On or about the first day of January, 1912, the plaintiff and the defendant, R.E. Ward, entered into an agreement whereby the plaintiff leased to said defendant the tract of land, described in the complaint, for the year 1912, in consideration of the sum of $75.00; and, at the request of the defendant, the plaintiff advanced to him fertilizers to the extent of $100.91 in value. The defendant refused to pay for the advances, and was disposing of his crop when the plaintiff sued out an agricultural warrant, under which two bales of cotton were seized. On motion of the defendant, the Court set aside the warrant, on the ground that the agreement for advances was not in writing, and the plaintiff appealed.
The record shows that when the case was heard in the Circuit Court, it was agreed that the only question to be decided was, whether the statute required the agreement for advances to be in writing, in order to create a lien on the crop: and that is the only question presented by the exceptions.
In 1885 the legislature passed an act entitled: "An act to prescribe the priorities of certain statutory liens," which contained these provisions:
"That from and after the passage of this act, the landlord shall have a lien upon the crops of his tenant for his rent, in preference to all other liens. That laborers who assist in making any crop shall have a lien thereon to the extent of the amount due them for such labor, next in priority to the landlord, and as between such laborers there shall *Page 326 be no preference. That all other liens for agricultural supplies shall be paid next, after the satisfaction of the liens of the landlord and laborers, and shall rank in other respects as they do now under existing laws.
Sec. 2. "That no writing or recording shall be necessary to create the liens of the landlord, but such lien shall exist from the date of the contract, whether the same be in writing or verbal.
Sec. 3. "That all acts and parts of acts inconsistent with or supplied by this act be, and the same are hereby, repealed."
Prior to that time the law, as stated in sections 2397, 2399 and 2400, Revised Statutes of 1882, was as follows:
Sec. 2397: "If any person, or persons, shall make any advance or advances, either in money or supplies, to any person or persons who are employed, or about to engage in the cultivation of the soil, the person or persons so making such advance or advances, shall be entitled to a lien on the crop, which may be made during the year upon the land, in the cultivation of which the advances so made have been expended, in preference to all other liens, existing or otherwise, to the extent of such advance or advances: Provided, An agreement in writing shall be entered into, before such advance is made to this effect, in which shall be specified the amount to be advanced, or in which a limit shall be fixed beyond which the advances, if made from time to time during the year, shall not go."
Sec. 2399. "Each landlord leasing lands for agricultural purposes, shall have a prior and preferred lien for rent, to the extent of all crops raised on the lands leased by him, whether the same be raised by the tenant or other persons, and enforceable in the same manner as liens for advances, which said lien shall be valid without recording or filing:Provided, That, subject to the liens herein provided for, and enforceable in the same way, the landlord shall have a lien on all the crops raised by the tenant, for all advances made by *Page 327 the landlord during the year. Provided, further, Every lien for advances and for rent, when the agreement is for more than one-third of the crop, shall be indexed in the office of the register of mesne conveyances of the county in which the lienor resides, within thirty days from the date of the lien, (and the indexing of the said lien shall constitute notice thereof to all third persons, and entitle the same to the benefit of this chapter); said index shall show the names of the lienor and lienee, the date and amount of lien, a brief description of the place so cultivated, and for indexing, said clerk shall receive fifteen cents for each lien from the party representing the same, and said indexing shall be a sufficient record of the same, and the property covered by said lien so indexed as aforesaid, if found in the hands of subsequent purchasers or creditors, shall be deemed liable to said lien."
Sec. 2400. "All liens herein provided for shall be in writing, except the landlord's lien for rent, when the amount does not exceed one-third of the crop."
The first ground upon which it is contended that the landlord has a lien for advances, whether the agreement for such advances is in writing or verbal, is the use of the word "liens," in section 2, act of 1885, which provides, that "no writing or recording shall be necessary to create the liens of the landlord, but such lien shall exist, from the date of the contract whether the same be in writing or verbal."
There are several reasons why this proposition is untenable. The act of 1885 shows upon its face that the use of the word "liens" instead of "lien" was a mere clerical error, as it was followed immediately by the words "such lien." This was the construction placed upon that act by the legislature on three different occasions. The first was when it was incorporated in the Revised Statutes of 1893, as section 2512; the second, when it was incorporated in the Code of Laws, 1902, as section 3057; and the third, when it was incorporated in the Code of Laws, 1912, as section 4162. *Page 328
Furthermore, at the time the act of 1885 was passed, section 2400, Revised Statutes of 1882, was of force, and so remained until it was left out, when the Code of Laws was adopted in 1902. That section required all liens to be in writing, except the landlord's for rent, when the amount did not exceed one-third of the crop; and it is wholly inconsistent with the theory that the provisions of the act of 1885 rendered it unnecessary to reduce to writing the landlord's agreement for advances.
When the Revised Statutes of 1893 were adopted, section 2400 was omitted, not for the purpose of repealing it, as the omission to incorporate it did not have such effect at that time, but for the reason that there was no longer any necessity for it to remain upon the statute book. Section 2, act of 1885, repealed so much thereof, as required the landlord's lien for rent to be in writing, when the amount exceeded one-third of the crop; the section (2081, Revised Statutes, 1882, incorporated in the Code of Laws, 1902, as section 3058) in regard to the lien of the laborer for his services, showed that such lien was not required to be in writing; and section 2397, Revised Statutes of 1882, showed that no person making advances for agricultural purposes, could acquire a lien on the crop, unless the agreement was reduced to writing. The landlord's lien for advances (as we will hereinafter show) stood upon the same footing as the lien of other persons making advances, and that, consequently, the statutes required both to be in writing. When the Code of Laws, 1902, was adopted it incorporated, the several sections in the Revised Statutes of 1893, concerning agricultural liens, except section 2400, and it was evidently omitted, because it was no longer deemed material.
There is still another reason why the act of 1885 did not have the effect, for which appellant's attorneys contend. It was decided in the case of Whaley v. Jacobson, 21 S.C. 51, that a landlord, to secure a lien for advances to his tenant, or for rent exceeding one-third of the crop, must comply with *Page 329 the same terms and conditions as are imposed by the statute upon those, other than landlords, making advances to the tenant. In that case the Court used this language: "The law favors the landlord, but we do not suppose that, in giving priority to rent, the legislature * * * intended to do more than secure the rent proper, to the landlord, and then leave him to make agricultural advances to his tenants, upon the same terms and conditions as to recording, etc., as were imposed upon all others. The law expressly declares such to be the intention, as to so much of the crop as exceeds one-third, and we do not see why it should not be so construed, in reference to advances made by the landlord to his tenant, which are not in the proper sense `rent.'" Turning to section 2397, Revised Statutes of 1882, incorporated in the Code of Laws, 1902, as section 3059, it will be seen that persons other than landlords, who made advances to tenants, did not acquire a lien, unless the agreement was in writing; consequently it follows that the landlord, "who makes agricultural advances to his tenants upon the same terms and conditions as to recording, etc., as were imposed upon all others," could not acquire a lien for advances, unless the agreement was in writing.
In 1909, section 3059, Code of Laws, 1902, was repealed. That section created a lien in favor of any person or persons who complied with its requirements.
If the words "any person or persons" include the landlord making the advances, then such landlord is not entitled to a lien, even though the agreement be in writing. The conclusion we have reached renders it unnecessary to consider the effect of the said repealing act.
It is argued that the case of the State v. Lanier, 79 S.C. 103;60 S.E. 225, is authority for the proposition that the contract between the landlord and tenant, for advances, creates a lien, although not in writing. It is only necessary to refer to that case to see that this proposition is untenable, *Page 330 as the Court then had under consideration statutes very different from those now involved.
Another reason why the view of the appellant's attorneys can not be sustained is because it would be inconsistent with section 3061, Code of Laws, 1902, which provides that every lien for advances shall be indexed, and that the index shall show the names of the lienor and lienee, the date and amount of the lien, and a brief description of the place so cultivated, thus showing it was contemplated that such liens should be in writing.
It thus clearly appears that the act of 1885 did not dispense with the necessity of reducing the agreement to writing, in order to create the landlord's lien for advances.
It is contended, however, that section 3057, Code of Laws,1902, had this effect.
When the Code of Laws, 1902, was adopted, no provisions in regard to agricultural liens were therein incorporated, except those that had already received statutory enactment; and, although they were rearranged and sentences transposed, when incorporated, there is nothing to indicate that they were intended to receive a different construction from that which had already been placed upon them.
It is argued that the provisions which we have italicized in section 3057, Code of Laws, 1902, show that writing is unnecessary to create the landlord's lien for advances. That section, as amended in 1906, is as follows:
"Every landlord leasing land for agricultural purposes shall have a prior and preferred lien for his rent, to the extent of all crops raised on the lands leased by him, whether the same be raised by the tenant or other person.No writing or recording shall be necessary to create suchlien, but it shall exist from the date of the contract, whetherthe same be in writing or verbal, and the landlord and his assigns shall have the right to enforce such lien, in the same manner, upon the same conditions, and subject to the same restrictions as are provided in this article for persons making *Page 331 advances for agricultural purposes. And, subject to theliens hereinafter provided for, and enforceable in the sameway, the landlord and his assigns shall have a lien on all thecrops raised by the tenant for all advances made by thelandlord to such tenant during the year." (Italics added.)
The italicized words are the same as those in section 2399, Revised Statutes, 1882, except the provision therein that no writing or recording was necessary to create the landlord's lien for rent unless the agreement was for more than one-third of the crop.
In construing section 2399, Revised Statutes, 1882, in the case of Whaley v. Jacobson, 21 S.C. 51, the Court held that the landlord did not have a lien for advances unless the agreement was in writing, and there is no reason why the italicized words should not now receive the same consideration, especially since the decision in Cantey v. McClary-BroadwayCo., 95 S.C. 29, in which this Court held that a landlord has no lien by statute for advances on crops raised by a servant on land given him to cultivate as a part of his wages.
Furthermore, while that section gives a landlord a lien for his rent, it did not deem this provision sufficient to show that the lien was valid without being in writing, but added the provision that no writing or recording was necessary to create the lien for rent. If no writing or recording was necessary to create the lien for advances, it would have been very natural for the legislature to have made that provision applicable to liens for advances, as well as rent.
It is next contended that the act adopting the Code of Laws, 1902, is unconstitutional, on the ground that section 5, article VI, of the Constitution, provides that "no alterations or additions to any of the laws therein contained, shall be made, except by bill passed under the formalities heretofore prescribed for the passage of laws." *Page 332
That act is as follows: "That the Code as submitted by the Code Commissioner of South Carolina (which is hereto attached) be, and the same is, declared to be the `Code of Laws of South Carolina, 1902,' and said Code is hereby declared to be the only general statutory law of the State, on the 14th day of January, 1902."
Section 5, article VI, of the Constitution, is as follows:
"The General Assembly, at its first session after the adoption of this Constitution, shall provide for the appointment or election of a commissioner, whose duty it shall be to collect and revise all the general statute law of this State then of force, as well as that which shall be passed from time to time, and to properly index and arrange the said statutes when so passed. And the said commissioner shall reduce into a systematic Code the general statutes, including the Code of Civil Procedure, with all the amendments thereto, and shall, on the first day of the session for the year nineteen hundred and one, and at the end of every subsequent period of not more than ten years, report the result of his labors to the General Assembly, with such recommendations and suggestions as to the abridgment and amendments, as may be deemed necessary or proper. Said report, when ready to be made, shall be printed and a copy thereof laid upon the desk of each member of both houses of the General Assembly on the first day of the first session, but shall not be taken up for consideration until the next session of the said General Assembly. The said Code shall be declared by the General Assembly, in an act passed according to the forms of this Constitution for the enactment of laws, to be the only general statutory law of the State; but no alterations or additions to any of the laws therein contained shall be made, except by bill passed under the formalities heretofore prescribed for the passage of laws." * * *
Before proceeding to discuss this question, we desire to call attention to two well settled rules in regard to the consideration of constitutional questions. *Page 333
When a constitutional question was not raised in the Circuit Court it can not, properly, be made the basis of an exception on an appeal to the Supreme Court.
Ordinarily, the Court will refuse to consider a constitutional question unless it is necessary to the determination of the case, in which such a question is presented.
Ex parte Florence School, 43 S.C. 11, 20 S.E. 794; Butler v. Ellerbe, 44 S.C. 256, 22 S.E. 425; Newton v. Woodley,55 S.C. 132, 32 S.E. 531; Johnson v. Ry., 55 S.C. 152,33 S.E. 174; Lowrimore v. Mfg. Co., 60 S.C. 153,38 S.E. 430; Burnett v. Ry., 62 S.C. 281, 40 S.E. 679; Moore v.Napier, 64 S.C. 564, 42 S.E. 997; State v. Morris, 67 S.C. 153,45 S.E. 178; Johnson v. Ry., 73 S.C. 36, 52 S.E. 644;Montgomery v. Ry., 73 S.C. 503, 53 S.E. 987; Brickman v.Ry., 74 S.C. 306, 54 S.E. 553; Park v. Cotton Mills,75 S.C. 560, 56 S.E. 234; Walker v. Ry., 77 S.C. 161,57 S.E. 764; State v. Cain, 78 S.C. 348, 58 S.E. 937.
The constitutionality of said act was not raised in the Circuit Court, and, furthermore, there are other grounds besides the constitutionality of the act, upon which the decision may be rested.
Inasmuch, however, as our construction of the foregoing section will not change the conclusion we have reached on the other questions, and the rights of the parties to this action will not be prejudiced; and, inasmuch as this is an exceedingly important question which, no doubt, the Court would be called upon to decide at an early day, we have concluded to waive the foregoing objections and proceed to its determination.
The duty imposed upon the Code Commissioner to reduce into a systematic Code of the general statutes with all the amendments thereto, and report the result of his labors to the General Assembly, shows that the framers of the Constitutional contemplated that his report would embody, as far as possible, all the general statutory law of the State; but they realized that errors would be made, and that it would be *Page 334 necessary to make alterations and additions to the laws contained in the report of the commissioner; they, therefore, provided the manner in which the alterations or additions should be effected, to wit: by bill passed under the formalities prescribed for the passage of other laws. The report is required to be placed upon the desks of the members of the legislature, and can not be taken up for consideration until the next session thereafter. The Constitution requires these things to be done, in order that the members of the legislature may have ample time for ascertaining the necessary alterations and additions; and, in order that the alterations and additions may not then be made, without due consideration, it is provided that the report shall not be amended as an ordinary act, but that alterations or additions could only be made in the most formal manner for the passage of statutes.
When all these steps were taken then it was intended that the report of the commissioner should be declared by an act of the legislature, to be the only general statutory law of the State, so as to enable any person to ascertain the general statutory law of the State, without being compelled to search beyond the Code of laws then of force, and the statutes subsequently enacted.
This construction gives effect to all the provisions of said section, and any other construction would defeat the great change which was intended to be made by the Constitution in the codification of the general statutes.
Furthermore, the word "therein," in the provision that "no alterations or additions to the laws therein contained shall be made, etc.," has reference to the report of the commissioner, and not to the general statutory law of the State, to be found elsewhere than in the said report. That report was denominated a "Code," and it was this "Code" that the General Assembly was required to declare to be the only general statutory law of the State, after such alterations or additions as it might see fit to make. *Page 335
It is unreasonable to suppose the framers of the Constitution intended that the "Code," after it had been declared to be the only general statutory law of the State, should merely have the force and effect of a statutory compilation as such would have been its effect without the foregoing constitutional provision.
For these reasons we think the judgment should be affirmed.
MR. JUSTICE WATTS and CIRCUIT JUDGES MEMMINGER, WILSON, GARY and SPAIN concur.