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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 per- enjoyed and in existence at common law at sonal property," and proyiding the method the time the statute became operative. This for the perfecting of the artisan's lien with statute of 1890 was repealed by the enactout retention of possession of property, is ment of the Code of 1895 (see paragraph constitutional. Appellant asserts said chap. 12, p. 1519); 6295 taking its place as ter 168 to be unconstitutional on several $ 4844 of the Code of 1895. But chapter 88 grounds alleged. For reasons hereinafter of the Laws of 1890 (almost identical with stated, we find it unnecessary to pass upon chapter 168 of the Laws of 1907) was any constitutional question, so any state passed upon in Garr v. Clements, 4 N. D. ment of appellant's claims in this respect 559, 62 N. W. 640. Our earliest enactment is needless.

on the subject was subdivision 2 of $ 1814 Section 6295, Rev. Codes 1905, Comp. of the Revised Codes of Dakota territory Laws 1913, § 6877, which does not declare 1877, which, like § 6295, Rev. Codes 1905, priority of an artisan’s lien over recorded | Comp. Laws 1913, § 6877, did not, even by mortgages or encumbrances, was the only inference, declare the artisan’s lien to be a statute on the subject in 1906, at the time prior lien to the mortgage. The same was plaintiff's lien became effective. Chapter nevertireless, in Garr v. Clements, held su168, Laws of 1907, became effective a year perior to the mortgage lien, as entitled at after this mortgage was given, and in ex- common law to such priority, though the press terms granted artisans' liens priority statute of 1890 was the one directly passed over mortgages. Whether this priority is upon, and such holding, and the reasoning granted as to mortgages taken and in force upon which it is based, are equally applicabefore its passage is one question arising, ble to g 6295, Rev. Codes 1905, Comp. Laws but for the purposes of this suit we shall | 1913, § 6877, which section must be held assume the statute to be retrospective in to grant the artisan a superior lien to that this instance, and as in terms making the of the mortgagee, even though the same is artisan's lien superior to the mortgage lien. not declared by statute. And such was the Whether the statute is thus retrospective or law in 1906, when plaintiff took this mortnot is immaterial, under the law controlling gage. 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, 8 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 the lien; the notice therein provided for creation and existence. This is ably dis perhaps being inspired by what is aid in cussed and is the settled law of this state Garr v. Clements, 4 N. D. 559, on page 564, under the opinion of this court by Justice 62 N. W. 640, where a defect in the statute Corliss in Garr v. Clements, where the ar- of 1890, in failing to provide notice to be tisan's lien law declared by chapter 88 of given to mortgagees of record, is pointed the Laws of 1890 was sustained as constitu- out. It is not necessary, therefore, to pass tional on the ground (equally applicable to upon the constitutionality of chapter 168 of the legislation before us) that the statute the Session Laws of 1907, although defendmerely declared the existing law on the ants have also perfected their lien by filing same subject, or, in other words, that, with their lien statement and account thereunder. out the statute, the lien of the common law It may be assumed that such statute is unwould exist under the facts of that case constitutional and void in its entirety, but the same as with it, and that portion of the yet Boyle Brothers are entitled to prevail Laws of 1890 corresponding to chapter 168 | under their lien, dependent on possession, which would then be valid under § 6295, and as such could repair the property and Rev. Codes 1905, Comp. Laws 1913, § 6877, subject it to an artisan's lien for repairs they having at all times, after completion so authorized. of this work, retained possession of the per- The judgment appealed from is affirmed. sonal property upon which the work was performed under a claim of lien therefor, A petition for rehearing having been filed, demanding payment of their charges for Goss, J., on September 9, 1914, handed labor, material, and repairs. If § 168 is į down the following additional opinion: constitutional, Boyle Brothers, having Appellant filed a petition for rehearing, strictly complied therewith, are then cer- challenging, as judicial legislation, considtainly entitled to prevail, as possessing a eration by the court of the common-law prior lien, not only declared by common priority of this common-law artisan’s lien, law, but expressly defined by chapter 168, and maintaininig that because of § 6295, Laws of 1907. Plaintiff is thus caught Rev. Codes 1905, Comp. Laws 1913, § 6877, upon one horn or the other of the dilemma, in terms recognizing an artisan’s lien, but one or the other of which he must choose. silent on its priority, the court must find Hence he is in no position to exact a holding that no priority of such lien can exist, and upon the constitutionality of the law of that any priority must be given by statute 1907, as any discussion thereof must be under $ 6138, Rev. Codes 1905, Comp. Laws unnecessary to a decision. Under such cir- | 1913, § 6714, the general statute concerning cumstances, it is the duty of the court to priority of liens providing that “other refrain from passing upon constitutional things being equal, different liens upon the questions.

same property have priority according to This likewise disposes of whether appel the time of their creation except in cases lant waived its rights under its mortgage. of bottomry and respondentia." The holding that the artisan's lien in any In other words, appellant asserts that, in event is prior to the mortgage lien is the the determination of this question, we are equivalent of deciding that appellant had limited to a construction of statutes, and no rights to waive under its mortgage. cannot resort to the common-law rights of

Nor is there any merit in appellant's con- the parties to determine the question of tention that Arbogast, in buying the mort-priority, where the statute is silent thereon, gaged property without written consent hav- and counsel cite in support of that contening been given the mortgagor to sell the tion § 4006, Rev. Codes 1905, Comp. Laws same, could acquire no right or interest | 1913, § 4331, a provision of the Civil Code, suflicient to constitute him an implied agent reading: “In this state there is no common of the mortgagee, as is the owner of mort law in any case where the law is declared gaged property, for the authorization of by the Codes." repairs thereto, whose act as such binds And also cite § 10,509, Rev. Codes 1905, the mortgagee and subordinates the mort- | Comp. Laws 1913, § 11400, next to the last gage lien to that of the artisan. Russell provision of the Code of Criminal Proceacquiesced in the contract for repairing, dure, providing that “The provisions of this though the same was wholly immaterial, as Code so far as they are the same as existing Arbogast, by purchase from Russell, became statutes, must be construed as continuations the owner of said property, and as such thereof and not as new enactments." enjoyed all rights formerly possessed by From these statutes appellant reasons Russell. True, the sale by Russell, without that there can be no common law on artiwritten consent of the plaintiff, constituted san's liens, the Code having spoken on the commission of a crime by the seller under subject by the declaration therein provid§ 9442, Rev, Codes 1905, Comp. Laws 1913, ing for such a lien, and that, treating § 10248, but no liability, civil or criminal, 10,509 as a general provision applicable unless arising by implied contract from pro- to all the Codes and all Code provisions, visions of the mortgage of record (Ellestad the statutes are to be considered as v. Northwestern Elevator Co. 6 N. D. 88–93, tinuations of statutes, but not as continua69 N. W. 44), was assumed by the pur- tions of the common law in all instances, chaser by a mere purchase of mortgaged civil and criminal. To emphasize this property (Sanford v. Duluth & D. Elevator claim, appellant has cited § 5 of the Civil Co. 2 N. D. 6–10, 48 N. W. 434; Black v. Code of California, reading: “The proviMinneapolis & N. Elevator Co. 7 N. D. 129-sions of this Code, so far as they are sub134, 73 N. W. 90; Willard v. Monarch Ele- stantially the same as existing statutes or vator Co. 10 N. D. 400-407, 87 N. W. 996; the common law, must be construed as conGorder v. Hilliboe, 17 N. D. 281–284, 115 tinuations thereof and not as new enactN. W. 843; Taugher v. Northern P. R. Co. ments." 21 N. D. 111, 112, 129 N. W. 747). And Under this California Code provision, and Arbogast therefore became owner thereof, its construetion by the courts of that state



(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; law on the subject, inclusive of the incident and Sharon v. Sharon, 75 Cal. 1, at page of priority, then some general statute must 13, 16 Pac. 345), statutes are but continua be found conferring priority, the particular tions of the basic common law, determi- statute giving none, otherwise there is no nation of rights under which necessitates priority of artisan's liens over earlier liens. consideration of both the common law and The conclusions in the main opinion are the statute where the statute is either silent sustained by all authority, and appellant's or ambiguous. But appellant parallels this attack thereon loses all force in the face of provision of the Civil Code of California the fact that common law is by statute with $ 10,509, Rev. Codes 1905, Comp. Laws (SS 4003-4005, Rev. Codes 1905, Comp. 1913, § 11400, a portion of our Code of Laws 1913, SS 4328–4330) declared to be Criminal Procedure, nearly identical, but the basic law, thereby requiring statutory omitting the phrase of the California Civil enactment to be considered as but a conCode provision of "or the common law,” tinuation of the common law as to civil and therefore contends that in this state in rights and liabilities. Section 4003 reads: no instance are the statutes to be consid- | “The will of the sovereign power is exered as continuations of the common law. pressed: ... (4) By the decisions of It is urged that the common law is excluded the tribunals enforcing those rules which, by our Code provision 4006, Comp. Laws though not enacted, form what is known as 1913, § 4331, reading: “In this state there customary or common law.” is no common law in any case where the And § 4005 declares what shall be evilaw is declared by the Codes.”

dence of such common law. By statute the This decision then narrows to the ques- provisions of the Civil Code are to be contion of whether the common-law priority sidered as but continuations of the common still exists, notwithstanding § 6295, declar. law, as well as other statutes, and no ing a lien in the possessor of the property distinction exists in this respect between with the right of possession until the this state and California, notwithstanding charges for repairs are paid, but silent on $ 10509, Rev. Codes 1905, Comp. Laws the question of priority of such lien, unless 1913, § 11400. Plainly this provision of governed by § 6138, declaring priority of the Code of Criminal Procedure can have liens according to time of creation, “other no relation to or bearing upon the question things being equal,” and § 6724, Rev. Codes of whether the provisions of the Civil Code 1905, Comp. Laws 1913, § 7312, that "the and civil statutes are to be considered as rule of the common law that statutes in continuations of the common law. Each derogation thereof are to be strictly con of the seven Codes was passed as a separate strued has no application to this Code. bill in the Revision of 1895 and as an enThis Code establishes the law of this state tirety. The term “Code,” as used in many respecting the subjects to which it relates; places in each of the seven Codes, must and its provisions are to be liberally con- refer solely to the Code of which it was a strued with a view to effect its objects and part at the time of its enactment, and this to promote justice.”

provision has reference to Criminal ProIn its last analysis the decision resolves cedure, and is not a general provision to whether the provisions of our Civil Code applicable to all the seven Codes as separare to be considered as continuations of the ately enacted. The Code provisions relacommon law as well as continuations o tive to crimes and criminal procedure, as statute, or whether, on the contrary, the SS 8531-8538, and 10509, Comp. Laws 1913, fact that a common-law lien has been de 88 9194–9201 and 11400, prescribe a difclared by statute makes all rights there ferent rule as to such than generally apunder dependent solely on the statute, with plies to civil rights and remedies. Our out regard to common-law incidents, rights, penal statutes undertake to and do define or history, in which case a priority that all our crimes, and our Code of Criminal would here exist under the same circum- | Procedure in the main deelares the process stances at common law as an incident to of administration of our penal statutes. the same lien given by common law as here But it is vastly different, as to civil rights declared, also by statute, would be nega- and liabilities, to completely codify which tived and defeated by the mere silence of would be an absolute impossibility. Manithe statute a priority. If the statute is festly civil statutes must be regarded as to be considered as but a continuation of they have always been construed to the common-law lien without regard to com- be, but continuations, affirmances, modimon-law priority, the priority still exists; fications, or repeals of basic common law the statute then declaring the lien and the 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:

general terms, it is subject to the prinUnless otherwise provided by statute, ciples of the common law; it is to receive all “statutes are to be interpreted in the such construction as is agreeable to that light of the common law with reference to law in cases of the same nature. A statthe principles of the common law in force ute in affirmance of a rule of the common at the time of their passage.”

law will be construed as to its consequence "The presumption against an intent to in accordance with such law.” alter existing law beyond the immediate

See Lavin v. Bradley, 1 N. D. 291, 47 scope and object of the enactment under N. W. 384; Parker v. First Nat. Bank, 3 construction applies as well where the ex- N. D. 87, 54 N. W. 313; Garr v. Clements, isting law is statutory as where it is pro- 4 N. D. 559, at pages 562, 563, 62 N. mulgated by decisions."

W. 640. This rule is here applicable, as “The principle is recognized that an in the statute ($ 6295) declaring the right to tent to alter the common law beyond the an artisan's lien dependent on possession is evident purpose of the act is not to be pre but declaratory of that common-law lien. sumed. It has indeed been expressly laid "In some of the states of the Union the down that 'statutes are not presumed to common law of England and English statmake any alterations in the common law utes enacted prior to a specific time have further or otherwise than the act does ex- been expressly adopted by a constitutional pressly declare; therefore, in all general provision. In others they have been admatters, the law presumes the act did not opted by statute.” 8 Cyc. 373, in note 32 intend to make any alterations, for, if the of which mention is made that this state Parliament had that design, they would has, by SS 4003, 4005, and 4006, by stathave expressed it in the act that 'the rules ute expressly adopted the common law as of the common law are not to be changed the fundamental law, except as modified by doubtful implication.'” Endlich, In- or supplanted by statute or ordinance. terpretation of Statutes, § 127.

Section 6737, Rev. Codes 1905, Comp. Laws "First in importance

is the con- 1913, § 7325, a general provision of the sideration of what was the rule at the Code of Civil Procedure, also in express common law. “To know what the common terms, in prescribing the rule of construelaw was before the making of a statute, i tion of civil statutes, recognizes such fact whereby it may be seen whether the stat- by the provision that, “but technical words ute was introductory of a new law or only and phrases and such other as have acaffirmative of the common law, is the very quired a peculiar and appropriate meaning lock and key to set open the windows of the in law, or are defined by statute, are to statute.' Further as a rule of exposition be construed according to such peculiar and statutes are to be construed in reference appropriate meaning or definition." to the principles of the common law, for it California by express enactment in 1850 is not to be presumed that the legislature adopted the common law of England, eviintended to make any innovation upon the dently to set at rest any question of con

law further than the case ab- flict between whether the English common solutely required. The law rather infers law or the civil law, in force in the adjointhat the act did not intend to make any ing Mexican territory, and once in effect alteration other than what is specified and in such parts of that state as had been besides what has been plainly pronounced, Mexican territory, would prevail. See the for, if the Parliament had had that design, discussion in Lux v. Haggin, 69 Cal. 255, it is naturally said that they would have at page 384, 10 Pac. 674. As to the statexpressed it.” Potter's Dwarris on Statutes ute being declared to be but a continuation & Constitutions, p. 185.

of the common law, to be construed thereConcerning which rule that author with, see Sharon v. Sharon, 75 Cal. 1, at quotes Chancellor Kent as follows: “This page 13, 16 Pac. 345: “But the purpose has been the language of courts in every of a statute can only be derived from its age, and, when we consider the constant, words, read in the light of the previous vehement and exalted eulogy which the law. If it is so confused and uncertain ancient sages bestowed upon the common that it can be given no intelligible meanlaw as the perfection of reason and the ing, we must consider the common law unbest birthright and noblest inheritance of changed by it,

and it is a cardinal the subject, we cannot be surprised at the rule of interpretation that the common law great sanction given to this rule of con- continues, except as altered by the statute.” struction.

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


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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 SS 4005, 4006, Rev. Code. law is revived, and the authorities say 1905, Comp. Laws, 1913, 88 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

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 continua- Under this rule and the presumption tion of the common law, to be construed that the common law is abrogated by therewith to constitute the great complete statute only so far as is necessary to give body of law, the two must be considered force to the statute and the legislative together, where, as here, the Code but de intent thereby and no farther (State ex clares the lien already recognized at com- rel. Morris v. Sullivan, 81 Ohio, 79, 26 mon law, and is silent on the question of L.R.A. (N.S.) 514, 90 N. E. 146, 18 Ann. priority of such common-law lien. State Cas. 139; Chicago & E. R. Co. v. Ludding. ex rel. Morris v. Sullivan, 26 L.R.A. (N.S.) ton, 175 Ind. 35, 91 N. E. 939, 93 N. 514, and note (81 Ohio St. 79, 90 N. E. 146, E. 273, citing much authority), the terri18 Ann. Cas. 139).

torial statute (subdivision 2, § 1814, of But counsel, in support of his contention, Civil Codes of 1877) did not efface the comwould 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 refused 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,, alone. But against revival of the common 62 N. W. 640. Upon repeal of the statute law it is contended that the legislature of 1890, no mention of priority being made cannot be presumed to have needlessly dein the repealing statute, and there being clared a statutory priority when a commonnothing to positively evidence a legislative law priority existed, and on that assump


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