ON PETITION FOR REHEARING. In a petition for rehearing appellees vigorously contend that "the court erred in disregarding the rule of law that the legislature, having reenacted the pharse `shall have precedence over all liens except taxes' after the Appellate Court in Burke v. Lukens, 12 Ind. App. 648, had construed such words to mean that the later of two liens so described take precedence over the earlier, adopted that construction." Burke v. Lukens, decided in 1895, construed chapter CXVIII, Acts 1889, which had been repealed before a decision was announced. In 1905, in another act relating to the same subject-matter, the legislature adopted substantially the same language as contained in the Act of 1889 concerning the precedence of liens, and appellees say in their brief: "The General Assembly of 1923, in fixing the priority of appellees' liens again reenacted such words after the decisions in both the Burke and Brownell cases." Before the enactment of 1923, the Appellate Court, in the case of Brownell ImprovementCo. v. Nixon (1910), 48 Ind. App. 195, *Page 334 92 N.E. 693, had expressly disapproved of the construction of the language involved in Burke v. Lukens, and, if the legislature can be presumed to have had cognizance of the first case, it must be presumed to have had cognizance of the last, and it is difficult to see how it can be presumed that it intended to adopt the first view of the Appellate Court as to the meaning of the language involved and ignore the later expressed view of that court upon the same subject.
In construing a statute the effort of this court is to determine the legislative intent. Where words in a statute are of doubtful import, this court will give consideration to 4-6. the construction that may have been put upon the statute by inferior or intermediate courts, or by governmental departments, and, if such interpretation and construction has been generally recognized and acquiesced in to such an extent that legislative knowledge of it may be inferred, the legislature may be presumed to have adopted the construction put upon the language by such courts or departments when again using the same language in re-enacting legislation. But the rule cannot be said to go to the extent of binding this court to a construction put upon the language by inferior or intermediate courts or governmental departments prior to re-enactment in instances where the language involved seems clear and unequivocal to this court.
The case of Burke v. Lukens has not only been criticized by our own Appellate Court, but by courts of last resort in other jurisdictions. As indicated in the principal opinion, we feel that the construction placed upon the language in question is erroneous and unjustified. If we presume that the legislature knew of the case of Burke v. Lukens, we must also presume that it knew at the time that it passed the Act of 1923, upon which appellees' lien depends, that the Appellate Court *Page 335 had afterwards repudiated the opinion, and that it had been criticized elsewhere. Under such circumstances, it would be difficult to know which, if either, interpretation of the language by the Appellate Court was adopted by the legislature.
The case of Burke v. Lukens was comparatively unimportant, involving less than $100.00. At the time it was decided, there was no statutory provision for transferring cases from the Appellate Court to this court. It has been suggested, however, that even then opinions of the Appellate Court might have been reviewed by this court by writ of error. Curless v. Watson (1913), 180 Ind. 86, 102 N.E. 497.
Where a statute is specifically construed by a court of last resort and thereafter substantially re-enacted, the legislature will be presumed to have adopted the construction, but we 7. are unwilling to extend the rule to the length of forever binding the legislature to a construction of a word or phrase by an inferior or intermediate court in a case in which this court has had no opportunity to review or disapprove the interpretation.
All of the liens involved accrued long after the reasoning inBurke v. Lukens had been repudiated by the Appellate Court in the Brownell Case, and criticized by several courts of last resort in foreign jurisdictions. Anyone examining such decisions for the purpose of finding an interpretation of the language of the statute must have been apprised of these facts, and of the fact that this court had not passed on the statute. Under such circumstances it is difficult to feel that the appellees acquired their liens confident that the words in question had acquired a settled meaning and that they were no longer open to construction.
Appellees point out that the record shows that appellees are entitled to foreclose their liens; that appellant *Page 336 merely sets up its lien by answer. It appears that appellant's lien has not matured and that it has not sought a foreclosure, and that by the mandate of this court, the lower court must order the sale of the land to satisfy appellees' demands and still preserve appellant's lien, which is of equal, but not better, dignity. Many procedural difficulties involved in this situation are suggested.
But, since the liens are of equal right, the land may not be sold for the sole benefit of appellees, nor can there be judgment that appellees' liens are superior to appellant's. The foreclosure procedure is statutory, and, if it presents difficulties or is inadequate, the remedy must come through legislation.
Petition for rehearing denied.