Spokane Grain & Fuel Co. v. Lyttaker

• Decision Date: 16 June 1910
• Citation: 109 P. 316,59 Wash. 76
• Court: Washington Supreme Court
• Parties: SPOKANE GRAIN & FUEL CO. et al. v. LYTTAKER et al.

109 P. 316

59 Wash. 76

SPOKANE GRAIN & FUEL CO. et al. v. LYTTAKER et al.

Supreme Court of Washington

June 16, 1910

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by the Spokane Grain & Fuel Company and others against Mrs E. V. Lyttaker and another. From a judgment of dismissal rendered after sustaining a demurrer to the complint plaintiffs appeal. Affirmed.

Cassius E. Gates and Martin & Todd, for appellants.

Herchmer Johnston, for respondents.

RUDKIN C.J.

This was an action to foreclose materialmen's liens. A demurrer to the complaint was sustained in the court below, and the plaintiffs elected to stand on their pleading, and refused to plead further. A judgment of dismissal was thereupon entered, from which this appeal is prosecuted.

The demurrer was sustained, for the reason that the complaint failed to allege that at the time of the delivery of the materials the lien claimants delivered or mailed to the owner or reputed owner of the property upon or about which the materials were to be used a duplicate statement of all such materials, as required by section 1 of the act of March 4, 1909. Laws 1909, p. 71; Rem. & Bal. Code, § 1133. The act in question is entitled, 'An act relating to materialmen's liens, and the enforcement thereof,' and the body of the act reads as follows: 'Every person furnishing material or supplies to be used in the construction, alteration, or repair of any mining claim, building, wharf, steamer, vessel, boat, bridge, ditch, dyke, flume, tunnel, well, fence, machinery, railroad, street railway, wagon road, aqueduct to create hydraulic power, or any other structure or mining claim or stone quarry, shall, at the time such material or supplies are delivered to any person or contractor, deliver or mail to the owner, or reputed owner, of the property, on, upon or about which said materials or supplies are to be used, a duplicate statement of all such materials or supplies delivered to any contractor or person to whom any such materials or supplies have been sold or delivered, and no materialmen's lien shall be filed or enforced unless the provisions of this act have been complied with.' The appellants concede that the demurrer was properly sustained, if this act is constitutional and unrepealed, but they contend, first, that it violates section 37 of article 2 of the state Constitution, which declares that 'no act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length'; and, second, that it was repealed by the later act of August 28, 1909. Laws Sp. Sess. 1909, p. 71. We will first consider the constitutionality of the act, for, if invalid, the question of its repeal becomes immaterial. The mischief against which the above constitutional provision is directed was thus defined by Judge Cooley in People v. Mahaney, 13 Mich. 481: 'This constitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words or to substitute one phrase for another, in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was perhaps sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent.' See, also, Warren v. Crosby, 24 Or. 558, 34 P. 661; Ex parte Pollard, 40 Ala. 98; Lockart v. City of Troy, 48 Ala. 579; Gandy v. State, 86 Ala. 20, 5 So. 420; State v. Rogers, 107 Ala. 444, 19 So. 909, 32 L. R. L. 520; Snyder v. Compton, 87 Tex. 374, 28 S.W. 1061; Clark v. Finley, 93 Tex. 171, 54 S.W. 344; State v. Moore, 48 Neb. 870, 67 N.W. 876; St. Louis, etc., Ry. Co. v. Paul, 64 Ark. 83, 40 S.W. 705, 37 L. R. A. 504, 62 Am. St. Rep. 154; Evernham v. Hulit, 45 N. J. Law, 53; Denver Circle R. Co. v. Nestor, 10 Colo. 403, 15 P. 714; Baum v. Raphael,

57 Cal. 361; Shields v. Bennett, 8

W. Va. 74; King v, Pony Gold Min. Co., 24 Mont, 470, 62 P. 783; Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 P. 781; State v. Gerhardt, 145 Ind. 439, 44 N.E. 469, 33 L. R. A. 313; In re Dietrick, 32 Wash. 478, 73 P. 506; Northern Pacific Ry. Co. v. Pierce Co., 51 Wash. 12, 97 P. 1099, 23 L. R. A. (N. S.) 286; Cooley, Constitutional Limitations, p. 180 et seq.

In Warren v. Crosby, supra, the court said: 'The question therefore to be determined is whether the general act comes within the scope of the constitutional provision invoked. The language of the provision is both prohibitory and mandatory. By its terms it inhibits the revision or amendment of any act by mere reference to its title, and requires that the act revised or section amended shall be inserted at length. It does not purport to limit or restrict the power of the Legislature in the enactment of laws. It relates only to the mode or form in which the legislative power shall be exercised. Its prohibition is against legislation effected by modes not in conformity with its requirements. The evil it sought to remedy is the mode in which the legislative power was sometimes exercised in the enactment of revisory or amendatory laws. This evil, as is well known, was the practice of amending or revising laws by additions or other alterations, which, without the presence of the original law, were usually unintelligible. Acts were passed, amending an existing statute by substituting one phrase for another, or by inserting a sentence, or by repealing a sentence, or a part of a sentence, in some portion or section thereof, which, as they stood, often conveyed no meaning, and, without examination and comparison with the original statute, failed to give notice of the changes effected. By such means an opportunity was afforded for incautious and fraudulent legislation, and endless confusion was introduced into the law. Legislators were often deceived, and the public imposed on by such modes of legislation. To prevent these consequences, and to secure a fair and intelligent exercise of the lawmaking power, was the object of the constitutional provision in question. This object it accomplished by imposing a limitation, not on the power of the Legislature to make laws, but upon the mode in which that power should be exercised in the enactment of amendatory or revisory laws. If the act is within itself complete and perfect, and is not amendatory and revisory in its character, it is not interdicted by this provision, although it amends by implication other legislation upon the same subject. Such an act, although it may operate to change or modify prior acts, is not within the mischief designed to be remedied by said section 22 [art. 4, Const.]'

In Ex parte Pollard, supra, the court said: 'It was never intended by the Constitution that every law which would affect some previous statute or variant provisions on the same subject should set out the statute or statutes so affected at full length. If this were so, it would be impossible to legislate. The constitutional provision reaches those cases where the act is strictly amendatory or revisory in its character. Its prohibition is directed against the practice of amending or revising laws, or other alterations, which without the presence of the original act are usually unintelligible. If a law is in itself complete and intelligible, and original in form, it does not fall within the meaning and spirit of the Constitution.'

In State v. Rogers, supra, the court said: 'All the purposes of the present act could doubtless have been accomplished by an act strictly and in form amendatory, by setting out the existing statutes, amending and reenacting them, but it is obvious the amendatory act would have been cumbersome, and not more intelligible than is the present act. Whether an amendatory act or an original act should be employed was matter of legislative judgment and discretion, which the courts cannot control.'

In Snyder v. Compton, supra, the court said: 'It is not meant by this provision that every act which amends the statutory law shall set out at length the entire law as amended. Under such a rule, legislation would in many instances be impractical. This is especially the case in this state, where the existence of the common law is due to statutory enactment. The practice which it was the purpose of the provision in question to prohibit was that of amending a statute by referring to its title, and by providing that it should be amended by adding to or striking out certain words, or by omitting certain language, and inserting in lieu thereof certain other words. It was not intended to prohibit the passage of a law which declared fully its provisions without direct reference to any other act, although its effect should be to enlarge or restrict the operation of some other statutes.'

In St Louis, etc., Ry. Co. v. Paul, supra, the court said: 'Appellants deny that the Legislature has the power to amend their charters, except by enacting and publishing at length so much thereof as is amended. This contention is based on a section of the Constitution which provides that 'no law shall be revived, amended or the provisions thereof extended or conferred by reference to its...