Anderson v. Great Northern Railway Co.

AILSHIE, C. J.

The appellant commenced this suit on six alleged causes of action which had been assigned to him, and on a seventh in his own favor. A demurrer was sustained to each cause of action and judgment of dismissal was entered, and this appeal was thereupon prosecuted.

One Lee Decker was employed by respondent to take 13,655 railroad ties from where they were stacked on respondent’s right of way and remove them a few hundred feet and load them on to respondent’s cars. In doing the work involved in this contract, Decker employed six men and secured groceries and supplies from appellant for the use of himself and men while doing this work. Decker appears to have failed to pay his men. The men thereupon and within the statutory time filed liens under the provisions of sec. 5125 of the Revised Codes. Respondent contends, and the trial court agreed with it, that this statute does not contemplate or provide a lien of the kind here sought to be enforced.

Section 5125 provides as follows: “Every person performing labor upon, or who shall assist in obtaining or securing, saw-logs, spars, piles, cordwood, or other timber, has a lien upon the same for the work or labor done upon, or in obtaining or securing the same, whether such work or labor was done at the instance of the owner of the same or his agent. The cook shall be regarded as a person who assists in obtaining or securing the timber herein mentioned. ’ ’

It must be remembered that this statute is written in the disjunctive and that the lien contemplated is given to “every person performing labor upon .... saw-logs, spars, piles, cordwood, or other timber” as well as to “every person .... who shall assist in obtaining or securing” any of the property mentioned. In other words, the same lien is given to one for “'performing work upon” any of the property enumerated as is given to one who “assists in obtaining or securing” any such property. This court adopted this same course of reasoning in construing see. 5110, Rev. Codes, in Mill v. Twin Falls Land & Water Co., 22 Ida. 274, 125 Pac. 204. This work was undoubtedly done upon these ties in removing and loading them; it was work done about, concerning, in respect to, or with reference to these ties. There is little room for doubt but that railroad ties are timber and fall within the enumeration of “other timber” as used in see. 5125, supra. As authority in point and supporting this view, see Forsberg v. Lundgren, 64 Wash. 427, 117 Pac. 244.

We think the word “timber” as here used refers to any kind of timber as it may be taken from the forest, whether in a prepared state for the use to which it is to be applied or in the natural and unfinished condition. For example, cord-wood is enumerated preceding the use of the words ‘ ‘ or other timber, ’ ’ and yet cordwood is not a manufactured article. On the other hand, “spars and piles” are enumerated and signify specially prepared pieces of timber for definite purposes. It would be extremely technical and strict to construe the statute as not giving a lien for work upon or in securing ties.

In this case it is alleged that after the ties were loaded on the cars the railroad company eloigned them and scattered them along its right of way in the states of Washington, Idaho and Montana and rendered it impossible for the claimants to identify them or foreclose their lien thereon, and appellants seek personal judgments against the company for damages under the provisions of see. 5140, Rev. Codes. That section provides as follows:

“Any person who shall injure, impair, or destroy, or who shall render difficult, uncertain or impossible of identification, any saw-logs, spars, piles, cordwood, or other timber, upon which there is a lien as herein provided, without the express consent of the person entitled to such lien, shall be liable to the lienholder for the damages to the amount secured by his lien, which may be recovered by civil action against such person.”

It will be observed that the foregoing section 5140 applies to any person who shall injure, impair or destroy or shall render uncertain, difficult, or impossible of identification any of the property on which a lien exists under sec. 5125. The objection that sec. 5140 of the Rev. Codes, as originally enacted and found in the 1899 Sess. Laws, p. 188, is unconstitutional and in violation of sec. 16, art. 3 of the state constitution, is without merit, for the reason that this section was subsequently incorporated in the Revised Codes and was adopted as a part of the entire body of the reyised statutes and as a part of the complete code of laws of the state. It is now too late to raise the sufficiency of the title to a statute originally adopted prior to the date of the adoption of the Revised Codes, where such statute has been incorporated in the general code of laws. (36 Cyc. 1068; Central of Georgia Ry. Co. v. State, 104 Ga. 831, 31 S. E. 531, 42 L. R. A. 518; Kennedy v. Meara, 127 Ga. 68, 56 S. E. 243, 9 Ann. Cas. 396; Christopher v. Mungen, 61 Fla. 513, 55 So. 273.)

Lastly, it is argued that sec. 5140 of the Rev. Codes is unconstitutional and void, for the reason that it is violative of sec. 1 of the fourteenth amendment to the federal constitution, and of sec. 13, art. 1, of the state constitution in that it deprives respondent of its property without due process of law and denies to it the equal protection of the laws. We do not think this objection is well founded. In the first place, under this statute, there is no liability against one who injures, destroys or removes such property, unless there is an existing lien thereon. The statute creates the lien. It specifies the kind of a contract and transaction and the conditions under which a laborer will be entitled to a lien. Whenever, therefore, the owner or purchaser of or contractor for property falling within the purview of this statute employs a laborer or enters into a contract which comes within the terms of the statute, the law at once becomes operative and gives to the party rendering the services or performing the labor a lien. This lien exists by operation of law for the period of sixty days. At the expiration of that time, the lien lapses and ceases to exist, unless in the meanwhile the claimant has complied with the provisions of the statute requiring the filing of a written notice of his lien claim, setting forth the facts required to_ be shown by the statute. If the lien claimant complies with this statute, the lien continues in force from the time of its inception, namely, when he commenced work until the claim is paid or the lien is foreclosed. Under this statute, it is not a question of the lien arising at the time the notice of lien is filed with the proper county official and of the lien relating back to the time the work commenced. There is no such thing under this statute as a lien relating back. The lien arises with the commencement of work and is created by statute, and its continuance beyond sixty days is conditional upon the claimant doing the thing required by the statute.

Now, as for the contention that the statute is void because of being arbitrary, we fail to see wherein this contention contains any merit. The court will first determine whether the claimant was entitled to a' lien, and after that fact has been determined, the damages sustained by the lien claimant by reason of eloignment of the property must be determined and assessed in the same way that damages would be determined and assessed in any other case. The fact that this statute may impose an extra burden and hardship upon the owner of the property in that it requires him to ascertain whether any liens exist against the property before removing it, is not a sufficient ground for holding the statute unconstitutional and void. .That might be a good argument to present to the lawmaking body, and it might furnish a reason or justification for the legislature making some exceptions in the law, but they have not done so and the court would not be justified in doing so. It is certainly-within the power of a railroad company, a lumber company, or of an individual to ascertain whether laboring men have been paid before settling with the contractor, and if they fail to do so, they must assume the consequent burdens and obligations which arise under the statute. The law, therefore, undertakes to render a person who injures, destroys, impairs or removes the property on which such lien exists liable for the amount of the claim held against the property, or, if the property be of less value than the lien claim, then it allows the claimant the damages which he has sustained by reason of the removal or destruction of the particular property. There is nothing unusual or oppressive about such a statute. The statute might make such a person guilty of a crime, as it does in ease of removal of personal property covered by a chattel mortgage. Under the statute, no penalty attaches to the person doing the thing, unless he first violates the statute which prohibits him injuring, impairing, destroying, or removing any such property. If he does this thing, then he is subject to the penalty which may be recovered in a civil action against such person.

The argument advanced that a railroad company would be liable for receiving and shipping ties or other timber product until it can first determine and ascertain whether there are any liens on the property, is unsound. The statute has no application to any such transaction; a common carrier receiving and transporting freight in due course of business would not be liable for impairing, destroying or rendering uncertain or impossible of identification any property on which there is a lien. It does not seem possible that the mere constructive notice which the statute imparts would extend beyond the party first removing or disturbing the property. In other words, the liability is not one that would attach to every subsequent purchaser, bailee or carrier of the property.

This brings us to a consideration of the seventh cause of action which involves the validity and constitutionality of chap. 226 of the 1911 Session Laws (1911 Sess. Laws, p. 727). it is argued by counsel that section 1 of this act violates sec. 1, art. 14, of the federal constitution and sec. 13 of art. 1 of the state constitution. Sec. 1 of chap. 226 of the 1911 Session Laws provides as follows:

“Every person, firm, company or corporation selling or furnishing supplies, groceries, feed or other necessaries to any contractor, boarding-house keeper or other person, firm or corporation to be used upon and while such contractor, boarding-house keeper or other person, firm or corporation, or the employer of such contractor, boarding-house keeper or other person, firm or corporation is engaged in obtaining, securing, cutting or manufacturing saw-logs, spars, piles, cordwood, ties or lumber, has a lien upon the same for the value of the supplies, groceries, feed or other necessaries so furnished.”

Section 2 provides for filing a notice of lien, and the remaining sections provide the procedure to be followed, while section 9, being the last section of the act, provides that, “Any person who shall injure, impair or destroy, or who shall render difficult, uncertain or impossible of identification, any. saw-logs, spars, piles, cordwood, ties or lumber upon which there is a lien, as herein provided, without the written consent of the person entitled to such lien, shall be liable to the lien-holder for the damages of the amount secured by his lien, together with treble damages which may be recovered by civil action against such person.”

We have examined this statute with unusual care and have considered the authorities cited, both in support of and opposition thereto, and over and above all this have considered what must be the practical workings and effect of this statute. We are not going to review authorities here but shall rather briefly state some of the reasons which have led us to reach the conclusion hereafter to be stated.

Lien laws rest on two cardinal principles: First, that the owner of the property on which the lien is claimed has received some benefit or advantage by reason of the service rendered or material or supplies furnished; and, second, that the owner has contracted with someone, who thereby becomes his agent, to render such service or furnish such material or supplies. The statute under consideration, as may be seen from an examination of section 1, above quoted, runs counter to both these principles of lien laws. It attempts to create a lien irrespective of contract and without regard to any benefit either direct or remote which the owner of the property may have received from the supplies furnished. It furnishes the owner of the property no notice and affords him no method of protecting himself against any such claim, and charges him with a claim which may equal or exceed the value of the property although he.has paid the contract price to the men who actually did the labor. In these respects, it undoubtedly has the effect of taking property without due process of law. When the owner of property makes a contract to have work done on such property, he presumably contracts to pay the full value of such work, and he certainly cannot foresee what groceries, feed and supplies the contractor or laboring men may purchase or need in course of the performance of such work. Men must eat and teams must be fed whether they be working or not, and to charge a property owner or one having building done or material furnished with all the “supplies, groceries, feed or other necessaries” which the contractor or any of his men may purchase and use during the performance of such work without giving or serving any notice thereof on the person to be charged would certainly be taking the property of one man and giving it to another without “due process of law” and without affording the party “the equal protection of the law.” No process is “due process” which does not give notice, either actual or constructive, and no “taking of property” for debt is lawful unless the debt has been created with the knowledge and consent of the debtor. This knowledge and consent may be constructive so far as it is necessary to create a charge against property, but the statute which furnishes the constructive notice must provide process by which the claims may be measured and established so the property owner may have a ready and certain method of knowing or ascertaining his liability. No such method is furnished by the statute under discussion. There is no means afforded for the property owner to learn who has furnished groceries, supplies or necessaries to the contractor or men until after his liability has attached for laborers and materialmen’s liens if he has not in the meanwhile paid them in full. If this statute should be upheld in its present condition, its enforcement would subject the owner of the property on which the lien is claimed to double and possibly treble liability for the work performed or materials furnished.

We conclude that chapter 226 of the 1911 Session Laws is invalid and void, for the reasons above set forth. The following authorities are in point upon the legal principles here involved and hold to the effect above suggested: Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Rogers-Ruger Co. v. Murray, 115 Wis. 267, 95 Am. St. 901, 91. N. W. 657, 59 L. R. A. 737; Perrault v. Shaw, 69 N. H. 180, 76 Am. St. 160, 38 Atl. 724; Meyer v. Berlandi, 39 Minn. 438, 12 Am. St. 663, 40 N. W. 513, 1 L. R. A. 777; Chicago etc. R. Co. v. Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979; Spry Lumber Co. v. Sault Sav. Bank & Trust Co., 77 Mich. 199, 18 Am. St. 396, 43 N. W. 778, 6 L. R. A. 204; Bielenberg v. Montana etc. Ry. Co., 8 Mont. 271, 20 Pac. 314, 2 L. R. A. 813; Catril v. Union Pac. R. Co., 2 Ida. 576, 21 Pac. 416.

The judgment in this case will be reversed as .to the first six causes of action prosecuted under section 5125, Rev. Codes, and this case is remanded, with direction to the trial court to overrule the demurrer thereto, and the judgment is affirmed as to the seventh cause of action prosecuted under chap. 226 of the 1911 Sess. Laws. Appellant will be awarded six-sevenths of the taxable costs of this appeal.