxid Statutory Construction, 2d ed., announce the same rule that “in all doubtful matters and whexx the statute is in general terms it is subject to the principles of the comxnon law; it is to receive such coxxstruction as is agreeable to that law in eases of the same nature. A statute in affirmance of a rule of the common law ivill be construed as to Us consequences in accordance with such law.” See Lavin v. Bradley, 1 N. D. 291, 47 N. W. 384; Parker v. First Nat. Bank, 3 N. D. 87, 54 N. W. 313; Garr v. Clements, 4 N. D. 559, at pages 562, 563, 62 N. W. 640. This rule is here applicable, as the statute, § 6295, declaring the right to an artisan’s lien dependent on possessioxx, is bxxt declaratory of that common-law lien. “In some of the states of the Union the common law of England and English statutes enacted prior to a specific time have been expressly adopted by a constitutional provision. In others they have been adopted by statute.” 8 Cyc. 373, in note 32 of which mention is made that this state has by §§ 4003, 4005, and 4006 by statute expressly adopted the common law as the fundamental law, except as modified or supplanted by statute or ordinance. Section 6737, Eev. Codes 1905, a general provision of the Code of Civil Procedure, also in express terms in prescribing the rule of construction of civil statutes recognizes such fact by the provision that, “but technical words and phrases and such other as have acquired a peculiar and appropriate meaning in law or are defined by statute are to be construed according to such peculiar and appropriate meaning or definition.” California by express enactment in 1850 adopted the common law of England evidently to set at rest any question of conflict between whether the English common law or the civil law, in force in the adjoining Mexican territory, and once in effect in such parts of that state as had been Mexican territory, would prevail. See the discussion in Lux v. Haggin, 69 Cal. 255, at page 384, 10 Pac. 674. As to the statute being declared to be but a continuation of the common law to be construed therewith, see Sharon v. Sharon, 75 Cal. 1, at page 13, 16 Pac. 345: “But the purpose of a statute can only be derived from its words read in the light of the previous law. If it is so confused and uncertain that it can be given no intelligible meaning, we must consider the common law unchanged by it, . . . and it is a cardinal rule of interpretation that the common law continues except as altered by the statute.” It is true that California has a statute to this effect (§ 5 of the Civil Code of that state) that, “the provisions of this Code, so far as they are substantially the same as existing statutes or the common law, must he construed as continuations thereof, and not as new enactments,” which statute has been in force since 1872, and that we have no statute explicitly so providing, but the omission is immaterial as to civil rights and remedies in the face of the fact that the common law is by statute adopted as to such rights and liabilities, the statutes having since territorial times declared the same consequences in the statutory provisions that, “the evidence of the common law is found in the decisions of the tribunals,” and “there is no common law in any case where the law is declared by the Codes,” §§ 5 and 6, Civil Code of 1877, and §§ 4005, 4006, Eev. Codes 1905. Where the Codes declare the law they preclude application of the common law, which as to the matter covered by the Codes during the existence of the Code provision becomes nonexistent, but inasmuch as the common law is the basis it governs as to matters wherein the law is not so declared. The Codes being but a continuation of the common law, to be construed therewith to constitute the great complete body of law, the two must be considered together where, as here, the Code but declares the lien already recognized at common law, and is silent on the question of priority of such common-law lien. State ex rel. Morris v. Sullivan, 26 L.R.A.(N.S.) 514, and note (81 Ohio St. 79, 90 N. E. 146, 18 Ann. Cas. 139).

But counsel in support of his contention would emphasize the fact that the territorial statute declared no priority of this lien, and that by the Laws of 1890 priority was granted, which provision was repealed in the Revision of 1895, which priority provision has been again expressly re-enacted by chap. 168 of the Laws of 1907; and counsel inquires how the double repeal and enactment on priority can be considered other than as evidencing a successive legislative expression of denial and reaffirmance of priority, and that the lien by mortgage of the appellant having attached at a time when priority of artisans’ liens was thus refused recognition and by inference denied, upon what basis can it be found that a lien at common law could exist during such interval ? In territorial times, and until the enactment of the statute of 1890' granting it, priority existed at common law, as is held in Garr v. Clements, 4 N. D. 559, 62 N. W. 640. Upon repeal of the statute of 1890, no mention of priority being made in the repealing statute, and there being nothing to positively evidence a legislative intention to the contrary, the common-law rule as to priority was revived; “the repeal of the statute, which abrogated a common-law rule revives that rule.”" Beaven v. Went, 155 Ill. 592, 31 L.R.A. 85, 41 N. E. 91; Baum v. Thoms, 150 Ind. 378, 65 Am. St. Rep. 368, 50 N. E. 357; Burleigh County v. Rhud, 23 N. D. 362, 136 N. W. 1082; Lewis’s Sutherland Stat. Constr. § 294, quoting above rale and declaring same applicable “even though there is a statute that a repeal of the repealing act shall not revive the act repealed,” similar to § 6739, Rev. Codes 1905, identical with § 20 of Civil Code of California .in force since 1872. “Where a statute repeals the common law, and is then itself repealed, the common law is revived, and the authorities say that if a statute that is declaratory of the common law is repealed the common law more clearly remains in force for the reason that the statute is an affirmance of it.” Harper v. Middle States Loan, Bldg. & Constr. Co. 55 W. Va. 149, 46 S. E. 817, 2 Ann. Cas. 42 at page 45; Endlich, Interpretation of Statutes, § 475. Under this rule, and the presumption that the common law is abrogated by statute only so far as is necessary to give force to the statute and the legislative intent thereby, and no farther — State ex rel. Morris v. Sullivan, 81 Ohio St. 79, 26 L.R.A.(N.S.) 514, 90 N. E. 146, 18 Ann. Cas. 139; Chicago & E. R. Co. v. Luddington, 175 Ind. 35, 91 N. E. 939, 93 N. E. 273, citing much authority — the territorial statute, subdiv. 2, § 1814 of Civil Code of 1877, did not efface the common-law priority of artisans’ liens. Chapter 88, Laws of 1890, by declaring that priority was but declaratory of the prevailing common law and repeal of the Laws of 1890, instead of leaving no law on the subject, revived or made applicable the common law, and such was the situation when this appellant’s mortgage was taken. That the legislature has by chap. 168, Laws of 1907, again re-enacted the common-law provision of priority, is of no consequence as a legislative construction on the question or otherwise. If it be assumed to be a legislative construction, as contended, it is not binding on the courts, as it is beyond legislative power or province to interpret retrospectively by legislative act prior statute or common law. The duty and power of interpretation of past legislative enactment lies in the courts alone. But against revival of the common law, it is contended that the legislature cannot be presumed to have needlessly declared a statutory priority when a common-law priority existed, and on that assumption it is urged that no priority existed before 1890 or during the interval from January 1, 1896 to 1907. If appellant’s basis of exclusion from common law by the statute of every subject touched upon by statute is accepted, this rule would be applicable. But the civil statutes being but continuations of the prior common law to be construed therewith, the fact that a statute declares one incident of the common law on the subject does not of itself and alone signify an exclusion of all other common law touching rights on which the statute is silent. Nearly all the substantive law as contained in our Civil Code is but declaratory of established and prior oxisting common law, a fact which of itself establishes such legislation to be needless except to render the same accessible and easy of reference, the principal benefit of our codification of a small portion of common-law principles. Appellant insists that the general statute as to priority of liens, § 6138, Rev. Codes 1905, first found as § 1711, Civil Code of 1877, declaring that “other-things being equal, different liens upon the same property have priority according to the time of their creation,” here controls to exclude any common-law priority. This statute is but ■another principle of the common law codified. By its terms only when “other things being equal” is it applicable. The exception made is to ■exempt from its application instances, as here, where other things are not equal, in that the lien recognized by statute has a common-law ■origin. Adjudications on statutory liens are in no wise applicable. Hence, Moher v. Rasmusson, 12 N. D. 71, 95 N. W. 152, concerning a purely statutory thresher’s lien, is not in point, and the same is true with First Nat. Bank v. Scott, 7 N. D. 312, 75 N. W. 254, as to an agister’s statutory lien. Manifestly a lien dependent solely on the statute for its creation and priority is measured in such respects by the enactment as its source, and definitive of rights thereunder. This distinction has already been made between statutory and common-law liens in our decisions — Lavin v. Bradley, 1 N. D. 291, at page 296, 47 N. W. 384, where the following is found: “In construing the seed lien statute, the fact must not be overlooked that the lien given is wholly statutory in its nature and origin. It was unknown at common law, and hence can neither be acquired nor enforced unless there has been a substantial compliance with the act of the legislature from which the lien arises;” quoted in Parker v. First Nat. Bank. 3 N. D. 87, 54 N. W. 313, and distinguished again in Garr v. Clements, 4 N. D. 559 at pages 562, 563, 62 N. W. 640. There the statute was upheld as not by retrospective operation according to its provisions abrogating obligation of contracts, because at common law, in the absence of the statutory priority by statutes of 1890, priority existed under the territorial Code of 1877. “An unbroken line of authority, a settled rule of the common law, sound principle, and a due regard for business convenience, all join to sustain this statute.” The same reasons sustain our holding of a common-law priority of artisans’ liens in 1906, when appellant’s contract lien became effective. Our statute of 1907 is not therefore retrospective in operation as to appellant’s contract rights in the priority. Neither does Duncan v. Great Northern R. Co. 17 N. D. 610, 19 L.R.A.(N.S.) 952, 118 N. W. 826, hold contrary to our conclusions. Instead it recognizes that an exemption from liability may arise to exonerate a ■common carrier as to goods received for transportation in other instances than those declared by § 5690, Rev. Codes 1905, and in doing so resort to common-law principles is approved. In addition to the express •conditions enumerated in the statute as exonerating the carrier, the court says: “Where the shipper interferes with the property after accepted by the railway company, and the loss is occasioned by such interference, it may well be contended that the carrier is also relieved” The court there divided on -whether the statute in question was intended as a complete codification or in part a departure from the common law, in effect thereby recognizing the necessity of the construction of the statute in the light of the common law as to the carrier’s liability. The case is to such extent authority against appellant’s contention. Nor are the South Dakota holdings of Banbury v. Sherin, 4 S. D. 88, 55 N. W. 724, and McClain v. Williams, 11 S. D. 227, 49 L.R.A. 610, 74 Am. St. Rep. 791, 76 N. W. 930, contrary to principles here announced. These holdings are that the statutes under consideration there covered the case, and thereby excluded the conunon-law contentions urged, and in the last case it was held, also that if the ambiguous statute under construction be considered supplemented by the common law as to rights of third persons under consideration, the whole statute itself would be void as unconstitutional, and hence such an interpretation was adopted as would uphold the statute, and it was held not to cover the property of third persons. This was remarked as an aid or added reason for that holding on an ambiguous statute. McClain v. Williams and Duncan v. Great Northern R. Co. supra, may well be considered as authority inferentially contrary to appellant’s contention.

The petition for rehearing is denied.

Spalding, Ch. J. I concur in denying petition for rehearing.

Case Details

Case Name: Reeves & Co. v. Russell

Court Name: North Dakota Supreme Court

Date Published: May 8, 1914

Citation: 148 N.W. 654

Court Abbreviation: N.D.