Atkinson v. Woodmansee

• Decision Date: 12 December 1903
• Docket Number: 13,331
• Citation: 68 Kan. 71,74 P. 640
• Parties: J. T. ATKINSON et al. v. H. P. WOODMANSEE
• Court: Kansas Supreme Court

74 P. 640

68 Kan. 71

J. T. ATKINSON et al. v. H. P. WOODMANSEE

No. 13,331

Supreme Court of Kansas

December 12, 1903

Decided July, 1903.

Error from Wyandotte district court; E. L. FISCHER, judge.

Judgment as modified and affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTITUTIONAL LAW -- Mechanics' Lien Act -- Amendment Provision Valid. Section 5121, General Statutes of 1901, being section 5 of the mechanics' lien law, and providing as follows: "In case of action brought, any lien statement may be amended by leave of court in furtherance of justice as pleadings may be in any matter except as to the amount claimed," permits an amendment correcting the description of the property and the name of the owner, and does not thereby authorize the taking of property without due process of law.

2. CONSTITUTIONAL LAW -- Provision for Attorney's Fee Unconstitutional. Section 5125, General Statutes of 1901, being section 9 of the mechanic's lien law, and providing as follows: "In any action brought by any artisan or day-laborer to enforce any lien under this act, where judgment be rendered for plaintiff, the plaintiff shall be entitled to recover a reasonable attorney's fee to be fixed by the court, which shall be taxed as costs in the action," denies to persons within the jurisdiction of this state the equal protection of the laws, and is, therefore, unconstitutional and void.

Joseph Johnson, and J. A. Smith, for plaintiffs in error.

Alden & McFadden, and S. H. Whisner, for defendant in error.

BURCH J. All the Justices concurring.

OPINION

BURCH, J.:

In an action for the foreclosure of a mechanic's lien it was discovered that the land upon which the improvement had been erected had been misdescribed, and that the owner had been misnamed in the original lien statement. The district court permitted amendments to cure these defects, and rendered judgment foreclosing the lien. This action of the court is complained of. It was, however, fully warranted by section 5121, General Statutes of 1901, which provides as follows:

"In case of action brought, any lien statement may be amended by leave of the court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed."

The legislature could, without doubt, provide for the enforcement of a lien statement amended as to parties and as to property to the same extent that it could provide for the appropriation of the property by virtue of a lien in the first instance.

The judgment rendered, however, included an attorney's fee of twenty-five dollars, allowed upon due proof under section 5125, General Statutes of 1901, which reads as follows:

"In any action brought by any artisan or day-laborer to enforce any lien under this act, where judgment be rendered for plaintiff, the plaintiff shall be entitled to recover a reasonable attorney's fee to be fixed by the court, which shall be taxed as costs in the action."

The constitution of the United States is the supreme law of the land, and the judges in every state are bound thereby, anything in the constitution or laws of their own state to the contrary notwithstanding. (U.S. Const., art. VI.) Section 1 of article XIV of the amendments to that constitution provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. The statute in question singles out property-owners who are charged with receiving from artisans or day-laborers labor going to the improvement of their property, by virtue of a contract made by themselves or through contractors employed by them, and mulcts them in damages if they should be unsuccessful in resisting a claimed lien therefor. Under the statute such persons are subjected to a liability for attorney's fees when owners of other classes of property and when other classes of persons employing artisans and day-laborers are not subjected to such burden, and their contracts for labor are segregated from all other contracts and separately classified as if they possessed some distinctive attribute calling for the imposition of special legislative penalties for their enforcement.

Of course, the legislature may classify objects of legislation and it has a wide discretion in that respect, but classifications may not be made either arbitrarily or capriciously. There must be differences in the elements and relations distinguished producing consequences justifying difference in treatment, and these differences must be such as by the very nature of the things considered to divide them into classes. Thus, a statute allowing the recovery of attorney's fees in an action against a railroad company for damages caused by its negligence in permitting the escape of fire is in the nature of a police regulation to prevent carelessness in the use of a dangerous element, and the consequent destruction of property. (Railroad Co. v. Matthews, 58 Kan. 447, 49 P. 602, aff., 174 U.S. 96, 19 S.Ct. 609, 43 L.Ed. 909.) The business of fire insurance has likewise assumed such a peculiar and special relation to the public welfare that the legislature is authorized to provide special penalties for breaches of contracts made in its prosecution. (Assurance Co. v. Bradford, 60 Kan. 82, 55 P. 335; Fid. Mut. Life Ass'n v. Mettler, 185 U.S. 308, 22 S.Ct. 662, 46 L.Ed. 922.)

But the homely and highly beneficial act of building or repairing some structure upon his premises, or otherwise improving them, by any man, whether rich or poor, who possesses property, whether much or little, does not so stand out from his other ordinary and innocent employments, or so stand out from similar employments of other men, as naturally to distinguish it from them. There is absolutely nothing to indicate that such a person, or a contract for such a purpose, should be the subject of impositions not suffered by others. The duty to pay is not more vital to the welfare of the public in this case than it is between other persons and with respect to other obligations. The legislature could not have believed that claims of the character adverted to by this act were unconscionably resisted beyond all other debts, and no other legal reason is discoverable for such a hostile and discriminating law.

Under the constitution of the state of Kansas, artisan and owner, contractor and laborer, are each one possessed of equal and inalienable rights to life, liberty, and the pursuit of happiness. They all live under the same indiscriminating sunshine, breathe the same free air, venerate the same historical past, are imbued with the same patriotic ideals and look forward to equal shares in the common blessings of a higher civilization in a brighter future. The burden of the law upon them should be as equal and impartial as the law of gravitation, and yet, in the baldest and most arbitrary manner imaginable, this act

"singles out a certain class of debtors and punishes them when for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts as other litigants under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attorney's fees of the successful plaintiff; if it terminates in their favor, they recover no attorney's fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the courts upon equal terms. They must pay attorney's fees if wrong; they do not recover any if right; while their adversaries recover if right and pay nothing if wrong. In the suits, therefore, to which they are parties they are discriminated against and are not treated as others. They do not stand equal before the law. They do not receive its equal protection." (Gulf, Colorado & Santa Fe R'y. v. Ellis, 165 U.S. 150, 153, 17 S.Ct. 255, 41 L.Ed. 666.)

There is, therefore, a perfectly manifest and utterly irreconcilable conflict between the statute and the constitution. The constitution is the direct mandate of the people themselves. The statute is an expression of the will of the legislature. Which shall this court obey?

In the first case in the first volume of the reports of decisions made by this court it was assumed that a statute which clearly and beyond any substantial doubt infringes the supreme law should be declared unconstitutional. The power to do so has since been exercised many times. There is no lawful or conscientious escape from its exercise in this case, and the statute in question is declared to be unconstitutional and no warrant for the taxing of an attorney's fee as a part of the costs in the court below.

In a dissenting opinion in the case of In re Davis, 58 Kan. 368, 384, 49 P. 160, the writer discovered the following statement:

"It is now too late, for any effective purpose, to deny the right of the courts to sit in judgment upon acts of the legislature. Accumulated precedent has established such right beyond the questioning of one judge or even of many judges. If, however, it were an open inquiry, I should have no hesitation in denying the existence of the jurisdiction assumed."

This language refers to the right and power of courts to adjudge statutes conflicting with the fundamental law to be unconstitutional, since that is the only right to sit in judgment upon the acts of the legislature which has been established, and the only power or jurisdiction which courts assume to have over acts of the legislature aside from the ordinary and unquestioned matter of interpretation.

Following the announcement quoted is this remarkable statement:

"No close student of the structure, history and philosophy of the government but will agree that the exercise of such power was not within the design of...