# Respondents Brief — Great Southern Fire Proof Hotel Co. v. Jones

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1904
- **Citation:** 193 U.S. 532

## Text

(18,745)
SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1903.
No. 165.

THE GREAT SOUTHERN FIRE-PROOF HOTEL

COMPANY,
PETITIONER,

vs.

BENJAMIN F. JONES ET AL.,
RESPONDENTS.

BRIEF FOR RESPONDENTS.

The controversy in this cause presents but two questions :

1. On the record of this case is this court bound to follow the
decision of the Supreme Court of Ohio declaring the statute in

question unconstitutional?
2. Does that statute contravene any provision of the Consti-

tution of Ohio?

Our contention is that both these questions should be emphatically
answered in the negative.

4

Inasmuch as we claim that the respondents made the contract and
furnished materials as required thereby on the faith of the statute,
and before it had been overthrown by the Supreme Court of Ohio.
and inasmuch as counsel for petitioner intimates that materials under
respondents’ contract were furnished while the statute was under
fire, and at least weakened by the decision of a Circuit Court of that
state, we consider it well to array certain facts in their chronological
order at this point.

1. The law in question was passed April, 1894.

2. The contract for building the hotel between the petitioner and
McClain, the principal contractor, was made October 10, 1894.
(Brief for Petitioner, p. 4.)

3. The contract between respondents and McClain, December 13,
1894. (Brief for Petitioner, p. 4.)

4. The last item of material was furnished under the latter con-
tract January 28, 1896. (Record, p. 10.)

(All the material under this contract was furnished during the
year 1895, except two items aggregating $350.49.)

5. Affidavit for lien under the statute filed April 21, 1896. (Brief
for Petitioner, p. 5.)

6. Decision of Circuit Court of Putnam county against the law,
November 15, 1895.

7. Decision of the Circuit Court of Clark county, sustaining the
law, December 14, 1895.

( The dates of these decisions of the Circuit Courts have been ascer-
tained from the records filed in the Supreme Court of Ohio, and will
not be disputed.)

8. Decision of the Supreme Court of Ohio, overthrowing the law,
December 8, 1896. (55 Ohio State Rep., 423.)

Were we at liberty to indulge the absurd theory that the respond-
-ents were presumed to have notice of the pendency of the actions, and
the decisions of these inferior courts construing the statute in
question, then instead of being put upon their guard against furnish-
ing what little balance of materials there was remaining to be fur-

5

nished under their contract, they would have found that one of these
courts had declared against the law, and the other of equal authority
in its favor. The latter decision was the one favorable to the law,
and it is to be presumed that it had before it the conclusion reached
by the other court, its reasons therefor, and that those reasons were
pronounced unsound and the conclusion wrong. It is unnecessary to
dwell further upon this point.

It is suggested by the other side, page 61 of the brief that—
“There is no showing that their (Jones’ and Laughlin’s)
claims could not be collected by law from McClain without re-
lying upon the lien.”
Learned counsel have overlooked the averment of the amended bill
where it is expressly alleged, in the sixth paragraph:
“that on the first day of August, 1896, the said William J. Mc-
Clain made and filed in the Probate Court of Franklin County,
Ohio, a deed of assignment for the benefit of his creditors to
F. Burt Milligan; that said William J. McClain is wholly in-

solvent and unable to pay the claims of your said orators.”
(Record, p. 5.)

The answer to the amended bill is found on pages 12-14 of the
record, and there is no denial of this allegation, either general or

specific.

This Court not bound by the decision of the Ohio Supreme
Court.

Taking up the two questions here presented in the order stated, we
maintain that the decision of the Supreme Court of Ohio, above re-
ferred to, is not binding upon the United States Courts for the fol-
lowing reasons :

1. The cause of action set out in the amended bill accrued before
the decision of the Supreme Court of Ohio was rendered or an-
nounced.

6

2. 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 accrued before such former decisions were reversed
by the holding in Young vs. The Lion Hardware Company.

3. The constitutional question is one of general constitutional law,
not peculiarly applicable to the Constitution of the State of Ohio,
but equally applicable to any and all Constitutions, including State
and Federal.

4. The question is one of general jurisprudence and commercial
law.

i.

Respondents were non-residents of the State of Ohio when they
examined the statutes and ascertained their rights before
making their contract and furnishing the labor and material,
and had the right to presume that the statute was consti-
tutional, and that their rights would be protected thereunder, and
under these circumstances, we think that the decisions of this Court
have clearly established that this Court will act independently of the
Ohio Court, and while giving due weight to its decision, will still
of itself and independently of the Ohio Court, decide whether or not
said law was in fact unconstitutional.

In Burgess vs. Seligman, 107 U. S., 20, Justice Bradley, speaking
for the Court, on page 33 says:

“When contracts and transactions have been entered into,
and rights have accrued thereon under a particular state of the
decisions, or where there has been no decision of the state
tribunals, the Federal Courts properly claim the right to adopt
their own interpretation of the law applicable to the case, al-
though a different interpretation may be adopted by the State
Courts after such rights have accrued.”

And after stating that the Courts of the United States will en-
deavor to avoid any unseemly conflict with the well-considered de-
cisions of the State Court, he says:

7

“As, however, the very object of giving to the national
Courts jurisdiction to administer the laws of the States in con-
troversies between citizens of different states, was to institute
independent tribunals which it might be supposed would be un-
affected by local prejudices and sectional views, it would be a
dereliction of their duty not to exercise an independent judg-
ment in cases not foreclosed by previous adjudication.”

In Anderson vs. Santa Anna Tp., 116 U. S., 356, Justice Harlan,
on page 362, in delivering the opinion of the Court, says:

“In Burgess vs. Seligman, 107 U. S., 20, 33, the Court had
occasion to re-examine all its prior adjudications concerning the
obligation of the Federal Courts, to follow the decisions of the
State Courts upon questions of local law. Mr. Justice Bradley,
speaking for the whole Court, after observing that the Federal
Courts had an independent jurisdiction in the administration of
state laws co-ordinate with and not subordinate to that of the
State Courts, and are bound to exercise their own judgment as
to the meaning and effect of these laws, said: ‘So when con-
tracts 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 Fed-
eral Courts properly claim the right to adopt their own inter-
pretation 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 confusion, the Federal Courts will lean
to an agreement of views with the State Courts if the question
seems to them balanced with doubt.’ Any other rule, it was
further said, would defeat ‘the very object of giving to the
National Courts jurisdiction to administer the laws of the states
in controversies between citizens of different states.’ ”

Judge Lurton, in delivering the opinion of the Circuit Court of
Appeals below, reported 86 Fed., 370, at page 372, referring to the
case of Young vs. The Lion Hardware Company, 55 Ohio State,

423.

“Does that decision furnish a rule of decision which is obliga-
tory upon Courts of the United States? When a citizen of one
state enters into a contract with a citizen of another, he acquires
the constitutional right to have that contract 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 de-

8

cision, for the judiciary act requires that the laws 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 ascertained and enforced, does not, under all circumstances,
furnish a rule of decision obligatory upon courts of the United
States. The question is, when do they apply? In the past, this
inquiry has involved no little friction between the Courts of the
Union and those of the states. But the final arbiter of all such
constitutional questions is the Supreme Court of the United
States. So far as the inquiry is pertinent to the decision which
must be here made, that Court has in an authoritative way de-
cided :

“1. That such decisions are not necessarily obligatory upon
Courts of the United States where they effect contracts which
were valid under the Constitution and laws of the state as in-
terpreted and enforced by its highest judicial tribunals at the
time they were entered upon.

Rowan vs. Runnels, 5 How., 134.

Ohio Life and Trust Co. vs. Debolt, 16 How., 432.
Gelpcke vs. The City of Dubuque, 1 Wall., 175.

Olcott vs. The Supervisors, 16 Wall., 678.

Taylor vs. Ypsilanti, 105 U. S., 60.

Douglass vs. County of Pike, 101 U.S., 677,
Louisville Trust Co. vs. Cincinnati, 47 U. Sy pp. 36, 46.

“In Rowan vs. Runnels, supra, Chief Justice Taney said:
‘Undoubtedly this court will always feel itself bound to respect
the decisions of the State Courts, and from the time they were
made regard them as conclusive in all cases upon the construc-
tion 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.’

“In Douglass vs. County of Pike, cited above, the Court, after
reviewing the preceding cases, cecided by that Court, said: |
‘The true rule is to give a change of judicial construction 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 retro-
active. After a statute has been settled by judicial construc-
tion, 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

9

the same in its effect on contracts as an amendment of the law
by means of a legislative enactment.’

“2. Neither are such decisions obligatory upon Courts of the
United States when thereby the validity of contracts between
a citizen of the state and a citizen of another state is affected
which were executed before there was any judicial construction
of the statute or constitution which seemed to authorize the con-
tract in question.

Burgess vs. Seligman, 107 U. S., 20-33.
Pleasant Township vs. Aetna L. Ins. Co., 138 U. S., 67-72.
Louisville Trust Co. vs. Cincinnati, 47 U.S. A., pp. 36-47.”

We call especial attention to the opinion of Judge Lurton, in dis-
cussing this proposition of law, on page 373, of 86 Fed.
The same rule of law is recognized in Miller vs. Ammon, 145 U.
S., 421, in the opinion of the court on page 423, where
Burgess vs. Seligman, 107 U. S., 20;
Carroll County vs. Smith, 111 U.S., 556;
Gibson vs. Lyon, 115 U. S., 439, and
Anderson vs. Santa Anna Township, 116 U. S., 356,
are cited as instances in which this court did not consider itself bound
by the decisions of the state courts.
In Burges vs. Seligman, supra, Justice Bradley, in delivering the
opinion of the court, said:

“We do not consider ourselves bound to follow the decision
of the state courts in this case.”

Pleasant Township vs. Aetna Life Insurance Co., 138 U. S. 67,
was-a decision in which this court refused to follow the construction
placed upon the law by the state court, although after an independent
examination they reached the same conclusion. That was a case in
which the constitutionality of the Ohio statute was brought in ques-
tion; and the Supreme Court of Ohio decided the law was repug-
nant to the Constitution of Ohio in W yscaver vs. Atkinson, 37 O. S,
80. After the bonds had been issued, in a suit upon certain of these
bonds in the case above referred to in this court, Justice Brewer, on
page 72, in delivering the opinion of the court, said:

10

“We are not concluded by that determination. In matters of
contract especially, the right of citizens of different states to
litigate in federal courts of the various states is a right to de-
mand the independent judgments of those courts. The settled
law in that respect is well stated in the case of Burgess vs,

Seligman, 107 U. S., 20, 33.”

See also American and English Encyclopedia of Law, Volume 27,
page 600, and the notes and cases cited in the notes.

Both the Circuit Court and the Circuit Court of Appeals recog-
nized and followed this rule of law, and it seems to us there can be
no dispute about the correctness of this proposition.

2

The decisions of the Supreme Court of Ohio, prior to the one
announced in Young vs. The Lion Hardware Company, in cases in-
volving the same constitutional questions, are certainly in conflict
with that opinion, and under the earlier decisions of that Court, we
believe that the law now in question is constitutional, and that the de-
cision of Young vs. The Lion Hardware Company is a departure
from the settled construction as theretofore announced by that
Court.

If we are correct in this conclusion, then this is an additional
ground why this Court should consider this question independently
of the State Court.

Ohio Life Insurance & Trust Company vs. Debolt, 16 How.,

432.
Douglass vs. Pike County, 101 U. S., 677.

It is true that the Supreme Court of Ohio had not passed upon
this section of the mechanics’ lien law, as it had only been enacted in
April, 1894, but they had recognized other laws as being constitu-
tional which we insist were open to the same objection as the act now
in question.

I!

The cases of—

Railway Company vs. Cronan, 38 O. S. ¢ and
Railway Company vs. McCoy, 42 O. S. 251,

were actions to enforce liens in favor of those contributing labor or
material to the construction of the railway.

In Railway Company vs. Cronan, supra, Longworth, Judge, in
delivering the opinion of the Court on page 124, says,—

“The cause of action upon which suit was originally brought
was created by the act of March 31, 1874, (71 Ohio Laws, 51).
entitled ‘an act to secure pay to persons performing labor and
furnishing materials in constructirig railroads,’ and the solution
of the question raised in this Court depends upon the proper con-
struction of its terms.”

It is true the constitutionality of the enactment was not mooted, al-
though very able and distinguished counsel represented the railroad
company which was opposed to the sustaining of the lien.

The same was true in Railway Combany vs. McCoy, supra.

As well stated by other counsel for Respondents :

“The power of the legislature to regulate contracts and to
point out the mode of their discharge was recognized as early
as the case of Smith vs. Parsons, 1 Ohio, 236.”

Judge Burnet, in delivering the opinion of the Court, on page 239,
says,—

“It is admitted that the states have not given up the entire
power of legislating on the subject of contracts.... The legis-
lature 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 continued what it was at
its commencement ; and it is more correct to say that the law has
in part made the contract than that it has changed it.”

This language is cited with approval by the Supreme Court in the
opinion of the Court delivered by Judge Williams, in Weil vs. State,
46 O. S. 450.

12

It is true that in these cases constitutional questions as affecting
mechanics’ liens were not raised, but the principle of law relied upon
by the petitioner, in this case, as rendering the act under considera-
tion unconstitutional, was certainly passed on in these cases, and
adversely to the petitioner, and for this reason this Court is not bound
by the decision of the Supreme Court in Young vs. The Lion Hard-
ware Company.

3 and 4.

An examination of the decision of the Supreme Court in the case
of Young vs. The Lion Hardware Company, will disclose that the
decision is based upon general constitutional law, and is not applied
to any particular or peculiar provision of the Ohio Constitution
different from the Constitution of any other state or the United
States. It is based upon the broad ground that it abridges the liberty
of the citizen, and interferes with his property rights.

Judge Lurton, in delivering the opinion of the Court below, clearly
points out this fact, and quotes copiously from the decision of the
Ohio Supreme Court to show the correctness of his conclusion. On
Pp. 376, 377 in his opinion, 86 Fed., he says :—

“We have made these copious extracts from the opinion for
the purpose of indicating that the case did not turn upon any .
constitutional principle pecitliar toOhio. The‘rights’ supposed to
be violated are rights deemed fundamental under all forms of
popular and constitutional government and like declarations are
to be found in all or most of our state Constitutions. The ques-
tion is, therefore, one of general law, having as much reference
to the Constitution of any other state as to that of Ohio.”

“In the case of Whiting vs. Fond du Lac County, 25 Wis.
188, it was held that under the Constitution of Wisconsin, a tax
could not be constitutionally laid in aid of the building of a
railroad. The Supreme Court of the United States refused to
follow this as a decision obligatory upon it in a case involving
the validity of an act of the Wisconsin legislature authorizing
a tax in aid of a railroad.

“Upon the question as to whether the decision was one of
local or general law the Court, in Olcott vs. The Supervisors, 16
Wall, 678, 690, said:

13

“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 authorize the imposition of taxes for
any public use. Now, whether a use is public or private is not
a question of constitutional law. It is a question
of general law. It has as much reference to the con-
stitution of any other state as it has to the State of Wisconsin.
Its solution must be sought, not in the decisions of any single
state tribunal, but in general principles common to all Courts.
The nature of taxation, what uses are public and what are
private, and the extent of unrestricted legislative power, are
matters which, like questions of commercial law, no state can
conclusively determine for us. This consideration alone satisfies
our minds that Whiting vs. Fond du Lac County furnishes no
rule which should control our judgment, though the case is un-
doubtedly entitled to great respect.’ ”’

The decision of the Court was upon a part of the constitution
common to all constitutions, and 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, applicable
to the constitution of any other state or even to the Constitution of
the United States. This is a question of general jurisprudence, and
the Court must decide it independently, and although mechanics’
liens are statutory, yet being a part of the statute law of almost every
state and territory, and recognized by congress as a part of the
statute law of the District of Columbia, the law applicable to them
may be considered in the same light as the principle regulating gen-
eral commercial law, and therefore, in cases of proper
jurisdiction, the subject of the independent interpretation
and construction of the Federal Courts regardless of local decision,
and local decisions are not binding where they affect or construe
only the general powers of the legislature over the subject matter,
and upon these grounds, this Court should examine this act and
reach its own independent conclusion as to its validity, and we insist
that any one of the foregoing reasons is sufficient ground for that

examination and decision.

14

Perhaps the latest expression of this court on the question now
before us is found in the case of Board of Comm'rs of Stanly Co. v.
Coler & Co., 190 U. S., 437. The second syllabus of that case is
as follows:

“Federal courts, in determining the validity, in the hands of
bona fide purchasers, of county bonds issued in aid of railroad
construction under the authority of N. C. Code, Sections 1996-
1999, are not bound by the construction given such statute by
a decision of the highest state court subsequent to such pur-
chase, but will exercise an independent judgment as to the
meaning.”

Quoting from the opinion by Mr. Justice McKenna, the following
language is to the point:

“To this case the respondents oppose the contentions that its
(the Supreme Court of North Carolina’s) interpretation of the
Constitution and Code sections is (1) incorrect, and this in-
volves the further contention that we may exercise an independ-
ent judgment of them; * * * Pretermitting consideration
of the other conditions for a time, we are brought to the con-
tention of the respondents, that we are not constrained to follow
the opinion of the Supreme Court of North Carolina.

“The general rule undoubtedly is that we accept the inter-
pretation put by the state courts upon the state constitutions
and statutes. There are exceptions to the rule, and the case at
bar presents one of them. The rule and its exceptions are stated
in Burgess v. Seligman, 107 U.S.,20,27, L. Ed.359, 2 Sup. Ct.
Rep. 10, and the many cases by which the rule was sustained are
collected in a note on page thirty of the opinion. In that case
a statute of Missouri provided that the stockholders of a cor-
poration at its dissolution were liable for its debts. It also
provided that no person holding stock as executor, etc., or hold-
ing stock as collateral security, should be personally liable, but
the persons who pledged the stock should be considered as hold-
ing the same, and be liable. The Supreme Court of Missouri
held that the exemption of the statute did not extend to persons
receiving from the corporation itself stock as collateral se-
curity. This court decided to the contrary, and held that it
was not bound to follow the decision of the Supreme Court of
the state. The question presented was regarded as one of com-
mercial law and general jurisprudence, and the right to exercise
our own judgment was asserted. It was said that state de-
cisions were to be followed when they had become a rule of

15

property, and that ‘this is specially true with regard to the law
of real estate and the construction of state constitutions and
statutes. Such established rules are always regarded by the
federal courts, no less than by the state courts themselves, as
authoritative declarations of what the law is. But where the
law has not been thus settled it is the right and duty of the
federal courts to exercise their own judgment, as they also al-
ways do in reference to the doctrines of commercial law and
general jurisprudence. 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.’ ”

We desire now to call attention to the act itself, and to the argu-
ments advanced by counsel for the petitioner, and the grounds upon

which they claim this law is unconstitutional, as well as the au-
thorities and decisions upholding and enforcing such legislation.

II.

Was the law in question unconstitutional?

As we understand the claim of counsel for the petitioner, when
reduced to its final analysis, their objection to the law is based upon
the following grounds,—

st. That it deprives the owner of property of the right of ac-
quiring, possessing and protecting his property and contracting in
relation thereto.

2nd. It impaires the obligation of contract.

3rd. It deprives the owner of property without due process of
law.

4th. It is class legislation.

The first three propositons may be discussed together, as the de-
cisions applicable to each are so closely interwoven, that it is difficult
to point out and classify the decisions on each particular subject,

16

without overlapping into the other, and the same constitutional prin-
ciple covers all three instances.

The lien asserted and sought to be enforced is for labor and ma-
terial furnished after the passage of the act of April 13th, ’94, and
the labor and material were all furnished and the contract completed
and the lien recorded and established long prior to the decision of
the Supreme Court of Ohio in Young vs. The Lion Hardware Com-
pany holding the act to be unconstitutional. .

The contract having been made, executed and performed, during
the time this law stood upon the statute books of the State of Ohio,
as the law of Ohio, the law must therefore be considered as form-
ing a part of the contract, and it does not deprive the petitioner of
its property, without due process of law, nor does it impair the ob-
ligation of its contract.

As is well stated by the Supreme Court of Ohio in Smith vs.
Parsons, 1 Ohio, supra,—the contract itself receives an impress from
the law, and the law has in part made the contract.

Judge Burnet, in delivering the opinion of the Court, says,—

“These laws are applied to all subsequent 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 correct to say
that the law has in part made the contract, than that it has
changed it.”

And on page 238, he says,—

“Although a state legislature can not pass laws impairing
contracts, yet they may regulate them, prescribe their form,
their effect and the mode of their discharge, and every contract
is supposed to be made with reference to those laws.”

And on page 239 he clearly points out the reason upon which this
principle of law is based.

In Weil vs. The State, 46 O. S. 450, Judge Williams in deliver-
ing the opinion of the Court, after quoting from the language of
Judge Burnet, already pointed out, on page 452 says,—

17

“Persons contracting after the passage of the statute, could
not know the law was one impairing the obligation of contracts
in the sense of the constitution, but as an act regulating future
contracts and defining their effect.”

And on page 453, in quoting from Judge Burnet in the same case,
he says,—

“Instead of determining the validity of the statute by refer-
ence to the alleged intention of the parties to the contract, we
must fix the legal intent of the parties, as weil as the nature and
extent of the obligation of the contract by reference to the
statute.’ And again,—‘‘Contracts must be expounded accord-
ing to the law in force at the time they were made; and the par-
ties are as much bound by a provision contained in a law, as
if that provision had been imserted in, and formed part of the
contract.”

In Smith et al. vs. Newbauer et al., 144 Ind., 95, the Court says
in the first paragraph of the syllabus,—

“Section 7257 R. S., 1894, providing that a mechanics’ lien
may be acquired, by filing in the recorder’s office a notice of in-
tention to hold the lien, within sixty days after performing
labor or furnishing material, is not unconstitutional as depriv-
ing the owner of his property without due process of law.”

This Court will observe that the law under consideration was very
similar to the Ohio law, and it was certainly open to all the objec-
tions that can be raised on constitutional grounds against the Ohio
law. The same argument was made in that case, as is made by the
petitioners in the case at bar. They vigorously asserted that that
law prevented the owner from paying cash for his building, or pay-
ing for it in advance or paying for it with other property, and made
all the other questions that are argued by counsel for the petitioners
in the case now before this Court.

Judge Howard, in delivering the opinion of the Court, on page
96, says,—

“In support of the demurrer to the complaint, it is first con-
tended that the mechanics’ lien law in this state is invalid, as
repugnant to Section 1, Article XIV of the Constitution of the
United States, which provides that no state shall deprive any

18

person of life, liberty or property, without due process of
ee Fe

In discussing this question farther on in the opinion, he says,—

“It has often been held that every statute under which a con-
tract 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 knowl-
edge of, and are bound by all the provisions of our mechanics’
lien laws then in force. By the terms of the agreement entered
into, the contractors 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
the ground upon which it was to be erected, would be liable to
a lien for the value of the materials so furnished.”

On page 98, he says,—

“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 inconven-
ience, or induce the contractor to bid higher for 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 legislature, and not to the courts. Besides, it is to be re-
membered that without the right to a lien on the property, la-
borers 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,
sufficient 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 and 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 material, and it is but just that he should be
charged, for at least sixty days, with the responsibility of see-
ing that they are paid for.”

In this case, there was a petition for a rehearing, and after a care-
ful and full consideration, the original decision of the Court was
sustained and upheld.

*
19

Judge Howard, in delivering the opinion of the Court, on the
petition for rehearing, on page 102, says,—

“We were of opinion that the validity of the mechanics’ lien
law of this state was fuliy considered and affirmed in the orig-
inal opinion. That law does not provide for depriving an
owner of his property without his consent. On the contrary,
the law which enters into and forms a part of his building con-
tract, is notice to him that his land, and the building to be
erected thereon, are liable to a lien for the value of the labor
and materials which may enter into its construction. He
voluntarily contracts for this labor and material with notice
from the statute of the inchoate lien thereby authorized. The
statute, moreover, in the interest of the owner prevents the
fixing of the lien unless notice be given him within sixty days
from the time of the furnishing of the labor and material. His
property is therefore not taken without due process of law.
See Colter vs. Frese, 45 Ind., 96.”

The provision for obtaining the lien under the Indiana statute was
the same as that in the Ohio statute, to-wit, by filing a sworn state-
ment with the recorder, setting out the labor and material as re-
quired by the statute, the only difference being that in Ohio, he had
120 days to do this, while in Indiana he had 60.

Judge Howard, in this opinion, on pages 102-3, cites Section
33-a of Phillips on Mechanics’ Liens (3d Ed.), with approval. It
is there held that the owner may by contract or indemnity bond,
protect himself against double payment for such labor and material.

Citing,—

Mallory vs. LaCrosse Abbatoir Co., 80 Wis. 170, and also
distinguishes the case of Sprey Lumber Company vs. Sav-
ings Bank Company, 77 Mich., 199.

At the bottom of page 103 he says,—

“The statute in the case at bar, however, is one with refer-
ence to which appellants entered into their building contract,
and according to which they consented to the lien that fol-
lowed. Such consent included an agreement that those who
should furnish to the contractors and subcontractors, the ma-
terial which should go into the building, might have sixty days
after furnishing the same, within which to give notice of their

20

intention to hold such lien. We have no doubt of the constitu-
tionality of the law.”

In Colter vs. Frese, 45 Ind. 96, cited by Judge Howard in the
opinion above quoted, the validity of an act such as the one now in
question, was ably sustained and upheld by Judge Warren, who
delivered the unanimous opinion of the Court.

The opinion of the Circuit Court of Appeals, as delivered by
Judge Lurton, reported in 86 Fed. 370, contains such a full, com-
plete and exhaustive discussion of this whole question, that it hardly
seems necessary to cite further authority on this subject. We have
endeavored, however, to call attention to a few recent decisions that
were not mentioned in that opinion, some of which have been made
since this case was decided in the Court below.

In Title Guarantee & Trust Company vs. Wrenn, 56 Pac. Rep.
271, the Supreme Court of Oregon say in the first paragraph of the
syllabus,—

“Code Section 3672, providing that where improvements
are constructed on lands with the owner’s knowledge, the inter-
est of the owner shall be subject to lien unless within three
days after notice of the construction he gives notice, in writing,
posted on the land, that he will not be responsible for the im-
provement, is not unconstitutional, on the ground that it per-
mits a lien to attach without the consent of the owner, since it
only prescribed what shall be evidence of the owner’s consent.”

The provision of the Oregon statute was challenged in that case,
on the ground that it was unconstitutional, because it permitted the
contractor or subcontractor to obtain a lien without the authority or
consent of the owner.

The Court say in delivering the opinion,—

“Similar provisions of mechanics’ lien laws have been sus-
tained and enforced even in the state to whose reports we are
referred for counsel’s leading authority. See

W heaton vs. Berg, 50 Minn., 525.
Lumber Company vs. Newkirk, 80 Cal. 27§

“ * * * So that we conclude this section is not open
to the constitutional objection urged.”

21

In Albright vs. Smith et al., 3 S. Dak. 631, the Court say in the
syllabus,—

“By Section 5470 Comp. Laws, a subcontractor is entitled to

a lien as defined in the preceding section, for labor done or ma-

terial furnished, if within sixty days after the doing of the

labor or the furnishing of material he files with the clerk of

the Circuit Court of the proper county or subdivision the ac-
count of the demand due him as therein provided.”

“2. Such lien within the limit of the contract price be-
tween owner and contractor, may be enforced irrespective of
the state of the account between the owner and the contractor,
or the amount due or unpaid upon such contract.”

“3. So construed, said Section 5470 is not unconstitutional,
as impairing the obligation of the contract between the owner
and the contractor.”

Kellam, Judge, in delivering the opinion of the Court on page
| 632 says,—
| “The former opinion of this Court may be found in 2 S. D.

577, where the questions then considered as controlling in the
case, were discussed at length.”

Upon referring to that decision this Court will find that that
Court say in the syllabus,—

“1. A subcontractor who furnishes materials, lumber or
labor, not to the owner, but to the contractor for the erection of
a new building, can, under the provisions of Section 5469,
5470 Comp. Laws, acquire and enforce a lien on the building,
and on the interest of the owner of the real estate on which the
building stands, to the extent of the value or the price agreed
to be paid by the contractor for the material, lumber or labor
furnished.

“3. If a subcontractor files his claim within sixty days
after he has furnished the material or performed the labor, he is
entitled to his lien without any further notice than such filing
may give the owner.

“4. It is not the contract between the original contractor
and the owner which supports the lien under the statute, but it
is the use of the material and work upon the premises—the
putting of them into the building and attaching them to the free-
hold, whereby the owner is benefited by them, which entitles
the party furnishing them to a lien to the extent of their value,”

—

Bennett, Judge. in delivering the opinion of the Court, after dis-
cussing the facts in the case and making the statement that the
question was before that Court on questions of law only, on page
583 says,—

“A large number of assienmens of error was made, but the
questions involved in the bill and arising on the errors assigned,
were as follows,—

2. Are Sections 5469, 5470 Comp. Laws constitutional,
when construed to allow subcontractors a lien by simply show-
ing a compliance therewith by filing a claim for a lien with the
clerk of the Court within sixty days after the last material was
furnished, and without presenting or serving the owner with a
statement or copy thereof within thirty days after the last of
such materials were sold and furnished?....This action is
based upon the following section of our code, relating to me-
chanics’ liens: ‘Section 5469. Every mechanic or other per-
son who shall do any labor upon, or furnish any material, ma-
chinery or fixtures for any building, erection or other improve-
ments by virtue of any contract with the owner, his agent, trus-
tee, contractor or subcontractor, upon complying with the pro-
visions of this chapter, shall have for his labor done or material,
machinery or fixtures furnished, a lien upon such building,
erection or improvement, and upon the land belonging to the
owner on which the same is situated, to secure the payment of
such labor done, or material, machinery or fixtures fur-
me et * *

“ ‘Section 5470. Every subcontractor, wishing to avail him-
self of the benefits of this chapter, shall within sixty days after
the material shall have been furnished, or labor performed, file
with the clerk of the District Court of the county, or the ju-
dicial subdivision in which the building, erection or other im-
provements to be charged with the lien is situated, a just and
true account of the demand due him, after allowing all credits,
and containing a correct description of the property to be
charged with said lien, and verified by affidavit; but a failure to
file the same within the time aforesaid shall not defeat the lien,
except as against purchasers or incumbrancers in good faith
and without notice, whose right accrued after sixty days, and
before any claim for the lien was filed, or against the owners,
except the amount due the contractor at the time of filing the

’ >

same,

22

“

—

23

It was claimed in this case, as in the case at bar, that this statute
deprived the owner of his property without due process of law, and
impaired the obligation of the contract, and for that reason was un-
constitutional.

Judge Bennett, on page 587 of the opinion, says,—

“The appelant further contends that if the lien law should be
so construed as to give a lien to the respondents, without giving
the owner notice, it impairs the obligation of the original con-
tract and operates to effect the taking of appellant's property
without due process of law, and is void because unconstitution-
al. * * ™* In answer to this, we would say that the lia-
bility of the owner of the building, which is being erected or
repaired, to pay a subcontractor for labor performed or ma-
terials furnished, is not placed on the ground of the contract
made with the owner by the person performing the labor or fur-
nishing the material, because usually there is no such contract
between them, but upon the ground that as the labor and ma-
terial contributed to the erection or reparation of the building
of which the owner receives the benefit, the law imposes upon
him the responsibility for sixty days, at least, of seeing that
the claims are paid. * * * It prevents the owners of real
estate from securing to themselves, without compensation, the
benefits of the labor and materials of others, by means of low
contracts with irresponsible or perhaps dishonest contractors.
Were it otherwise, however, and the lien operated directly upon
the contract, it could not have the effect contended for by the
appellant.

“When a contract is entered into by the parties, it is not the
contract which creates the lien under the statute, but it is the
use of the materials and work upon the premises, the putting
of them into the building, and attaching them to the free-hold,
which entitles the party furnishing them to a lien to the extent
of their value. Further, it is a well known and elementary
principle that contracts must be expounded according to the law
in force at the tirae they were made. The law under which a
contract is made is a part of the contract, as much as though
it were incorporated into it. When appellant contracted with
defendants, Smith Brothers, whereby he contracted to pay them
for the erection of the building, as it progressed, and did so, it
was at his risk; for the law, which was a part of the contract,
said. ‘If there are subcontractors who have furnished material
and performed work for this contractor, they shall have their
full pay ; if the contractor does not pay them, the owner of the

24

building must pay them; if he does not, they shall have a lien

upon the building for sixty days at least to enforce their pay-
ment.’ The inconveniences of the law do not seem to us to be in-
superable. They are based upon the real or supposed hardship

that in many instances it subjects the owner to the liability of
making double payments for the same work or material, and
prevents him from making contracts for the erection of build-

ings and the furnishing of materials to be paid for otherwise |
than in money, and many other similar inconveniences. These
might have much force if addressed to the legislature, the law-
making power, and we may have very serious doubts as to the
policy or the necessity of such a law, and we can, with pro-
priety, recommend to the legislature that it would be wise and
beneficial that it should be changed in this particular, yet these |
considerations can not have much weight against the clear and |
unequivocal terms of the statute. Still, if these inconveniences
exist, they can Fae be provided against at the time the con-

tract is made. The owner can protect himself by a bond or
other security, or may make such a contract as will allow him

to withhold from the contractor for a period of sixty days after

the completion of the work, enough to protect the property
from liens for work or material performed or furnished by per-

sons other than the original contractor. There are many other
states whose mechanics’ lien laws are similar in their main
features to ours, and many of them have been construed by the
Supreme Courts of those states, and those decisions are in har-
mony with the conclusions herein enunciated.”

Citing,—
Gardner vs. Leck, 44. N. W. 1120;

Donahy vs. Clapp, 12 Cush. 440;
Parker vs. Bell, 7 Gray 429,

and many other cases.

In the case of Gardner vs. Leck, supra, the Court, in answer to
the argument that such a lien law amounts to the taking of prop-
erty without due process of law, and interferes with the owner's

right and freedom of contract, says,—

“This question is not a new one, but has been frequently
raised and met in the case of lien laws in various states which
contain the same general features, and while the policy of such
laws has been often questioned, yet so far as we have dis-
covered, they have always been upheld as valid. * * *

2

mn

That while no man can be deprived of his property without his
consent, and while the basis of a right to a lien against property
is the consent of the owner, yet the contract of the owner with
the contractor, made under and subject to the provisions of an
existing lien law, is evidence of the authority of the latter to
charge the property with the liabilities incurred by him in per-
forming his contract, and operates by virtue of the statute as
authority to do so.”

The same principle is recognized and upheld in Donahy vs. Clapp,
supra, where Chief Justice Shaw says—

“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 bind his
estate, and when such power is executed by the actual making
of such contract, it is in law the act of the owner, hypothecat-
ing his own estate to the extent of the price of such labor.”

As is well stated by the Supreme Court of Minnesota, above re-
ferred to, the question now before this Court is not a new one, and
the mechanics’ lien law of Ohio which is attacked in this case, con-
tains the same general features of the laws of the various states
of the Union, which have been almost universally upheld, there
being, as stated by Judge Lurton, in the opinion below, but two well
defined exceptions to this rule—those in the states of Michigan and
Pennsylvania, and as already pointed out by the Supreme Court of
Indiana, the Michigan law can be distinguished from our case, and
as stated by Judge Lurton, in the opinion below (see 86 Fed. pp.
378 and 379,—

“The Ohio act involved here, contains no provision expressly
prohibiting an agreement limiting the supposed agency of the
contractor for the owner, or restraining him from creating any
lien, such as was contained in both the Michigan and Pennsyl-
vania statutes. If such acts are properly to be regarded as con-
stituting the contractor a special agent for the owner, to which
he consents by making a contract with the law before him, it
would seem that the Ohio act would be valid, there being no
inhibition of an agreement withholding such power, and no
intimation that the hotel company, in this instance, limited
the implied agency of the contractor. Certainly the Pennsyl-

26

vania decisions give nu support to the decision of the Ohio
court that the Ohio act is void. Under the settled line of de-
cisions in Pennsylvania the Ohio act is valid. In the last Penn-
sylvania case, that of Waters vs. Wolf, cited above, the Court
announces its adherence to the long line of decisions upholding
just such a statute as the Ohio act involved here, saying, —‘In
the absence of an express contract against liens, with a statute
before him giving a lien to those with whom he contracted, the
consent of the owner that a remedy be given by law should be
enforced under the contract, was certainly to be implied.’

“In all, or nearly-all of the states there are statutes intended
to give liens to those who contribute labor or materials to the
enhancement or improvement of the land or buildings of an
owner.”

In application of what is here said we desire to call especial atten-

tion to the decision of Chief Justice Gibson in White vs. Miller, 18

Pa.

52, the opinion beginning on page 53, where he says,—

“As soon as owners of lots ceased to be their own builders,
they put it in the power of the persons employed by them to oc-
casion losses to mechanics and material men which they ought
not to bear; and it was to remedy this mischief that the legisla-
ture established the principle that materials and labor are to be
considered as having been furnished on the credit of the build-
ing, and not of the contractor. The principle is not only a just
but a convenient one. Whether the builder be the agent of the
owner, or an independent contractor, his appointment to the
job creates a confidence in him which was not had before, and
the consequences of a false confidence ought not to be borne by
those who had no hand in occasioning it. Nor does the rule
of the legislature bear hard on the owner. He has it in his
power to detain the price of the building while there are out-
standing charges against it or to stipulate for security against
those that might afterwards turn up; and if he use common
prudence, any loss which occurs will eventually fall on the au-
thor of it. If he do not, he can not charge the mechanic or ma-
terial men with the consequence of his own supineness.”’

See also.—

Taylor vs. Murphy, 148 Pa. 337.

27

The following decisions have upheld the constitutionality of sim-

ilar laws to the one now under consideration :

In New York,—
Blauvelt vs. Woodworth, 31 N. Y. 28g*
Glacius vs. Black, 67 N. Y. 563-
In Minnesota,—
O’Neil vs. St. Olaf’s School, 26 Minn. 329.
Bohn vs. McCarthy, 29 Minn. 23
Laird vs. Pjoonaygy? Minn. 358.
Gardner vs. Leck, 46 Minn. 285.
In Maine—
Spofford vs. True, 33 Me. 283.
Taggard vs. Buckmore, 42 Me. 77.
In Wisconsin,—
Mallory vs. LaCrosse Abattoir Co., 80 Wis. 170.

In Missouri,—
Henry & Coatsworth Company vs. Evans, 97 Mo. 47.

In Massachusetts,—
Parker vs. Bell, 7 Gray 420.
Donahy vs. Clapp, 12 Cush. 440.
Bowen vs. Phinney, 162 Mass. 593.
In Tennessee,—
Cole Manufacturing Co. vs. Falls, go Tenn. 471, and cases
there cited.
In California,—
Hicks vs. Murray, 43 Cal. 515.
In Rhode Island,—
Gurney vs. Walshan, 16. R. 1. 699.
In Virginia,—
Roanoke etc. Co. vs. Karn, 80 Va. 589.
N. & W. Ry. Co. vs. Howison, 81 Va. 125.
In Washington,—
Spokane Co. vs. McChesney, 1 Wash. Rep. 609.

28

In Connecticut, —
Payne vs. Tillinghort, 52 Conn. 632.

In Maryland, —
Frensch vs. Shyrock, 51 Md. 162.

These authorities were all examined and cited in the opinion of
the Court of Appeals below.

Judge Lurton, in this opinion (see decision 86 Fed. 379), says,—

“In a large number of cases, the question of the constitu-
tionality of acts extending the lien to subcontractors and others
having no direct contractural relation with the owner has been
brought in question, and the validity of the legislation upheld.
In still other instances, such acts have been enforced without
question as to their constitutionality. We cite a number of
cases, though by no means all, in which acts involving questions
identical with those raised by the Ohio statute have been en-
forced either after their validity had been challenged or sub
silentio,”

And after citing decisions from the courts of last resort of very

many of the states on this question, on page 383 of the decision, he
says,—

“The direct question as to the constitutionality of acts ex-
tending a lien to subcontractors and material men furnishing
materials at the instance of contractors, has not arisen in the
Supreme Court of the United States, nor in any of the United

States Courts of Appeals, so far as we have been able to dis-
cover.”

He then calls attention to the act of congress, passed March 2,
1833, 4 Statute at Large, 695, giving a lien in the District of Col-
umbia upon buildings to all persons who did work or furnished ma-
terials on an order of the contractor, and the decision of this Court
in the case of Winder vs. Caldwell, 14 How. 434, in which case a
subcontractor’s lien was upheld and protected although the con-
stitutionality of the enactment was not raised. In that case Justice
Greer, in speaking for the Court, said,—

29

“The aim and policy of this act is also obvious. Experience
has shown that mechanics and tradesmen who furnish labor
and material for the construction of buildings are often de-
frauded by insolvent owners and dishonest contractors. Many
build houses on speculation, and after the labor of the me-
chanics and materials are incorporated in them, the owner be-
comes insolvent, and sells the buildings or incumbers them
with liens; and thus one portion of his creditors are paid at the
expense of the labor and property of others. O'r, the insolvent
owner, who builds by the agency of the contractor or middle-
man, pays his price and receives his building, without troubling
himself 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 not 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 of
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.”

Judge Lurton, in discussing this feature of the case on pages 383
and 384 of his opinion, says,—

“In Grant vs. Strong, 18 Wall, 623, and Mci/urray vs.
Brown, 91 U. S. 258, and Van Sie vs. Stillwell & Bierce
Manufacturing Co., 142 U.S. 128, thé question of waiver of the
lien given under various state statutes, was considered. In con-
sidering the character and nature of the lien the Court, in \/c-
Murray vs. Brown, 91 U.S. 258-266, said,—

“Liens of the kind, except where the statute otherwise pro-
vides, 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 supposed to contract on the basis that, if the
stipulated labor is performed or the promised materials are fur-
nished, the laborer or material man is entitled to the lien which
the law affords, provided he gives the required notice within
the specified time.’

“In Van Stone vs. Stillwell & Bierce Manf’ g Co., 142 U.S.
128-136, it was said,—

“Tt is not the contract for erecting or repairing the build-
ing which creates the lien, but it is the use of the materials fur-
_nished and the work and labor expended by the contractor,
whereby the building becomes a part of the freehold, that gives

30

the material man and laborer his lien under the statute. The
lien is brought into operation by virtue of the statute, and the
contract for building is entered into presumably in view of or
with reference to, the statute.’

“In Centrai Trust Company vs. London, 31 U.S. A., pp. 387-
422, a lien in favor of subcontractors was enforced against
mortgagees by this Court. Judge Taft, in delivering the opinion
of the Court, touching the character of the lien, said,—

“*A subcontractor’s lien under the statute is not dependent
on the principal contractor’s having perfected his lien. Green
vs. Williams, 8 Pickle (Tenn.) 220. It is independent of, and
superior to, his lien, and is only limited by the amount due to
the principal contractor at the time of the service of notice by
the subcontractor on the railroad company. Therefore, the as-
signee of a principal contractor's lien is junior to the ’subcon-
tractor who has perfected his statutory lien.’

“In Central Trust Company vs. Richmond, etc., R. Co., 31
U. S. A., pp. 675-688, we enforced a lien in favor of such sub-
contractors aring under a Kentucky statute. Touching the
origin and nature of the lien, we said,—

“It is not a lien originating in a contract for a lien, but
arises out of the statute independent of any agreement for a
lien, and is based upon the equity of paying for work done or
materials delivered.” * *

“*The clear purpose of the Kentucky statute was to make the
liens of the contractor and subcontractor independent, direct
liens, the latter limited only by the amount of the original con-
tract price. The lien of the subcontractors does not spring out
of the lien of the contractor, and is not derived there-
from or subordinate thereto. The aggregate of all liens
is not to exceed the contract price agreed to be paid by the
owner, but this limitation concerns not the fact of a lien, but the
extent thereoi. Being a direct lien, its existence does not de-
pend upon the existence or non-existence of a contractor’s lien,
and the waiver of a lien by a contractor, will not affect the sub-
contractor’s lien.’ ”’

Before passing from the cases decided by the Supreme Court of
the United States, in which a lien law was recognized and enforced,
although the question as to the constitutionality of the laws was not

raised, and where, as stated by Judge Lurton, the Court sustained
such laws sub silento, we desire to call attention to the very recent

31

decision of this Court, in the case of Springer Land Association vs.
Ford, 168 U. S. 513, where the mechanics’ lien law of New Mexico
was upheld and enforced.

On page 521 of this report, the provisions of the New Mexico
statute then under consideration, are set out in full. We quote from
these pages as follows,—

“Section 1519. A lien is a charge imposed upon specific
property by which it is made security for the performance of
an act.

“Section 1520. Every person performing labor upon, or
furnishing materials to be used in the construction, alteration
or repair of any mining claim, building, wharf, bridge, ditch,
flume, tunnel, fence, machinery, railroad, wagon road or aque-
duct to create hydraulic power, or any other structure, or who
performs labor in any mining claim, has a lien upon the same
for work or labor done or materials furnished by each respec-
tively, whether done or furnished at the expense of the owner
of the building or other improvement, or his agent; and every
contractor, subcontractor, architect, builder,or other person hav-
ing charge of any mining or of the construction, alteration or
repair, either in whole or in part of any building or other im-
provement as aforesaid, shall be held to be the agent of the
owner for the purposes of this act.”

Tie other sections of the statute are set out, but we have quoted
sufficient to show that the New Mexico law is almost identical with
the section of the statutes of Ohio now under consideration.

The law of New Mexico, quoted above, is open to all the objec-
tions that can be made to the Ohio law. It is true a constitutional
question was not raised in that case, but if the law was void, the
lien could not be upheld.

We call especial attention to the syllabus of the case, and the
opinion delivered by Chief Justice Fuller on page 524.

This Court, in Van Stone vs. Stillwell & Bierce Manuf’ g Co., 142
U. S., 128-136, has recognized the same principle of law set forth in
the numerous decisions, sustaining sub-contractors and material
men’s liens, and in answer to the argument that it takes the owner’s
property without his knowledge or consent, and deprives him of his

32

property without due process of law, and interferes with his freedom
to contract, it is there stated by Justice Lamar on page 136:

“It is not the contract for erecting or repairing the building
which creates the lien, but it is the use of the material furnished,
and the work and labor expended by the contractors, whereby
the building becomes a part of the freehold that gives the ma-
terial man and laborer his lien under the statute. The lien is
brought into operation by virtue of the statute, and the contract
for building is entered into presumably in view of, or with refer-
ence to, the statute.”

The cases sustaining mechanics’ lien laws, such as the one now
before this Court, proceed upon this theory, and we insist that it is
the correct one. The following are a few of the principal cases up-
holding this doctrine:

Cole Mfg. Co. vs. Falls, go Tenn., 466.

Henry & Coatsworth Co. vs. Evans, 97 Mo., 47.
Mallory vs. LaCrosse Abattoir Co., 80 Wis., 170.
Smith et al. vs. Newbauer, 144 Ind., 95.
Albright vs. Smith, 2 S. D., 577.

The argument that the act in effect deprives the owner of his prop-
erty without due process of law, and impairs the obligation of con-
tract, is so clearly answered by Judge Lurton in the opinion of the
Court below on pages 387 and 388 of the 86th Fed. Rep., that we
wish to repeat what is there said.

He says,—

“Such statutes rest upon the principle of natural justice,
which lies at the foundation of the many liens or preferences
among creditors which we have cited from both the common
and civil law. It is true that a lien is created in favor of one
with whom the owner has no direct contractual relations. But
if the owner makes the contract with the law before him, the law
enters into and becomes a part of the contract. The legal effect
of the contract is to give a lien to all who at the instance of his
contractor shall be employed to furnish labor or materials for
the work which he has let out. So far as such a statute is limited
to future contracts, it cannot be said to impair the obligation of
a contract.

33

“If 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. ‘The inhibition of the constitution is wholly pros-
pective. The states may legislate as to contracts thereafter
made as they see fit. It is only those in existence when the
hostile law is passed that are protected from its effect.’

Edwards vs. Kearsy, 96 U. S., 595.
Greenwood vs. Freight Co., 105 U. S., 13.
Denny vs. Bennett, 128 U. S., 489

Smith vs Parsons, 1 Ohio, 236.

Wei vs. State, 46 O. S., 450.

“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
own voluntary consent is an element in the transaction. He
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.”

“Provident Institution vs. Jersey City, 113 U. S., 506-514.”

See also,—
New York vs. Squire, 145 U.S., 175.

The reasoning we insist is sound, and the policy of the rule a

wise one.
If the weight of authority is to be found on the side where there

is arrayed the greatest number of decisions on the point in dispute,
then this lien law in question stands supported by an almost un-
broken line of authorities. Ohio stands outside of the line and

nearly alone.

It is claimed by the other side that Ohio has good company in the
companionship of Alabama, Michigan, Missouri and Pennsylvania,
as witness the Stoddart case, 116 Ala., 251; the Spry Lumber Co.
case, 77 Mich., 199; the Henry case, 18 Mo. App., 497, and the
Waters case, 162 Pa, St., 153; but a brief reference to these cases
will dispel the illusion that Ohio has all of these states with it on the
proposition before us.

34

The Henry case in 18 Mo. App., has been overruled by the Su-
preme Court of Missouri in the case of Henry & Coatesworth Co. v,
Evans, 97 Mo., 47.

In the Spry Lumber Co. case, 77 Mich., 199, the court had before
it a mechanics’ lien statute of Michigan which gave the sub-con-
tractor or material man a lien regardless of the contract between the
owner and principal contractor, and unlimited thereby, and declared
it unconstitutional. Such a statute would allow a sub-contractor or
material man to secure a lien for an unlimited amount on the own-
er’s property for the price of a brick or stone structure, even though
his contract with his principal contractor called for a frame building
at a specified figure. This statute upon every principle of right,
reason and sense should fall.

But note the case of Smalley vs. Gearing, 121 Mich., 190, where
the Supreme Court of Michigan pronounced valid and constitutional
a statute of that state every whit as broad in its provisions, which
are here assailed, as the Ohio Statute in question. We quote
copiously from that report as follows:

se

1. It is contended by the property owners that the act of
1891, as amended by the act of 1893, is unconstitutional, be-
cause it is an unwarrantable abridgement of the freedom of con-
tract, and because it undertakes to give special and unreasonable
privileges to one class of citizens at the expense of another. The
amendatory act of 1893 amends sections 1, 6, and g of the act
of 1891. Section 1, as amended, provides substantially :

“*Every person who shall, as sub-contractor, laborer, or ma-
terial man, perform any labor or furnish materials to such orig-
inal or principal contractor, or any sub-contractor in carrying
forward or completing any such contract shall have a lien
therefor upon such house * * * tothe extent of the right,
title, and interest of such owner. * * * Provided, that
any person * * * furnishing material or performing labor
of any kind entering into the construction of such building
* * * shall, within ten days after furnishing the first of
such material or perferming the first of such labor to any con-
tractor o: sub-contractor, serve on the owner * * * a
notice which shall be such as will inform the owner * * *
of the nature of the materials furnished or to be furnished or
labor performed or to be performed, and a description of the

35

premises where furnished. * * Such notices, however,
shall be sufficient if served at any time subsequent to said ten
days, but before the original contractor shall make out and
give to the owner * * * a statement under oath of the
number and names of every sub-contractor or laborer in his
employ, and of every person, * * * furnishing materials,
giving the amount, if anything, which is due or to become due
to them, or any of them, for work done or materials furnished,
as required by section four of this act. The owner * * *
shall not be liable to the sub-contractor, material men, or
laborers for any greater amount than he contracted to pay the
original contractor; * * * but the risk of all payments
made to the original contractor after he shall have received the
notice above mentioned, or before the contractor shall have fur-
nished him with a statement as hereinbefore provided, shall be
upon the owner * * * until the expiration of sixty days
within which claims for liens may be filed, as hereinafter pro-
vided, and no payment made to any contractor before the ex-
piration of said sixty days shall defeat any lien of any sub-
contractor, material man, or laborer, unless such payment has
been distributed among the sub-contractors, material men, or
laborers, or, if distributed in part only, then to the extent of
such distributions.’

“Section 4 of the act of 1891, which was not amended by the
act of 1893, provides:

“*The owner * * * may at any time retain from any
moneys due or to become due to the original contractor an
amount sufficient to pay all demands owing or unpaid to any
sub-contractor, material man, or laborer who has filed and
served the notice in the manner and form as provided in section
one of this act. The original contractor shall, whenever any
payment of money shall become due from the owner, * * *
or whenever he desires to draw money fromthe owner * * *
make out and give tothe owner * * * a statement under
oath of the number and names of every sub-contractor or laborer
in his employ, and of every person furnishing materials, giving
the amount, if anything, which is due or to become due to them,
or any of them, for work done or materiwls furnished ; and the
owner * * * may retain out of any money then, due or
to become due to the contractor an amount sufficient to pay all
demands that are due or to become due to such sub-contractors,
laborers, and material men, as shown by the contractor's state-
ment, and pay the same to them, according to their respective
rights ; and all payments so made shall, as between such owner

36

* * * and such contractor, be considered the same as if paid
to such original contractor. Until the statement provided for
in this section is made, in manner and form as herein provided,
the contractor shall have no right of action or lien against the
owner * * * on account of such contract; and any pay-
ments made by the owner * * * _ before such statement is
made, or without retaining sufficient money, if that amount be
due or is to become due, to pay the sub-contractors, laborers, or
material men as shown by the statement, shall be considered
illegal, and made in violation of the rights of the persons in-
tended to be benefited by this act, and the rights of such sub-
contractors, laborers, and material men to a lien shall not be
affected thereby.’

“The argument against the constitutionality of the act is that,
by the amendment of 1893, the owner is prohibited from paying
according to the terms of his contract, and the contractor is
prevented from obtaining his pay, whenever it appears from the
sworn statement that there are bills outstanding in favor of sub-
contractors, laborers, or material men; and this, although no
person to whom a bill is owing has notified the owner that he
proposes to claim a lien. It is insisted that this provision of the
law, if enforced, will utterly destroy the system of credit as
applied to the building business ; that every contractor must pay
cash or go out of business; that, no matter how good his credit,
or how willing those who supply him may be to trust him, he
cannot take advantage of it, because the law forbids; that that
flexibility of contract, varying according to circumstances,
which is the life of commerce, will be destroyed, and no contract
can be safely carried out which does not follow the narrow,
rigid lines prescribed by the statute. Counsel cite the case of
John Spry Lumber Co. v. Sault Savings Bank, Loan and Trust
Co., 77 Mich., 199 (6 L. R. A., 204; 18 Am. St. Rep., 396), as
sustaining their contention.

“Act No. 270, Pub. Acts, 1887 (3 How. Stat., Sec. 8398¢
et seq.), was there under consideration. Section 2 of that act
provided :

“* “Such lien shall not he defeated by any contract, agreement,
or understanding *ziween the owner, part owner, or lessee of
the real estate upon which such improvements are made, or for
which such materials are furnished, and the original or any sub-
contractor, or by any payment made by such owner, part owner,
or lessee to such contractor or sub-contractor for the contract
price of such labor or material (materials), or any part thereof,

—— a wsD

37

in case the person performing such labor, or furnishing such
material, shall comply with the provisions of this act.’

“Tt was said:

“This law makes the mere fact that a building contract
exists, or has existed, a sufficient reason for binding the land for
any act or omission of the building contractor or his sub-
contractor, whether within the range of the contract or not, or
whether or not in harmony with its terms. * * * Itstrikes
at the foundations of all property in land. * * * The
original contract plays no part in the matter, except as a fact
which binds no one, and has no significance. Such a gross per-
version of all the essential rights of property is so plain that no
explanation can make it plainer.’

“That statute was very unlike the present. The present act
provides, by section 1 (Act No. 199, Pub. Acts 1893), as well
as by the same section amended in 1897 (Act No. 143, Pub.
Acts, 1897), that:

“*The owner * * * shall not be liable to the sub-
contractor, material men, or laborers for any greater amount
than he contracted to pay the original contractor, and shall be
entitled to recoup any damages which he may sustain by reason
of any failure or omission in the performance of such con-
tract.’

“In this respect the act differs from the act of 1887. By this
provision the owner is fully protected upon any breach of the
contract. As to the matter of payments, that section provides:

“*The risk of all payments made to the criginal contractor
after he shall have received the notice above mentioned, or be-
fore the contractor shall have furnished him with a statement as
hereinbefore provided, shall be upon the owner * * *
until the expiration of sixty days within which claims for lien
may be filed, as hereinafter provided, and no payment made, to
any contractor before the expiration of said sixty days shall de-
feat any lien of any sub-contractor, material man, or laborer,
unless such payment has been distributed among the sub-
contractors, material men, or laborers, or, if distributed in part
only, then to the extent of such distribution.’

“This provision points out the way in which the owner may ©
safely make payments; that is, he need incur no risk: First,
if he refuses payment until he is provided with a sworn state-
ment of the contractor, and complies with it; second, if the
money paid is distributed, in accordance with the statute, among
those who might acquire liens, even though he makes payments

38

without the sworn statement. The owner is not required to
make payments beyond the amount called for in the contract.
It will be seen, therefore, that he is fully protected if he follows
the requirements of the statute. It is true that the original
contractor may not be able at all times to get the moneys into
his own hands from the owner as rapidly as the contract calls
for—that is, his sworn statement may show that there is an
indebtedness to sub-contractors, material men, and laborers,
and these moneys the owner may withhold, and pay directly to
those persons. But the contract must be presumed to have
been made in view of these provisions of the statute. Warren
v. Sohn, 112 Ind., 213; Provident Inst. for Savings v. Mayer,
etc., of Jersey City, 113 U.S., 506; Reynolds v. Black, 91 Iowa,
1. The statute was intended to protect sub-contractors, ma-
terial men, and laborers, and its benefits should not be frittered
away by construction, unless clearly unconstitutional. It does
not impair the obligations of contracts, but provides a method
for securing payment to those whose labor or material goes into
the building, and at the same time protects the owner and con-
tractor, if the provisions of the act are complied with. The
doctrine upon which such liens are founded*is the consideration
of natural justice that the party who has enhanced the value
of property by incorporating therein his labor or materials shall
have a preferred claim, in a certain sense, on such property, for
the value of his labor or materials.

The specifications of the contract between Schmidt and Gearing
contain this provision:

“*The building or works must be delivered up free of all
mechanics’ liens or other claims chargeable to the contractor.”

“It is the contention of the owners of the property that this
provision prevents any of the lien claimants in this cause from
obtaining a lien. This contention cannot be sustained. The
contract was made in reference to the lien statute, which ex-
pressly confers upon material men and laborers the right to
assert liens. In Whittier v. Wilbur, 48 Cal., 175, a like ques-
tion was presented under a somewhat similar contract. It was
said :

“ *The contractor and owner cannot deprive the material man
of his lien by introducing a stipulation into the building con-
tract by which the contractor agrees to indemnify the owner

LOO
39

against any lien by persons furnishing materials to be used in the
construction of the building.’

See, also,—
Boisot, Mech. Liens, 225 and 227.”

Such is the latest declaration by the Supreme Court of Michigan
on the validity of the mechanics’ lien law. In this decision is met and
answered all the arguments that are, and can be put forth against the
lien law of Ohio. Small comfort can be found by the petitioner in the
State of Michigan in the light of this decision. It deprives the other
side of all right to claim that Michigan should be catalogued with
Ohio in the line of decisions condemning the latter’s lien statute in
question.

As to Pennsylvania it is only necessary to refer to the decision by
Lurton, J., at page 378, 86 Fed., where he concludes as follows:

“In the last Pennsylvania case, that of Waters vs. WW olf, cited
above, the court announces its adherence to the long line of de-
cisions upholding just such a statute as the Ohio act involved
here.”

And so it did, but it condemned the act then before it because, like
the statute of Michigan, construed in the Spry Lumber Co. case, 77
Michigan, supra, it allowed a lien for an unlimited amount.

We are forced to admit that the Stoddart case in Alabama leaves
the decision in that state as a companion-piece with the decision in
Ohio.

Besides finding approval in later decisions of the Federal courts,
the decision by Lurton, J., of this case in the court below, has been
followed, and the reasoning adopted, by the Supreme Courts of Ken-
tucky and Louisiana. The statute of Kentucky was as follows:

Section 2463: “A person who performs labor or furnishes
materials in the erection, altering or repairing a house, building
or other structure, or for any fixture or machinery therein, or
for the excavation of cellars, cisterns, vaults, wells, or the im-
provement in any manner of real estate, by contract with or by

40

the written consent of the owner, contractor, subcontractor,
architect or authorized agent, shall have a lien thereon, and upon
the land upon which said improvement shall have been
made, or on any interest such owner has in the same, to secure
the amount thereof with costs; and said lien on the land or im-
provements shall be superior to any mortgage or incumbrance
created subsequent to the beginning of the labor or the furnish-
ing of material ; and said lien, if asserted as hereinafter provided
shall relate back and take effect from the time of the commence-
ment of the labor or the furnishing of the materials: Provided,
that such lien shall not take precedence of a mortgage or other
contract lien or bona fide conveyance for value without notice,
duly recorded or lodged for record according to law unless the
person claiming such prior lien shall, before the recording of
such mortgage or other contract lien or conveyance have filed in
the clerk’s office of the county wherein he shall have performed
labor or furnished materials as aforesaid, a statement showing
that he has performed or furnished, or that he expects to per-
form or furnish, such labor or materials and the amount in full
thereof, and his lien shall not, as against the holder of said mort-
gage or other contract lien or conveyance, exceed the amount of
the lien claimed, or expected to be claimed, as set forth in such
contract. * * * The liens provided for herein shall in no
case be for a greater amount in the aggregate than the contract
price of the original contractor; and should the aggregate
amount of the liens exceed the price agreed upon between the
original contractor and the owner, then there shall be a pro rata
distribution of the original contract price between said lien hold-

bed

ers.

Discussing the constitutionality of the above statute in the case of
Hightower vs. Bailey, 22 Kentucky Law Reporter, 88, 90, ( 1900)
56S. W. 147, 49 L, R, A, 255, Chief Justice Hazelrigg said:

“This contention (that the statute violates the obligation of |
contract) is not without authority to support it. The Ohio
courts seem to so hold, and perhaps also the courts of Michigan.
But the weight of authority seems to be the other way.

S- SR SR Re

“An elaborate and learned discussion of this question is found
in Jones vs. Great Southern Fireproof Hotel Company, 86 Fed.
Rep. 370, considered in the United States Circuit Court of Ap-
peals before Judges Lurton and Taft and District Judge Clark.
After reviewing the authorities the learned judge (Lurton)

——— reer eo
41

said: ‘But the validity of the statutes need not be rested upon
mere authority. They find sanction in the dictates of natural
justice and most often administer an equity which has recogni-
tion under every system of law. That principle is that every one
who, by his labor or materials, has contributed to the preserva-
tion or enhancement of the property of another, thereby acquires
a right to compensation. * * * The legal effect of the
contract (between the owner and the contractor) is to give a
lien to all who, at the instance of the contractor, shall be em-
ployed to furnish labor or materials for the work which he has
let out. So far as such a contract is limited to future contract it
cannot be said to impair the obligation of a contract.’

“If the law be subject to no other objection it impairs no
contract for all thereafter may be made or entered into upon the
basis of law. * * * Neither can the owner be said to be
thereby deprived of his property without due process of law. He
has voluntarily made a coritract with the law before him. He
has thereby subjected his property to liability for certain debts
of the contractor. His own voluntary consent is an element in
the transaction. He knows what the law is, and makes contract
under the law. It is idle to say that under such circumstances he
is deprived of his property without due process of law.”

“The Supreme Court of Louisiana in the case of McKeon vs.
Sumner Building and Supply Co., 51 La. Ann, 1961, quotes from
Judge Lurton’s opinion as follows:

“By implication, the contractor is the agent of the owner, and
by implication the owner consents to the privilege of the work-
ing man on his property to the extent that he owes the con-
tractor. Jones vs. Great Southern Fireproof Hotel, 86 Fed.
Re». 378.”

The policy and benefit of such laws have been ably and clearly
pointed out by this Court, as early as Winder vs. Caldwell, supra, and
nearly all of the State Courts have adopted the same views. The
liberty granted by the Constitution of the United States and the State
of Ohio, is not intended to be a license for a person to do whatever
he pleases in his individual acts or with his property. It is a liberty

vestrained by such legislative enactments as may be for the general
public good, and what is for the public good is left for the determina-
tion of the legislative department of the government. The argument

‘2 *

as to whether the legislature has acted wisely in formulating and
passing such acts, must be addressed to the legislature and not to the
Courts.

The authorities already cited, and many more might be found to
the same effect, clearly show that the act in question violates none of
the contitutional privileges pointed out under the first three objec-
tions raised by the counsel for the petitioner, and no constitutional
inhibitions can be found against these enactments, either in the state
constitution of Ohio, or the Constitution of the United States.

Much more might be said upon this subject, but in view of the very
able opinion rendered by the Court of Appeals, and the exhaustive ar-
gument made by other counsel for respondents upon the same ques-
tion, we do not wish to tax the patience of the Court longer by addi-
tional citations upon these points. It remains only to consider the
fourth and last objection made to the law, to-wit, that it is obnoxious
class legislation.

ITI.
Class Legislation.

Counsel for the petitioner claim that the act in question is class
legislation, which comes within the inhibition of the constitution.
* We have made a most thorough examination of the authorities, and
we find but few cases in which counsel have had confidence enough
in this point to raise it in the case of mechanics’ liens, and in every
case in which it was raised, the Courts have summarily brushed it
aside as not being worthy of consideration.
If the act in question is class legislation, then all acts creating or

establishing mechanics’ liens are subject to the same objection. It
seems to be generally admitted that the legislature has power over
this subject. The authorities we have already cited seems to us to
show conclusively the right of the legislature to enact the law in

43

controversy, provided it has authority in any manner to legislate upon
the subject of mechanics’ liens.

In Summerlin vs. Thompson et al., 31 Fla. 369, the Court say in
the fifth paragraph of the syllabus, —

“The act of 1887 (Chapter 3747) is not amenable to the ob-
jection that it is unconstitutional, because it confers special
powers or special jurisdiction upon the Courts, or changes the
general rule of practice in favor of a class.”

The case which was before the Supreme Court of Florida for con-
sideration, involved the constitutionality of a mechanics’ lien law,
and the same question was raised in regard to this being special or

class legislation, as is made in the case now before this Court.
Mabry, Judge, in delivering the opinion of the Court, on page 389
sayS,—

“The constitutionality of the act is questioned on the ground
that so much of it as confers special powers or special jurisdic-
tion upon the Courts, in favor of a class, is unconstitutional. It
is not denied that all persons similarly situated are equally af-
fected by the act. Counsel cites no authority to sustain the
position assumed. It is not tenable. Further discussion of it is
unnecessary.”

Only two other cases have been brought to our attention in which
counsel have raised this point. They are the cases of —

Davis vs. The State, 3 Lea, (Tenn.) 380, and Cole Mlg. Co.
vs. Falls, go Tenn. 471.

already cited under another paragraph of this brief.

This subject, however, has been ably and fully discussed by this
Court, and many of the Courts of last resort in the different states,
and lawyers and Courts throughout the United States seem to con-
cede that legislation upon the subject of mechanics’ liens is not open
to the objection raised by counsel in this case.

In Budd vs. New York, 143 U. S. 517, this Court held that an act
of the legislature of the State of New York, regulating the rates ap-
plied to charges for elevating grain, popularly known as the elevator
cases, which applied only to cities having a population of 130,000 or

44

more, was not an infringement of the citizens’ constitutionai rights.
The following statement appears in the syllabus :-—

“An act of the legislature of New York (Laws of 88, Chapter
581) providing that the maximum charge for elevating, receiv-
ing, weighing and discharging grain, should not exceed five-
eighths of one cent a bushel, and that in the process of handling
grain by means of floating and stationary elevators, the lake
vessels or propellers, the ocean vessels or steamships, and canal
boats, should only be required to pay the actual costs of trim-
ming or shoveling to the leg of the elevator when unloading,
and trimming cargo when loading; held,—that the act was a
legitimate exercise of the police power of the state over a busi-
ness affected with a public interest, and did not violate the Con-
stitution of the United States, and was valid.

“The case of Munn vs. Illinois, 94 U. S., 113, reviewed and
adhered to, and its application in cases decided in the State
Courts considered.

“The decision in Chicago, etc., Ratlway Co., vs. Minnesota,
134, U. S. 418, explained.

“Although the act of New York did not apply to places hav-
ing less than 130,000 population, it did not deprive persons
owning elevators in places of 130,000 population, or more, of
the equal protection of the laws.”

In Wunderle vs. Wunderle, 144 Ill. 40, the question of class legis-
lation is discussed and the term defined.

In that case the Supreme Court of Illinois hol¢ that the alien land
law, which forbids the transfer of title, etc., of land to non-resident
aliens, although under treaties with some foreign states, it could only
apply to certain classes of non-resident aliens, is a valid enactment.

The Court say in the twenty-ninth paragraph of the syllabus —

“Laws are general and uniform when alike in their operation
upon all persons in the like situation, and the fact of their being
general and uniform, is not affected by the number of those
within the scope of their operation.”

In Hing vs. Crowley, 113 U. S. 703, Justice Field, in delivering
the opinion of the Court, on page 708 says,—

“The specific regulations for one kind of business, which may
be necessary for the protection of the public, can never be the

ae SF

45

just grounds of complaint, because like restrictions are not im-
posed upon another business of a different kind. The discrim-
inations which are open to objections are those where persons
engaged in the same business are subjected to different restric-
tions, 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 laws.”
See also,—

Cooley's Constitutional Limitations, 5th Ed., 482-483.

See also the language of Justice Field in Barbier vs Connelly, 113
U. S. 27, on pages 31 and 32 of the opinion of the Court.

The provision of the constitution invoked by the petitioner in this
case is clearly and elaborately discussed by Judge Mcllvane in State
vs. Powers, 38 Ohio State 54. We call particular attention to the
opinion on pages 62 and 63, and the authorities there cited.

We also call especial attention to the cases, of,—

Barbier vs. Connelly, 113 U.S. 27, 31-32.
Kidd vs. Pearson, 128 U.S. 1.
New York vs. Squire, 145 U.S. 175.

[t is true the cases last cited are based upon the police power of the
state, but the principles of law there enunciated, and the discussion as
to what constitutes class legislation, are clearly applicable to the case
at bar, and the police power as defined in these cases, is certainly
broad enough to cover this case

We call attention to the decision of this Court in Budd vs. New
York, 143 U. S.-517, already referred to. The enactment in that
case was certainly open to all the objections raised against the act
now in question, and this court held that the act was a legitimate
exercise of the police power of the state over the business affected.

The decision of the Ohio Supreme Court in Cleveland v. Con-
struction Co., 67 O. S., 197, will hardly find favor in this court in
view of the decision of this court in Atkin v. Kansas, 191 U. S., 207,
where this court took a view of a similar law directly contrary to

46

that announced by the Supreme Court of Ohio in the last case above
cited. It may also be added that the decision of the Ohio Supreme
Court, reported in the 67 State Report, supra, is out of harmony
with the decision of this court in Holden vs. Hardy, 169 U. S.., 366.

Statutes creating liens in favor of mechanics are not class legisla-
tion of a character rendering them obnoxious to constitutional pro-
visions of the various states. On the contrary they belong in that
category of legislation which has for its object the general welfare
and which may fairly be said to be covered by the broad term of the
police power of the state under which such laws, in common with
all others of a like character, are classable.

Many more authorities might be cited to the same effect, but it
seems to us wholly unnecessary in view of the numerous decisions
we have already cited upon other branches of the case, which also
cover this phase of the case.

If the act in question is inhibited by the constitution because it is
class legislation, then all mechanics’ lien laws must fall under
the same ban. We have found no authority nor any decision
of any Court of iast resort holding that such legislation is class legis-
lation, and therefore within the inhibition of the constitution.

In conclusion, we again call especial attention to the opinion of
the Circuit Court of Appeals delivered by Judge Lurton, and reported
in 86 Fed. 370, which contains a full, clear and fair exposition of the
law applicable to this case, and a very learned discussion of the con-
stitutional principles raised, and although expressing regret at their
inability to agree with the Supreme Court of Ohio, the Court of
Appeals upheld the constitutionality of the law.

Respectfully submitted,
Geo. K. NasH AND
Louis G. Apptson,
T. J. KeaTIno,
Of Counsel for Respondents.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0444%3A6. Public record. Not legal advice.