Osborn v. Johnson Wall Paper Co.

HARALSON, J. The only question presented for our review in this appeal is, whether the claim of the plaintiff for a lien must have been asserted under the mechanics’ and material-men’s lien law, as amended by act of February 12, 1891 (Acts of 1890-91, p. 578), or under the law of Code as it stood before the amendment. That said act was -a mere amendment of the former law, and not a repeal of the old and the adoption of a new system on that subject, we have had occasion at this term • to decide.—Birmingham Building & L. Asso. v. May & Thomas Hardware Co., ante, p. 276, and Colby v. St. James (Colored) M. E. Church, ante, p. 259. If the former, and not the amended statute applies, it is conceded the plaintiff was entitled to the declaration and enforcement of a lien as awarded by the court; but, if by the latter, the ruling and judgment of the court are erroneous. The repeal of a number of the sections of the Code, and their substitution by said amendatory act, was an enlargement of the rights of mechanics and materiai-men, and was designed to make a better and more perfect system of laws on that subject, and not to take away, or render less valuable, the remedies for the enforcement of such statutory liens. The only point of controversy grows out of section 5 of the amendatory act, — the plaintiff’s contention being, that a new right of duty was therein prescribed, which impaired [312] his contract and lien, and was, therefore, void as to him, leaving him for the assertion of his rights under the former statute; and that of the defendant, that said section did not have any such effect, and plaintiff was bound to pursue the remedy supplied under the amended law, which he did not do, and, therefore, lost his lien. A builder’s and mechanic’s lien, as has been everywhere held, is of purely statutory origin. Its character, operation and extent must be ascertained by the terms of the statute creating and defining it. While every lien of this kind has a contract as its foundation, it is created rather by the law than by the contract of the parties, is analogous to the vendor’s lien for the purchase-money of land, and is based on a like reason — that it is unconscionable for a vendee to retain the vendor’s property and not pay the price he agreed to pay for it. It is the work of mechanics and laborers or materials furnished by them and others, by which value is added, or supposed to be added to property, which in all good conscience the proprietor ought to pay for, which constitute the foundation of the lien under the statute.—Copeland v. Kehoe, 67 Ala. 597; Chandler v. Hanna, 73 Ala. 391; Wadsworth v. Hodge, 88 Ala. 503; Phillips on Mechanic’s Liens, § 1. In keeping with these principles, we have uniformly held, that in order to avail himself of this right and remedy, the lienor must comply substantially with the requisitions of the statute, in respect to filing a just and true account of the demand, properly verified, in the office of the judge of probate, within the time required. It must be perfected in the manner authorized. The jurisdiction and the remedy, being prescribed, can be exercised and pursued only in the tribunals and in the mode -provided by the statute.—Chandler v. Hanna, supra; Globe Iron R. & C. Co. v. Thatcher, 87 Ala. 158; Phillips on Mechanics’ Liens, § 21; 1 Jones Liens, § 106. The authorities hold, also, that, a statute creating a lien may be modified or repealed by statute, the only difference between them being, as to the effect such changes or repeals may have on existing contracts. In Curry v. Landers, 35 Ala. 280, for instance, this court said, that the constitutional power of the legislature to abrogate a lien upon real estate given by the preexisting law, by the repeal of the law, is a conceded question, and that it regarded the exercise of such a power by the legislature as affecting the remedy only, and not as impairing the obligation of the contract. To the [313] same effect are Martin v. Hewitt, 44 Ala. 435, and Ex parte Pollard, 40 Ala. 88, and authorities in those cases. These decisions were under the constitutions of this State, prior to our present constitution, which, in addition to the prohibition in former constitutions, against the right ' of the State to pass a law. impairing the obligation of contracts, contains the provision, that, “There can be no law of this State impairing the obligation of contracts, by destroying or impairing the remedy for their enforcement.” Art. Ill, § 56. We have examined and collated the decisions of the Supreme Court of the United States bearing on the construction of this clause of our constitution, and our conclusions are, as drawn from those decisions, that a remedy subsisting in a State when and where a contract is made and is to be performed, is a part of the' obligation, and any subsequent law of the State which so affects that remedy, as substantially to lessen the value of the contract, is forbidden by the constitution, and void; that if a particular form of proceeding is prohibited, and another is left or provided, which affords an effective and reasonable mode of enforcing the right, the obligation is not impaired ; that the legislature has the control, and may enlarge, limit or alter modes or proceedings and forms to enforce a contract, provided it does not deny a remedy, or so embarrass it with conditions and restrictions as seriously to impair the right; that the remedies for the enforcement-of obligations which exist when the contract was made, must be left unimpaired by the legislature, or, if they are changed, a substantial equivalent must be provided.—Edwards v. Williamson, 70 Ala. 145, Edwards v. Kirksey, 96 U. S. 600; Tennessee v. Sneed, 96 U. S. 74; Kring v. Missouri, 107 U. S. 233; Antoni v. Greenhow, 107 U. S. 798; Mobile v. Walson, 116 U. S. 305; Seibert v. Lewis, 122 U. S. 284; Denny v. Bennett, 128 U. S. 495. The 5th section of the amendatory act of 1890-91, reads, “That any person holding claims under this statute, shall give notice to the owner or- proprietor, his agent or architect ten days before filing his lien, giving the amount of his claim, and that he looks to his lien on the building, improvement article or utility, for the payment of his claim; provided, that, if such notice is left at the residence or place of business of the owner or proprietor, his agent or architect, it shall' be deemed a full compliance with this section.” This section does not impair the remedy for enforcing a lien growing out of a contract made before the enactment of [314] tbe amendatory act, or lessen tbe value of tbe contract on wbicb it' is based, in any degree. Tbe remedy is as perfect as before. Tbe object of tbis section, 'was not to diminish tbe rights of tbe lienor under tbe law, but, without doing so, to,require justice to be done to tbe proprietor, to save him loss and damage. With such a notice as here prescribed, tbe proprietor might retain from tbe contractor and save himself, and pay on demand or notice, without cost and litigation, and tbis with as complete and unimpaired a remedy as tbe contractor enjoyed before. Tbe court erred in sustaining plaintiff’s demurrer to tbe 2d plea, and in rendering judgment for plaintiff below. Reversed and remanded.