# Respondents Brief — Great Southern Fire Proof Hotel Company v. Benjamin F. Jones and Sosman & Landis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0479%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1899 - **Citation:** 177 U.S. 449 ## Text 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0479%3A4. Public record. Not legal advice.