Burnett v. Turner

• Decision Date: 12 November 1888
• Parties: BURNETT v. TURNER et al.
• Court: Tennessee Supreme Court

10 S.W. 194

87 Tenn. 124

BURNETT v. TURNER et al.

Supreme Court of Tennessee.

November 12, 1888

Appeal from chancery court, Hamblen county; JOHN P. SMITH Chancellor.

This is an action by C.J. Burnett against G. K. Turner and wife and H. B. Liverman to enforce a furnisher's lien on a house built for said Turner and wife by said Liverman, of lumber furnished by the complainant. Complainant appeals.

O. C King and J. F. Lafferty, for appellant.

James G. Rose, for appellees.

SNODGRASS J.

The act approved March 21, 1887, c. 85, Acts 1887, to amend the mechanic's lien law, is unconstitutional and void because it does not recite, in its caption or otherwise, the substance or title of the act amended, as required in section 17 of article 2 of the constitution. The recitation in this act, ""that section 2746 of the Revised Code shall read as follows," is insufficient. There is no "Revised Code" of Tennessee, as a matter of law; and as a matter of fact there are two compilations to which the term "Revised Code" is often applied, and equally applicable. Nothing in this reference indicates which, if either, of these is referred to, and there is therefore no identification of the law amended.

H. B. Liverman contracted to build and partly built a house for G. K. Turner upon a lot, the title of which was in the wife of G. K. Turner for life, remainder to their son, David Payne Turner, a minor. Burnett, the complainant, sold to Liverman lumber of which the house was built, and brings this suit to enforce a supposed furnisher's lien thereon, under the act of 1887, entitled ""An act to provide a more just and equitable mechanic's lien law, and to afford mechanics, contractors, subcontractors, and material-men greater security for work done and material furnished." Acts 1887, p. 165. In the event a lien could not be enforced on account of the condition of the title, and Mrs. Turner refused to recognize and agree to said lien, then complainant sought to remove the lumber which was obtained of him from the building, in pursuance of section 2 of the act referred to. The defendants demurred to the bill on various grounds, and, the demurrer being overruled, answered. They set up in both the unconstitutionality of the act of 1887, and insist that if it is valid it can have no such construction as contended for, which would authorize the destruction of the house to reclaim the lumber. It was further answered and shown that the contract was that of defendant G. K. Turner alone with Liverman; that Liverman was to furnish the lumber and build at a stated price, and it was insisted that Liverman was the "furnisher" in the sense of the statute. On the hearing the chancellor held that the complainant was entitled to a lien on the lumber furnished, and ordered a reference, to ascertain its amount and value. He then decreed that in the event the value ascertained was not paid, the sheriff should take and remove the lumber from the building, and deliver it to complainant. From this decree complainant appealed, and assigns errors indicated by statement of defenses of the answer.

In the view we take of it it is unnecessary to notice any question involved but the constitutional one, as that is conclusive and though we do not agree with the chancellor in his construction of the act, we need not even state, much less discuss, the difference in our views on that subject. The act in question proposes to amend an existing law, and the only reference to the law to be amended is contained in the first section in the declaration "that section 2746 of the Revised Code shall read as follows," proposing a substitute for the entire section referred to. The objection is that the act does not recite, in its caption or otherwise, the title or substance of the act revived, repealed, or amended, as required in section 17 of article 2 of the constitution of Tennessee. The objection is well taken. If the act can operate as a valid law, it is upon the idea that it eliminates a section from the "Code" of Tennessee, and supplies its place with one of corresponding number. There is no "Revised Code" of Tennessee, the legislature not having adopted or enacted any compilation of our statutes as such since the enactment of the Code in 1858, which, being the first Code, is not itself a revision. It therefore follows that it is not the amendment of a...