Respondents Brief — Great Southern Fire Proof Hotel Company v. Benjamin F. Jones and Sosman & Landis

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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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Respondents Brief — Great Southern Fire Proof Hotel Company v. Benjamin F. Jones and Sosman & Landis · 177 U.S. 449 | Frix