Wilson v. Simon
| Decision Date | 22 March 1900 |
| Citation | 45 A. 1022,91 Md. 1 |
| Parties | WILSON et al. v. SIMON. |
| Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city; Pere L. Wickes, Judge.
"To be officially reported."
Proceeding by William V. Wilson, Jr., & Co. against Tobias Simon to enforce a mechanic's lien. Decree for defendant, and complainants appeal. Affirmed.
Argued before MCSHERRY, C.J., and PAGE, PEARCE, BOYD, FOWLER BRISCOE, SCHMUCKER, and JONES, JJ.
Fielder C. Slingluff and Wm. T. Donaldson, for appellants. Charles J Bonaparte and Paul M. Burnett, for appellee.
This is a proceeding in equity to enforce a mechanic's lien for materials furnished by the appellant to one Robert V. Saylor a contractor, to build four houses for the appellee at the corner of Bond street and Fairmount avenue, in the city of Baltimore. The notice required by the eleventh section of article 63 of the Code was given on the 11th day of December 1896, within 60 days after the time of the last delivery, on the 13th of October, 1896. On the 18th February following the appellant filed his claim in the office of the clerk of the superior court, and on the same day began these proceedings to enforce the lien. While this suit was pending, and before a hearing was reached, the act of 1898 (chapter 502) was passed, by which all the sections in article 63 of the Code, which provide for a lien for materials furnished for the construction of buildings, were repealed, so far as the same were applicable to Baltimore city, and re-enacted so as to provide only for liens for the payment of debts contracted for work. The effect of this statute upon the case at bar is the first matter for our consideration. Must it be construed so as to destroy the appellants' lien? and, if so, is it invalid in respect to all liens existing and valid at the date of its passage, as being a law impairing the obligation of contracts, and within the inhibition of the constitution of the United States, art. 1, § 10, subd. 1, which declares that "no state shall pass any law impairing the obligation of contracts"? There can be no serious doubt about the first question. In Dashiell v. Mayor, etc., 45 Md. 622, this court, citing from Tindale, C.J., said: "The effect of repealing a statute is to obliterate it as completely from the records of parliament as if it had never passed, and it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted, and concluded while it was an existing law." And in Weiskittle v. State, 58 Md. 158: "Where a revising statute, or one enacted for another, omits provisions contained in the original act, the parts omitted cannot be kept in force by construction, but are annulled." In the act of 1898 there are no saving clauses in favor of liens for materials then existing, and all the provisions allowing such liens are entirely omitted. All such liens, therefore, are obliterated from the laws of the state as completely as if they had never existed, except for the purpose of suits "which were commenced, prosecuted, and concluded while it was existing law."
As to the second question there is more difficulty. The contention of the appellant is that at the time the act of 1898 was passed he had a legal vested right to pursue his lien against the buildings for which the materials were furnished, and that it was not within the power of the state to deprive him of that right. The decisions throughout the country are very conflicting. In some of the states it has been held that a mechanic's lien is a vested right, of which the lienor cannot be devested by repealing the statute under which the right accrued, while in other states it is regarded merely as an extraordinary remedy, which can be changed from time to time or discontinued, according to the will of the legislature. The former view has been maintained by the appellate courts in the following states, viz.: Minnesota, Tell v. Woodruff, 45 Minn. 10, 47 N.W. 262; Wisconsin, Streubel v. Railroad Co., 12 Wis. 71; North Carolina, Warren v. Woodward, 70 N.C. 382; Kansas, Weaver v. Sells, 10 Kan. 619; Texas, Blanton v. Langston, 60 Tex. 149; Indiana, Goodbub v. Hornung's Estate, 127 Ind. 181, 26 N.E. 770; and Oregon, The Gazelle v. Lake, 1 Or. 120. The reasoning upon which these decisions rest seems to be that it must be presumed that at the time of the agreement the parties had in view the remedies then existing for the enforcement of the contract; that those remedies, therefore, became a part of the obligation; and to take them away would be a violation of the contract, and impair its obligations. There are some difficulties in applying this reasoning to the case we are now dealing with. In Sodini v. Winter, 32 Md. 133, this court said: --and in a later case (Wehr v. Shryock, 55 Md. 336) this doctrine was affirmed. Nor is it an exact statement of the law that a party, as an incident of his agreement, has a right to all the remedies for the enforcement of the contract in force at the time it was entered into. A party has no right to a particular remedy. The state is no party to the contract, and is bound only to afford adequate process for the enforcement of rights. "Thus, a law abolishing distress for rent has been sustained as applicable to leases in force at its passage; and it was also held that an express stipulation in the lease that the lessor should have this remedy would not prevent the legislature from abolishing it, because this was a subject concerning which it was not competent for the parties to contract in such manner as to bind the hands of the state." Cooley, Const. Lim. *288; Conkey v. Hart, 14 N.Y. 22; Sturges v. Crowninshield, 4 Wheat. 200, 4 L.Ed. 529; Williar v. Association, 45 Md. 560. In the case last cited, the court said, where the right of action "springs from contract or from the principles of the common law, it is not competent for the legislature to abolish it." Page 560. In the leading case of Bronson v. Kinzie, 1 How. 315, 316, 11 L.Ed. 143, the court said that "undoubtedly a state may regulate at pleasure the modes of proceedings in its courts." See, also, State v. Jones, 21 Md. 437; McCracken v. Hayward, 2 How. 613, 11 L.Ed. 397.
The contract under which the appellant parted with his property gave him (aside from the statute) no right to look to the buildings. The owner was not a party to it, and came under no personal obligation to pay him. His...
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