In a Pennsylvania case, an act which gave a lien on engines, pumps, machinery, screens, and fixtures repaired or erected by tenants was said to depart so far from the principles of the former lien laws, by creating a lien on chattels, that it should be strictly construed; but this was afterwards explained to mean only that upon doubtful questions of construction the argument from inconvenience has great force, and that the statute should have a fair and liberal construction in advancement of the remedy."

Tennessee Rule.

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§ 38. The supreme court of Tennessee has laid down the rather peculiar rule of construction that in determining "the amount or

ment the same was enacted?" Pool v. Wedemeyer, 56 Tex. 296. "The rule for the construction of statutes which create charges against individuals or against their property without their assent is this: The burden shall not be extended beyond the plain meaning of the terms creating it, but when the legislative intent to create the charge is clearly ascertained, the remedy shall not be frittered away by a too close adherence to those requirements of the statute which are designed to regulate the procedure for enforcing the charge." Basham v. Toors, 11 S. W. 282, 51 Ark. 309. "The acts required to fix and secure the lien under the statute are in the nature of an ex parte proceeding to fix and fasten a lien upon a man's property not created by express contract, and therefore every requisite of the statute must be at least substantially complied with, and a failure to thus comply upon the part of the lien holder is fatal to the same.” Lee v. Phelps, 54 Tex. 367. "A mechanic's lien is of statutory creation, and can be maintained only by a substantial observance of and compliance with the requirements of the statute." Mayes v. Ruffners, 8 W. Va. 384. Even under a liberal construction of the statute it is necessary that its terms should be substantially complied with. Plummer v. Eckenrode, 50 Md. 232.' The character, operation, and extent of a mechanic's lien must be ascertained by the terms of the statute. Copeland v. Kehoe, 67 Ala. 597. It cannot be extended by the courts beyond the fair and reasonable import of the words used in the statute. Mushlitt v. Silverman, 50 N. Y. 360. "The provisions of these enactments cannot be extended in their operation and effect beyond the plain and fair sense of the terms." Wagar v. Briscoe, 38 Mich. 587. In its latest utterance on this subject the supreme court of Illinois says: "This court has adopted and has always adhered to the rule that mechanic's lien laws, being in derogation of common right, should be strictly construed, but at the same time the construction to be given to them should be reasonable, and not such as to render them practically inoperative and ineffectual." Culver v. Schroth, 39 N. E. 115, 153 Ill. 437. 62 Esterley's Appeal, 54 Pa. St. 192. 63 Dame's Appeal, 62 Pa. St. 420.

character of the evidence required to establish the right to maintain the suit" the statute should be strictly construed, while, in considering "the cases in which the remedy provided by the statute may be applied," it should be liberally construed.**

Legislative Direction.

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§ 39. In some instances the legislature has declared that the act shall receive a liberal construction.65 The constitutionality of this provision does not seem to have been directly passed upon. It has been held that it does not render unnecessary a substantial compliance with the requirements of the act, and also that under it the fact that the verification of the claim is not full and complete constitutes a mere irregularity, which is waived by a failure to object to it.68

67

Construction to Preserve Sense.

40. The mechanic's lien statutes should, if possible, be so construed as to preserve the sense. Thus it has been held that in a statute providing that when the improvement consists of two or more buildings united, and situated upon the same lots, or "upon" separate buildings upon contiguous lots, and erected under one general contract, it shall not be necessary to file a separate lien upon each building, the word "upon" should be construed "consists of.” “9

Construed not to Have Retrospective Effect.

§ 41. One important canon of construction of mechanic's lien laws is that they shall not be construed to have any retrospective effect, whether they are original statutes or amendatory ones, unless such a

64 Kay v. Smith, 10 Heisk. (Tenn.) 41. This decision was the result of an attempt to reconcile two preceding decisions that appeared to be in hopeless conflict.

65 Kees v. Kerney, 5 Md. 422; Blake v. Pitcher, 46 Md. 453; Schwartz v. Allen (Super. Buff.) 7 N. Y. Supp. 5; Ogden v. Alexander, 35 N. E. 638, 140 N. Y. 356.

66 See ante, § 28.

67 Plummer v. Eckenrode, 50 Md. 232.

68 Boyd v. Bassett, 16 N. Y. Supp. 10, 61 Hun, 624.

69 Walden v. Robertson, 25 S. W. 349, 120 Mo. 38.

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S41 construction is absolutely demanded by the plain language of the act. Thus, an act declaring that a previous act shall be construed to apply to bridges does not give a lien on bridges constructed before its passage," and an act declaring that the words "fixtures for manufacturing purposes," as used in a former act, should be construed to include any building, erection, or construction designed to be used in the building and repairing of vessels, whether permanently attached to the freehold, or built so as to be removed from place to place, and whether intended to.be used on the land or on the water, does not apply to cases arising before the passage of the later act, where the manifest intention of such acts is to extend the provisions of the original acts, and not merely to furnish a rule for their construction. Where an act gave a lien on buildings "in a city or town," and an amendment thereto omitted those words, thus making the lien general, it was held that there was no lien on houses in the country till after passage of the amendment, since it did not operate retrospectively. On the same principle, it has been decided that an act which declared that a mechanic's lien should not be defeated by reason of the claimant's having received a promissory note for the amount due, unless it was expressly taken in discharge thereof, had no effect upon a lien securing an account for which a note had been taken before passage of the act, and that an act allowing amendments to claims filed according to existing laws applied only to claims thereafter filed.75 Where a law does not by its terms purport to give a lien for labor done before its passage, it only covers work done thereafter.76 Thus, under a statute giving a lien to "any

73

74

70 Benton v. Wickwire, 54 N. Y. 229; French v. Hussey, 34 N. E. 362, 159 Mass. 206; Pierce v. Cabot, 34 N. E. 362, 159 Mass. 202; Coddington v. Beebe, 29 N. J. Law, 550; McCarthy v. Havis, 2 South. 819, 23 Fla. 511; Kendall v. Folsom, 34 Me. 198; Fahnestock v. Wilson, 95 Pa. St. 301; Smith v. Kolb, 58 Ala. 645; Vanderpool v. Railroad Co., 44 Wis. 652; Townsend v. Wild, 1 Colo 10; Stonewall Jackson Loan & Building Ass'n v. McGruder, 43 Ga. 9. 71 Vanderpool v. Railroad Co., 44 Wis. 652.

72 Coddington v. Beebe, 29 N. J. Law, 550.

73 Hendricks v. Fields, 26 Grat. (Va.) 447.

74 Coburn v. Kerswell, 35 Me. 126.

75 Fahnestock v. Wilson, 95 Pa. St. 301; Spare v. Walz, 14 Phila. 132; Gebhard v. Levering, Id. 120; Vreeland v. Bramhall, 39 N. J. Law, 1.

76 Hunter v. Mining Co., 4 Nev. 647.

person who shall hereafter" perform labor, no lien can be claimed for work done before its passage," though, as between mechanic and employer, an act declaring that every building for the construction of which "any person shall have a claim for materials furnished or services rendered" shall be subject to a lien therefor has been held to include claims for services rendered before the act was passed.78 Where an act requiring a material man in the second degree to notify the owner before furnishing the materials is amended after certain materials are furnished so. as no longer to require such notice, no lien can be thereafter claimed for such materials, unless the preliminary notice was given, since the amendatory act will not be construed to be retroactive.79 And an act giving to persons who do work on mining property operated by lessees a lien for their labor, unless the owner files for record, "before the commencement of work under the lease," a notice that the property is being worked under a lease, does not apply where the lease was executed and the work performed before the passage of the act.80

Where an act expressly professes to apply only to cases arising after its passage, that means after its approval by the governor.

Construction of Repealing Acts.

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§ 42. Whether a mechanic's lien act repeals a former act is often a difficult question. Sometimes such an act expressly repeals all former acts, sometimes it does so by implication, and sometimes it only repeals former acts in so far as they are inconsistent with its provisions. Where a later statute, not purporting to amend a former one, covers the whole subject of mechanics' liens, and appears to be plainly intended to furnish the entire law upon the subject, the former statute must be held repealed by necessary implication.82 Thus, a lien law which includes all the subjects contained in the

77 Donaldson v. O'Connor, 1 E. D. Smith (N. Y.) 695; Arbuckle v. Railway Co., 81 Ill. 429.

78 Mason v. Heyward, 5 Minn. 74 (Gil. 55).

79 Taylor v. Dahn, 34 N. E. 121, 6 Ind. App. 672.

80 Gardner v. Smelting Co., 35 Pac. 674, 4 Colo. App. 271.

81 Walker v. Railroad Co., 2 Cent. Law J. 481.

82 Heckmann v. Pinkney, 81 N. Y. 215, 6 Abb. N. C. (N. Y.) 371.

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83

former law, but requires the claim to be filed within three months instead of within six months, as provided by the former law, repeals such former law by implication. And the same is true of a law which requires suit to be begun within thirty days from completion of the work, instead of within ninety days from the expiration of credit; of a law which requires liens to be enforced within six months from their creation, instead of by a fixed date, as theretofore; 5 of a law which requires subcontractors to serve notice on the owner within thirty days after completion of the building, instead of at any time before the contractor is paid; 86 of a law which requires the lien claimant to record his claim within three months, and enforce his lien within twelve months, where the former law merely required him to enforce his lien within twelve months; 87 and of a law requiring subcontractors to give such notice to the owner as the court may require, instead of written notice, as required by the former law.88 An act requiring the claim to be recorded in the town clerk's office, and repealing all inconsistent acts, repeals a former law requiring the claim to be recorded in the registry of deeds. Where the new act gives a lien in the same cases as the former act, and also in additional cases, but imposes different limitations and restrictions, and repeals all inconsistent laws, it repeals such former act.90 The California act of 1850 gave a mechanic's lien only on buildings and wharves, the act of 1853 extended the former act so as to include bridges, ditches, flumes, and aqueducts, and the act of 1855 expressly repealed the act of 1850. It was held that this repeal carried with it the act of 1853.91

89

§ 43. Where a repealing statute is itself repealed, the former law will, in the absence of any statutory provision to the contrary, be

83 Gibbs v. Peck, 77 Pa. St. 86.

84 Walker v. Walton, 24 Grant (U. C.) 209.

$ George v. Skeates, 19 Ala. 738.

86 Cole Manuf'g Co. v. Falls, 22 S. W. 856, 92 Tenn. 607.

87 Puryear v. Nisbet, 27 Ga. 515.

88 Barbour v. Van Camp, 7 South. 162, 26 Fla. 40; Scott v. Hempe, 14 South. 840, 33 Fla. 313.

89 Weeks v. Walcott, 15 Gray (Mass.) 54.

90 Purmort v. Lumber Co., 2 Colo. 470.

91 Ellison v. Water Co., 12 Cal. 542.