Garneau v. Port Blakeley Mill Co.

• Citation: 8 Wash. 467,36 P. 463
• Decision Date: 24 March 1894
• Docket Number: 1173
• Parties: GARNEAU ET AL. v. PORT BLAKELEY MILL CO. [*] [1]
• Court: United States State Supreme Court of Washington

36 P. 463

8 Wash. 467

GARNEAU ET AL. v. PORT BLAKELEY MILL CO. ^[*][1]

No. 1173

Supreme Court of Washington

March 24, 1894

Appeal from superior court, Mason county; Mason Irwin, Judge.

Suit by Thomas Garneau and 48 others against the Washington Improvement Company and the Port Blakeley Mill Company to foreclose laborer's lien on logs. Decree for plaintiffs. The mill company appeals. Reversed.

Struve, Allen, Hughes & McMicken and James Kiefer for appellant.

Jos. A McDonald, for respondents.

STILES, J.

1. The loggers' liens involved in this case were filed for record in December, 1892. Suit was brought the following January, and the case was tried June 25, 1893. Pending the hearing the legislature passed a new act on the subject which went into effect before the trial. Laws 1893, p. 428. Section 21 of this act repealed all acts and parts of acts inconsistent with its provisions, and contained no saving clause covering existing, undetermined liens. The appellant which was brought into the foreclosure action as a party having, or claiming to have, some interest in or claim to the logs, and against whom an alternative personal judgment was rendered, takes the ground that, as the right to a lien of this kind is wholly statutory, it is a remedy, only, and therefore ceased to exist when the law under which it accrued was repealed. The respondents maintain that it is more than a mere remedy, and is in the nature of a vested right, because the law became a part of the contract under which they went to work, and gave the principal defendant credit for their wages, so that the right to maintain and foreclose the lien if necessary to their payment, could not be taken away by the legislature. They also argue that the new statute is a mere continuation of the former one on the same subject, having in view only a prospective operation, and that it is not inconsistent with any of its provisions to sustain the binding force of an existing lien, although its foreclosure may have to be accomplished under the procedure prescribed by the new law. The question has been decided both ways by the courts of different states, the leading authorities holding that the right of lien is a mere remedy being Woodbury v. Grimes, 1 Colo. 103; Purmort v. Lumber Co., 2 Colo. 473; Bailey v. Mason, 4 Minn. 546 (Gil. 430); Willim v. Bernheimer, 5 Minn. 288 (Gil. 229); Bangor v. Goding, 35 Me. 74; Frost v. Ilsley, 54 Me. 345; Hanes v. Wadey, 73 Mich. 178, 41 N.W. 222; Templeton v. Horne, 82 Ill. 492; Evans v. Montgomery, 4 Watts & S. 220; Phil. Mech. Liens, § 28. An implication to the same effect was made in Railroad Co. v. Ah Kow, 2 Wash. T. 43, 3 P. 188. To the contrary are Skyrme v. Mining Co., 8 Nev. 219; Taylor v. Dahn (Ind. App.) 34 N.E. 122; Goodbub v. Estate of Hornung, 127 Ind. 181, 26 N.E. 770; Power Co. v. Hanby (Ala.) 13 So. 343; Weaver v. Sells, 10 Kan. 609; The Gazelle v. Lake, 1 Or. 120; Phillips v. Mason, 7 Heisk. 61; Handel v. Elliott, 60 Tex. 145; In re Hope Min. Co., 1 Sawy. 710, F. Cas. No. 6,681; Wade, Retro. Law, § 173; Jones, Liens, § 1558. But it seems to us that a fair distinction can be drawn between these rights of lien which are conceded to be purely remedies, such as attachments, judgment liens, and the like, and mechanics' liens, in this: that parties do not make ordinary contracts with a view to the particular means provided for their enforcement, whereas, at common law, one performing labor upon a chattel has an implied lien upon it for the value of his services, so long as it remains in his possession. It would not be a very far stretch of the common-law lien to extend it over logs, which are chattels; and it is not impossible that such a lien might now exist, were it not that, in the nature of the thing, logs are of such a character that possession cannot be retained of them, and the business of logging progress. But in a country like ours, where the logging business is a principal industry, it is the interest of the public that that business be fostered, as it is, also, that the men who perform labor in that business have some secure means of collecting their wages. Therefore, the statutes have expressly extended the laborer's right of lien at the common law to this class of personal property, also, and given practically the same remedies for its enforcement, mutatis mutandis, as the builder of a carriage, the mender of a watch, or any other artisan, has in reference to the thing which he creates or repairs. Since these laws have been in force, we have no doubt that the credit which has been accorded to employers by their men has been very largely based upon the security which the latter have counted upon through the existence of their supposed right to be paid out of the specific things which they have created. When the work is done through contractors, so that the men have no contract relation with the owner of the chattel, the case is somewhat different, and a new principle is introduced, which is exemplified in Streubel v. Railroad Co., 12 Wis. 74, where laborers upon railroad construction were given the right to sue the railroad company for their wages when the contractors who employed them failed to pay them. The same principle, as we understand the case, was upheld in Steamship Co. v. Joliffe, 2 Wall. 450. In both the cases mentioned, it was held that the repeal of the statute did not destroy the quasi contract under which the right of action accrued. Upon the authority of the latter case, in the main, In re Hope Min. Co., supra, was decided, sustaining a laborer's lien upon mining works after the substitution of a new act which repealed all former laws on the subject. Handel v. Elliott, supra, sustains the view we have taken, and cites the principal cases on the subject. We hold, therefore, that the right to a lien was a part of the laborer's contract, and was not affected by the substitute law of 1893.

2. The complaint alleged the appellant to be a corporation organized and existing under the laws of this state, and its only answer was a general denial. A defendant corporation cannot appear generally in an action, and afterwards complain that there was no affirmative proof of its corporate existence.

3. The law required that the lien notice should be filed in the county where the logs were cut, and this was a matter that should not have been left to inference and presumption upon the trial. There was no reason in the world why some one of the many witnesses examined should not have stated the blunt fact that these logs were cut in Mason county. But this omission,-which was doubtless a mere inadvertence,-owing to the fact that a new decree must be entered, will not be permitted to defeat the action.

4. Although some of the lienors, who were unlettered men, stated that they were employed by "the Malaneys" or "Malaney Brothers," it satisfactorily appeared that the real employer was the Washington Improvement Company, whose agents to manage the logging business the Malaneys were.

5. Objection is made that the county auditor was not authorized to administer oaths until 1893, and that, therefore, the verification of all these liens, which was made before him, was void. County auditors were invested with the power to administer oaths by section 2717, Code 1881; and this law remained in force under the constitution, although the auditor was not mentioned as a county officer in the article on county organization. All laws were continued in force, and all officers were continued in office, under sections 2 and 6 of the schedule. The salary act of 1890 (Laws, p. 302) did not create the office of county auditor, but merely fixed the salary of an existing officer. The act of 1893 (page 282) expressly recognized and amended section 2717 of the Code of 1881.

6. The original notices of lien were, in numerous instances admitted by the court to show compliance with the statute in the matter of filing. Each of these notices was indorsed thus: "I certify that the within instrument was filed for record in the auditor's office of Mason County, by [here follow the name of the party filing, the date, and hour], and that it is recorded in volume _____ of Lien Records of said county, on page _____ [volume and page given]. [Auditor's Seal.] J. W. Day, Auditor Mason County, Wash." This presents a different case from any heretofore considered by this court. The statement of the certificate is as full as it could be made; and the question is whether, under any circumstances, such a certificate is to be taken as proving the fact of filing and record. Appellant's contention is that only a certified copy can be used for such a purpose, but the statute cited...