(dissenting). The judgment of this court overruling Mills & Co. v. Hegeman-Harris Co., 94 N. J. Eq. 802, decided in 1923, subjects the contractor, by execution against the owner’s contractual obligation, to a liability of $24,983.02, extra the subcontract, that is nonexistent under the Mechanics’ Lien Law as there unanimously interpreted by the Court of Errors and Appeals, an interpretation that long since became settled law by legislative acceptance.
The holding was that there was then no statute “which makes the contractor liable for making advance payments.” There is none now, for the Legislature concededly has not undertaken to make such provision. My brethren say that this construction “unduly restricted the legislative objectives,” and while the “concomitant principles of stare decisis and legislative acquiescence in the judicial interpretation of statutes” are of “great social value” to the extent that they “afford measures of stability and predictability in our legal system,” they “are not absolutes and under cogent circumstances they must give way to overriding considerations which recognize that the purpose of our legal system is to serve justly the needs of present day society and, to that end, judges remain free to re-examine earlier determinations and *429correct judicial errors whether they be their own or those of their predecessors.” But is it just to the corporate contractor to overrule, now for the first time after 31 years, a judicial construction on which it had placed justifiable reliance as a part of the law itself? Was it not a well-settled interpretation, so much so as to render the inference of legislative acceptance conclusive ? And is not its rejection now judicial intrusion upon the legislative function?
The case of St. Michael’s Orphan Asylum and Industrial School of Hopewell v. Conneen Const. Co., 114 N. J. Eq. 276 (Ch. 1933), affirmed upon the opinion of Vice Chancellor Davis, 115 N. J. Eq. 334 (E. & A. 1933), did not overrule the holding of the Heg eman-Harris case that the contractor prevailed over the unpaid materialmen of the subcontractor. There, it was held to be a differentiating circumstance that by specific provision in the subcontract title to the materials passed to the contractor upon delivery at the work site.. And in the later case of Noland Co. v. Chelsea Housing Corp., 128 Fed. 2d 872, decided in 1942, Judge Maris, for the Third Circuit Court of Appeals, referred to the distinction and observed that the Court of Errors and Appeals, “when the Cormeen case came to it on appeal, did not take the plainly proffered opportunity to overrule the Hegeman-Harris decision,” but affirmed the decree in Chancery on the opinion there which “expressly distinguished the two cases.” The law of the Hegeman-Harris case was applied, and the judgment of the District Court for the District of New Jersey was reversed. And still there has been no legislative action to correct what is now held, after nearly a third of a century, to be plain misinterpretation.
The meaning given the Mechanics’ Lien Law by the court of last resort in the Hegeman-Harris case is to be regarded as “though expressed in the statute itself in specific words.” Guaranty Trust Co. of New York v. Blodgett, 287 U. S. 509, 53 S. Ct. 244, 77 L. Ed. 463 (1933). A “long and uniform construction” of a statute “amounts to positive law.” 50 Am. Jur. 199. The interpretation of the court of last resort fixes the meaning of the statute “as definitely as if it had *430been so amended by the legislature.” Winters v. People of State of New York, 333 U. S. 507, 68 S. Ct. 665, 92 L. Ed. 840 (1948). A “long period of accommodations to an older decision sometimes requires us to adhere to an unsatisfactory rule to avoid unfortunate practical results from a change.” Helvering v. Griffiths, 318 U. S. 371, 63 S. Ct. 636, 87 L. Ed. 843 (1943). When a case is decided “it is expected that people will make their behavior conform to the rule it lays down and also to the principle expressed in so far as it can be determined”; and when contract rights or property rights growing out of contracts are involved, “the one who argued against the established law is not given the benefit of the change .he helped bring about inasmuch as his adversary relief upon the previous law. Such decisions apply the old law to the case at hand while establishing new law for the future.” Warring v. Colpoys, 74 App. D. C. 303, 122 F. 2d 642, 136 A. L. R. 1025 (Ct. App. D. C. 1941). Vinson, J., continued:
“Now if a legislature makes sozne law, again it is expected that people will conform to its provisions. If a court later construes the Act, it is expected, likewise, that behavior will be adjusted compatibly with the decision even though the court says that the statute means something other than what most people thought that it meant. There would be uzzcertainty and criticism if each person proceeded to conduct himself according to his own notion of what the statute meant in the face of what the court had said.”
In Douglass v. Pike County, 101 U. S. 677, 25 L. Ed. 968 (1880), Chief Justice Waite, considering the question of the destruction of “vested rights” under judicial interpretation of statutes by decisions later given, said that
“where different constructions have been given to the same statute at different times, we have zzever felt ourselves bound to follow the latest decisions, if thereby contract rights which have accrued under earlier rulings will be injuriously affected. * * * The true rule is to give a change of judicial constz’uction, izi respect to a statute, the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, but not retroactive. After a statute has been settled by jizdicial construction, the construction becomes, so *431far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is, to all intents and purposes, the same in its effect on contracts as an amendment of the law by means of a legislative enactment.”
Again, it was said, recognizing the right of a state court to change its decisions, that “ordinarily we will follow them, ezeept so far as they affect rights vested before the change was made.”
Where it is asserted that a contract has been entered into “on the faith of the state laws, existing at the time when it was made, the construction of such laws, which was settled at the time of the making of the contract, by the court of last resort of the state, will be adopted and applied” by the Federal Supreme Court “in considering the nature of the contract right relied upon.” Warburton v. White. 116 U. S. 484, 20 S. Ct. 404, 44 L. Ed. 555 (1900). See, also, Anderson v. Santa Anna Township, 116 U. S. 356, 6 S. Ct. 413, 29 L. Ed. 633 (1886).
Such is, on the plainest principles of justice, the answer to the thesis that the superseded judicial construction never was the law.
And the Supreme Court said, though decisions of the lower courts based on dictum standing for 30 years, “are plainly correct,” yet “if they were doubtful, we should at this late day hesitate to disturb them.” State of Missouri v. Ross, 299 U. S. 72, 57 S. Ct. 60, 81 L. Ed. 46 (1936). Mr. Justice Sutherland also observed that the nonexercise of the legislative amendatory power for so many years was “persuasive evidence of the adoption” by the Congress of the judicial construction.
The Pennsylvania Supreme Court held that under the doctrine of stare decisis, its construction of a legislative act “has the same effect as if written into the body of the statute at the time of its enactment,” and a statutory construction, “once made and followed, should never be altered upon the changed views of new personnel of the court”; otherwise, it was said, “ The knowne certaintie of the law which Lord Coke so wisely said Ts the safetie of all would be utterly *432destroyed.” In re Burtt’s Estate, 353 Pa. 217, 44 A. 2d 670, 162 A. L. R. 1053 (Sup. Ct. 1945).
The rule of stare decisis is designed to give the uniformity, certainty and stability without which law can have no real meaning. The eradication of error in construction, if there be such, cannot be had at the sacrifice of the just rights of one who in good faith relied upon the law as expounded by the court of last resort. This is not to say that I deem the interpretation of the Hegeman-Harris case erroneous. I have given no consideration to that: for I consider it to be beyond judicial revision at this late day. It is now a matter within the exclusive province of the Legislature. The parties here contracted in the context of the law as settled long since by the exposition of the Court of Errors and Appeals. Would not any lawyer of whom advice was asked say as much without any reservation? Hegeman-Harris was the unanimous decision of a very distinguished court of last resort. And the interpretation was not rejected in the Conneen case ten years later, but reaffirmed on the basis of a differentiating factual circumstance. In this, there would be no injustice to the materialmen, for the supplies were furnished under the law as thus interpreted.
I would affirm the judgments.
Olipi-iant, J., joins in this dissent.
For reversal — Chief Justice Yanderbilt, and Justices Wacheneeld, Burling, Jacobs and Brennan — 5.
For affirmance — Justices Heher and Oliphant — 2.