mortgage lien had accrued, and in express of the Laws of 1907, granting priority to terms declaring that "said lien shall have the artisan's lien, was not innovation, and priority over all other liens, chattel mort- | did not create any new rights not already gages, or encumbrances against said personal property," and providing the method for the perfecting of the artisan's lien without retention of possession of property, is constitutional. Appellant asserts said chapter 168 to be unconstitutional on several grounds alleged. For reasons hereinafter stated, we find it unnecessary to pass upon any constitutional question, so any statement of appellant's claims in this respect is needless.

enjoyed and in existence at common law at the time the statute became operative. This statute of 1890 was repealed by the enactment of the Code of 1895 (see paragraph 12, p. 1519); § 6295 taking its place as § 4844 of the Code of 1895. But chapter 88 of the Laws of 1890 (almost identical with chapter 168 of the Laws of 1907) was passed upon in Garr v. Clements, 4 N. D. 559, 62 N. W. 640. Our earliest enactment on the subject was subdivision 2 of § 1814 of the Revised Codes of Dakota territory 1877, which, like § 6295, Rev. Codes 1905, Comp. Laws 1913, § 6877, did not, even by inference, declare the artisan's lien to be a prior lien to the mortgage. The same was nevertheless, in Garr v. Clements, held superior to the mortgage lien, as entitled at common law to such priority, though the statute of 1890 was the one directly passed upon, and such holding, and the reasoning upon which it is based, are equally applicable to § 6295, Rev. Codes 1905, Comp. Laws 1913, § 6877, which section must be held to grant the artisan a superior lien to that of the mortgagee, even though the same is not declared by statute. And such was the law in 1906, when plaintiff took this mortgage.

Section 6295, Rev. Codes 1905, Comp. Laws 1913, § 6877, which does not declare priority of an artisan's lien over recorded mortgages or encumbrances, was the only statute on the subject in 1906, at the time plaintiff's lien became effective. Chapter 168, Laws of 1907, became effective a year after this mortgage was given, and in express terms granted artisans' liens priority over mortgages. Whether this priority is granted as to mortgages taken and in force before its passage is one question arising, but for the purposes of this suit we shall assume the statute to be retrospective in this instance, and as in terms making the artisan's lien superior to the mortgage lien. | Whether the statute is thus retrospective or not is immaterial, under the law controlling this decision. In construing statutes on So, without any reference to chapter 168, liens, the first consideration is whether the Laws of 1907, plaintiff's mortgage must be lien is one given at common law, or is in held to be subordinate to the lien of destead dependent for its existence solely upon fendants, as such was the law at the time the terms of the statute. Where the stat- the mortgage was taken, where the party ute is merely declaratory of the common entitled to the lien has retained possession, law, it is construed together with, and in as have defendants, at all times after the the light of, the common law; the legisla- completion of the work. And this is deciture being presumed to know the common sive of the rights of appellant, as chapter law on the subject and to enact the statute 168 of the Laws of 1907, if applicable, is as merely declaratory thereof, and to be so but declaratory of the equivalent of § 6295, interpreted in the light of its origin and Rev. Codes 1905, Comp. Laws 1913, § 6877, common-law definition, where the statute as supplemented by the common law condoes not depart from the governing common-cerning priority, which by express terms it law principles. And this here applies, as purports to amend. It consists, among artisans' liens are a creation of the common other things, in declaring the procedure neclaw, and not a special lien originating un-essary for the perfection and foreclosure of der, and dependent upon, statute for their creation and existence. This is ably discussed and is the settled law of this state under the opinion of this court by Justice Corliss in Garr v. Clements, where the artisan's lien law declared by chapter 88 of the Laws of 1890 was sustained as constitutional on the ground (equally applicable to the legislation before us) that the statute merely declared the existing law on the same subject, or, in other words, that, with out the statute, the lien of the common law would exist under the facts of that case the same as with it, and that portion of the Laws of 1890 corresponding to chapter 168

the lien; the notice therein provided for perhaps being inspired by what is said in Garr v. Clements, 4 N. D. 559, on page 564, 62 N. W. 640, where a defect in the statute of 1890, in failing to provide notice to be given to mortgagees of record, is pointed out. It is not necessary, therefore, to pass upon the constitutionality of chapter 168 of the Session Laws of 1907, although defendants have also perfected their lien by filing their lien statement and account thereunder. It may be assumed that such statute is unconstitutional and void in its entirety, but yet Boyle Brothers are entitled to prevail under their lien, dependent on possession,

law on the subject, inclusive of the incident of priority, then some general statute must be found conferring priority, the particular statute giving none, otherwise there is no priority of artisan's liens over earlier liens. The conclusions in the main opinion are sustained by all authority, and appellant's attack thereon loses all force in the face of the fact that common law is by statute (§§ 4003-4005, Rev. Codes 1905, Comp. Laws 1913, §§ 4328-4330) declared to be the basic law, thereby requiring statutory enactment to be considered as but a continuation of the common law as to civil rights and liabilities. Section 4003 reads: "The will of the sovereign power is expressed:

(Quist v. Sandman, 154 Cal. 748, 99 Pac. | common law defining priority. If the stat204, at pages 207, 208; Michaelson v. Fish, ute is not a continuation of the common 1 Cal. App. 116, 81 Pac. 662; Lux v. Hag-law, but works an abolition of all common gin, 69 Cal. 255, at page 384, 10 Pac. 674; and Sharon v. Sharon, 75 Cal. 1, at page 13, 16 Pac. 345), statutes are but continuations of the basic common law, a determination of rights under which necessitates consideration of both the common law and the statute where the statute is either silent or ambiguous. But appellant parallels this provision of the Civil Code of California with § 10,509, Rev. Codes 1905, Comp. Laws 1913, § 11400, a portion of our Code of Criminal Procedure, nearly identical, but omitting the phrase of the California Civil Code provision of "or the common law," and therefore contends that in this state in no instance are the statutes to be considered as continuations of the common law. It is urged that the common law is excluded by our Code provision 4006, Comp. Laws 1913, § 4331, reading: "In this state there is no common law in any case where the law is declared by the Codes."

This decision then narrows to the question of whether the common-law priority still exists, notwithstanding § 6295, declaring a lien in the possessor of the property with the right of possession until the charges for repairs are paid, but silent on the question of priority of such lien, unless governed by § 6138, declaring priority of liens according to time of creation, "other things being equal,” and § 6724, Rev. Codes 1905, Comp. Laws 1913, § 7312, that "the rule of the common law that statutes in derogation thereof are to be strictly construed has no application to this Code. This Code establishes the law of this state respecting the subjects to which it relates; and its provisions are to be liberally construed with a view to effect its objects and to promote justice."

In its last analysis the decision resolves to whether the provisions of our Civil Code are to be considered as continuations of the common law as well as continuations o statute, or whether, on the contrary, the fact that a common-law lien has been declared by statute makes all rights there under dependent solely on the statute, without regard to common-law incidents, rights, or history, in which case a priority that would here exist under the same circumstances at common law as an incident to the same lien given by common law as here declared, also by statute, would be negatived and defeated by the mere silence of the statute ca priority. If the statute is to be considered as but a continuation of the common-law lien without regard to common-law priority, the priority still exists; the statute then declaring the lien and the

(4) By the decisions of the tribunals enforcing those rules which, though not enacted, form what is known as customary or common law."

And § 4005 declares what shall be evidence of such common law. By statute the provisions of the Civil Code are to be considered as but continuations of the common law, as well as other statutes, and no distinction exists in this respect between this state and California, notwithstanding § 10509, Rev. Codes 1905, Comp. Laws 1913, § 11400. Plainly this provision of the Code of Criminal Procedure can have no relation to or bearing upon the question of whether the provisions of the Civil Code and civil statutes are to be considered as continuations of the common law. Each of the seven Codes was passed as a separate bill in the Revision of 1895 and as an entirety. The term "Code," as used in many places in each of the seven Codes, must refer solely to the Code of which it was a part at the time of its enactment, and this provision has reference to Criminal Procedure, and is not a general provision applicable to all the seven Codes as separately enacted. The Code provisions relative to crimes and criminal procedure, as §§ 8531-8538, and 10509, Comp. Laws 1913, §§ 9194-9201 and 11400, prescribe a different rule as to such than generally applies to civil rights and remedies. Our penal statutes undertake to and do define all our crimes, and our Code of Criminal Procedure in the main declares the process of administration of our penal statutes. But it is vastly different, as to civil rights and liabilities, to completely codify which would be an absolute impossibility. Manifestly civil statutes must be regarded as they have always been construed to be, but continuations, affirmances, modifications, or repeals of basic common law governing principles, and to be interpreted

in the light of the common law as has been | Statutory Construction, 2d ed, Vol. 2, andone for generations. If authority is need-nounce the same rule, that "in all doubted for our conclusions, the following will ful matters, and when the statute is in suffice:

Unless otherwise provided by statute, all "statutes are to be interpreted in the light of the common law with reference to the principles of the common law in force at the time of their passage."

"The presumption against an intent to alter existing law beyond the immediate scope and object of the enactment under construction applies as well where the existing law is statutory as where it is promulgated by decisions."

"The principle is recognized that an intent to alter the common law beyond the evident purpose of the act is not to be presumed. It has indeed been expressly laid down that 'statutes are not presumed to make any alterations in the common law further or otherwise than the act does expressly declare; therefore, in all general matters, the law presumes the act did not intend to make any alterations, for, if the Parliament had that design, they would have expressed it in the act' that 'the rules of the common law are not to be changed by doubtful implication."" Endlich, Interpretation of Statutes, § 127.

general terms, it is subject to the principles of the common law; it is to receive such construction as is agreeable to that law in cases of the same nature. A statute in affirmance of a rule of the common law will be construed as to its consequence in accordance with such law."

See Lavin v. Bradley, 1 N. D. 291, 47 N. W. 384; Parker v. First Nat. Bank, 3 N. D. 87, 54 N. W. 313; Garr v. Clements, 4 N. D. 559, at pages 562, 563, 62 N. W. 640. This rule is here applicable, as the statute (§ 6295) declaring the right to an artisan's lien dependent on possession is but declaratory of that common-law lien. "In some of the states of the Union the common law of England and English statutes enacted prior to a specific time have been expressly adopted by a constitutional provision. In others they have been adopted by statute." 8 Cyc. 373, in note 32 of which mention is made that this state has, by $$ 4003, 4005, and 4006, by statute expressly adopted the common law as the fundamental law, except as modified or supplanted by statute or ordinance. Section 6737, Rev. Codes 1905, Comp. Laws 1913, § 7325, a general provision of the Code of Civil Procedure, also in express terms, in prescribing the rule of construction of civil statutes, recognizes such fact by the provision that, "but technical werds and phrases and such other as have acquired a peculiar and appropriate meaning in law, or are defined by statute, are to be construed according to such peculiar and appropriate meaning or definition."

"First in importance is the consideration of what was the rule at the common law. To know what the common law was before the making of a statute, whereby it may be seen whether the statute was introductory of a new law or only affirmative of the common law, is the very lock and key to set open the windows of the statute.' Further as a rule of exposition statutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required. The law rather infers that the act did not intend to make anying Mexican territory, and once in effect alteration other than what is specified and besides what has been plainly pronounced, for, if the Parliament had had that design, it is naturally said that they would have expressed it." Potter's Dwarris on Statutes & Constitutions, p. 185.

California by express enactment in 1850 adopted the common law of England, evidently to set at rest any question of conflict between whether the English common law or the civil law, in force in the adjoin

in such parts of that state as had been Mexican territory, would prevail. See the discussion in Lux v. Haggin, 69 Cal. 255, at page 384, 10 Pac. 674. As to the statute being declared to be but a continuation of the common law, to be construed therewith, see Sharon v. Sharon, 75 Cal. 1, at page 13, 16 Pac. 345: "But the purpose of a statute can only be derived from its words, read in the light of the previous law. If it is so confused and uncertain that it can be given no intelligible meaning, we must consider the common law unchanged by it, . . . and it is a cardinal rule of interpretation that the common law continues, except as altered by the statute." It is true that California has a statute Sections 454, 455, of Lewis's Sutherland to this effect (§ 5 of the Civil Code of that

Concerning which rule that author quotes Chancellor Kent as follows: "This has been the language of courts in every age, and, when we consider the constant, vehement and exalted eulogy which the ancient sages bestowed upon the common law as the perfection of reason and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction."

V.

state) that "the provisions of this Code, intention to the contrary, the common-law so far as they are substantially the same as rule as to priority was revived; "the repeal existing statutes or the common law, must of the statute which abrogated a commonbe construed as continuations thereof, and law rule revives that rule." Beaven not as new enactments," which statute Went, 155 Ill. 592, 31 L.R.A. 85, 41 N. E. has been in force since 1872, and that we 91; Baum v. Thomas, 150 Ind. 378, 65 have no statute explicitly so providing, Am. St. Rep. 368, 50 N. E. 357; Burleigh but the omission is immaterial as to civil County v. Rhud, 23 N. D. 362, 136 N. W. rights and remedies in the face of the fact 1082; Lewis's Sutherland, Stat. Constr. that the common law is by statute adopted § 294, quoting above rule and declaring as to such rights and liabilities; the stat- same applicable, "even though there is a utes having since territorial times declared statute that a repeal of the repealing act the same consequences in the statutory shall not revive the act repealed," similar provisions that "the evidence of the com- to § 6739, Rev. Codes 1905, Comp. Laws mon law is found in the decisions of the 1913, § 7327, identical with § 20 of Civil tribunals," and "there is no common law Code of California, in force since 1872. in any case where the law is declared by "Where a statute repeals the common law the Codes." Sections 5 and 6, Civil Code and is then itself repealed, the common of 1877, and §§ 4005, 4006, Rev. Code. law is revived, and the authorities say 1905, Comp. Laws, 1913, §§ 4330, 4331. that, if a statute that is declaratory of the Where the Codes declare the law, they pre-common law is repealed, the common law clude application of the common law, more clearly remains in force for the reawhich, as to the matter covered by the son that the statute is an aflirmance of Codes during the existence of the Code pro- it." Harper v. Middle States Loan, Bldg. vision, becomes nonexistent; but, inasmuch & Constr. Co. 55 W. Va. 149, 46 S. E. 817, as the common law is the basis, it governs 2 Ann. Cas. 42, at page 45; Endlich, Interas to matters wherein the law is not so pretation of Statutes, § 475. declared. The Codes being but a continuation of the common law, to be construed therewith to constitute the great complete body of law, the two must be considered together, where, as here, the Code but declares the lien already recognized at common law, and is silent on the question of priority of such common-law lien. State ex rel. Morris v. Sullivan, 26 L.R.A. (N.S.) 514, and note (81 Ohio St. 79, 90 N. E. 146, 18 Ann. Cas. 139).

Under this rule and the presumption that the common law is abrogated by statute only so far as is necessary to give force to the statute and the legislative intent thereby and no farther (State ex rel. Morris v. Sullivan, 81 Ohio, 79, 26 L.R.A. (N.S.) 514, 90 N. E. 146, 18 Ann. Cas. 139; Chicago & E. R. Co. v. Luddington, 175 Ind. 35, 91 N. E. 939, 93 N. E. 273, citing much authority), the territorial statute (subdivision 2, § 1814, of Civil Codes of 1877) did not efface the com

But counsel, in support of his contention, would emphasize the fact that the terri-mon-law priority of artisans' liens. Chaptorial statute declared no priority of this ter 88, Laws of 1890, by declaring that lien, and that by the Laws of 1890 priority priority, was but declaratory of the prewas granted, which provision was repealed vailing common law, and repeal of the in the Revision of 1895, which priority pro- Laws of 1890, instead of leaving no law on vision has been again expressly re-enacted the subject, revived or made applicable the by chapter 168 of the Laws of 1907; and common law, and such was the situation counsel inquires how the double repeal and when this appellant's mortgage was taken. enactment on priority can be considered That the legislature has by chapter 168, other than as evidencing a successive legis- Laws of 1907, again re-enacted the comlative expression of denial and reaffirmance mon-law provision of priority is of no conof priority, and that the lien by mortgage sequence as a legislative construction on of the appellant having attached at a time the question or otherwise. If it be assumed when priority of artisans' liens was thus to be a legislative construction as conrefused recognition and by inference denied, tended, it is not binding on the courts, as upon what basis can it be found that a lien it is beyond legislative power or province at common law could exist during such to interpret retrospectively by legislative interval? In territorial times, and until act prior statute or common law. The the enactment of the statute of 1890 grant-duty and power of interpretation of past ing it, priority existed at common law, as legislative enactment lies in the courts is held in Garr v. Clements, 4 N. D. 559, 62 N. W. 640. Upon repeal of the statute of 1890, no mention of priority being made in the repealing statute, and there being nothing to positively evidence a legislative

alone. But against revival of the common law it is contended that the legislature cannot be presumed to have needlessly declared a statutory priority when a commonlaw priority existed, and on that assump