44 Wis. 652 | Wis. | 1878
The respondents claim that the present judgment should be affirmed, notwithstanding the decision of this court upon the writ of error from the first judgment, upon the sole ground that, after the decision upon the former judgment and before judgment was again rendered on October 27,1863, the legislature passed oh. 215, Laws of 1861, entitled, “An act
It is contended by the respondents that this act was intended to be retrospective, and to give a lien upon all railroad bridges erected before as well as after its passage; and that, by virtue of its retrospective effect, it gave validity to the lien claimed by the plaintiffs for the material furnished for constructing the- bridge in question in the year 1857 and before ch. 153. E. S. 1858, took effect.
To this claim on the part of the respondents the appellant makes the following objections:
1. That as to this case, even though the statute could be construed to act retrospectively, it cannot apply, because as to this defendant this court had already decided that the law as it was before the passage of this act, did not give the plaintiffs any lien for their claim upon a railroad bridge; and that such adjudication was final in the action. The order of this court that a venire faeias de novo should issue, can have no effect, as this defendant had made default in the action, and no further action could have been had in the court below against this defendant except to file the remittitur in the case reversing the judgment as to it.
2. That this act cannot be construed to have any retrospective effect, and especially that it cannot be so construed as to act upon pending actions.
3. That if it can be construed to act retrospectively, it is unconstitutional and void, so far as it undertakes to affect past transactions.
The construction we think must be given to the amendatory act of 1861 renders it unnecessary to decide the very grave question, whether the legislature had the power, by either an amendatory act or an act declaratory or explanatory of the existing laws upon the subject of liens, to give a lien upon the property of an individual for work or materials furnished in the construction of a building by a subcontractor, or other person not employed by him to do such work or furnish such materials, previous to the time of the enactment of such law. We are not prepared to say that the legislature could not pass a valid law giving such lien, limiting the same to the amount which was due and unpaid by the owner of the property to the person who had constructed the building for him at the time of the passage of the law, as against the title remaining in the owner at the time of its passage. Such an act would, however, in our opinion, approach nearer the line of prohibited legislation than any case which has been cited by the very learned counsel for the respondents on the argument of this case. The case of Bolton v. Johns, 5 Barr, 145, which was considered the strongest case cited for the respondents, was the case of the contractor against the owner of the property. There the relation of debtor and creditor existed between the owner and the person claiming the specific lien under the law, and Chief Justice GibsoN regards this relation as of great importance in the determination of the case. He says: “ So far as regards the parties to the eonhmet to build, the enactment of the statute in question was clearly constitutional. No alteration of their rights was proposed, further than to give a specific remedy against the property, in addition to the remedy which the contractor had against it indirectly by action; and
Judge Cooley, in his work on Constitutional Limitations, p. 376, refers to this case, and approves of the decision of the supreme court of Pennsylvania, and puts it on. the ground “ that its purpose and effect was to remove from contracts which the parties had made, a legal impediment to thei/r enforcement. There would seem to be no doubt, in the light of the other authorities we have referred to, that the conclusion reached was the only just and proper one.”
It is possible that the legislature has the power to pass a valid act giving all creditors a lien upon the property of their debtors, subject to the constitutional provision for exemptions, from the date of the creation of their debts, and give the act
This court held in the case of Klaus v. The City of Green Bay, 34 Wis., 628, that the legislature could pass a valid act to compel a debtor to pay his debt to the creditor of his creditor, and that such act could rightfully be made applicable to past transactions. The act in that case was construed to be in the nature of a garnishee proceeding, and that it made no new contracts and created no new liabilities. It simply provided that the debtor should pay what he owed to one man, to another who was justly entitled to it, because he was the creditor of that other for an equal amount. That act provided for the protection of the debtor against the costs and expenses of the litigation to procure the application of the money he owed to the purpose intended by the law. In that case the action was commenced after the passage of the act, and the question whether the act could apply to pending litigations or not, wTas not decided.
The cases of Sullivan v. Brewster, 1 E. D. Smith, 681, 684, and Miller v. Moore, id., 739, were actions brought after the law giving the lien to the subcontractors was passed; and the law expressly provided that it should only apply to work done and materials furnished after the passage of the act. Possibly the reasoning of the court in those cases would lead us to believe that that court would have held the law constitutional if it had provided that parties who had, previous to the passage of the act, furnished materials and performed labor as subcontractors in the erection of a building, should
The rule applicable to the construction of statutes, as laid down by the authorities, is, that statutes are never to be construed to act retrospectively unless the intention that they should so operate is unmistakable. Smith’s Commentaries, p. 679, and note, with cases cited; Potter’s Dwarris on Stat. Con., p. 162; Cooley’s Constitutional Limitations, p. 62. And Sedgwick on Stat. & Con. Law, p. 164, lays down the English rule thus: “The principle is one of such obvious convenience and justice, that it must always be adhered to in the construction of statutes, unless in cases where there is something on the face of the enactment putting it beyond doubt that the legislature meant it to operate retrospectively;” and then remarks: “ This principle may have been lost sight of in some cases, but has on the whole been steadily adhered to.” The rule above stated has been affirmed by this court in Seamans v. Carter, 15 Wis., 548; Finney v. Ackerman, 21 id., 269; Rheinstrom v. Cone, 26 id., 163; Austin v. Burgess, 36 id., 186-9; State v. Atwood, 11 id., 422. In the last case, the late learned Chief Justice Dixon says: “It is a well settled rule of construction, that statutes are not to be construed retrospectively, or to have a retrospective effect, unless it shall clearly appear that it was so intended by the legislature, and not even then, if such construction would impair vested rights.” This language of the late learned chief justice was quoted with approval by the present chief justice in Austin
In Reiser v. Tell Saving Fund Association, 39 Pa. St., 137, in speaking of the act under consideration in that case, the court say: “ It is therefore in its very terms an expository act. It is an interpretation by one legislature of a statute written by another nine years before; and therefore an adju
The act of 1861, above quoted, shows upon its face that the legislative intention was not to enforce upon this court a construction of the law which it could not bear, and which this court had already declared it could not. The title of the act shows this. The title is, “ An act to amend chapter 153 of the revised statutes, entitled, £ Of the lien of mechanics and others,’ ” and although the body of the statute which follows is declaratory in form, we are at liberty to hold, from the title they gave to their act, that the legislature intended simply to amend the act so that thereafter it should include railroad bridges as one of the kinds of buildings which should be the subject of the lien given by the statute as so amended. It is quite probable that the promoters of the legislative amendment had other intentions in view. This court has, however, nothing to do with the intentions of interested parties who may have prompted the passage of a law. We have only to deal with the intentions of the legislature as expressed by it upon the face of the act.
In giving retrospective power to an act of the legislature which is simply declaratory, the courts have usually held that they should not apply to pending litigations, except in cases where the act specially included them. In Dash v. Van Kleeck, 7 Johns., 477, Justice ThompsoN, who delivered the opinion of the court, says: “ Giving the act now under consideration a retrospective operation would manifestly be productive of these consequences; for it not only takes away a vested right, but punishes and endamages the plaintiff in the payment of costs. If his action is defeated, and his right of recovery taken away by this statute, he not only loses his own ■ costs, but will be obliged to pay costs to the defendant. It never can be presumed, from the general words of this statute, that the legislature intended that it should work such injustice. Nothing short of the most direct and unequivocal expressions would justify such conclusion.” See also Lambertson v. Hogan, supra; Ogden v. Blackledge, 2 Cranch, 272.
Without resting the decision in this case upon the point, we are strongly of the opinion that the former decision of this court in this case was a final decision as to the right of the plaintiffs as against the railroad company; and that it would have been beyond the power of the legislature to have given the plaintiffs a lien, for their demands against Bloomer, upon the bridge of the railroad company, had it undertaken to do so by an act clearly showing such intention.
We prefer, however, to place our decision of this case upon the ground that the act of 1861, whether considered as a declaratory or amendatory act, was not intended to and does not apply to past transactions, and does not, .therefore, change the rights of the parties to this action.
By the Gourt. — That part of the judgment of the circuit court which adjudges that the plaintiffs have a lien for the amount of their judgment against the railroad bridge and premises of the appellant,-described in said judgment, and which adjudges that the same shall be sold to pay the amount of such judgment with the costs of sale, is reversed, with costs.