Wilkinson v. Ketler

STONE, J.— Section 2961 of the Revised Code declares a lien in favor of the landlord, on the crop grown on rented land, for rent for the current year, and provides a remedy by attachment for its enforcement. This section was amended, and the old section as found in the Revised Code repealed, by the act approved March 8, 1871—Pamph. Acts 19— which, in lieu of said section, enacts that “ a landlord has a lien on the crop grown on rented lands, superior to all other liens, for rent on, and advances made, tt Aqt <- -id in the cultivation of said land for the current yt, entitled to the process of attachment for the reco ^x'the same, to be issued by any one of the officers namex in section two thousand nine hundred and twenty-nine, in the following cases, whether the rent or advances made as aforesaid be due or not at the time the attachment is sued out; first, when the the tenant is about to remove the crop from the premises, without paying the rent and said advances; second, when he has removed it, or any portion thereof, without the consent of the landlord.” We say this enactment repealed the section of the Code amended, for such is the effect of an amendment thus made, whether the amending statute contains a repealing clause or not. The constitution affects the repeal. ‘Constitution of 1868, art. 4, section 2. The act approved March 18, 1875, Pamph. Acts, 254-5, after reciting section 2961 of the Revised Code, as it stood originally, without noticing the amendment made by the act of March 8, 1871, declares that said section “be so amended as to read: “§2961 (2533). A landlord, his assignee, or other bona fide owner of the amount due for rent, has a lien on the crop grown on rented land for rent for the current year, and is entitled to process of attachment for the recovery of the same, to be issued by any one of the officers named in section 2929 (2505), in the following eases, whether the rent is due or not at the time the attachment is sued out: 1. “When the tenant is about to remove the crop from ■the premises without paying the rent. [310] 2. “When he has removed it, or any portion thereof, without the consent of the landlord.” The statute then amends section 2962, so as to make it correspond with section 2961, as amended above, and contains the following repealing claúse: “ That sections two thousand nine hundred and sixty-one, and two thousand nine hundred and sixty-two, as they are-now in the Revised Code, be and the same are hereby repealed.” The question arises, what effect has the act of March 18, 1875, on the act of March 8, 1871? Were these several statutes enacted constitutionally ? The constitution of 1868, art. 4, sec. 2, ordains that “ no law shall be revised or amended unless the new act contain the entire act revised, or the section or sections amended p and the section or sections so amended shall be repealed.” What is meant by the language, unless the new act contain the entire act revised, or the section or sections amended? Must it contain the entire act, or section or' sections, as they stood before the amendment, or is it sufficient if the act contain the act or section as amended ? On reason, and on the weight of authority, we hold that the latter method conforms to all the requirements of the constitution. It avoids all danger of error, confusion, imperfection or incongruity of expression, and possible imposition, which the constitutional requirement was intended to prevent.—See Cooley Cons. Lim. 151; Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9. We hold that each of the statutes above copied was constitutionally enacted, and that the reference and repealing clause in the act of 1875, to section 2961 of the Revised Code, must be referred to that section, as amended by the act of Mai’ch 8, 1871; and the result is a repeal of the last named act.—See Blake v. Brackett, 47 Maine, 28. This repeal left the landlord without statutory lien for advances made, after March, 1875. We regret this result, and think it proceeded from an oversight. Still, the repeal was effected ixx strict coxxforxxxity with the provisions of the constitution copied above, and we are not permitted to disregard it. The mischief was healed by the act approved February 9, 1877.—Code of 1876, § 3467 et seq. Still, it leaves a gap of nearly two years when there was no such lien for advances. That part of the affirmative charge of the court which was-excepted to, being that part which commences with the311 words, “ But for the amount of advances defendant had furnished,” is not reconcilable with the views we have expressed above, and must work a reversal of this case. The charge of the court took from the jury all right to-consider the evidence that the tenant Cook did not faithfully perform his contract and obligation to pay rent, by cultivating other lands of the landlord; and hence, no injury was done to plaintiff by allowing that evidence to go to the jury. The charge, in effect, ruled the evidence out. The complaint of defendant, in the present case, was not that her tenant had not done labor, which his contract bound him to perform; in payment of his rent. If it had been that, it is probable attachment for its collection, the other conditions being present, would have lain in her favor.—See Taylor, Landlord and Tenant, §§561-2; Camell v. Lamb, 2 Cow. 652; Valentine v. Jackson, 9 Wend. 302; Smith v. Cahon, 10 Johns. 91. The complaint is that the crop-was not well cul-. tivated, and that the landlord was damaged by reason that it did not yield as much as it would have yielded, if well cultivated. These damages are not capable of being reduced to a certainty by calculation; could not be the subject of an affidavit, “ that _ the amount claimed is or will be due for for rent,” and consequently they will not support an attachment for rent or justify the landlord, obtaining possession of the crop, to defend that possession against an older mortgagee of the crop, whose mortgage had been duly recorded. The exception to the court’s refusal to give the several charges asked, was general. Some of- them should not have been given. Notably, charges 6 and 7; for there is nothing in the record to show there was any evidence on which to base them. For the error above pointed out, the judgment of the Circuit Court is reversed, and the cause remanded.