Respondents Brief — Great Southern Fire Proof Hotel Company v. Benjamin F. Jones and Sosman & Landis
Supreme Court brief1899
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Se oe eee ae pee
United States Supreme Court.
The Great Southern Fire Procf Hotel Company,
Petitioner,
Benjamin F. Jones, George M. Laughlins, Harry A.
Laughlins, Jr., Benjamin F. Jones, Jr., doing business under
the firm name and style of Jones & Laughlins, Limited,
and others,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT.
BRIEF FOR RESPONDENTS.
JOSEPH H. OUTHWAITE,
TALFOURD P. LINN,
For Jones & Laughlins,
Limited.
GEORGE K. NASH,
For Sosman «& Landis.
COLUMBUS, OHIO:
fuk WEEKLY LAW BULLETIN, PRINTERS.
1899,
United States Supreme Court.
THE GREAT SOUTHERN FIRE PROOF HOTEL
COMPANY,
Petitioner,
v.
BENJAMIN F. JONES, GEORGE M. LAUGHLINS,
HARRY A. LAUGHLINS, JR., BENJAMINE F. JONES,
JR., doing business under the firm name and style of Jones &
Laughlins, Limited, and others,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT.
BRIEF FUR RESPONDENTS
JONES & LAUGHLINS, LIMITED.
As we interpret the decision in the case of Forsythe v.
The city of Hammond et al., 166 U.S, 504, to the effect:
that ‘‘the power of this court to quire a case to be certified
to it by the circuit court of appeals under the act of March
3rd, 1891, is not affected by the condition of the case as it ex-
2
sts in the latter court, but may be exercised before or after
any decision by that court, and irrespective of any ruling or
determination therein’’, there is no doubt of the power of this
court to grant the prayer of the petitioner herein, provided
the court should find this case to be one in which the discre-.
tion of the court,acting in such matters,should be exercised in
its behalf.
The sole question for the court to consider then is, does
the case present such a state of facts,as will justify the affirma-
tive action of the court, by reason either of its ‘peculiar
grayity’’, the ‘‘importance of the question involved’’, ‘‘the
necessity of avoiding conflict between two or more courts of
appeal or between courts of appeal and courts of the state’’,
or some “matter effecting the interests of this nation inp its in-
ternal or external relations’’ ?
For respondents we submit that the case does not present
any such facts, or any other facts which will justify the court
in granting the writ prayed for under the well known line of
decisions upon this subject.
The record of the case shows,—that on April 13th, 1894,
the legislature of the state of Ohio passed an act known as the
Mechanic’s Lien Act, by the provisions of which, direct liens
were given to all persons furnishing labor or materials in or
about the construction of any building within the state irre-
spective of the condition of account or contract between the
owner of the building and such material man or laborer, upon
the compliance, by the person seeking to enforce the lien,
with certain requirements of the statute;
That after the passage of the said act, and before any in-
terpretation thereof by the supreme court of the state of Ohio,
respondents, Jones & Laughlins. Limited, who were residents
and citizens of the state of Pennsylvania, furnished, for the
3
onstruction of a certain building within the state of Ohio, a
large amount of material;
That after said material had been furnished and used,
the sapreme court of the state of Ohio in a suit therein pend-
ing, to which these respondents were not parties, declared such
act in conflict with certain general provisions of the constitu-
tion of the state of Ohio, and liens taken thereunder invalid;
That respondents,as residents and citizens of the state of
Pennsylvania, thereupon filed their bill in the circuit court of
the United States, for the southern district of Ohio, seeking to
enforce their lien, and invoking the jurisdiction of said cir-
cuit court by reason of their citizenship of the state of Penn-
sylvania, and for the further reason that their contract having
bean entered into and completed after the passage of said act
of the legislature, and before any interpretation thereof by the
supreme court of Ohio, and their right of action having ac-
crued under such circumstances, they were entitled to relief
as such non-residents, and to the independent action of the
United States court, and the interpretation by the same of the
constitutionality of the act in question independently of the
decision of the supreme court of Ohio;
That the said circuit court thereupon decided, that re-
spondents had a right to the independent interpretation of the
United States courts upon the constitutionality of the question
involved, but that, in the opinion of the said circuit court, the
supreme court of the state of Ohio was rigbt,in declaring said
legislative act unconstitutional:
That thereafter, on appeal to the circuit court of appeals
for the sixth circuit, the decision of said circuit court wae re-
versed. and said circuit court of appeals Gecided, that respond.
ents were entitled to the relief prayed for, and that said legis-
lative act was constitutional.
4
Petitioner and respondents were the sole parties to said
controversy, and the decision of the circnit court of appeals
was upon their rights only.
It is admitted that the decision of the circuit court of ap-
peals upon the question involved, but for the provisions of
section six of the act of 1891, providing for the writ of cer-
tiorari, would have been final.
The case presented does not affect “the interests of this
nation in its internal or external relations », nor is it one which
presents a question of any general importance, the sole inter.
ests involved being those of the petitioner and respondents, and
the sole controversy being over the recovery of a certain sum
of money. The only ground upow which petitioner insists up-
on its right to the writ is, that the case presents a conflict be.
tween the court of appeals and the courts of the state of Obio,
and that by reason of such conflict. possibilities of future col .
lisions between such courts may arise from such adverse decis
ions. In our judgment no snch possibilities of collision exist.
No other interests are involved, than those of petitioner and
respondents. The adverse decision of the circuit court of ap-
peals can affect no other interests. The decision of the su-
preme court of the state of Ohio is still the law of thet state
until reversed, and must necessarily govern all persons whether
citizens of that state or citizens of otber states, contracting in
the state of Ohio, after the rendition of such decision.
The United States courts in any ease arising upon a con-
tract made after the rendition of such decision would be
bound, under the established rules, to follow such decision,
and to enforce the same as the law of the state.
The sole ground upon which relief was given respondents
in this case,was, that their contract was entered into and their
right of action accrued before the rendition of such decision.
The decision of the circuit court of appeals applied to this con-
5
troversy alone, and to no other controversy, and decided no
rights of other persons, nor is it binding as a future rule of
action in the state of Ohio upon any person therein, or upon
any foreign citizen contracting therein.
In this respect, the case differs materially from the case
of Forsythe v. Hammond relied upon by petitioner. In that
case this court granted the writ for the distinct reason that
the adverse decisions of the circuit court of appeals, and of the
supreme court of Indiana, would involve conflicts as to other
property affected by the same legislative action.
The language of the court is: This tract of plaintiffs
was not on the extreme limit of the lands sought to be incor-
porated into the city, and if the decision of the circuit court
of appeals was enforced there would be a tract of a-few hun-
dred acres within the exterior boundaries of the city of Ham-
mond, as defined by the judgment of the supreme court of the
state, withdrawn from the city’s jurisdiction, and in fact ex-
cepted from its territorial limits. All the unfortunate possi-
bilities of conflict and collision which might arise from these
adverse decisions were suggested when this application for
certiorari was made’’.
Relying upon the rule established in Forsythe v. Ham-
mond, and in view of the difference between the facts in that
case and the case at bar, we submit that the writ prayed for
herein should not be granted.
We refer the court for information as to the facts in-
volved to the opinion of the circuit court of appeals printed in
the record.
Respectfully submitted,
JOSEPH H. OUTHWAITE and
TALFOURD P. LINN,
For Respondents
Jones & Laughlin, Limited.
United States Supreme Court.
The Great Southern Fire Proof Hotel Company,
Petitioner, 4
Sosman & Landis,
Respondents,
PETITION FOR WRIT OF CERTIORARI, UNITED
STATES COURT OF APPEALS FROM THE SIXTH
CIRCUIT.
Sosman & Landis in this matter,occupy precisely the same
position as that held by Jones & Laughlins, Limited, and for
this reason we adopt their brief, and ask the court to consider
the two cases together, and to consider this brief in the same
manner as if filed separately for Sosman & Landis.
The courts of the United States considered the constitu-
tionality of the Mechanic’s Lien Law of Ohio, for the reason,
that the rights of Jones & Laughlin, Limited, and Sosman &
Landis, arose before said law was declared unconstitutional by
the supreme court of Ohio, and because these parties were non-
residents of the state of Ohio. If their rights had accrued
after the supreme court of the state had declared that the law
was unconstitutional, under 4 well-known rule, the courts of
the United States would not have considered their claims. No
other cases can arise in the future, because al! contracts
entered into by non-residents, after the law was declared un-
constitutional by the supreme court of Ohio, must be con-
strued in accordance with that decision. Therefore, these cases
are in a class by themselves, and the question involved is not
important to any one, except to the parties to this suit.
Respectfully submitted,
GEORGE K. NASH,
For Respondent
Sosman & Landis.
a PE
"THE GREAT sotirmnes FIRE-PROOF HOTEL
eee evnegasts: Petitioner,
sae r. JONES nt at., Respondents.
On Wit ot Certiorart to the Uned Staten Creat Court. of hopes,
: fer the Sixth Circatt.
————_—_— =
ARGUM ENT
Ja behalf of Respondents, Beajemia F. Jones, George M. Leughiias,
fe Heary A. Laughiias, Jr., and Benjamia F. Jones, Jr., doing
Jones & Laughiias, Limited.
Tanrourp P. Lu,
Ovurnwarrs, Low & Tavaman,
Joun D. McKurnan,
| "Of Counsel.
—
No. 17,296.
Supreme Court of the United States.
OCTOBER TERM, 1899.
No. 210.
THE GREAT SOUTHERN FIRE-PROOF HOTEL
COMPANY, Petitioner,
vs.
BENJAMIN F. JONES er at., Respondents.
On Writ of Certiorari to the United States Circuit Court of Appeals,
for the Sixth Circuit.
ARGUMENT
in behalf of Respondents, Benjamin F. Jones, George M. Laughlins,
Henry A. Laughlins, Jr., and Benjamin F. Jones, Jr., doing
business under the firm name and style of
Jones & Laughlins, Limited.
STATEMENT.
This cause comes into this Court on a Writ of Certiorari
to the United States Circuit Court of Appeals for the Sixth
Circuit.
Upon the 9th day of January, 1898, respondents herein
filed in the United States Circuit Court for the Southern
District of Ohio, Eastern Division, their bill of complaint in
cause No. 796 in said Circuit Court, whereby they sought to
foreclose a mechanic’s lien upon certain property of the
petitioner herein, The Great Southern Fire-Proof Hotel
Company, for certain materials furnished by respondents,
during the erection and construction of a fire-proof hotel, in
2 SUPREME COURT OF THE UNITED STATES.
the City of Columbus, Ohio, by the said Company, between
the 16th day of April, 1895, and the 29th day of January, SH
under and by virtue of a written contract entered into by
and between the petitioner herein, and one William J.
McClain, who was, during the time set out in the bill of
complaint, acting as the principal contractor for the said
The Great Southern Fire-Proof Hotel Company, the peti-
tioner herein, in the erection and construction of its said
building.
The bill of complaint alleged that the complainants therein
were non-residents of the State of Ohio; that the defendant,
The Great Southern Fire-Proof Hotel Company was a resi-
dent of the said State of Ohio, and of the Eastern Division
and Southern District thereof, and that the amount in con-
troversy was more than two thousand dollars, exclusive of
costs and interest, and asserted a mechanic’s lien upon said
building of the said defendant under and by virtue of Section
8184, Revised Statutes of Ohio, as amended April 13, 1894,
and Section 3185 of the Revised Statutes of Ohio, and the
Supplement thereto, 3185a of said Act of April 13th, 1894,
which Acts are as follows:
“Sec. 3184. A person who performs labor, or furnishes
machinery or material for constructing, altering, or
repairing a boat, vessel or other water-craft, or for erect-
ing, altering, repairing or removing a house, mill, manu-
factory, or any furnace or furnace material therein, or
other building, appurtenance, fixture, bridge or other
structure, or for the digging, drilling, plumbing, boring,
operating, completing or repairing of any gas-well, oil-
well, or any other well, or performs labor of any kind
whatsoever, in altering, repairing, or constructing any
oil-derrick, oil-tank, oil or gas pipe-line, or furnishes
tile for the drainage of any lot or land by virtue of a
contract with, or at the instance of the owner thereof or
his agent, trustee, contractor, or subcontractor, shall
have a lien to secure the payment of the same, upon
such boat, vessel or other water craft, or upon such
house, mill, manufactory, or other building or appurte-
nance, fixture, bridge or other structure, or upon such
SUPREME COURT OF THE UNITED STATES. 3
gas-well, oil-well, or any other well, or upon such oil-
derrick, oil-tank oil or gas pipe line, and upon the
material and machinery so furnished, and upon the
interest, leasehold or otherwise, of the owner in the lot
or land on which the same may stand, or to which it
may be removed.
“ Sec. 3185. (Filing of lien.) Such person, in order
to obtain such lien, shall, within four months from the
time of performing such labor, or furnishing such ma-
chinery or material, file with thie recorder of the county
where the labor was performed, or the machinery or
material furnished, an affidavit containing an itemized
statement of the amount and value of such labor, ma-
chinery or material, and a description of any promissory
note or notes given for such labor, machinery, or mate-
rial, or any part thereof, with all credits and offsets
thereon, a copy of the contract, if it is in writing, a
statement of the amount and times of payment to be
made thereunder, and a description of the land on which
the gas-well, oil-well, or other wells are situated, or the
land on which the house, mill, manufactory, or other
building, or appurtenance, fixture, bridge, or other
structure may stand, or to which it may be removed ;
and the same shall be recorded in a separate book to be
kept therefor, and shall operate as alien from the date
of the first item of the labor performed, or the machin-
ery or material furnished upon or toward the property
designated in the preceding section, and the interest of
the owner in the lot or land on which the same may
stand, or to which it may be removed, for six years from
and after the date of the filing of such attested statement.
If an action be brought to enforce such lien within that
time the same shall continue in force until the final
adjudication thereof; and there shall be no homestead
or other exemption against any lien under the provis-
ions of this chapter.
“Sec. 3185a. In all cases where the labor, material or
machinery referred to in Secs. 3184 and 8185, shall be
furnished by any person other than the original con-
tractor, with such owner or his agent or trustee, the lien
shall not exceed the actual value of labor, material or
machinery so furnished, and the aggregate amount of
liens for which the property may be held shall not, in the —
absence of fraud or collusion between the owner and |
original contractor exceed the amount of the price
ee
1 SF PISA Pe IF et
or SHE tes
Oe
4 SUPREME COURT OF THE UNITED STATES.
agreed upon between the owner and original con-
tractor for the performing of such labor and the
furnishing of such material and machinery. Pro-
vided, if it shall be made to appear that the owner and
contractor, for the purpose of defrauding subcontractors,
material-men or laborers, fixed an unreasonably low
price in the original contract for any work or material
for which a lien is given under Sec. 3184, the Court
shall ascertain the difference between such fraudulent
contract price and a fair and reasonable price therefor,
and such subcontractors, material-men and laborers
shall have a lien to the amount of such fair and reason-
able price therefor, and such subcontractors, material-
men and laborers shall have a lien to the amount of
such fair and reasonable price so ascertained.”
The materials furnished by the respondents herein to the
petitioner herein, which were the foundation of the cause of
action set out in the bill of complaint, were furnished and
delivered as appeared by the said bill of complaint, to the
petitioner between the dates above mentioned, to-wit: April
16th, 1895, and January 29th, 1896, and were used in the
construction of the building of the petitioner before the
decision of the Supreme Court of Ohio in Young vs. The
Lion Hardware Company, 55th Ohio State, 423, was
announced, holding that the said Section 3184, as amended,
was unconstitutional, and before any decision of the said
Supreme Court of Ohio had been rendered holding said section
to be unconstitutional.
To the bill of complaint the petitioner herein, The Great
Southern Fire-Proof Hotel Company, filed a general demur-
rer on the 24th day of February, 1897. (See Record, page
31.) This demurrer was argued and submitted to His Honor,
Judge Sac, who delivered an opinion sustaining the same
on the 6th day of April, 1897. (See Record, page 26.)
On the 31st day of May, 1897, judgment was entered upon
said demurrer sustaining the same and dismissing the bill of
complaint. (See Record, page 32.)
The case was duly appealed to the Circuit Court of Appeals
for the Sixth Circuit, the respondent herein assigning as
SUPREME COURT OF THE UNITED STATES. 5
error, the judgment of the Circuit Court sustaining the
demurrer, and dismissing the complaint. (See Record,
pages 33 and 34.)
The case was afterwards argued and submitted on the
appeal to the United States Circuit Court of Appeals for the
Sixth Circuit, which Court held said section, as amended, to
be constitutional, and reversed the Circuit Court. (See
Record, page 44.)
It was claimed by the demurrer filed in the Circuit Court
and by the arguments of counsel for the petitioner herein, The
Great Southern Fire-Proof Hotel Company, both in the Cir-
cuit Court and in the Circuit Court of Appeals, that Section
3184, as amended, was unconstitutional. There was no
objection to the complaint upon other grounds.
It was also further claimed and argued that the demurrer
should have been sustained for the reason that the decision
of the Supreme Court of Ohio in Young vs. The Lion Hard-
ware Company, above referred to, was final and conclusive
upon the Courts of the United States, and that the said
Courts of the United States were bound by that decision, and
foreclosed from any independent judgment as to the constitu-
tionality of the said section, as amended. These two ques-
tions were the only questions argued and submitted by coun-
sel and considered by the Circuit Court, and by the Circuit
Court of Appeals.
It is now claimed on behalf of the petitioner herein, that
the Circuit Court of Appeals erred in holding said mechanic’s
lien law to be constitutional for the reasons that the said law
contravenes Sections 1 and 2 of the Bill of Rights, Article I,
of the Constitution of Ohio; Section 28, Article II, of the
Constitution of Ohio; Section 1, Article XIV, of the Consti-
tution of the United States, and, further, that the said law
having been declared unconstitutional by the Supreme Court
of Ohio, the decision of that Court is controlling and should
have been followed by the said Circuit Court of Appeals.
6 SUPREME COURT OF THE UNITED STATES.
In behalf of the respondents herein, we claim,
I.
That the decision of the Supreme Court of Ohio, above
referred to is not binding upon the Courts of the United
States for three reasons :
(a.) The cause of action set out in the bill of complaint
accrued before that decision was rendered.
(.) The former decisions of the Supreme Court of Ohio
upon similar contracts and liens, are in conflict with that
decision, and the cause of action of the respondents herein
accrued after such former decisions were rendered.
(c.) The question is one of general jurisprudence, and
commercial law.
Il.
That the said section as amended, does not deprive the
owner of property of the right of possessing and protecting
the same.
III.
That it does not deprive the owner of property of the
same without due process of law.
IV.
That it does not impair the obligation of contracts.
V.
That it does not deny to certain classes, to-wit, owners of
buildings or other structures described in the law, the equal
protection and benefit of the law as guaranteed by Article 1,
Section 2, of the Constitution of the United States, and by
the Constitution of Ohio, and is not in controvention of any
provision of either the Constitution of the United States, or
of the State of Ohio.
SUPREME COURT OF THE UNITED STATES. 7
ARGUMENT.
The Cause of Action set out in the Bill of Com-
plaint Accrued before the Decision in Young vs. The
Lion Hardware Company.
The cause of action which is the foundation of the suit at
bar, to-wit, the material furnished, was so furnished and
delivered by the respondents, and used in the construction of
the hotel of the petitioner, before the decision of Young v.
The Lion Hardware Company, was announced, and before
any decisions holding the statute in question to be unconsti-
tutional.
When the respondents’ right of action accrued, they had
the right to presume that the statute was constitutional, and
and that their rights thereunder would be protected. Under
these circumstances, the rule, we think, is clearly established,
that the Courts of the United States will act independently ;
and while giving due weight to the decision of the Ohio
Court, will still independently decide whether or not such
decision is, in fact, correct.
Upon this point we refer the Court to the following:
“So when contracts and transactions have been
entered into and rights have accrued thereon, under a
particular state of the decisions, or when there has
been no decision of the State tribunals, the Federal
Courts properly claim the right to adopt their own
interpretation of the law applicable to the case, although
a different interpretation may be adopted by the State
Courts after such rights have accrued. But even in
such cases, for the sake of harmony and to avoid con-
fusion, the Federal Courts will lean towards an agree-
ment of views with the State Courts if the question
seems to them balanced with doubt. Acting on these
principles, founded as they are on comity and good
sense, the Courts of the United States, without sacrific-
ing their own dignity as independent tribunals, endeavor
to avoid, and in most cases do avoid any unseeming con-
flict with well considered decisions of the State Courts.
8 SUPREME COURT OF THE UNITED STATES.
vy
As, however, the very object of giving to the national
Courts jurisdiction to administer the laws of the State
in controversies between citizens of different States was
to constitute independent tribunals, which, it might be
supposed, would be unaffected by local prejudices and
sectional views, it would be a dereliction of their duty
not to exercise an independent judgment in cases not
foreclosed by previous adjudication.”
Burgess v. Seligman, 107 U. S., 82.
“ The decision of the highest Court of a State, con-
struing the Constitution of the State, is not binding upon
this Court as affecting the rights of citizens of other
States in litigation here, when it is in conflict with
previous decisions of this Court, and when the rights
which it affects here were acquired before it was made.”
Carroll County v. Smith, 111 U. 8., 556.
“While the Courts of the United States accept and
apply the construction of a State Constitution or of a
local statute, upon which the rights of parties depend,
which has been fixed by the course of decisions in the
State Court, it is the settled doctrine of this Court, that
rights accruing under one construction will not be lost
merely by a change of opinion in the State Court; and
where such rights have accrued, before the State Court
has announced its construction, the Federal Courts,
although leaning to an agreement with the State Court,
must determine the question upon their own inde-
pendent judgment.”
Anderson v. Santa Anna, 116 U.8., 356.
The rule laid down in these cases is referred to with
approval in Miller v. Ammon, 145 U.S., 421, and followed
in the very recent case decided in the Circuit Court of
Appeals of the Sixth Circuit by His Honor Judge Lurrtoy,
in Louisville Trust Company v. City of Cincinnati,, 76 Federal
Reporter, 296. The second section of the syllabus is as
follows :
“ Federal Court—following State decisions— Where a
contract or obligation has been entered upon before
there has been any judicial construction of the State
er
SUPREME COURT OF THE UNITED STATES. 9
statute upon which the contract or obligation depends,
by the highest Court of the State, a Federal Court,
obtaining jurisdiction of the question touching the
validity, effect or obligation of such a contract will,
while leaning to an agreement with the State Court,
exercise an independent judgment as to the validity and
meaning ef such contract, and will not necessarily follow
opinions of the State Court construing such statute, if
such decision be rendered after the rights involved in
the controversy originated.”
A complete analysis of all the cases under the rule is also
found in the note to Wilson v. Perrin, 11 Circuit Court of
Appeals Reports, page 66.
See also—
Central Law Journal, Vol. 35, p. 322.
American & English Encyclo. of Law, Vol. 27, p. 600,
and notes there cited.
Boles v. Brunfield, 120 U. 8., 750.
Barium v. Okalona, 140 U. S., 396.
This question was elaborately discussed by His Honor
Judge Lurton in the decision of this case in the United
States Cireuit Court of Appeals, Sixth Circuit. In the
opinion there delivered (Record, p. 46), we find the fol-
lowing :
«“ When a citizen of one State enters into a contract
with a citizen of another, he acquires the constitutional
right to have that contract interpreted and enforced by
a Court of the United States. That right does not by
any means involve the application of a different rule of
decision, for the Judiciary Act requires that the law
of the several States shall be regarded as rules of
decision, in trials at common law, where they apply.
But even the decision of the highest Courts of the State,
by whose law the rights of the parties are to be ascer-
tained and enforced, does not, under ali circumstances,
furnish a rule of decision obligatory upon the Courts of
the United States. The question is, when does it apply ?
In the past this inquiry has involved no little friction
between the Courts of the Union and those of the
10 SUPREME COURT OF THE: UNITED STATES.
7
States, but the final arbiter of all such constitutional
questions is the Supreme Court of the United States.
So far as the inquiry is pertinent to the decision which
must be here made, that Court has, in an authoritative
way, decided :
« First. That such decisions are not necessarily obli-
gatory upon Courts of the United States where they
affect contracts which were valid under the constitution
and laws of the State, as interpreted and enforced by
its highest judiciary tribunals at the time they were
entered upon.
Rowan vs. Runnels, 5 Howard, 134;
Ohio Life § Trust Co. vs. Debolt, 16 Howard, 432 ;
Gelpcke vs. City of Dubuque, 1 Wallace, 175;
Olcott vs. Supervisors, 16 Wallace, 678 ;
Taylor vs. Ypsilante, 105 U. 8., 60;
Douglas vs. County of Pike, 101 U. S., 677;
Louisville Trust Co. vs. Cincinnati, 47 U.8. A., 36 to
46.”
In Rowan vs. Runnels, supra, Chief Justice Taney said:
«“ Undoubtedly this Court will always feel itself bound
to respect the decisions of the State Courts, and from
the time they were made regard them as conclusive in
all cases upon the constitution of their own laws. But
we ought not to give them a retroactive effect, and
allow them to render invalid contracts entered into with
citizens of other States, which, in the judgment of this
Court, were lawfully made.” * * *
«“ Second. Neither are such decisions obligatory upon
Courts of the United States when thereby the validity
of contracts between a citizen of the State and a citizen
of another State is aftected, which were executed before
“ there was any judicial construction of the statute or con-
* stitution which seemed to authorize the contract in
2 question.
Burgess vs. Seligman, 107 U. 8., 20-88 ;
Pleasant Township vs. Aetna Life Ins. Co., 134 U.5.,
67-72.
Louisville Trust Co. vs. Cincinnati, 76 Fed. Rep., 296.”
This rule has been followed in the case of Speere vs. The
Board of County Commissioners, U. 8. C. C. Appeal Reports,
_
SUPREME COURT OF THE UNITED STATES. 11
Vol. 32, page 103. The 11th section of the syllabus of that
case is as follows:
«“ Decisions of State Courts as to their statutes, which
affect the validity of contracts between citizens of differ-
ent States which were made, or under which rights were
acquired, before there was any judicial construction of ©
the statute which seemed to authorize the contracts, are ©
not obligatory upon the Courts of the United States.” ©
On page 113, the Court said:
«“ There are, however, two reasons why the decision ©
of the Supreme Court of Kansas, to which we have ©
adverted is not controlling in the case at bar. The first 7
is that it was not rendered until after the rights of the
plaintiff were vested under a law which stood unchal-
lenged and without adverse judicial construction when
he purchased his warrant. The plaintiff was a citizen
of Illinois. He bought this warrant and thereby entered
into a contract relation with the defendant, a citizen of
the State of Kansas, before the statute in question had
been declared to be void. By this action he acquired
the right, under the constitution and laws of the United
States to have his contract interpreted, and his rights
enforced in a Court of the United States, and a fortiori
the right to the independent judgment of that Court
upon the legal questions his case presents. This case
falls within one of the recognized exceptions to the gen-
eral rule which the defendant invokes. That exception
is, that decisions of the State Courts which affect the
validity of contracts between citizens of different States
which were made, or under which rights were acquired,
before there was judicial construction of the constitution
or statute which seemed to authorize the contracts, are
not obligatory upon the Courts of the United States.”
In his opinion delivered in this case below, Judge Sacr
discussed this question thoroughly, and held that it was the
duty of the Federal Courts to independently look into the
question of the constitutionality of the statute involved.
We quote from his opinion, on page 28 of the Record:
«The gist of the Federal cases cited is, that under the 4
circumstances stated, the Federal Courts will not apply ©
a
12 SUPREME COURT OF THE UNITRD STATES.
the original rule that the decisions of the highest Court
of the State, construing and passing upon the validity
of the State statute, is binding. It will be necessary,
therefore, to look into the question of the constitu-
tionality of the statutory provisions involved, indepen-
dently of the decisions made by the Supreme Court of
Ohio.”
Former Decisions of the Supreme Court of Ohio
upon Similar Contracts and Liens, are in Conflict
with the Decision of Young v. The Lion Hardware
Company, and the Cause of Action of the Respondent
Accrued After such Former Decisions were Rendered.
The decisions of the Supreme Court of Ohio, prior to that
announced in Young v. The Lion Hardware Company, and in
cases involving the same principle of constitutional con-
struction, are in conflict with that opinion, and under these
decisions, and under the law of Ohio, as understood and
adjudicated up to that time, the act complained of was con-
stitutional. Under such circumstances, the rule is equally
clear, not only that the United States Courts in cases within
their jurisdiction will act independently, but that if they
find that former decisions of the State Courts do conflict it
will follow the early decisions as to all rights accruing under
them, and before the last decision.”
« Indeed the duty imposed upon this Court to enforce
contracts honestly and legally made, would be vain and
nugatory, if we were bound to follow those changes in
judicial decisions which the lapse of time, and the
change in judicial .officers, will often produce. The
writ of error to a State Court would be no protection to
a contract, if we were bound to follow the judgment
which the State Court had given, and which the writ of
error brings up for revision here. And the sound and
true rule is, that if the contract when made was valid
by the laws of the State, as then expounded by all the
departments of its government, and administered in its
Courts of Justice, its validity and obligation cannot be
SUPREME COURT OF THE UNITED STATES. 13
impaired by any subsequent act of the Legislature of
the State, or decision of its Courts, altering the con-
struction of the law.”
Ohio Life § Trust Co. v. Debolt, 16 Howard’s Reports, §
p- 482.
The authorities upon this subject are reviewed in Dovglas
v. Pike County, 101 U. 8., 677, and the rule is there stated
as follows:
«The true rule is to give a change of judicial con-
struction, in respect to a statute, the same effect in its
operation on contracts and existing contract rights that
would be given to a legislative amendment; that is to
say, make it prospective, but not retroactive. After a
statute has been settled by judicial construction, the
construction becomes, so far as contract rights acquired
under it are concerned, as much a part of the statute as
the text itself, and a change of decision is, to all intents
and purposes, the same in its effect on contracts as an
amendment of the law by means of a legislative enact-
ment.”
It is true there had been in Ohio no adjudication of the
exact point decided in Young v. The Lion Hardware Com-
pany, prior to that case; but the principles involved in that
decision had been settled in many cases which are, in effect,
if not in words, overruled by the last decision.
As early as the First Ohio Reports, the doctrine was
announced in Smith v. Parsons, p. 240, that :
“The legislature has a right by law to regulate con-
tracts, to determine their effect and point out the mode
of their discharge. These laws are applied to all subse-
quent engagements, and fix the rights of the parties at
the very instant the contract is closed, so that the con-
tract, in its inception, receives an impress from the law,
and the effect of the law being co-existent with the con-
tract, can never be said to alter or impair it. It contin-
ued what it was at its commencement; and it is mo
correct to say, that the law has in part made the con-
tract, than that it has changed it * * *. On any
other view of the quesion, the power of the State to
14 SUPREME COURT OF THE UNITED STATES.
legislate on the subject of contracts will be materially
impaired; for if it be admitted that a bankrupt law,
operating on an after-made contract in the manner pre-
scribed and as was understood by the parties, be uncon-
stitutional, or if the contracts be not made with reference
to existing laws, so as to imply an assent to their provis-
ions, it must follow that statutes of limitation, statutes
against usury, gambling, sale of offices, frauds and per-
juries, and the like, must be void, because they impair
the obligation of contracts not prohibited by the consti-
tution, and which would have been legally binding had
not these statutes been made.”
This decision is but a reiteration of the principle
announced in the Dartmouth College case, and was followed
and approved in Weil v. The State, 46 0.58., p. 450. The
Court in that case, p. 452, said :
“ Does the statute impair the obligation of contracts ?
It does not in terms purport to operate retroactively, or
apply to contracts entered into before its enactment, but
only to those made after it took effect. The obligation
of a contract, is the duty, which the law at the time of
making it, imposes upon the parties. As was said by
Mr. Justice WasHINeTon in Ogden v. Saunders, 12
Wheat., 213, ‘the law of the contract forms its obliga-
tion.” Judge Coo.ey, in his work on Coustitutional
Limitations, p. 346, says: ‘'The obligation of a con-
tract depends on the Jaws in existence when it was
made; these are necessarily referred to in all contracts,
and forming a part of them as the measure of the obli-
gation, to perform them by the one party, and the right
acquired by the other.’ In an interesting discussion of
this subject in Smith v. Parsons, 1st Ohio, 236, it is said
by Burvetrt, J., in the opinion of the Court, that, ‘The
Legislature has a right, by law, to regulate contracts, to
determine their effect, and point out the mode of their
discharge. These laws are applied to all subsequent
engagements, and fix the rights of the parties at the
very instant the contract is closed, so that the contract,
in its inception, receives an impress from the law, and
the effect of the law being co-existent with the contract,
can never be said to alter or impair it. It continues
what it was at its commencement; and it is more cor-
SUPREME COURT OF THE UNITED STATES. 15
rect to say that the law has in part made the contract,
than it has changed it’ Persons contracting after the
passage of the statute, could not know the law as one
impairing the obligation of contracts in the sense of the
constitution, but as an act regulating future contracts,
and defining their effect. The learned judge further
says: ‘Instead of determining the validity of the stat-
ute by reference to the alleged intention of the parties
to the contract, we must fix the legal intent of the
parties, as well as the nature and extent of the obliga-
tion of the contract, by reference to the statute.’ And,
again, ‘Contracts must be expounded according to the
Jaw in force at the time they were made; and the
parties are as much bound by a provision contained in a
law, as if that provision had been inserted in, and
formed part of the contract.’ ”
If the authority of these cases be correct, the Legislature,
having full and ample power to legislate concerning contracts
subsequently made, to regulate the mode and manner of their
making, and of their enforcement, has full and ample power
to regulate and control and prescribe the manner and method
of making and enforcing building contracts, and to fix such
regulations regarding them, and to provide such security for
those engaging therein, as it may see fit.
These decisions were not upon the subject of Mechanic's
Liens, nor did they specifically construe building contracts ;
but as there is no difference in the eye of the law between
building contracts and other contracts, the judicial deter-
mination that the power to regulate one class is constitu-
tional, so long as it stands, controls and determines the
power to regulate the other class, and Smith v. Parsons and
Weil v. The State, in effect, decide that legislative power over
the subject of mechanic’s liens or building contracts is abso-
lute and constitutional, and the decision is as binding as if
they had had the exact question before them. But in addi-
tion to these cases there had been, before the decision relied
upon by respondents, two decisions of the Supreme Court
of Ohio, upon the subject of mechanic’s liens, and prior to
ae 5 INPRO SR OETA NG CRIN SLOT TOE HAG SS BE
16 SUPREME COURT OF THE UNITED STATES.
the contract set out in the complaint, which were directly in
conflict with the rule announced in Young v. The Lion Hard-
ware Company.
In Railway v. Cronin, 38 Ohio State, 122, and in Railway
v. McCoy, 42 Ohio State, 251, the Supreme Court enforced
liens under the Act of March 31, 1874, 71 Ohio Laws, 51.
That act was, in principle and effect, as applied to railway
companies, a counterpart of Section 3184 as amended. It
provided that the railway company, regardless of any con-
tractual relations it might have with laborers or employes of
subcontractors, should pay each person performing labor or
furnishing material under a contract, express or implied, with
the original contractor or any subcontractur; providing,
further, for notice equivalent to that prescribed in Section
3184. The intention of the two statutes is identical, to-wit.,
to protect the laborer or the material man, or the subcon-
tractor, and to secure him the amount due for his labor or
material.
In the case of the railway company the contract is specific,
that such laborer or material man shall be paid. In cases
arising under Section 3184 the provision is, that he shall have
a lien if not paid. In neither case is there any pretense or
intention that his payment shall be contingent on any
amount remaining due the principal contractor. The Act of |
March 31, 1874, gives notice to the railway company to look
out for the payment of the laborers and subcontractors, and
that if payment be made to the principal contractor, without
so taking care of them, it will be at its peril. Section 3184
gives notice to the owner of the building that he must like-
wise look out that the laborers and subcontractors and
material men are paid, or he will be at the peril of a lien on
his property.
It will be claimed, doubtless, that the cases referred to,
construing the Act of March 31, 1874, did not bring directly
in controversy the constitutionality of the act. The Court is
f
?
;
;
SUPREME COURT OF THE UNITED STATES. 17
not presumed to enforce an unconstitutional act, and its
decision in these cases enforcing liens was a distinct affirm-
ance of the validity and constitutionality of the legislation.
In view of these decisions, if there were no other reason,
this Court, in this case, not only is not bound by the decision in
Young v. The Lion Hardware Company, but under the rule
should follow the principle of the prior decisions, and in so
far as these respondents are concerned, enforce their lien,
leaving the case of Young v. The Lion Hardware Company to
be a rule for cases governing contracts arising subsequently
thereto.
The Question isone of General Jurisprudence and
Commercial Law.
The question of the constitutionality of mechanic’s liens is
not, within the meaning of the cases holding state decisions
upon local statutes final, a question of purely local or state
law, but is rather a question of general jurisprudence, involves
public policy, relates to the unrestricted powers of the legisla-
ture, and is in a sense a question of general commercial law,
and as such should be considered by the United States Court
independently of, and without reference to the state decis-
ions, except in so far as the state decision may be entitled to
weight by virtue of its reason. The Court in its decision in
the Lion Hardware Company case, did not find that the acts
in controversy violated any of the express provisions of the
state constitution, nor is there any pretense that it violates
any of such express provisions. The only ground of the
decision was, that the act in some way violated the general
and indefinite provisions of the Bill of Rights, and exceeded
what was known as the general and unrestricted powers of
the legislature. The question falls directly within the scope
of the decision of Justice Srrone in Olcott v. The Supervisors,
16 Wallace, p. 678.
a
18 SUPREME COURT OF THE UNITED STATES.
The Court on page 690 says:
“This was a determination of no local question, or
question of statutory or constitutional construction. It
was not decided that the legislature had not general
legislative power, or that it might not impose or author-
ize the :mposition of taxes for any public use. Now,
whether a use is public or private is not a question of
constitutional construction. It is a question of general
law. It has as much reference to the constitution of
any other state as it has to the state of Wisconsin. Its
solution must be sought not in the decisions of any sin-
gle state tribunal, but in general principles common
to all courts. The nature of taxation, what uses are
public and what are private, and the extent of unre-
stricted legislative power, are matters which, like ques-
tions of commercial law, no state court can conclusively
determine for us.”
As in that case, it is not here claimed, and cannot be
claimed that the Legislature has no power to legislate upon
the subject of mechanic’s liens. It is not claimed that it
cannot control and prescribe the rules governing such liens.
It was only claimed by the Court that in the particular stat-
ute the Legislature had exceeded its powers as to one of these
rules or conditions.
The decision of the Court was upon a part of the consti-
tution common to all constitutions, and was not a construc-
tion of any local or special part of the constitution. Its
decision had reference as much to the constitution of one
State as to another State, and attempted to prescribe a rule
of general constitutional construction which imight be
applicable to any other State, or even to the constitution of
the United States, as to the State of Ohio. This is a ques-
tion of general jurisprudence, and this Court must decide it
independently. While it is true that mechanic’s liens are in
their nature statutory and governed by State laws, yet being
a part of the statute law of every State and Territory and
recognized by Congress as a part of the statute law of the
District of Columbia, and in the language of Justi
SUPREME COURT OF THE UNITED STATES. 19
Braptey in 118 U. S., p. 516, “ Standing on the basis of
natural justice,” the law governing them may be considered
in the same light as those governing and regulating general
commercial law, and, therefore, in cases of proper jurisdic-
tion, the subject of the independent construction of the
Federal Courts, regardless of local decision. Local decisions
can only be binding in cases of construction of particular
local statutes, or in cases of invasion of some specific pro-
vision of local constitutions. No such decision can be bind-
ing, where it affects or constraes only the general powers of
the Legislature over the subject.
This view contended for in the argument and brief of
respondent in the lower Courts was sustained by the Court
of Appeals in its opinion delivered by His Honor, Judge
Lurton, see Record, p. 49:
« With every disposition to come to an agreement
with the views of the Supreme Court of Ohio, in the
interest of harmony of decisions, we are, nevertheless,
compelled to express our inability to assent to the con-
clusions of that learned and impartial tribunal as to the
validity of the legislation under which complainants’
rights are claimed. The decision of that Court was not
placed upon any merely local or peculiar provision of the
Constitution of Ohio. The ground upon which they placed
their objection to the law was, that it was an unreasonable
and oppressive restraint upon the owner’s liberty of contract.”
And Record, p. 51:
«“ We have made these copious extracts from the opin-
ion for the purpose of indicating that the case did not
turn upon any constitutional principle peculiar to Ohio.
The ‘rights’ supposed to be violated are rights deemed
fundamental under the terms of popular and constitu-
tional government, and like declarations are to be found
in all or most of our State constitutions. The question
is, therefore, one of general law, having as much reference to
the constitution of any other State as to that of Ohio.”
_—
20 SUPREME COURT OF THE UNITED STATES.
II.
Said Section as Amended, Does Not Deprive the
Owner of Property of the Right of Possessing and
Protecting the Same.
III.
It Does Not Deprive the Owner of Property of the
Same Without Due Process of Law.
IV.
It Does Not Impair Obligation of Contracts.
The lien sought to be enforced in the case at issue was for
materials furnished in and about the construction of a building
commenced after the passage of the act of April, 1894, and
all contracts and agreements set out in complainant’s Bill
were made and entered into after the passage of that act.
The contract having been made during the existence of the
statute, it must, therefore, be considered as forming a part of
the contract, and does not impair the obligations of that
contract nor deprive petitioner of its property without due
process of law. The rule that all contracts are subject to the
conditions and obligations imposed by existing laws is too
well settled to be controverted. It has been the established
law ever since the Dartmouth College case, in 4th Wheaton.
Parsons v. The State, 1st Ohio Reports, 236, and Weil v. The
State, 46 Ohio State, 450, both referred to above, thoroughly
discuss this question and establish the rule in Ohio.
“The obligation of a contract,” it is said, “ consists in
its binding force on the party who makes it. This
depends on ‘the laws in existence when it is made; these
are necessarily referred to in all contracts, and forming a
part of them as the measure of the obligation to perform
them by the one party, and the right acquired by the
other.”
Cooley on Constitutional Limitations, 6th Edition, 344.
SUPREME COURT OF THE UNITED STATES. 21
“The power of the legislature, as to all future trans-
actions, to regulate and control contracts by ‘rwanda. |
the manner in which they shall be made * * *
by declaring what future voluntary acts of parties in
relation to a particular subject-matter shall be deemed a
contract, and, if it pleases, by creating implications from
such acts from which certain declared obligations shall
flow, cannot be denied or doubted.”
Steubel v. Mil. § Miss. R. R., 12 Wis. 67.
‘No reason has been suggested why the legislature
could not exempt all interests in landed estate from
execution and sale under judgments against the owner,
and perhaps all his personal property. However this
may be, it is very certain that the established construc-
tion of the constitution of the United States against
impairing the obligation of contracts requires that stat-
utes of this class shall be construed to be parts of all
contracts made when they are in existence, and, there-
fore, cannot be held to impair their obligation.”
Justice MILLER in Denny v. Bennett, 128 U.S. 495.
“What may be the effect of those statutes in this
regard upon mortgages which were created prior to the
statute of 1852, it is unnecessary at present to inquire.
The mortgages of the complainant were not created
prior to the statute, but long subsequent thereto. When
the complainant took his mortgage, it knew what the
law was; it knew that, by the law, if the mortgaged lot
should be supplied with Passaic water by the city
authorities, the rent of that water, as regulated and
exacted by them, would be a first lien on the lot. It
chose to take its mortgages subject to this law; and it
is idle to contend that a postponement of its lien to that
of the water rents, whether after accruing or not, is a
deprivation of its property without due process of law.
Ite own voluntary act, its own consent, is an element in
the transaction. The cases referred to by counsel to the
contrary, holding void a consent exacted contrary to the
constitution, have no bearing upon the present cases.”
Provident Institution v. Jersey City, 113 U. 8. Reports,
514.
22
SUPREME COURT OF THE UNITED STATES.
“The inhibition of the constitution is wholly pros-
pective. The State may legislate as to contracts thereafter
made as they may see fit. It is only those in existence
when the hostile law is passed that are protected from
its effects.”
Edwards v. Kearsey, 98 U.S., 595.
Applying this rule to mechanic’s liens, Phillips on
Mechanic’s Liens, Sec. 30, says:
«“ Power as to Future Contracts.—As to future con-
tracts, there is no doubt the Legislature may make such
regulations affecting the right of lien between the
parties, and priorities of third persons, that shali he
deemed advisable. Thus, an act may be passed to take
effect in the future, subordinating even prior judgment
and mortgage liens to subsequent mechanic’s liens, but
such liens as have accrued prior to the passage of the
act cannot be thus affected. Neither can the lien be
extended so as to impair the obligation of contracts or
liens of duly recorded incumbrances antecedent to the
act. If enacted by prior statute, mechanic’s liens may
be made liens on all the property possessed by the
debtor. On the other hand, the Legislature has the
right to prefer any other lien over those of mechanics ;
and where it declares a widow’s lien shall be preferred,
excepting those of vendors for purchase money or real
estate, the rule of expressio unius alterius prevails, and
mechanic’s liens will be subordinated to the widow’s
right. Indeed, there is no provision of the constitution
which precludes the Legislature from declaring a statu-
tory lien, in respect to future contracts, in favor
either of the contractor or the laborer, upon the land
of the owner, at whose instance and for whose benefit
the services are performed. Every contract is presumed
to be executed with reference to existing laws, and
subject to such modification, in respect to the remedies
of the parties, as may result from subsequent legis-
lation, if tree from constitutional objection.”
“The constitutional validity of such statutes securing
to subcontractors, and others furnishing labor or mate-
rial for a contractor, irrespective of the state of account
between the owner and the contractors, is well estab-
lished ; and it is established upon the ground that such
SUPREME COURT OF THE UNITED STATES. 23
statutes annex the lien as an incident to the contract
to the owner with the contractor, such contract being
the evidence of the anthority of the contractor to charge
the owner’s property with liabilities incurred by him in
performing his contracts.”
Jones on Liens, Vol. 2, p. 286.
“Liens of the kind, except where the statute other-
wise provides, arise by operation of law, independent of
the express terms of the contract, in case the stipulated
labor is performed or the promised materials are
furnished ; the principle being that the parties are sup-
posed to contract on the basis that if the stipulated
labor is performed or the promised materials are
furnished, the laborer or material man is entitled to the
lien which the law affords, provided he gives the re-
required notice within the specified time.”
McMurray et al. v. Brown, 91 U.S. Reports, p. 266.
The contract then, following the language of Smith v.
Parsons, having received the impress from the law, and
being co-existent with it, and, therefore, not being injured or
impaired by the law, the owner of the building against
whom the lien or contract is sought to be enforced, cannot be
said to be deprived of his property without due process of
law. Ample means are given him to avoid any injurious
consequences arising out of the law. He can be his own
builder. He has his remedy by suit against the contractors
in case he has to pay for material or labor not paid for by
the contractor. He can demand a bond and protect himself
against the laches of an irresponsible contractor. He can
arrange his payments so that the time limited by the statute
for the filing of a lien shall have expired before the pay-
ments are made. He can see himself to the application of
payments when made, and to the claims of subcontractors,
material-men or laborers. There is no necessity for any
prudent man being injured, in any way, by the provisions of
the existing statutes. If he is injured, it is only because he
has failed to take the necessary precautions due from every
Lie es EE a
24 SUPREME COURT OF THE UNITED STATES.
person entering into contracts of any sort with another.
The law affords him ample remedies, and if he fails to take
advantage of them, it is his own fault.
In considering this branch of the case, His Honor, Judge
Lupton (see Record, p. 64), said:
“Tf the law be subject to no other objections, it
impairs no contract, for all thereafter made are entered
into upon the basis of the law,”
and cites in support of this—
Edwards v. Kearsey, 96 U. 8., 595.
Greenwood v. Freight Co., 105 U.S8., 18.
Denny v. Bennett, 128 U.S., 489.
Smith v. Parsons, 1 Ohio, 236.
Weil v. The State, 46 O. 8., 450.
And on the same page of the Record he further says:
“Neither can the owner, be said, to be thereby
deprived of his property without due process of law.
He has voluntarily made a contract with the law before
him. He has thereby subjected his property to liability
for certain debts of the contractor. His voluntary con-
sent is an element in the transaction. Ile knows what
the law is, and makes a contract under that law. It is
idle to say that under such circumstances he is deprived
of his property without due process of law.”
The said Section does not Deny to Certain Classes,
To-wit, Owners of Buildings or Other Structures
Described Therein, the Equal Protection and Benefit
of the Law as Guaranteed by Article 1, Section 2, of
the Constitution of the United States, and by the Con-
stitution of Ohio and is not in controvention of any
provision of either the Constitution of the United
States or of the State of Ohio.
It is claimed by counsel that the whole subject of
mechanic’s liens comes within the limits of so-called class
legislation, and is, therefore, inhibited by the guaranty of
equal protection and benefit to all people. So far as we
—
SUPREME COURT OF THE UNITED STATES. 25
—_——_
have been able to find, there are but two adjudicated cases in
which the power of the legislature to pass any mechanic’s
lien law, has been questioned upon this ground.
«The lien given to mechanics on the land upon which
they have erected a building, the lien of the landlord
upon the growing crop of his tenant, the exemption of
certain articles from legal process in favor of heads of
families, and of a portion of his earnings in favor of
the laborer are instances of such legislation about the
constitutionality of which there has never been any
doubt.”
Davis v. The State, 3 Lea. (Tenn.), 380.
« Nor is the grant of this remedy by motion in viola-
tion of See. 8, Art. 2, of the Constitution, which forbids
partial or class legislation. Every citizen in the State
may bring himself within its operation by contracting
for the erection of a house, which most men do, in the
course of a life-time.”
«“ Whether a given law may be extended to any mem-
ber of the community who may be able to bring himself
within its provisions is the correct criterion by which
the Courts are to determine its validity or invalidity
under that section of the constitution.”
12 Heisk, 633 ;
14 Lea, 520;
16 Lea, 71;
86 Tenn., 272;
3 Lea, 380;
87 Tenn., 214;
108. W. R., 353.
« After very careful consideration of all the sections
of the act, we have no hesitancy in holding them to be
constitutional and valid.”
‘ole Manufacturing Co. vs. Falls, 90 Teun., 471.
That legislation of this character is not such as is prohib-
ited for the reason that it confers unequal benefits, or
imposes unequal burdens, and is not class legislation, seems
to us beyond controversy. It is confined to no particular
class, nor to any particular calling, but applies to all alike,
26 SUPREME COURT OF THE UNITED STATES.
who are erecting or who may erect buildings or other
structures mentioned in the act, and to all who contribute
anything of any nature be it either in work or materials, to
the erection of such building or structure.
“Laws public in their objects may, unless express
constitutional provision forbids, be either general or
local in their application ; they may embrace many sub-
jects or one, and they may extend to all citizens, or be
confined to particular classes, as minors, or married
women, bankers or traders, and the like. The authority
that legislates for the State at large must determine
whether particular rules shall extend to the whole State
and all its citizens, or on the other hand, to a sub-
division of the State, to a single class of citizens only.
The circumstances of a particular locality, or the pre-
vailing public sentiment in that section of the State, may
require or make acceptable different police regulations
from those demanded in another, or call for different
taxation, and a different application of the public mon-
eys. The legislators may, therefore, prescribe or author-
ize different laws of police, allow the right of eminent
domain to be exercised in different cases and through
different agencies, and prescribe peculiar restrictions
upon taxation in each distinct municipality, provided
the State Constitution does not forbid. The discrimin-
ations are made constantly, and the fact that the laws
are of a local or special operation only, is not supposed
to render them obnoxious in principle. |The legislature
may also deem it desirable to prescribe peculiar rules for
the several occupations, and to establish distinctions in
the rights, obligations, duties and capacities of citizens.
The business of common earriers, for instance, or of
bankers, may require special statutory regulations for
the general benefit, and it may be matter of public
policy to give laborers in one business a special lien for
their wages, when it would be impracticable or impolitic
to do the same for persons engaged in some other
employments. If the laws be otherwise unobjectionable,
all that can be required in these cases is, that they be
general in their application to the class or locality to
which they apply; and they are then public in character,
and of their propriety and policy the legislature must
judge.”
Cooley’s Constitutional Limitations, p. 482.
SUPREME COURT OF THE UNITED STATES. ~ 27
“The special regulations for one kind of business
which may be necessary for the protection of the public,
can never be the just ground of complaint, because like
restrictions are not imposed upon another business of a
different kind. The discriminations which are open to
objections are those where persons engaged in the same
business are subjected to different restrictions, or are
held entitled to different privileges under the same
conditions; it is only then that the discrimination can
be said to impair that equal right which all can claim in
the enforcement of the law.”
Hing vs. Crowly, 118 U. 8., 708.
“The fourteenth amendment, in declaring that no
State ‘shall deprive any person of life, liberty or prop-
erty without due process of law, nor deny to any person
within its jurisdiction the equal protection of the laws,’
undoubtedly intended not only that there should be no
arbitrary deprivation of life or liberty, or arbitrary
spoliation of property, but that equal protection and
security should be given to all under like circumstances
in the enjoyment of their personal and civil rights;
that all persons should be equally entitled to pursue
their happiness and acquire and enjoy property; that
they should have like access to the Courts of the
country for the protection of their persons and property,
the prevention and redress of wrongs aud entorcemeut
of contracts; that no impediment should be interposed
to the pursuits of any one except as applied to the same
pursuits by others under like circumstances; that no
greater burden should be laid upon one than are laid
upon others in the same calling and condition, and that
in the administration of criminal justice no different or
higher punishment should be imposed upon one than
such as is prescribed to all for like offenses. But neither
the amendment—broad and comprehensive as it is—nor
any other amendment, was designed to interfere with
the power of the State, sometimes termed its police
power, to prescribe regulation. to promote the health,
peace, morals, education and good order of the people,
and to legislate so as to increase the industries of the
State, develop its resources, and add to its wealth and
prosperity. From the very necessity of society, legisla-
tion of a special character having these objects in view,
28 SUPREME COURT OF THE UNITED STATES.
must often be had in certain districts, such as for drain-
ing marshes and irrigating arid plains. Special burdens
are often necessary for general benefits—for supplying
water, preventing fire, lighting districts, cleaning streets,
opening parks, and many other objects. Regulations for
these purposes may press with more or less weight upon
one than upon another, but they are designed, not to
impose unequal or unnecessary restrictions upon any
one, but to promote, with as little individual incon-
venience as possible, the general good. Though in many
respects necessarily special in their character, they do
not furnish just grounds of complaint if they operate
alike upon all persons and property under the same cir-
cumstances and conditions. Class legislation, discrimi-
nating against some and favoring others, is prohibited,
but legislation which, in carrying out a public purpose,
is limited in its application, if within the sphere of its
operation it effects alike all persons similarly situated, is
not within the amendment.”
Barbier v. Connolly, 118 U. 8., 31.
It is true that the Court in that case was construing so-
called police powers. But the “ police power” is a broad
and comprehensive term. It is “broad and plenary as the
taxing power (as defined in Coe v. Errol, 116 U.8.,517), and
property within the State is subject to the operation of the
former, so long as it is within the regulating restrictions of
the latter.”
Kidd v. Pearson, 128 U. 8., 1.
It covers all things which tend to conserve and promote
the public health, welfare and convenience, and certainly the
erection of buildings come within the scope of such powers.
The universal occupation of mankind is, out of the products
of the earth, to add to it again, in the shape of buildings, or
other structures contemplated by the statute. The lien pro-
vided is upon all conceivable human constructed objects
attached to the earth or upon or in the water. No possible
subject is more appropriately within the “ police power,” nor
more necessary to the welfare of society.
—
SUPREME COURT OF THE UNITED STATES. 29
See— -
Lehman v. McBride, 15 O. 8., 473 ;
City of Cincinnati v. Caroline Steinkamp, Weekly Law
Bulletin, Vol. 35, p. 185;
Kelly v. The State, 6 O. 8., 269;
McGill v. State, 40 O. 8., 328;
State v. Powers, 88 O. §., 54.
« And by the equal protection of the laws is meant
equal security under them to every one on similar terms,
in his life, his liberty, his property, and in the pursuit
of happiness.”
Railroad Tax Cases, 13 Fed. Reporter, 722;
County of Santa Clara v. S. P. R. R., 18 Fed.
Rep., 385.
There are upon the statute books of Ohio many laws which
apply only to certain classes, the constitutionality of which
has never been doubted. The exemption of the homestead,
or of a sum in lieu thereof in favor of the head of the
family ; the exemption of a portion of wages and of certain
goods and chattels from execution, apply only to a portion
of the citizens, but the power of the legislature to enact
such a law has never been questioned.
The law regulating the rate of inte:est is another law of
the same class. But the Supreme Court of Ohio seems to
have no doubt of the constitutionality of such an act, for in
Smith v. Parsons it says:
“Tt is admitted that the States have not given up the
entire power of legislating-on the subject of contracts.
They may, for instance, pass laws preventing usury, and
fixing the interest of money.”
Applying the rule of Barbier v. Connolly, 118 U. 8., 32,
the mechanic’s lien operates alike upon all persons and
property under the same circumstances and conditions. It
affects alike all persons similarly situated, and is not obnox-
ious to the constitution of either Ohio or of the United
States.
30 SUPREME COURT OF THE UNITED STATES.
Thecommon law gave to the warehouseman and wharf-
inger a lien on the goods deposited with him for his labor;
to the innkeeper upon the effects of his guest for food and
lodging, recognizing the natural necessity and justice of
imposing upon and imparting to such contracts burdens not
agreed upon specifically by the contracting parties.
Arising out of and suggested by such common lien law
upon personal property has grown the legislation under con-
sideration. Possession of the real estate cannot be held by
the laborer or mechanic until his claim be paid, therefore out
of necessity the law has protected him.
“Its principles are believed to be founded on natural
justice and equity, in that he who shall have enhanced
the value of the real estate by his labor, or by the
materials supplied in its erection, shall have a preferred
claim on the property to secure the payment of such
labor and materials.”
Overton on Liens, 533.
Decisions in Other States Holding Mechanic’s Lien
Statutes, Similar to that of Ohio, to be Constitutional.
Legislation of the sort complained of, is neither new to the
statute books, nor to the courts of last resort in the various
States. In nearly all of the States of the Union identical or
similar statutes, under similar constitutions are, and have
been, in force for many years.
The Supreme Courts of over twenty States have passed
upon them. Every question raised as to the constitutionality
of the act has been repeatedly adjudicated previous to the
Ohio decision, and with two exceptions, viz.: The Supreme
Court of Michigan in Sprey v. Sault St. Marie Suvings Bank,
77 Michigan, 199, and the Supreme Court of Pennsylvania,
in Waters v. Wolf, 162 Pa. State, 153, all courts of last resort,
have held the legislation constitutional, neither in violation
of the obligations of contracts, nor a seizure of property
without due process of law.
SUPREME COURT OF THE UNITED STATES. 31
In New York the constitutionality of an act like the Ohio
act was twice raised, and both times the act held to be
constitutional. The New York Statute is as follows:
“Section 1. Any person or persons, firm or firms,
corporation or association, who shall hereafter perform
any labor or services or furnish any materials which have
been used or which are to be used in erecting, altering;
or repairing any house, whart, pier, bulk-head, bridge,
building or appurtenance to any house, building, and
building lot,including the fences, sidewalks, paving, foun-
tains, fish-ponds, fruit and ornamental trees, or who shall
hereafter perform any labor or services, or furnish any
materials which have been used or which are to be used
in improving, or equipping any house, building, or
appurtenance with chandeliers, brackets, or other
fixtures, or apparatus for supplying gas or electric light
with the consent of the owner as hereinafter defined, or
his agent, or any contractor, or sub-contractor, or any
other person contracting with such owner to erect, alter,
repair, improve or equip as aforesaid, within any of the
cities or counties of this State, may, upon filing the
uotice of lien prescribed in the fourth Section of this
Act for a lien, for the principal and interest of the price
and value of such labor and material, upon such wharf,
house, pier, bulk-head, bridge, building or appurtenance,
as upon the lot, premises, parcel or farm of land, upon
which the same may stand or be intended to stand to the
extent of the right, title, and interest at that time
existing of such owner, whether owner in fee of the
estate, or whether a lessee for a term of years, or vendee
in possession under a contract existing at the time of
filing of such notice of lien, or of the owner of any right,
title or interest in such estate which may be sold under
an execution under general provisions of the statute in
force in this State relating to liens of judgment and
forcement thereof, ete., but in no case shall such owner
be liable to pay by reason of all the liens filed pursuant
to this Act, a greater sum than the price stipulated and
agreed to be paid in such contract and remaining unpaid
at the time of filing such lien; or in case there is no
contract then the amount of the value of such labor and
material then remaining unpaid.”
a
32 SUPREME COURT OF THE UNITED STATES.
In discussing the constitutionality of this Section the New
York Supreme Court in Blauvelt v. Woodworth, 31 N. Y.,
285, said :
“ Tt is insisted that if this be the act, it is unconstitu-
tional and void, as it may enable the claimant to reach the
property of a third party without due process of law,
There is no provision in the constitution which pre-
cludes the legislature from declaring a statutory lien in
respect to future contracts in favor either of the con-
tractor, subcontractor or the laborer, upon the land of
the owner, at whose instance, and for whose benefit the
services are performed.
“ The act of 1852 was in force when the contract in
question was made; and every contract is presumed to
be executed with reference to existing laws, and subject
to such mod fications, in respect to the remedies of the
parties, as may result from subsequent legislation, if
free from constitutional objection.”
The question of the constitutionality of this Section was
again raised in the case of Glacius v. Black, 67 N. Y., 567.
In its opinion rendered in that case the Supreme Court of
New York said :
“There is no constitutional objection to the creation
by the legislature of statutory liens in favor of
mechanics and others, for the purposes, and under the
circumstances and limitations specified in the statutes
known as the Mechanic’s Lien Laws.”
By the Court:
“The constitutionality of the legislation known as
mechanic’s lien laws, was affirmed in Blauvelt v. Wood-
worth, 31 N. Y., 285, and the Court held there was no
constitutional objection to the creation by the legislature
of statutory liens in favor of mechanics and others for
the purpose and under the circumstances and limitations
specified in those statutes.
“‘ Laws of similar character have been in force in this
State for more than forty years (Laws of 1844, Ch. 220),
and similar legislation is found on the statute books of
many of the States. These statutes have been fre-
quently under consideration by the Courts, and so far as
4
SUPREME COURT OF THE UNITED STATES. 83
we have known, their constitutional validity has never ;
been judicially questioned.
“We do not doubt the soundness of Blauvelt v.
Woodworth, and if the question admitted of doubt, we
should not feel at liberty under the circumstances to
reconsider the decision in that case.”
In the case of Gunney et al. v. Walsham, 16 R. I., 698, the
constitutionality of an act similar to the act of Ohio was
affirmed, and in its opinion the Supreme Court of Rhode
Island said :
“Chapter 696 is not unconstitutional as regards an 4
owner of an estate who makes a contract for the erec-
tion of a building thereon after the laws went into
effect, though at the time the material-man recorded
his lien the contractor had been paid in full.
“We do not think that said chapter can be held to be
unconstitutional, as regards the defendant, because it
impairs the obligation of contracts. The chapter was
passed and went into effect before the defendant’s con-
tract in May, was entered into, and, therefore, said con-
tract must be held to have been entered into subject
to its provisions.”
Section 1183 of the California Statutes providing for a lien
for mechanics, material-men, contractors, and subcontractors,
etc., is a Jaw similar to the Ohio Statute. In the case of E
Hicks vs. Murray, 43 Cal., 514, the constitutionality of the a
act was affirmed. In its opinion, the Supreme Court of 4
California said : b
“The mechanics’ lien law of 1868 is not open to
objection that it is unconstitutional on the ground that
it attempts to appoint agents for private persons, nor
that it confiscates property, nor as to the notice required
of owners as to the responsibility for improvements, nor
that it attempts to take away vested rights or clothe
private persons with power to divest citizens of their
property,”
—
34 SUPREME COURT OF THE UNITED STATES.
In Atwood vs. Williams, 40 Me., 409, the Court held, under
a similar statute, that the material-men and laborers might
enforce their claims as against the owner even though the
contractor, under and for whom they worked, had been paid
in full.
The Maine Statute there construed was as follows:
Chapter 125, Sec. 35: ‘ Any ship carpenter, caulker,
blacksmith, joiner or other person, who shall perform
labor or furnish materiale, for or on the account of any
vessel, building or standing on the stocks, or under
repairs after having been launched, shall have a lien on
such vessel for his wages, or materials, until four days
after such vessel is launched, or such repairs afterwards
have been completed, and may secure the same by an
attachment on said vessel within that period, which shall
have precedence of all other attachments.
Sec. 87: “Any person who shall perform labor or
furnish materials for erecting, altering, or repairing any
house, or other building, or appurtenances, or furnish
labor or materials for the above purposes by virtue of
any contract with the owner thereof, or other person
who had contracted with such owner, shall have a lien
to secure the payment of the same, upon such house, or
building, and the lot of land on which the same stands,
and upon the right of redeeming the same when under
mortgage, and such lien shall continue in force for the
space of ninety (90) days from the time when such pay-
ment becomes due.”
See also, Spoffard vs. True, 33 Me., 283.
Taggart vs. Buckmore, 42 Me., 77.
To the same effect is Taylor vs. Murphy, 148 Pa. State, p.
337, although this is one of the cases relied upon by the
petitioner. The Court there say:
“It is no defense to such lien that the aggregate
amount out of the liens entered against the building,
together with the costs of building the same, exceed the
contract price, if the materials furnished are of the
quantity and quality needed for its construction.”
« As soon as owners of lots cease to be their own
builders, they put it in the power of persons employed .
SUPREME COURT OF THE UNITED STATES. 85
by them to occasion losses to mechanics and material-
men which they ought not to bear, and it was to remedy
this mischief that the legislature established the princi-
ple that materials and labor are to be considered as hav-
ing been furnished on the credit of the building, and not
ot the contractor. The principle is not only a just, but
a convenient one.”
Wheeler vs. Miller, 18 Pa. State, 52.
Section 6229 of the Revised Statutes of Minnesota pro-
vides as follows :
« All persons who have performed labor, or furnished
skill, material or machinery for the construction, alter-
ation or repair of any boat, vessel or other water craft,
or for the erection, alteration, repair or removal of any
house, mill, manufactory or other building, or appurte-
nance, or any fixture, fence, wharf or other structure,
by virtue of a contract with, or at the instance of, the
owner thereof, or his agent, trustee, contractor or sub-
contractor, shall have a lien to secure the contract price
or value of the same upon such boat, vessel or otber
water craft, and upon such house, mill, manufactory or
other building, or appurtenance, or fixture, bridge,
wharf, fence or other structure, and upon the right,
title and interest of the owner thereof, and in and to the
lands upon which the same is situate, or to which it may
be removed, not exceeding forty acres. If without the
corporate limits of any city or incorporated village, and
if situated upon or removed to lands within the
corporate limits in such city or incorporated village,
then, in and to the lot of land upon which the same is
situate or to which it may be removed, not exceeding
one acre in extent.”
This statute was held to be constitutional in the cases of
O’ Neil v. St. Olaf’s School, 26 Minn., 329.
Bohn v. McCarthy, 29 Minn., 23.
Laird v. Noonan, 32 Minn., 358.
In the last named case the Supreme Court of Minnesota |
in its opinion said:
‘‘As such liens are encumbrances upon the owner’s
title, they can only be created by his consent or authority;
SELLA TL EER TIT EB IE IE, NT ATR HTN
—
36 SUPREME COURT OF THE UNITED STATES.
and it ie upon this ground that such legislation is sup-
orted. The statute annexes the lien as an incident to
the contract of the owner with the contractor or builder,
and such contract is the evidence of the authority of
the latter to charge the building and land with liabilities
incurred by him in performing his contract. The
owner consents to this power conclusively and irre-
vocably, so far as others than the builder are concerned,
by making a contract while such is the law.”
“ As respects the amount which may thus be secured,
their rights are not dependent upon or limited by the
amount due the contractor from the owner under the
original contract, nor by the state of the accounts
between them. It is sufficient that the liens are created
through the owner’s contract, from which his consent is
implied. To avoid the encumbrance of such liens the
owner takes the burden of securing the bond which he
is authorized by the act to take. hether the burden
of taking such proceedings for his own protection should
thus be cast on him, or whether subcontractors and
laborers should be left to proceed against the amount
due, as under the former practice, was entirely a question
of legislative policy. And this is sufficient to dispose of
the objection that the law unreasonably limits the
exercise of the owner’s discretion as to the person whom
he shall contract with; that is to say, to such as can
give bonds or are financially responsible for the con-
tracts they may make in the prosecution of the work.
It is strictly in conformity with the policy which
allows a lien in any case. It does not take away or
affect the rights of the owner any further than it may
be necessary for the security of those who are pre-
sumed to have added something to the owner’s
property equal to the expenses incurred.”
Spoffard v. True, 33 Me., 283.
Taggart v. Buckmore, 42 Me., 77.
“It is ordinarily understood, from the nature of the
case, that under building contracts the work is not to be
done wholly by the contractor; and it is a sound and
just principle that all those who have, by consent of the
owner, or in pursuance of contracts with him for that
purpose, contributed to increase the value of his prop-
erty, should have an interest in it until their respective
claims for such services have been discharged.”
SUPREME COURT OF THE UNITED STATES. = San
In Tennessee just such an act as the act herein com-
plained of was upheld, though most vigorously assailed, as
beyond legislative power. One of the most recent and
thoroughly considered cases upon the subject is that of Cole
Manufacturing Company v. Falls, 90 Tenn., 471:
“1. Act Tenn. 1889, Ch. 103, which provides that
every person who is employed by the contractors to
furnish materials for a building shall have a lien on the
building for the same, provided that within thirty (30)
days after the building is completed, he shall notify the
owner that he claims a lien, is not unconstitutional in
that it allows the taking of property without due pro-
cess of law.”
By the Court:
“The lien given by act of 1845 has been endorsed by
this Court, in many cases, without the expression of
even a doubt as to the constitutionality of the enact-
ment ; and there is as little room for doubt with respect
to the validity of the amendatory act of 1881. The
corresponding provision of the act of 1889 is assailed
upon the presumption—
“(1.) That it undertakes to appropriate the property
of the owner for the benefit of a person with whom he
had made no contract.
«(2.) That this result may be accomplished, though
the owner has no notice of the claim until after he has
paid the original contractor in full, and,
“(3.) That the aggregate of the claims of subcon-
tractors and material-men may exceed the amount
ugreed to be paid the original contractor, in which case
the owner may be compelled to pay more than the con-
tract price for the advantages received. The provisions
are not fairly subject to all these animadversions, and
such of them as are well made do not render it obnox-
ious to the constitution. It is true that a lien is pro-
vided for persons with whom the owner is supposed to
have no direct contractual relations, but that fact alone
does not invalidate the act, for the owner must be held
to have a knowledge of the existing law on the subject,
and to the presumption that he employed the original
contractor and gave out his work in reference to that
38
SUPREME COURT OF THE UNITED STATES.
law. The right of lien to subcontractors and material-
men is, by operation of law, incorporated into and made
part of the owner’s contract, as much as if expressly
included and written therein. He contracts about a
subject in which the law declares certain advantages to
all persons concerned, whether by direct contract with
him or by the employment of his contractor. The law
declares that a lien shall exist in favor of the subcon-
tractor and material-men in certain contingencies, hence
the owner who makes the contemplated contract cannot
justly complain of the legal result; especially when he
receives the benefit of the labor and material of those
for whom the lien is provided and who often have no
other means of compensation. The enforcement of
this law does not necessarily result in loss to the owner,
nor take from him something for nothing.
«We find no valid constitutional objection to the
first section of the present act. It does not provide for
or allow the taking of property without due process of
law or the law of the lands, and hence is not in viola-
tion either of Section 1 of the 14th amendment of the
Constitution of the United States, or of Section 8, of
Article 1, of the Constitution of Tennessee. Statutes
similar to the provision made in the first section of our
act of 1889 have been upheld and approved by the
Supreme Court of the United States, and by the Courts
of last resort in most of the States of the Union. Ina
very small minority of the States has the validity of
such legislation been denied by the Courts.”
See also Reeves v. Henderson, 90 Tenn., 521.
“The act of the legislative assembly, appr. January
12, 1872, (Code Ch. 40), secures liens to mechanics for
their labor, and confers upon the District Court chancery
jurisdiction to determine the rights and priorities of the
liens of mechanics and mortgagees.
«“ The sixth section of the organic act of the territory
provides: ‘That the legislative power of the territory
shall extend to all rightful subjects of legislation, consis-
tent with the constitution of the United States and
provisions of this act.’ Held, that said act of the legis-
lative assembly is constitutional, and also that said act
secures a liento a mechanic for work which has not
been performed under any contract.”
2 Montana, 115.
—
SUPREME COURT OF THE UNITED STATES. 39
Sections 3018 and 8020 of the Connecticut statutes pro-
vides :
«“ Section 3018: Every building in the construction or
repair of which or of any of its appurtenances, any person
shall have a claim for materials furnished, or services
rendered, exceeding %25.00 in amount, by virtue of an
agreement with or by consent of the owner of the land
on which such building is erected, or euch persons have
authority over the original acting for such owner in
procuring such labor or materials shall, with the land on
which the same may stand, be subject to the payment of
such claim, and said claim shall be a lien on such land,
building or appurtenances, and shall take precedence of
any other encumbrance originating after the commence-
ment of such service, or the furnishing of such materials.”
“Section 3020: No person other than the original
contractor for a building, or a sub-contractor whose
contract with the original contractor is in writing, and
has been assented to in writing by either party to such
original contract, shall be entitled to claim any such lien
unless he shall, within sixty days from the time he shall
have commenced to furnish materials, or rendered ser-
vices, give written notice to the owne: of such building
that he has so commenced to furnish materials or
rendered services, and intends to claim a lien therefor
on said building. No sub-contractor with or without a
written contract complying with the provisions of this
Section shall be required to obtain an agreement or
consent of the owner of the land as provided in Section
3018 to enable him to claim a lien under this Section.”
Construing this Act, the Court say:
«To apply and enforce the statute in a case like this
works no injustice. Every owner of real estate knows
the law. When he employs an agent to construct or
repair a building, he knows the liability he incurs under
the lien law, and may easily protect himself, and it is not
unreasonable to require him to do so; while it would be |
hardship to require mechanics, when the owner is
unknown, to know the terms of the agency, and to
ascertain the nature and extent of the private instruc-
tions to the agent. We conclude, therefore, that the
peculiar principles of the law of agency, which relate to
40
SUPREME COURT OF THE UNITED STATES.
undisclosed principals, must yield to the provisions of
the statute.”
Paine v. Tillinghast, 52 Conn., 532.
“The law is remedial in its character, and is intended
to secure the parties entitled to its benefits for their
work and material, provided they employ the means, and
adopt the rules fixed by the law to obtain and secure
their rights.”
Overton on Liens, 532.
“Sec. 3313, Rev. Stat., as amended by chapter 33,
laws of 1889, (giving sub-contractors a lien for the
amount of their claims for labor performed or materials
furnished in or about a bnilding without regard to the
contract price of the building, or the sum due from the
owner to the principal contractor, but providing that the
principal contractor shall defend any suit to enforce such
lien, and giving the owner a remedy over against him is
a valid law.”
Mallory v. LaCrosse Abbatoir Co., 80, Wis., 170.
“ The power of a Legislature as to all future transac-
tions to regulate and control coutracts, by prescribing
the manner in which they shall be made, by declaring
what future voluntary acts of parties in relation to a
particular subject-matter shall be deemed a contract,
and, if it pleases, by creating implications from which
certain declared obligations shall flow, cannot be denied
or doubted.”
Mallory v. LaCrosse Abbatoir Co., 80 Wis., 177.
“The right to enforce a mechanic’s lien against the
property of the owner in the case of materials furnished
his contractor, is not founded upon privity of his con-
tract with the owner, but rests solely upon statutory
Jaw. The lien attaches upon delivery of the material,
and upon compliance on the part of the material men
with the provisions of the law, and this, too, irrespective
of a contract, either express or implied, on the part of
the owner.
“The right of the material man to his lien does not
depend on, nor is it in any manner affected by the ques-
tion whether the owner has or has not money in his
hands due the builder, nor whether the former has per-
formed his part of the contract to the letter.”
Treusch, et al., vs. Shyrock, et al,, 51 Md., 162.
—
SUPREME COURT OF THE UNITED STATES. 41
The validity of an act similar to the act herein complained
of was sustained by the Supreme Court of Indiana in the
case of Colter v. Frese, 45 Ind., 96.
The same question was also considered by the Indiana
Court in the case of Andis v. Davis, 63 Ind., 17-20. In that
case the Court says :
“In this case the owner had fully paid the contractor
before notice was filed, and the Court say that the facts
alleged in that part of the answer were not sufficient to
constitute a defense to appellee’s action by his com-
pliance with the requirements of the statute, and
appellee had acquired a valid lien upon the appellant’s
house and real estate for the amount due the appellee
for work done by him in the creation of said house. It
is well settled by the decisions of this Court that the
appellee’s lien was not defeated by the alleged payment
by the appellant to Norford of the full amount due or
to become due to him on account of the erection of said
house.”
Vig 7
In the éase of Smith, et al. v. Newbaur, ++# Ind. Reports, FS, ©
the first two sections of the syllabus are as follows :
“ Constitutional Law. Due Process of Law. Mechanic’s
Lien. Statute Construed. Section 7257, R. S., 1894,
providing that a mechanic’s lien may be acquired by
filing in the recorder’s office a notice of intention to hold
the lien, within sixty days after performing labor or
furnishing material, is not unconstitutional as depriving
the owner of his property without due process of law.
“ Mechanic’s Lien. For Materials Furnished to Con-
tractor or Subcontractor. A lien may be acqnired for
materials furnished for a building to either a contractor
or subcontractor, under Section 7255, R. S., 1894, plac-
ing them in the same category, so far as the right to
acquire a lien is concerned.”
The Court in its decision in this case says :
“ The action was brought under the provisions of the
mechanic’s lien law of 1883 (Acts 1883), 140, as amended
by the act of 1889 (Acts 1889, 257) and by the act of
1891 (Acts 1891, 28), Section 7255, R. S., 1894 (Section
tion 1688, Ell. Supp.), and following sections.
SUPREME COURT OF THE UNITED STATES.
«In support of the demurrer to the complaint, it is
first contended that the mechanic’s lien law of this State
is invalid, as repugnant to Section 1, Art. 14, of the
Constitution of the United States, which provides that
no State shall deprive any person of life, liberty or
property, without due process of law. This contention
is based upon the provisions of Section 3 of ‘the
mechanic’s lien law (Section 7557, R. 8., 1894; Section
1690, Ell. Supp.), which provides that any person wish-
ing to acquire such a lien upon any property shall file
in the recorder’s office, “at any time within sixty days
atter performing such labor or furnishing such
materials,’ notice of his intention to hold such lien.
«“ This notice, the only one provided for in the statute,
is insufficient, say counsel, to secure that due process
of law referred to by the Federal Constitution before the
fixing of a lien upon the citizen’s property. Under the
law as enacted, counsel contend, any one may perform
labor or furnish material in the construction of a building
for a land owner, without such owner’s knowledge or
consent, and then secure a lien upon the land and build-
ing by notice filed after the work is done or materials
furnished. It is said that the property owner should
have notice at or before the doing of the work or the
supplying of the materials, so that he may, if he wishes,
prevent the doing of such work or the furnishing of such
materials, and so keep his property free of the lien.
“Tt has often been held that every statute under which
a contract is made enters into and forms a part of such
contract. The appellants, in the contract for the erection
of the dwelling house upon their property, are therefore
chargeable with knowledge of, and are bound by, all of
the provisions of our mechanic’s lien law then in force.
By the terms of the agreement entered into the con-
tractors were to furnish all materials necessary for the
construction of the building. This was notice that such
materials were to be furnished, and the law under which
the contract was made was further notice that the
building and ground upon which it was to be erected
would be liable to a lien for the value of the materials
so furnished. The only uncertainty left was whether
those who should furnish the material would claim the
lien therefor. That uncertainty is provided for in the
statute, which requires that the notice of intention to
hold the lien be filed in the recorder’s office within sixty
SUPREME COURT OF THE UNITED STATES. 48
days. The owner has, consequently, ample means of
protection, and is not liable to a lien without notice, nor
to have his propertyt aken without due process of law.
“It is intimated that the law hampers the freedom of
action of the property owner; that he may desire to pay
the contractor in advance, or to pay him by an exchange
of other property for the erection of the building; and
that it may be an inconvenience, or induce the contractor
to bid higher tor the work, if payment is to be delayed
for sixty days after the work is done. These, however,
are considerations that should be addressed to the Leg-
islature, and not to the Courts. Besides, it is to be remem-
bered that without the right to a lien on the property,
laborers and material men would, in many cases, have
no security for their toil or the materials furnished by
them. The laborer is worthy of his hire, and the seller
of goods ought to be paid for them. As the law stands
all parties are secured in their rights. The owner, by
seeing that laborers and material men are paid, or by
keeping back for sixty days from the contractor suffi-
cient to make such payment, is in no danger of having
to pay twice for his building; while at the same time
the man whose labor or material has--gone into the
building can look to the building itself and to the ground
upon which it stands for his security. The property
owner enjoys the benefit of this work and of this mate-
rial, and it is but just that he should be charged, for at
least sixty days, with the responsibility of seéing that
they are paid for.”
On petition for rehearing the above case the decision was
affirmed.
Code Wash. T., Sec. 1957, provides :
“That every person performing labor upon or fur-
nishing material to be used in the construction of
a building has a lien therefor, whether furnished at the
the instance of the owner or his agent, and that for the
purpose of the act, every contractor, ete., shall be held
to be the owner’s agent. By Sec. 1965 the owner may
avoid a lien by posting a notice as therein directed.
“Held: That the material man or laborer has a lien,
notwithstanding payment to the contractor.”
1 Wash. Rep., 609.
SUPREME COURT OF THE UNITED STATES.
“Notice and affidavit having been furnished as
required Ly law, by subcontractor to owner, the latter is
liable to former for amount named in the affidavit,
regardless of state of accounts between owner and
general contractor.”
N. & W. Ry. Co. v. Howison, 81 Va., 125.
«“ That which is given for the preservation or better-
ment ot the common pledge, is in natural equity fairly
entitled to the first rank in the tableau of claims.
Mechanic’s lien laws stand on the same basic of natural
justice. Weare not prepared to say that a legislative
act giving preference to such liens, over those already
created by mortgage, judgment or attachment, would be
repugnant to the Constitutior of the United States,”
Provident Institute v. Jersey City, 113 U. 8., 516.
To the same effect see Brooks v. Railway Company, 101
U.S., 446.
An Act of the District of Columbia, identical in principle
with the provisions of Sec. 3184, has been construed and en-
forced by the Supreme Court of the United States in Winder
v. Caldwell, 14 Howard, p. 434. We quote from the opinion
of the Court upon pages 444 and 445:
«“ The remaining bills of exception involve, in fact, but
one prominent and important question, and the decision
of it will dispose of this case :
«“ The right to file a ‘ mechanic’s lien’ as it is usually
denominated, is claimed by the plaintiff under the Act
of Congress of March 2nd, 1833, entitled ‘An Act to
secure to mechanics and others, payment for labor done
and materials furnished in the erection of buildings in
the District of Columbia.’ The first section of this act,
defines the persons who shall be entitled to this peculiar
security and remedy, as follows:
«¢ Ajland every dwelling house, and other building,
hereafter constructed and erected within the city of
Washington, in the town of Alexandria, or in George-
town, in the District of Columbia, shall be subject to the
payment of the debts contracted for, or by reason of any
work done, or materials found and provided by any
brickmaker, bricklayer, stonecutter, mason, lime mer-
chant, carpenter, painter and glazier, ironmaker, black-
smith, plasterer, and lumber merchant, or any other if
SUPREME COURT OF THE UNITED STATES. 45
person or persons employed in furnishing materials for,
or in erecting or constructing such house or other build-
ing, before any other lien which originated subsequent
to the commencement of such house, or other building.
But if such dwelling house or other building, or any
portion thereof, shall have been constructed under con-
tract, or contracts, entered into by the owner thereof,
or his or her agent, with any person or persons, no per-
son who may have done work for such contractor or
contractors, or furnished materials to him, or on his order
or authority, shall have or possess any lien on said house
or other building, for work done, or materials so fur-
nished, unless the person or persons employed by such
contractor to do work on, or furnish materials for, such
building, shall within thirty days after being so em-
ployed, give notice in writing to the owner or owners of
such building, or to his or to their agent, that he or they
are so employed to work or to furnish materials, and
that they claim the benefit of the lien granted by the
act.’
“ Does a master-builder, undertaker, or contractor
who undertakes, by contract with the owner to erect a
building, or some part or portion thereof, on certain
terms, come within the letter or spirit of this act, or with-
in any of the classes enumerated, as entitled to this
special remedy? Such persons have an opportunity,
and are capable of obtaining their own securities. They
do not labor as mechanics, but superintend work done
by others. They are not tradesmen in lumber, or other
materials for building, but employ others to furnish
materials. If such contractor should by accident, be a
carpenter, or an owner or vendor of lumber, yet he
deals not with the owner in this capacity, but as an un-
dertaker, who bas covenanted for his own securities.
“The title to this act shows its policy and intention.
It i» to secure to ‘mechanics and others, payment for
labor done and materials found;’ and the persons enu-
merated in the first section are, plainly, those mechanics
and tradesmen whose personal labor or property have
been incorporated into the building, and not the agents,
supervisors, undertaker or contractors, who employed
them. The act contemplates two conditions, under which
euch labor and materials may have been furnished :
First, on the order of the owner, who may act without
46 SUPREME COURT OF THE UNITED STATES.
the intervention of any middleman, and thus become in-
debted directly to his mechanics and tradesmen. Or,
secondly, when they have been furnished on the order
of contractor or undertaker. In such cases, the mechanic
or material-man, if he intends to look to the credit of the
building, and not to that of the contractor with whom
he deals, must give notice to the owner of the building,
within thirty days, of his intention to claim this security.
The contractor, though mentioned in the act, is not enu-
merated among those entitled to its benefit. The aim
and policy of this act is also obvious. Experience has
shown that mechanics and tradesmen, who furnish labor
and materials for the construction of buildings, are often
defrauded by insolvent owners and dishonest contractors.
Many build houses on speculation, and after the labor of
the mechanic and the materials are incorporated into
them, the owner becomes insolvent, and sells the build-
ings or encumbers them with liens; and thus one portion
of his creditors are paid at the expense of the labor and
property of others. Or, the solvent owner, who builds
by the agency of a contractor, or middleman, pays his
price and receives his building without troubling him-
self to inquire what has been the fate of those whose
labor or means have constructed it. These evils required
a remedy, and such a one as is given by this act. Its
object is iot to secure contractors, who can take care of
themselves, but those who may suffer loss by confiding in
them. It is not the merit of the contractor that gave
rise to the system, but the protection to those who might
be wronged by him, if the owner were not compelled
thus to take care of their interests before he pays away
the price stipulated.”
The Circuit Court of the United States in Puriton vs. Thé
Hull of a New Ship, 2nd Curtis, 416, has also construed and
enforced upon the same ground, a statute of Maine quoted
in said case, which contains the same provisions as Section
3184.
“That mechanic’s lien laws are constitutional has been
decided in a multitude of cases. They have been
attacked as depriving persons of their property without
due process of law, as being class legislation, as impair-
ing the obligation of contracts, and as interfering with
SUPREME COURT OF THE UNITED STATES. 47
the right of trial by jury, and they have been declared
by the Courts to be free from all these objections.”
* * * * * * * *
« But although these laws have in general been held
constitutional, they sometimes contain unconstitutional
provisions ; so it will be necessary to examine the sub-
ject more in detail. The principal attack of these laws
on constitutional grounds has been directed towards the
provisions giving liens to subcontractors and material-
men in the second degree, it being argued that, as there
is no privity of contract between them and the owner, it
was depriving him of his property without due process
of law, to subject it to a lien for the contractor’s debts to
them. It was probably in order to meet this objection
that some of the acts are declaring that the contractor
shall be deemed the agent of the owner, thus bringing
the owner and the subcontractor into privity of contract.
But even without this provision, the acts giving these
persons liens are not unconstitutional, since, when the
owner enters into contract with the contractor, he does
so with conclusive knowledge of the law, and the provi-
sions of the mechanic’s lien law enter into and form a
part of his contract. And it makes no difference that
the statute allows subcontractors to have liens aggregat-
ing more than the entire contract price named in the
original contract, or that it allows them a lien in certain
cases, even though the owner has paid the contractor in
full.”
Boisot on Mechanic’s Liens—Sece. 22-23.
Chapter 191, Public Statutes of Massachusetts, provides :
“Section 1: Any person to whom a debt is due for
labor performed or furnished, or for materials furnished
and actually used in the erection, alteration and repair
of a building or structure upon real estate by virtue of
an agreement with or by consent of the owner of such
building or structure, or of any person having authority
over or rightfully acting for such owner in procuring or
furnishing such labor or materials, shall have a lien upon
such building or structure, and upon the interest of the
owner thereof in the lot of Jarid upon which the same is
situate, to secure the payment of the debts so due to him,
and the costs which may arise in enforcing such lien,
except as is hereinafter provided.”
48 SUPREME COURT OF THE UNITED STATES.
“Section 2: When the agreement mentioned in the
preceding section is for labor performed or furnished,
and for materials furnished upon an entire contract and
for the entire price, a lien for the labor alone may be
enforced, if it can be distinctly shown what such lien was
worth, but in no case shall such lien be enforced for a
sum greater than the price agreed upon for the entire
contract.”
Section 3: No lien shall attach for materials furnished
unless the person furnishing the same before so doing
gives notice in writing to the owner of the property to
be affected by the lien, if such owner is not the pur-
chaser of such material, that he intends to claim such
lien.”
“Section 4: The owner of a building or structure in
the process of erection or of being altered or repaired, if
he is the person other than the party by whom or in
whose behalf the contract for labor and material has
been made, may prevent the attaching of a lien for labor
not at the time performed, or for materials not then
furnished, by giving notice in writing to the person
performing or furnishing such labor or furnishing such
materials, that he will not be responsible therefor.”
Under this Statute it has been held:
“Tt is no defense to a petition to enforce a mechanic’s
lien, under public Statute 191, for labor performed for a
contractor upon the respondent’s house, that the material
furnished by the contractor was not of the quality called
for by the contract and the petitioner’s work, through
no fault of his, was a damage tothe house. * * * *
«Our statute gives an immediate lien to any one who
has performed labor in the repair of a building by the
consent of its owner. Even if he is employed by a
contractor, the laborer’s lien is not by way of subroga-
tion, and does not depend upon the terms of the contract
or the state of the account between his employer and
the owner of the land.”
Bowen v. Phinney, 162 Mass., 593.
“Such lieus in favor of sub-contractors would equally
bind the estate by consent of the owner; because such a
contract, by force of the existing law, when it was made,
of which the owner is presumed to be cognizant, gives
his irrevocable power to his contractor, to charge and
—_— oh
SUPREME COURT OF THE UNITED STATES. 49
bind his estate; and when such power is executed by
the actual making of such sub-contract for labor it is in
law the act of the owner, bypothecating his own estate
to the extent of the price of such labor.”
Donahy v. Clapp, 12 Cush. (Mass.) Reports, 440.
The Missouri Statute is:
“Section 6750: Every mechanic, or any person, who
shall do or perform any work or labor upon, or furnish
any material, fixture, engine, boiler or machinery for any
building erected or improvements upon land or tor
repairing the same under and by virtue of any contract
with the owner or proprietor thereof, or his agency,
trustee, contractor or sub-contractor, upon complying
with the provisions of this article, shall have a lien for
his work or labor done, or materials, fixtures, engines,
boilers, or machinery furnished, a lien upon such building,
erection, or improvement, and upon the land belonging
to such owner or proprietor upon which the same are
situate to the extent of one acre.”
The Supreme Court, in Henry ¢ Coatsworth Co. v. Evans,
97 Mo., 47, say:
“The Mechanic’s Lien Law, Rev. Stat. 1879, Sec.
3172 et seq., gives a lien to subcontractors for materials
furnished by him to the contractor and used in the con-
struction of the building, notwithstanding the full con-
tract price of the building has been paid in good faith
by the owner to the contractor, and such lien is not :
limited to the amount fixed by the contract of the fl
owner, with the original contractors.” * * * *
“Tt has already been decided that in no event can a
subcontractor assert a lien against the property fora
greater amount than the reasonable market value of
the materials he furnished toward the erection of the
buildings or improvements. 74 Mo., 87; 63 Mo., 295;
but there is nothing in this or in any other section
expressly limiting the aggregate liens to the amount
which the owner agreed to pay to the original contrac-
tor for the completed work.” * * * *
“In the matter before us, the Mechanic’s Lien Law is
assumed to be in contemplation of all parties making a
building contract. There is, hence, no injustice in
treating them as having accepted the consequences fixed
by that law.” :
——
50 SUPREME COURT OF THE UNITED STATES.
Review of the Cases Cited by Council for Petitioner
as Sustaining the Decision of the Supreme Court of
Ohio.
Counsel for petitioner herein cite in support of the con-
clusion reached by the Ohio Court.
Sprey Lumber Co. v. Sault St. Marie Savings Bank, 77
Mich., 199;
Waters v. Woif, 162 Pa. St., 153 ;
Myer v. Burlandi, 39 Minn., 438 ;
Henry v. Rice, 18 Mo. Ap., 512;
Renton v. Conley, 49 Cal., 189.
In Sprey Lumber Company v. Sault St. Marie Savings Bank,
no authorities are cited by the Court in support of its posi-
tion, nor is there any pretense that the statute expressly
violated any particular provision of the Michigan Constitu-
tion. So far as we can judge from the opinion, the sole
reason for the decision was, that the Court did not like the
law.
Waters v. Wolf, 162 Pa. St., 153, is fully discussed by
Judge Lurtoy in his opinion, pages 52, 53 and 54, of the
Record.
We also refer the Court to the dissenting opinion of Judge
MircHELt in that case as being more in harmony with the
former decisions in Pennsylvania, and with the authority of
other Courts upon this subject. Among other things, Judge
MITCHELL says:
«Jt is the province of the Legislature to declare the
public policy of the State, including what contracts
shall be lawful, in what form they shall be made, and
what shall be their effect. From the earliest days of the
republic it has done this without question, whenever the
contract itself or its collateral effect touches matters of
public interest or policy, of which the Legislature is
the exclusive judge. Thus under statutes all leases
es re
SUPREME COURT OF THE UNITED STATES. $1
for more than three years are at will only unless in writ-
ing no matter how explicitly the parties contract for a
longer term. Under Statute, a loan of money is only a
loan at six per cent., no matter how plainly the parties
express their intent that it shall be at a higher rate.
Under Statute, as well as under the common law, part-
nership involves certain liabilities to third parties no
matter how strictly the partners may contract among
themselves to avoid this result. And the Courts with-
out the least hesitation enforce the liability of a princi-
pal for the acts of his agent within the apparent scope
of his authority, no matter how contrary to his orders
in fact. But it is unnecessary to multiply examples as
the greatest example of all is the mechanie’s lien itself.
It has no other basis than the incorporation of liability
for work and materials into the contract for building, by
legislative mandate, without the slightest regard to the
actual intentions of the parties. No one who contracts
for having a house built intends apart from statutory
compulsion to give a subcontractor or material-man a
claim against him or his land any more than he con-
templates when he orders a suit of clothes a liability to
the merchant from whom the tailor buys the cloth, or to
the workman who sews it together. The result follows
from the statute alone, because the Legislature has
enacted that a contract to build a house shall carry with
it an authority to the contractor to pledge not only the
house, but the land on which it is to be built, for pay-
ment of the labor and materials sold on the credit of it,
even though the materials do not in fact go into it. It
is the creation of an agency by the Legislature as a
matter of public policy without regard to the will of the
owner.”
It will be found upon examiuation, that Henry v. Rice,
18 Mo. Appeals, 512, was the decision of an inferior Court,
and was distinctly held by the Supreme Court of Miseouri in
Henry & Coatsworth Co. v. Evans, 97 Mo., 47, referred to above,
not to be the law of Missouri.
Renton v. Conley, 49 Cal., 189, does not hold the statute of
California, which is similar to that of Ohio, to be unconsti-
tutional, but following the decisions of former cases, merely
52 SUPREME COURT OF THE UNITED STATES.
construes the Jaw in a certain way. The decision of the
Supreme Court of California in 43 Cal., 514, to the effect
that a law similar to that in Ohio was constitutional in that
State, is still unreversed and unmodified.
In Myer v. Burlandi, 39 Minn., 488, the Court, while hold-
ing that the Minnesota Act of 1887, was void as a whole, by
reason of certain unconstitutional provisions therein, also
held that a former Act of Minnesota passed in 1878, Chap. 90,
Minnesota Laws, remuined in full force and was valid. The
provisions of this former Act of 1878, were identical as
nearly as may be, with those of Sec. 3184, under considera-
tion, and have been held by the Supreme Court of Minnesota
to be constitutional in Lairdy v. Noonan, 32 Minn., 358;
Bardwell v. Mann, 48 Minn., 285 ; Burns v. Seweli, 48 Minn.,
423; Wheaton v. Burg, 50 Minn., 525.
The decision in Young v. The Lion Hardware Company,
announces a new and momentous principle in the interpre-
tation of constitutional powers. It was, in effect, and indeed
in words, that of the propriety of legislation, the Court,
equally with the legislature, is to be the judge. Before this
announcement it was considered axiomatic that within its
powers the legislature alone is the judge of the policy or
prudence of legislation. No man ever more forcibly
announced and enforced this doctrine than did Judge Swan
in Ex parte Bushnell, 9th Ohio State, 77. No man ever
more forcibly predicted than did he, the evils necessarily
consequent upon any attempt on the part of the judiciary to
interfere with the rightful exercise of legislative powers.
“Tt is not a part of the functions of a Court to con-
duct investigations of facts entering into questions of
public policy merely, and to sustain or frustrate the legis-
lative will, embodied in statutes, as they may happen to
approve or disapprove its determination of such ques-
tions.”
Powell vy. Pennsylvania, 127 U. 8., 685.
—E7_
SUPREME COURT OF THE ‘UNITED STATES. 53
The Ohio Court does, by its opinion, attempt “to con-
duct investigation of fact and enter into the question of
public policy merely.” It does, in eftect, frustrate the legis-
lative will embodied in the statute. There is no assertion in
this decision that the law in question violates any specific
provision of the constitution. There is no finding that the
obligation of any contract is impaired, nor that any citizen
is deprived of his property without due process of law. The
sole ground of the decision is, that the Court, as well as the
General Assembly, is to judge whether or not legislation
imposing any restraint upon the right of contract, is for the
public welfare, protection and benefit. The logical result of
this decision is, that the Court is the sole judge as to
whether such legislation is for the public welfare, protection
and benefit, for the Court is the final judge. If it can
determine, as it did in this case, that liens provided by
statute are not for the public welfare and benefit, it can
equally determine that interest laws, homestead laws,
exemption laws, and all matters of like character are or are
not for the public welfare, protection and benefit. It
attempts in this decision to evade the settled rule that
statutes become a part of contracts thereafter entered into
by holding that this only applied to “valid” statutes, using
“valid” in the sense of “wise” or “proper.” But this
brings us back to the same question: Who is to deter-
mine as to the validity of these statutes in that sense?
The Court or the Legislature, within its legitimate powers ?
If the Court, then the Court legislates as effectually as if its
seal were affixed to the statute.
In conclusion we might say, that the acquiescence almost
without exception, of both the judicial and legislative powers
of all the States and of the United States in the right, within
its discretion, of the Legislature to.create liens known as
mechanic’s liens, and to regulate the method and manner of
enforcing them, and to prescribe the rights of the various
54 SUPREME COURT OF THE UNITED STATES.
parties thereto, not only justifies this Court in upholding the
constitutionality of the act in question, but forbids its doing
otherwise. If the principle be wrong, then in the language
of the Supreme Court of Massachusetts, Roders v. Goodwin,
2 Mass., 475: “ We cannot shake a principle which in prac-
tice has so long and so extensively prevailed. If the practice
originated in error, yet the error is now so common that it must
have the force of law.”
Respectfully submitted,
TaLrourp P. Linn,
Ovruwaite, Linn & THuRMAN,
Attorneys for Respondents.
Joun D. McKennan,
Of Counsel.
sae : “8 Oince Supreme Comt
270. re eT teD
MAR 16 1900
og Aaah Rein Manik:
Supreme Court of the United States.
es By aS (Yoo.
OCTOBER TERM, 1899.
No. 210.
THE GREAT SOUTHERN FIRE-PROOF ROTEL.
COMPANY, PEtirTioner,
v8.
SOSMAN & LANDIS, er a., RESPONDENTS.
. Brief for Sosman & Landis.
GEO. K. NASH anp .
LOUIS G. ADDISON,
Attorneys for Sosman & Landis. —
COLUMBUS, 0.:
THE AMERICAN PUBLISHING CO.,
1900.
No. 17,296.
SUPREME COURT OF THE UNITED STATES.
OcTOBER TERM, 1899.
No. 210.
THE GREAT SOUTHERN FIRE-PROOF HOTEL
COMPANY, Petitioner,
V8.
SOSMAN & LANDIS, et Au., RESPONDENTS.
BRIEF FOR SOSMAN & LANDIS.
This case comes into this Court upon a writ of cer-
tiorari to the United States Circuit Court of Appeals
for the Sixth Circuit.
On the 9th day of January, 1896, Benjamin F.
Jones, et al., one of the appellants below, filed its Bill
of Complaint in the Circuit Court of the United
States, whereby they sought to foreclose a mechanic’s
lien upon certain property of the Great Southern
Fire-Proof Hotel Company for certain materials fur-
nished by them to said company during the erection
of the Great Southern Fire-Proof Hotel and Theater,
between the 16th day of April, 1895, and the 29th day
4 SUPREME COURT OF THE UNITED STATES.
of January, 1896, under and by virtue of a written
contract entered into by and between said Benjamin
F. Jones et al. and William J. McClain, who was dur-
ing the time set out in said complaint, acting as prin-
cipal contractor for the said Great Southern Fire-
Proof Hotel Company in the erection of its building
in Columbus, Ohio, which was to be used for a hotel
and opera house.
The Bill alleged that the complainants were non-
residents of the State of Ohio, that the defendant was
a resident of said State of the eastern division and
southern district thereof, and asserted a mechanics’
lien on said building.
Joseph S. Sosman and Perry Landis, partners do-
ing business under the firm name and style of Sosman
& Landis, having their principal office and place of
transacting business in the city of Chicago and State
of Illinois, were made defendants in said Bill of Com-
plaint, because they claimed and asserted a mechan-
ics’ lien upon said premises, which was of record, and
the complainant prayed that Sosman & Landis be re-
quired to answer and set forth their claim in the
premises.
Thereafter, and by leave of Court, on the 6th day
of March, 1897, Sosman & Landis filed an answer and
cross-bill in said Circuit Court of the United States
for the Southern District of Ohio, Eastern Division,
wherein and whereby they sought to foreclose a me-
chanics’ lien upon certain property of the petitioner
herein, the Great Southern Fire-Proof Hotel Com-
SUPREME COURT OF THE UNITED STATES.
“~)
pany, for certain labor and materials furnished by
said Sosman & Landis during the erection of said
Great Southern Fire-Proof Hotel and Theater, be-
tween the 28th day of February, 1895, and the 26th
day of March, 1896, under and by virtue of a written
contract entered into by and between said Sosman &
Landis and one William J. McClain, who was at the
time said contract was made and said labor and ma-
terial furnished, acting as the principal contractor
for said Great Southern Fire-Proof Hotel Company,
petitioner herein, in the erection of said building in
Columbus, Ohio.
The answer and cross-bill alleged that Sosman &
Landis were non-residents of the State of Ohio, that
the petitioner herein was a resident of said State of
the Eastern Division, Southern District thereof, and
asserted a mechanics’ lien on said building under and
by virtue of Sections 3184, 3185 and 3185-a of the Re-
vised Statutes of Ohio, as amended and supplemented
April 13th, 1894 (91 Ohio Laws, 135), which sections
aus amended and supplemented are as follows, to-wit:
“Section 3184. A person who performs labor,
or furnishes machinery or material for construct-
ing, altering or repairing a boat, vessel or other
water-craft, or for erecting, altering, repairing or
removing a house, mill, manufactory, or any fur-
nace or furnace material therein, or other build-
ing, appurtenance, fixture, bridge or other struc-
ture, or for the digging, drilling, plumbing,
boring, operating, completing ox repairing of any
SUPREME COURT OF THE UNITED STATES.
gas well, oil well or any other well, or performs
labor of any kind whatsoever, in altering, repair-
ing or constructing any oil derrick, oil tank, oil
or gas pipe line or furnishes tile for the drainage
of any lot or land by virtue of a contract with, or
at the instance of the owner thereof or his agent,
trustee, contractor or subcontractor, shall have a
lien to secure the payment of the same upon such
boat, vessel, or other water-craft, or upon such
house, mill, manufactory or other building or
appurtenance, fixture, bridge or other structure,
or upon such gas well, oil well, or any other well,
or upon such oil derrick, oil tank, oil or gas pipe
line and upon the material and machinery so fur-
nished and upon the interest, leasehold or other-
wise, of the owner in the lot or land on which the
same may stand, or to which it may be removed.
“Section 3185. (Filing of Lien.) Such per-
son, in order to obtain such lien, shall within
four months from the time of performing such
labor or furnishing such machinery or material,
file with the recorder of the county where the
labor was performed, or the machinery or ma-
terial furnished, an affidavit containing an item-
ized statement of the amount and value of such
labor, machinery, or material, and a description
of any promissory note or notes given for such
labor, machinery or material, or any part there-
of, with all credits and offsets thereon, a copy of
the contract, if it is in writing, a statement of the
SUPREME COURT OF THE UNITED STATES. 2
amount and times of payment to be made there-
under, and a description of the land on which the
gas well, oil well, or other wells are situated, or
the land on which the house, mill, manufactory,
or other buildings, or appurtenances, fixture,
bridge, or other structure may stand, or to which
it may be removed; and the same shall be record-
ed in a separate book to be kept therefor, and
shall operate as a lien from the date of the first
item of the labor performed, or the machinery
or material furnished upon or toward the prop-
erty designated in the preceding section, and the
interest of the owner in the lot or land on which
the same may stand, or to which it may be re-
moved, for six years from and after the date of
the filing of such attested statement. If an action
be brought to enforce such lien within that time
the same shal! continue in force until the final
adjudication thereof; and there shall be no
homestead or other exemption against any lien
under the provisions of this chapter.
“Section 3185-a. In all cases where the labor,
material or machinery referred to in Sections
3184 and 3185, shall be furnished by any person
other than the original contractor, with such
owner, or his agent or trustee, the lien shall not
exceed the actual value of the labor, material or
machinery so furnished, and the aggregate
amount of liens for which the property may be
held shall not, in the absence of fraud or collusion
SUPREME COURT OF THE UNITED STATES.
8
between the owner and original contractor, ex-
ceed the amount of the price agreed upon between
the owner and original contractor for the per-
forming of such labor and the furnishing of such
material and machinery. Provided if it shall be
made to appear that the owner and contractor,
for tie purpose of defrauding subcontractors,
material men or laborers, fixed an unreasonably
low price in the original contract for any work
or material for which a lien is given under sec-
tion thirty-one hundred and eighty-four, the
Court shall ascertain the difference between such
fraudulent contract price and a fair and reason-
able price therefor, and such subcontractors, ma-
terial men and laborers shall have a lien to the
amount of such fair and reasonable price so as-
certained.”
The labor and materials furnished by Sosman &
Landis, which were the foundation of the cause of ac-
tion set out in its answer and cross-bill, were fur-
nished and delivered as appears by said answer and
cross-bill, between the 28th day of February, 1895,
and the 26th day of March, 1896, and they were all
used in and about the erection of said hotel and opera
house, erected by William J. McClain for the peti-
tioner, The Great Southern Fire-Proof Hotel Com-
pany.
The said Sosman & Landis fully complied with the
terms of said statute, and filed their mechanics’ lien
as required by said law, all of which was done and
ne
SUPREME COURT OF THE UNITED STATES. 9
performed before the decision of the Supreme Court
of Ohio in Young vs. The Lion Hardware Company,
decided December 8th, 1896, and reported in 55 O. 8.
123, holding that said Section 3184, as amended, was
unconstitutional, and before any decision of the Su-
preme Court had been rendered holding said section
unconstitutional.
On the 12th day of April, 1897, the petitioner here-
in, The Great Southern Fire-Proof Hotei Company,
filed a general demurrer to the answer and cross-bill
of said Sosman & Landis, the ground of said demurrer
being that said sections were contrary to the Consti-
tution of the State of Ohio and of the United States,
and were therefore unconstitutional.
Judge Sage of the Circuit Court, following the de-
cision of the Supreme Court of Ohio, found said sec-
tions were unconstitutional, and sustained said de-
murrer, and judgment was entered dismissing the
cross-bill. The case was duly appealed to the Circuit
Court of Appeals for the Sixth Circuit, and the judg-
ment of Judge Sage was reversed, and the Circuit of
Appeals overruled said demurrer and found and held
that said sections were not repugnant to the Consti-
tution of the State of Ohio or of the United States,
and that said laws were valid, constitutional enact-
inents. From the decision of the Cirenit Court of
Appeals, the petitioner sued ont his writ of certiorari
to this Court, and the petitioner now seeks in this
Court to reverse the decision of the Circuit Court of
Appeals, holding said enactments constitutional.
SUPREME CCURT OF THE UNITED STATES.
10
It was claimed by the petitioner in the demurrer,
and by the arguments of its counsel, that said Section
3184, as amended, was unconstitutional. There was
no objection to the answer and cross-bill upon any
other grounds.
The petitioner further argued that the demurrer
should have been sustained in the Circuit Court of
Appeals for the reason that the decision of the Su-
preme Court of Ohio in Young vs. The Lion Hardware
Company above referred-to, was conclusive upon the
Courts of the United States, and that said Courts
were bound by that decision. These two propositions
were the only questions argued by counsel and con-
sidered by the Circuit Court of Appeals, and as we
understand it, are the only ones raised in their brief
in this Court. The questions raised by the demurrer
to the Bill of Complaint filed by Jones, et al., and by
the demurrer filed to the answer and cross-bill of Sos-
man & Landis, are identically the same, and the cases
have been presented and argued together, and are
heard as one case.
We maintain, in behalf of Sosman & Landis, that
the decision of the Supreme Court of Ohio, above re-
ferred to, is not binding upon the United States
Courts for the following reasons:
1. The cause of action set out in the answer and
cross-bill, accrued before the decision of the Supreme
Court of Ohio was rendered or announced.
2. The former decisions of the Supreme Court of
Ohio upon similar contracts and liens, are in conflict
—EE——EeE~
SUPREME COURT OF THE UNITED STATES. ll
with that decision, and the cause of action set out in
the answer and cross-bill accrued before such former
decisions were reversed by the holding in Young vs. The
Lion Hardware Company.
3. The constitutional question is one of general
constitutional law, not peculiarly applicable to the
Constitution of the State of Ohio, but equally appli-
cable to any and all Constitutions, including State
and Federal.
4. The question is one of general jurisprudence
and commercial lew.
I.
Sosmnan & Landis furnished the labor and materials,
which is the foundation for the cause of action set
forth in their cross-bill before the Supreme Court an-
nounced its decision in Young vs. The Lion Hardware
Company, and before any decision was announced
holding the sections of the statute upon which their
lien is based, unconstitutional. As set out in their
cross-bill, the labor and materials were furnished be-
iween February, ‘95, and March, ’96, and the decision
of the Supreme Court holding said sections invalid,
was not announced until December, 1896.
The labor and material had been furnished, and the
lien had been perfected long before this time. Sosman
& Landis were non-residents of the State of Ohio, and
when they examined the statutes and ascertained their
rights before furnishing said labor and material, they
had the right to presume that the statute was consti-
SUPREME COURT OF THE UNITED STATES.
I2
tutional, and that their rights would be protected
thereunder, and under these circumstances, we think
that the decisions of this Court have clearly estab-
lished that this Court will act independently of the
Ohio Court, and while giving due weight to its decis-
ion, will still of itself and independently of the Ohio
Court, decide whether or not said law was in fact un-
constitutional.
In Burgess vs. Seligman, 107 U. 8., 20, Justice Brad-
lev, speaking for the Court, on page 33 says:
“When contracts and transactions have been
entered into, and rights have accrued thereon
under a particular state of the decisions, or where
there has been no decision of the state tribunals,
the Federal Courts properly claim the right to
adopt their own interpretation of the law appli-
cable to the case, although a different interpreta-
tion may be adopted by the State Courts after
such rights have accrued.”
And after stating that the Courts of the United
States will endeavor to avoid any unseemly conflict
with the well-considered decisions of the State Court,
he says:
“As, however, the very object of giving to the
national Courts jurisdiction to administer the
laws of the States in controversies between citi-
zens of different states, was to institute inde-
pendent tribunals which it might be supposed
would be unaffected by local prejudices and sec-
tional views, it would be a dereliction of their
es “
SUPKEME COURT OF THE UNITED STATES. Bi
duty not to exercise an independent judgment in
cases not foreclosed by previous adjudication.”
In Anderson vs. Santa Anna Tp., 116 U. S., 356, Jus-
tice Harlan, on page 362, in delivering the opinion of
the Court, says:
“In Burgess vs. Selig» an, 107 U. 8., 20, 38, the
Court had occasion to re-examine all its prior ad-
judications concerning the obligation of the I*ed-
eral Courts, to follow the decisions of the State
Courts upon questions of local law. Mr. Jus-
tice Bradley, speaking for the whole Court, after
observing that the Federal Courts had an inde-
pendent jurisdiction in the administration of
state laws co-ordinate with and not subordinate
to that of the State Courts, and are bound to ex-
ercise their own judgment as to the meaning and
effect of these laws, said: ‘So when contracts and
transactions have been entered into and rights
have accrued thereon under a particular state of
the decisions, or when there has been no decision
of the state tribunals, the Federal Courts properly
claim the right to adopt their own interpretation
of the law applicable to the case, although a dif-
ferent interpretation may be adopted by the State
Courts after such rights have accrued. But even
in such cases for the sake of harmony and to
avoid confusion, the Federal Courts will lean to
an agreement of views with the State Courts if
the question seems to them balanced with
doubt.’ Any other rule, it.was further said,
rr
14 SUPREME COURT OF THE UNITED STATES.
would defeat ‘the very object of giving to the Na-
tional Courts jurisdiction to administer the laws
of the states in controversies between citizens of
different states.’ ”
Judge Lurton, in delivering the opinion of the Cir-
cuit Court‘of Appeals below, referring to the case of
Young vs. The Lion Hardware Company, supra, on
page 46 of the transcript says:
“Does that decision furnish a rule of decision
which is obligatory upon Courts of the United
States? When a citizen of one state enters into
a contract with a citizen of another, he acquires
the constitutional right to have that contract in-
terpreted and enforced by a Court of the United
States. That right does not by any means involve
the application of a different rule of decision, for
the judiciary act requires that the laws of the
several states shall be regarded as rules of de-
cision, in trials at common law, where they apply.
But even the decision of the highest Courts of
the state by whose law the rights of the parties
are to be ascertained and enforced, does not, un-
der all circumstances, furnish a rule of decision
obligatory upon courts of the United States. The
question is, when do they apply? In the past,
this inquiry has involved no littlefriction between
the Courts of the Union and those of the states.
But the final arbiter of all such constitutional
questions is the Supreme Court of the United
States. So far as the inquiry is pertinent to the
— : a
SUPREME COURT OF THE UNITED STATES. 1
decision which must be here made, that Court
has in an authoritative way decided :
“J. That such decisions are not necessarily
obligatory upon Courts of the United States
where they effect. contracts which were valid un-
der ihe Constitution and laws of the state as in-
terpreted and enforced by its highest judicial tri-
bunals at the time they were entered upon.
Rowan vs. Runnels, 5 How. 134.
Ohio Life and Trust Co. vs. Debolt, 16 How. 482.
Gelpche vs. The City of Dubuque, 1 Wall. 175.
Olcott vs. The Supervisors, 16 Wall. 678.
Taylor vs. Ypsilanti, 105 U. S. 60.
Douglass vs. County of Pike, 101 U. 8. 677.
Louisville Trust Co. vs. Cincinnati, 47 U. 8. A.,
36, 46.
“In Rowan vs. Runnels, supra, Chief Justice
Taney said : ‘Undoubtedly this Court will always
feel itself bound to respect the decisions of the
State Courts, and from the time they were made
regard them as conclusive in all cases upon the
construction of their own laws. But we ought
not to give them a retroactive effect, and allow
them to render invalid contracts entered into
with citizens of other states, which in the judg-
ment of this Court, were lawfully made.’
“In Douglass vs. County of Pike, cited above,
the Court, after reviewing the preceding cases,
decided by that Court, said: “The true rule is to
give a change of judicial construction in respect
SUFLEME COURT OF THE UNITED STATES.
to a statute the same effect in its operation on
contracts and existing contract rights that would
be given to a legislative amendment; that is to
say, make it prospective but not retroactive.
After a statute has been settled by judicial con-
struction, the construction becomes, so far as
contract rights acquired under it are concerned,
as much a part of the statute as the text itself,
and a change of decision is to all intents and pur-
poses the same in its effect on contracts as an
amendment of the law by means of a legislative
enactment.’
“2. Neither are such decisions obligatory
upon Courts of the United States when thereby
the validity of contracts between a citizen of the
state and a citizen of another state is affected,
which were executed before there was any judi-
cial construction of the statute or constitution
which seemed to authorize the contract in ques-
tion.
Burgess vs. Seligman, 107 U. 8. 20-33.
Pleasant Township vs. Aetna L. Ins. Co., 138
U. S. 67-72.
Louisville Trust Co. vs. Cincinnati, 47 U.S. A.
36-47.”’
We call especial attention to the opinion of Judge
’
Lurton, in discussing this proposition of law, on pages
46 and 47 of the transcript in this case.
The same rule of law is recognized in Miller vs. Am-
mon, 145 U. S., 421, in the opinion of the Court on page
423, where
EE===_—_— sb
SUPREME COURT OF THE UNITED STATES. 17
Burgess vs. Seligman, 107 U. S. 20;
Carroll County vs. Smith, 111 U. S. 556;
Gibson vs. Lyon, 115 U. S. 489, and
Anderson vs. Santa Anna Township, 116 U. 8. 356,
ure cited as instances in which this Court did not con-
sider itself bound by the decisions of the State Courts.
In Burgess vs. Seligman, supra, Justice Bradley, in
delivering the opinion of the Court, said:
“We do not consider ourselves bound to follow
the decision of the State Courts in this case.”
Pleasant Township vs. Aetna Life Insurance Co., 138
U. 8. 67, was a decision in which this Court refused
to follow the construction placed upon the law by the
State Court, although after an independent examina-
tion they reached the same conclusion. That was a
case in which the constitutionality of the Ohio statute
was brought in question; and the Supreme Court of
Ohio decided the law was repugnant to the Constitu-
tion of Ohio in Wyscaver vs. Atkinson, 37 O. S., 80.
After the bonds had been issued in a suit upon certain
of these bonds in the case above referred to in this
Court, Justice Brewer, on page 72, in delivering the
opinion of the Court, said:
“We are not concluded by that determination.
In matters of contract especially, the right of cit-
izens of different states to litigate in Federal
Courts of the various states is a right to demand
the independent judgments of those Courts. The
settled law in that respect is well stated in the
case of Burgess vs. Seligman, 107 U. S., 20, 33.”
18 SUFREME COURT OF THE UNITED STATES.
See also American and English Encyclopedia of Law,
Volume 27, page 600, and the notes and cases cited in the
notes.
Both the Circuit Court and the Circuit Court of
Appeals recognized and followed this rule of law, and
it seems to us there can be no dispute about the cor-
rectness of this proposition.
2.
The decisions of the Supreme Court of Ohio, prior to
the one announced in Young vs. The Lion Hardware
Company, in cases involving the same constitutional
questions, are certainly in conflict with that opinion,
and under the earlier decisions of that Court, we be-
lieve that the law now in question is constitutional,
and that the decision of Young vs. The Lion Hardware
Company is a departure from the settled construction
as theretofore announced by that Court.
If we are correct in this conclusion, then this is an
additional ground why this Court should consider
this question independently of the State Court.
Ohio Life Insurance & Trust Company vs. Debolt, 16
How. 482.
Douglass vs. Pike County, 101 U. >., 677.
It is true that the Supreme Court of Ohio had not
passed upon this section of the mechanics’ lien law,
as it had only been enacted in April, 1894, but they
had recognized other laws as being constitutional
which we insist were open to the same objection ax
the act now in question.
The cases of—
SUPREME COURT OF THE UNITED STATES. 19
Railway Company vs. Cronan, 38 O. 8. 182, and
Railway Company vs. McCoy, 42 O. 8. 251.
were actions to enforce liens in favor of those contrib-
uting labor or material to the construction of the rail-
way.
In Railway Company vs. Cronan, supra, Longworth,
Judge, in delivering the opinion of the Court on page
124, says,—
“The cause of action upon which suit was orig-
inally brought was created by the act of March
31, 1874 (71 Ohio Laws, 51), entitled ‘an act to
secure pay to persons performing labor and fur-
nishing materials in constructing railroads,’ and
the solution of the question raised in this Court
depends upon the proper construction of its
terms.” L
It is true the constitutionality of the enactment was
not mooted, although very able and distinguished
counsel represented the railroad company which was
opposed to the sustaining of the lien.
The same was true in Railway Company vs. McCoy,
supra.
As stated by counsel for Jones, et al., in their brief
in this case in the Circuit Court of Appeals:
“The power of the legislature to regulate con-
tracts and to point out the mode of their dis-
charge was recognized as early as the case of
Smith vs. Parsons, 1 Ohio, 236.”
Judge Burnet, in delivering the opinion of the
Court, on page 239, says,—
20 SUPREME COURT OF THE UNITED STATES.
“It is admitted that the states have not given
up the entire power of legislating on the subject
of contracts. . . . The legislature has a right by
law to regulate contracts, to determine their
effect and point out the mode of their discharge.
These laws are applied to all subsequent engage-
ments and fix the rights of the parties at the very
instant the contract is closed, so that the con-
tract in its inception, receives an impress from
the law, and the effect of the law being co-existent
with the contract, can never be said to alter or
impair it. It continued what it was at its com-
mencement; and it is more correct to say that the
law has in part made the contract than that it
has changed it.”
This language is cited with approval by the Su-
preme Court in the opinion of the Court delivered by
Judge Williams, in Weil vs. State, 46 O. 8. 450.
It is true that in these cases constitutional ques-
tions as affecting mechanics’ liens were not raised,
but the principle of law relied upon by the petitioner
in this case, as rendering the act under consideration
unconstitutional, was certainly passed on in these
cases, and adversely to the petitioner, and for this
reason this Court is not bound by the decision of the
Supreme Court in Young vs. The Lion Hardware Company.
3 & 4.
An examination of the decision of the Supreme
Court in the case of Young vs. The Lion Hardware
SUPREME COURT OF THE UNITED STATES. 2]
Company, will disclose that the decision is based upon
general constitutional law, and is not applied to any
particular or peculiar provision of the Ohio Constitu-
tion different from the Constitution of any other state
or the United States. It is based upon the broad
ground that it abridges the liberty of the citizen, and
interferes with his property rights.
Judge Lurton, in delivering the opinion of the
Court below, clearly points out this fact, and quotes
copiously from the decision of the Supreme Court to
show the correctness of this conclusion. (See pages
50 and 51 of the transcript in this case.)
He there says,—
“We have mede these copious extracts from
the opinion for the purpose of indicating that the
case did not turn upon any constitutional prin-
ciple peculiar to Ohio. The ‘rights’ supposed to
be violated are rights deemed fundamental under
all forms of popular and constitutional govern-
ment and like declarations are to be found in all
or most of our state Constitutions. The question
is, therefore, one of general law, having as much
reference to the Constitution of any other state
us to that of Ohio.”
“In the case of Whiting vs. Fond du Lac County,
25 Wis. 188, it was held that under the Con-
stitution of Wisconsin, a tax could not be con-
stitutionally laid in aid of the building of a rail-
road. The Supreme Court of the United States
refused to follow this as a decision obligatory
ee
2? SUPREME COURT OF THE UNITED STATES.
upon it in a case involving the validity of an act
of the Wisconsin legislature authorizing a tax in
aid of a railroad.
“Upon the question as to whether the decision
was one of local or general law the Court, in
Olcott vs. The Supervisors, 16 Wall, 678, 690, said:
“<This was a determination of no local ques-
tion, or question of statutory or constitutional
construction. It was not decided that the legisla-
ture had not general legislative power; or that
it might not impose or authorize the imposition
of taxes for any public use. Now, whether a use
is public or private is not a question of constitu-
tional construction. It is a question of general
law. It has as much reference to the constitu-
tion of any other state as it has to the State of
Wisconsin. Its solution must be sought, not in
the decisions of any single state tribunal, but in
general principles common to all Courts. The
nature of taxation, what uses are public and what
are private, and the extent of unrestricted legis-
lative power, are matters which, like questions of
commercial law, no state can conclusively deter-
mine for us. This consideration alone satisfies
our minds that Whiting vs. Fond du Lac County
furnishes no rule which should control our judg-
ment, though the case is undoubtedly entitled to
great respect.’ ”
As stated by counsel for Jones, et al.,—
es
SUPREME COURT OF THE UNITED STATES. 23
The decision of the Court was upon a part of the
constitution common to all constitutions, and its de-
cision had reference as much to the constitution of
one state as to another state, and attempted to pre-
scribe a rule of general constitutional construction,
applicable to the constitution of any other state or
even to the Constitution of the United States. This
is a question of general jurisprudence, and the Court
must decide it independently, and although mechan-
ics’ liens are statutory, yet being a part of the statute
lnw of almost every state and territory, and recog-
nized by congress as a part of the statute law of the
District of Columbia, the law applicable to them may
be considered in the same light as the principle reg-
ulating general commercial law, and therefore, in
cases of proper jurisdiction, the subject of the inde-
pendent interpretation and coustruction of the Fed-
eral Courts regardless of local decision, and local de-
cisions are not binding where they affect or construe
only the general powers of the legislature over the sub-
ject matter, and upon these grounds, this Court
should examine this act independently of the Supreme
Court of the United States, and should reach its own
independent conclusion as to its validity, and we in-
sist that any one of the foregoing reasons is sufficient
ground for that examination and decision.
We desire now to call attention to the act itself, and
to the arguments advanced by counsel for the peti-
tioner, and the grounds upon which they claim this
law is unconstitutional, as well as the authorities and
decisions upholding and enforcing such legislation.
ee EET eT
SUFREME COURT OF THE UNITED STATES.
IL.
As we understand the claim of counsel for the peti-
tioner, when reduced to its final analysis, their objec-
tion to the law is based upon the following grounds,—
Ist. That it deprives the owner of property of the
right of acquiring, possssing and protecting his prop-
erty and contracting in relation thereto.
2nd. It impairs the obligation of contract.
3rd. It deprives the owner of property without
due process of law.
4th. It is class legislation.
The first three propositions may be discussed to-
gether, as the decisions applicable to each are so
closely interwoven, that it is difficult to point out and
classify the decisions on each particular subject, with-
out overlapping into the other, and the same consti-
tutional principle covers all three instances.
The lien asserted and sought to be enforced by Sos-
man & Landis in their cross-bill, is for labor and ma-
terial furnished after the passage of the act of April
15th, °94,and the labor and material were all furnished
and the contract completed and the lien recorded and
established long prior to the decision of the Supreme
Court in Young vs. The Lion Hardware Company hold-
ing the act to be unconstitutional.
The contract having been made, executed and per-
formed, during the time this law stood upon the stat-
ute books of the State of Ohio, as the law of Ohio, the
law must therefore be considered as forming a part
a ———e
SUPREME COURT OF THE UNITED STATES. 2
of the contract, and it does not deprive the petitioner
of its property, without due process of law, nor does
it impair the obligation of its contract.
As is well stated by the Supreme Court of Ohio in
Smith vs. Parsons, 1 Ohio, supra,—the contract itself
receives an impress from the law, and the law has in
part made the contract.
Judge Burnet, in delivering the opinion of the
Court, says,—
“These laws are applied to all subsequent en-
gagements, and fix the rights of the parties at the
very instant the contract is closed, so that the
contract, in its inception, receives an impress
from the law, and the effect of the law being co-
existent with the contract, can never be said to
alter or impair it. It continues what it was at
its commencement; and it is more correct to say
that the law has in part made the contract, than
that it has changed it.”
And on page 238, he says,—
“Although a state legislature can not pass laws
impairing contracts, yet they may regulate them,
prescribe their form, their effect and the mode of
their discharge, and every contract is supposed to be
made with reference to those laws.”’
And on page 239 he clearly points out the reason
upon which this principle of law is based.
In Weil vs. The State, 46 O. S. 450, Judge Williams
in delivering the opinion of the Court, after quoting
from the language of Judge — already pointed
out, on page 452 says,—
26 SUPREME CCURT OF THE UNITED STATES.
“Persons contracting after the passage of the
statute, could not know the law was one impairing
the obligation of contracts in the sense of the
constitution, but as an act regulating future con-
tracts and defining their effect.”
And on page 453, in quoting from Judge Burnet in
the same case, he says,—
“Instead of determining the validity of the
statute by reference to the alleged intention of
the parties to the contract, we must fix the ‘legal
intent of the parties, as well as the nature and
extent of the obligation of the contract by refer-
ence to the statute.’ And again, — “Contracts
must be expounded according to the law in force
at the time they were made; and the parties are
as much bound by a provision contained in a law,
as if that provision had be-n inserted in, and formed
part of the contract.’’
In Smith et al. vs. Newbauer et al., 144 Ind., 95, the
Court say in the first paragraph of the syllabus,—
“Section 7257 R. S., 1894, providing that a me-
chanics’ lien may be acquired, by filing in the
recorder’s office a notice of intention to hold the
lien, within sixty days after performing labor or
furnishing material, is not unconstitutional as
depriving the owner of his property without due
process of law.”
This Court will observe that the law under consid-
eration was very similar to the Ohio law, and it was
certainly open to all the objections that can be raised
SUPREME COURT OF THE UNITED STATES. 27
on constitutional grounds against the Ohio law. The
same argument was made in that case, as is made by
the petitioners in the case at bar. They vigorously
asserted that that law prevented the owner from pay-
ing cash for his bui
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