Dissenting. — I dissent from the majority of the court in their two opinions upon the question that sec. 1, chap. 226 of the 1911 Sess. Daws (p. 727) violates see. 1, *451art. 14 of the federal constitution and see. 13 of art. 1 of the state constitution.
Section 1 provides: “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, boardinghouse 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. ’ ’
In this ease one Decker was employed by respondent to take 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 the contract, Decker employed men and secured groceries and supplies from appellant for the use of himself and men while doing the work. He failed to pay the men, and the men, within the statutory time, filed liens under the provisions of sec. 5125, Rev. Codes. Respondent contends, and the trial court agreed with him, that this statute does not contemplate or provide for a lien of the kind here sought to be enforced.
In connection with this section it is clear that chap. 226 of the Sess. Laws of 1911 has no repealing clause and is not an amendment of sec. 5125. It will-be observed by comparing these two sections that sec. 1 of chap. 226 does not contain “every person performing labor upon,” which is incorporated in sec. '5125, but does provide “every person, firm, company or corporation selling or furnishing supplies, groceries, feed or other necessaries to any contractor, boardinghouse keeper or other person, firm or corporation to be used upon and while such contractor, boarding-house beeper or other person, firm or corporation .... is engaged in obtaining”; then follows the rest of the quotation above given from sec. 1.
*452It will thus be seen that sec. 1 contains a provision, “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 .... is engaged in obtaining,” and that chap. 226, 1911 Session Laws, does not repeal sec. 5125, Rev. Codes, specifically or by implication, and is not repugnant to such section.
The two legislative acts are not repugnant to or in conflict with each other, but the one last passed is the latest expression of the' legislature upon the creation of a lien for selling or furnishing supplies, groceries, feed or other necessaries to any contractor, boarding-house keeper or other person or corporation to be used upon and while such contractor, boarding-house keeper or other person, firm or corporation is engaged in obtaining, etc. So these two acts are the same in effect, except the provisions in sec. 1 of chap. 226 as to furnishing merchandise ■ such as groceries, feed and other necessaries to be used while the contractor is engaged in obtaining, etc. This is not found in sec. 5125. That section provides for a lien for the work and labor upon or in obtaining or securing saw-logs, etc. If both acts by any reasonable construction can be construed together, both should be sustained. (36 Cyc., pp. 1073-1079.)
This same author announces what we think is the true rule on p. 1077: “"When two-statutes cover, in whole or in part, the same subject matter, and are not absolutely irreconcilable, no purpose of repealing being clearly shown, the court, if possible, will give effect to both. Where, however, a later act covers the whole subject of earlier acts and embraces new provisions, and plainly shows that it was intended, not only as a substitute for the earlier acts, but to cover the whole subject then considered by the legislature, and to prescribe the only rules in respect thereto, it operates as a repeal of former statutes relating to such subject matter, even if the former acts are not in all respects .repugnant to the new act. But in order to effect such repeal by implication, it must appear *453that the subsequent statute covered the whole subject matter of the former one, and was intended as a substitute for it. If the later statute does not cover the entire field of the first and fails to embrace within its terms a material portion of the first, it will not repeal so much of the first as is not included within its scope, but the two will be construed together, so far as the first still stands.”
This rule is also followed by this court in the case of People v. Lytle, 1 Ida. 143.
This subject is annotatéd by the author in the quotations given from Cye., and most of the courts in the different states of the Union have followed the rule quoted above, and we believe that such rule should be adhered to by this court. It has been approved by this court.
In the case of Phillips v. Salmon River Min. & Dev. Co., 9 Ida. 149, 72 Pac. 886, this court, in construing a laborer’s lien as it existed at that time, announced the rule that “the provisions of our lien laws must be liberally construed with a view to effect their objects and promote justice,” and we think the general rule above stated is the correct rule and should be applied in the construction of a statute of the character involved in this case.
In the case of Empire Copper Co. v. Henderson, 15 Ida. 635, 99 Pac. 127, this court held that in construing an act of the legislature the court should ascertain and give effect to the legislative intent where that can be ascertained; but where the language of an enactment is clear and specific as to the subjects upon which a lien is provided for, then the court cannot assume that the legislature included subjects not mentioned in the language of the act, but must accept the act as formulated and adopted by the legislature. (See Holmberg v. Jones, 7 Ida. 752, 65 Pac. 563; 36 Cyc. 1107; Idaho Mutual Co-operative Ins. Co. v. Myer, 10 Ida. 294, 77 Pac. 628.)
In the case of Mara v. Branch (Tex. Civ.), 135 S. W. 661, the court of appeals of Texas, in dealing with merchandise, defines the same as follows: “ ‘Merchandise’ is a term of very extended meaning, and usually conveys the idea of personalty *454used by merchants in the course of trade. It may as a fact include every article of traffic.”
In the case of Ensign v. Coffelt, 102 Ark. 568, 145 S. W. 231, the supreme court of Arkansas, in construing a statute which makes void notes given in ordinary form for the price of patented machines, etc., holds that it shall not extend to merchants and dealers who sell patented things in the usual course of business; the words “merchant” and “dealer” meaning persons engaged in the business of buying and selling merchandise or other personal property in the usual course of trade.
Sutherland on Statutory Construction, vol. 2, sec. 363, lays down the rule of law as follows:
“The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to that intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, ■although it may not be consistent with the strict letter of the statute.....Intent is the spirit which gives life to legislative enactments. In construing statutes, the proper course is to start out and follow the true intent of the legislature and to adopt that sense which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the legislature.”
The rule is generally recognized, by the authorities to be that where a statute enumerates the things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly •mentioned; expressio unius exclusio alterius. (Perkins v. Thornburgh, 10 Cal. 189; Smith v. Randall, 6 Cab 47, 65 Am. Dec. 475.)
In the case of In re Hull, 18 Ida 475, 110 Pac. 256, this court held and stated on p. 279: “We enter upon the consideration of this státute fully conscious of the duty which rests on the court to ascertain what the law is on the subject, and to declare it as we find it rather than as we think it ought to have been. We have no right to add to or take from the law.”
*455The court cannot speculate upon the intent of the legislature, but must accept the interpretation of the act as it appears therein. This rule is discussed and determined in the case of Empire Copper Co. v. Henderson, 15 Ida. 635, 99 Pac. 127; Holmberg v. Jones, 7 Ida. 752, 65 Pac. 563.
The language used in chap. 226, Session Laws 1911, sec. 1, when read as an entirety, is clear and would seem to furnish its own interpretation, in designating the property upon which liens may be filed by certain persons, firms and corporations for supplies, groceries, feed or other necessaries sold or furnished 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.
If the language used in chap. 226, 1911 Sess. Laws, sec. 1, is unconstitutional, then it results in 'discrimination against the merchant and salesman or the producer of feed and sustenance who is engaged in selling or furnishing supplies, groceries, feed or other necessaries to any contractor, boarding-house keeper, or other person or corporation, to be used upon and while such contractor, boarding-house keeper or other person, firm or corporation is engaged in obtaining, etc., as without the furnishing of such supplies to the men who are doing the labor in obtaining, securing, cutting or manufacturing saw-logs, spars, piles, cordwood, ties or lumber by such merchants or salesmen, such employees so engaged would be deprived of the necessaries of life and would be unable to live without such supplies, and the man who provided them, under the provisions of the statute in question, is justified in claiming a lien, and the statute should not be held void.
I therefore hold that chap. 226, 1911 Sess. Laws, is not in violation of the constitution. Neither is the act beyond the power vested in the legislature in enacting laws providing for mechanics’ liens either for laborers engaged in-obtaining, securing and cutting or manufacturing saw-logs, spars, piles, *456cordwood, ties or lumber, or for every person, firm, corporation, or company selling or furnishing supplies, groceries, feed or other necessaries to any 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 engaged in obtaining, securing, cutting or manufacturing saw-logs, spars, piles, cordwood, ties or lumber. . .
My conclusion in this case is that chap. 226 is not unconstitutional, and should be sustained by this court, and that a judgment should be entered in this case accordingly.