The question is whether' the appellant’s lien for machinery supplied to Kennedy’s mill after the date of the execution of the plaintiff’s mortgage upon the mill property, is prior and paramount to the lien of the mortgage. This question must be determined upon the proper interpretation of the statute which gives the lien. It is sec. 3314 of the Eevised Statutes. So far as material to the question to be decided, it reads as follows:
“Every person who, as principal contractor, architect,, civil engineer or surveyor, performs any work or labor, furnishes any materials, or prepares any plans or estimates for,, in or about the erection, construction, repair or removal of any dwelling house or other building, or any machinery erected or constructed so as to be, or become a part of the freehold upon which it is situated, . . . shall have a lien thereupon, and upon the interest of the owner of such dwelling house, building, machinery ... in and to the land upon which the same is situated. . . . Such lien shall be prior to any other lien which originates subsequent :to the commencement of the construction ... or work aforesaid of, or upon such dwelling house, building, machinery, . . . and shall also attach to and be a lien upon the real property of any person on whose premises such improvements are made.”
The object of the interpretation of a statute is to ascertain what the legislature intended to accomplish by it. When that intention is ascertained, that is the law. Statutes giving what are called “ mechanics’ liens ” provide new remedies not given by the common law. They are supplementary to the common law, and remedial in their nature, and are to be fairly, even liberally, interpreted, so as to make the remedial purpose of the legislature effectual.
The statute recited above, so far as relates to the question involved, gives liens in two classes of cases. It gives liens to persons who furnish materials, for the construction
The case of one who furnishes the machinery for the construction of a new mill is the case of one who furnishes materials for the construction of a building. The machinery, when attached, becomes, a part of the building and is real estate. The building without the machinery is no mill. The building with the machinery attached 'becomes a mill, but still is described by the generic term “ building.” It is subject to the liens which the statute gives to such as furnish materials for' the construction of a building. This seems to be elementary, and to require no amplification. But it maybe confirmed'by citation of authority. Phillips, Mech. Liens (3d ed.), § 177, says: “ Fixtures, machinery, etc., when necessary to the original purposes of the structure, and erected with it, may become responsible to the lien, when they would not otherwise have been, without express enactment, if put up independently. As between the owner and mechanic, everything put into and forming a part of a building, or machinery for manufacturing purposes, and essential to the manufactory, is a part of the freehold ¡ as wheels of a mill, . . . are subject to the mechanics’ lien law.” In Summerville v. Wann, 37 Pa. St. 182, it was held that a statute which provides that “ every building erected . . . shall be subject to a lien for the payment of all
So, it must be considered that the appellant has a right to a lien upon the mill building and the freehold, as one who has furnished materials for its construction. It is within the former class,— a lien upon the building itself. Being a lien upon the building itself, it is not a lien upon machinery otherwise provided for. This being established, there is little occasion to consider what cases come within that provision which gives a lien to the person who erects machinery on the lands of another. Probably it will be found that all are cases where the machinery erected does not become a constituent part of a building upon which a lien might be had. The windmills found upon so many of the farms are samples. “Where a lien is given on the building itself, there can be no lien upon the details or constituent parts of the building. The greater includes the less. This seems to be evident.
The appellant’s lien, being upon the building itself, is prior and paramount to any other lien which has originated sub
By the Ooivrt.— That part of tbe judgment appealed from is reversed, and tbe cause remanded with direction to modify tbe judgment in accordance with this opinion.
It is found by tbe trial court, and remains unchallenged, that on or about September 1,1890, tbe defendant Kennedy commenced tbe erection of bis mill in Ashland, and that the “ building was practically completed ” by him before be gave tbe note and mortgage to tbe plaintiff. It is conceded by my brethren that tbe mere “ order or agreement,” made about eight Aveeks prior to tbe execution of tbe plaintiff’s mortgage, whereby tbe defendant company “ agreed to manufacture tbe machinery and ship it as ordered,” did not of itself create a lien upon tbe building or land in favor of tbe company. It is, moreover, conceded that tbe mere fact that, in pursuance of that order or agreement, tbe company commenced to manufacture at its shops in Eau Claire some of such machinery, and actually bad some of it completed at such shops prior to tbe making or recording of that mortgage, did not of itself create a lien upon tbe building or land in favor of tbe company. Tbe trial court found, and it remains unchallenged, that tbe first machinery shipped by tbe company from Eau Claire to Kennedy at Ashland was on January 22, 1891,— twenty-two days after tbe plaintiff, relying upon assurances that there Avas no lien or incumbrance upon tbe property, loaned tbe monoy and took tbe mortgage, and twelve days after that mortgage bad been recorded. From what has been stated it logically folloAvs, and must be conceded, that tbe lien in favor of tbe company Avas wholly created by what took place between January 22, 1891, and May 4,1891, inclusive, as mentioned in tbe opinion filed. This being so, tbe company is in no more favorable position than it Avould have
Under such construction of the statute, the company’s lien would have so related back and become prior and paramount to the plaintiff’s mortgage, even had the lien not been created for several months or even for several years after the recording of the mortgage; and this would be so even if Kennedy borrowed the money with the avowed purpose of paying for such machinery and otherwise keeping out of debt. The decision is to the effect that the company and Kennedy were, by transactions which occurred wholly after the recording of the plaintiff’s mortgage, enabled, by virtue of the statute, to divest the plaintiff’s lien and render the same subordinate and subject to the lien in favor of the company for machinery thereafter sold and delivered, to the amount of $5,259.25; and that, too, without the consent or knowledge of the mortgagee, and without any notice to him, actual or
The statute, as construed by the majority of the court, is, in my judgment, repugnant to that provision of the constitution of the United States which declares that “ no state shall . . . deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Amendments, art. XIY, sec. 1. That provision was ordained and established for the very purpose of taking away from every state and its legislature every one of the powers thus prohibited. A majority of this court have just held, in an opinion by my Brother Newmah, that notice of forty days by publication in case of street assessments is not such due process of law as to conclude and bar the lot owner. Hayes v. Douglas Co. 92 Wis. —
But it is unnecessary to extend this discussion in a mere dissenting opinion on a point not mentioned, but necessarily decided, in tbe opinion filed. Besides, four years ago my views upon a similar question were expressed, and numerous authorities cited in support of them, in a dissenting opinion in Mallory v. La Crosse Abattoir Co. 80 Wis. 180-186. That decision gave a lien to a subcontractor without regard to tbe contract price or tbe sum due from tbe owner to tbe principal contractor. As there indicated, tbe validity of such legislation must finally be determined by tbe supreme court of tbe United States; and, until so determined, tbe question is open to tbe expression of opinion. In addition to tbe authorities cited in that opinion in support of the views here expressed, see St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649; Ritchie v. People, 155 Ill. 98; Wallace v. G., C. & N. R. Co. 94 Ga. 132; State v. Julow, 31 S. W. Rep. 781.
Tbe opinion in tbe case at bar, like all other decisions of this court in support of tbe validity of such legislation, fails to meet tbe objection upon which this dissent is based. It purports to be based upon tbe letter of tbe statute,— assuming it to be a valid statute. Tbe construction given is certainly far-reaching in its effects, and strikes at tbe fundamental right of parties to make their own contracts and deal with property without being embarrassed by secret liens to be subsequently created. It frustrates and renders
Eor the reasons given above and in my opinion in the Mallory Case, cited, I am compelled to dissent from the decision in this case.
The case of Hayes v. Douglas Co. was not finally determined until the denial of a motion for a rehearing on March 10, 1896, and it is reported as of that date.— Rep.