wetz, to the actual and visible beginning of the of cases in this state where liens have been improvement on the ground," except when allowed for material furnished for but not a contractor files in the proper office a brief used in the construction, but in each case statement of the nature of his contract, there was an actual improvement. Howes such statement is notice of his lien for the v. Reliance Wireworks Co. 46 Minn. 44, 48 contract price or value “of all contributions N. W. 448; Hickey v. Collom, 47 Minn. 565, to such improvement thereafter made by 50 N. W. 918; Burns v. Sewell, supra; him." Section 7024 speaks of liens attach- Combination Steel & I. Co. v. St. Paul City ing "by reason of such improvements," R. Co. 52 Minn. 203, 53 N. W. 1144; John of "liens for improvements," and provides Paul Lumber Co. v. Hormel, 61 Minn. 303, for a notice to be served by an owner upon 63 N. W. 718; Berger v. Turnblad, 98 Minn. persons doing work or "otherwise contrib-163, 116 Am. St. Rep. 353, 107 N. W. 543; uting to such improvement," when improve- Thompson-McDonald Lumber Co. v. Moraments are made upon his land without his Minn., 149 N. W. 300. In the authority. Section 7026 requires the lien last case, it was decided that an actual destatement to be filed in the county "in livery upon the premises of material sold which the improved premises are situated," to a contractor for use in the construction and provides that it shall set forth, among of a building was not necessary to a right other things, "for what improvement" the to a lien, but that a good-faith delivery of labor, etc., was done or supplied. Section the material to the contractor is sufficient. 7027 provides that a lienholder who has This is an exception to the general rule contributed to the erection, etc., of two or that, to entitle a mechanic or materialman more buildings or improvements situated to a lien for work performed or materials upon one lot or upon adjoining lots, under furnished at the request of the contractor, one contract with the owner, may file one the work must be done or the material destatement for his entire claim, embracing livered on the premises upon which the the entire area "so improved," or may building is. being erected, as are the cases apportion his demand between the several of Howes v. Reliance Wireworks Co. and "improvements," and assert a lien for a Berger v. Turnblad, in which the material proportionate part upon each, and upon the required was specially prepared for the ground appurtenant to each. Section 7028 building at the shop of the contractor with requires an action to enforce the lien to be the consent of the owner, but was not in brought in the county in which the "im- fact delivered on the premises, the delivery proved premises" are situated. By § 7029, being prevented by the owner. Logically the summons is required to contain a brief it is perhaps a stretch to say that one description "of the improvement out of "contributes to the improvement of real which the lien arose." estate" whose labor or material does not go into the improvement or enhance the value of the real estate. It should also be noted that the lien statute read, “Whoever performs labor or furnishes skill or material for the erection" of a building, instead of as it does now, at the time the cases above cited, except the Thompson-McDonald Case, were decided. But the last case is ample authority for holding that the change in the language of the statute does not change the settled rule in this state that actual use in the building or actual delivery to the premises is not essential to a lien. If, in the case at bar, the building had been actually constructed or its construction begun, on the plans furnished therefor by plaintiff's, their right to lien would be clear. The owner could not defeat the lien by abandoning the project after the improvement was actually begun on the ground, nor would the destruction by fire of a partially completed building destroy the lien. It must be conceded that the lien statute, if construed literally, does not expressly give a lien when no improvement is begun on the ground. Can we, by liberality of construction, nevertheless say that a lien may attach under such circumstances? To answer this question correctly, a review of our past decisions is necessary. We have no case where a lien has been granted when there was no tangible improvement on the ground. In Smith v. Barnes, 38 Minn. 240, 36 N. W. 346, the lien claimant supplied material for a building to be erected on lot 5. This material was diverted to lot 6, and no building was constructed on lot 5. It was held that, as against a mortgagee, a lien could not be enforced against lot 5. The court said that the statute "seems to contemplate that there must be or have been a building situated upon the land against which the decree is demanded." In Burns v. Sewell, 48 Minn. 425, 51 N. W. 224, lumber was furnished on the ground, but not used in the building. A lien was Nothing can be added to what has been allowed, and the case distinguished from said in our past decisions of our policy as Smith v. Barnes, in that there was no to the construction of lien laws. Emery v. building in that case. There are a number Hertig, 60 Minn. 57, 61 N. W. 830; John 138, L.R.A. heretofore come before this couurt there has been some actual improvement wholly or partly constructed or the construction begun. This would naturally be so in almost every case where liens are asserted. Clearly the right to a lien exists when an improvement has actually been begun, be the start no more than the beginning of an excavation. If the owner of land contracts for cut stone or woodwork for a building thereon, and the material is prepared in the shops of the contractors and delivered to the premises, should we say that the owner may defeat the right to liens by then abandoning the construction of the proposed building? Though the question is not free from doubt, we have reached the conclusion that the owner cannot, in this way, destroy the right to a lien. This conclusion is strengthened by the language of § 7023 of the lien statute, providing that "all such liens, as against the owner of the land shall attach and take effect from the time the first item of material or labor is furnished upon the premises for the beginning of the improvement.” son v. Starret, 127 Minn. 1915B, 708, 149 N. W. 6. While it is perhaps difficult to see how the value of property is enhanced in any case by labor or material that does not go into the improvement, or how such labor or material "contributes to the improvement," our liberal policy has led to this result where there is an actual improvement. Is it an unwarranted extension of this doctrine to include cases where no improvement is made, when that is no fault of the laborer or materialman? There is little light on this question in the reported cases. The case of Smith v. Barnes, 38 Minn. 240, 36 N. W. 346, would be authority for the position that there must be an improvement on the land, except that the lien in that case was sought to be enforced against a mortgagee, while here the defendants were the contractors. The case of Foster v. Tierney, 91 Iowa, 253. 51 Am. St. Rep. 343, 59 N. W. 56, is valuable for the reasoning of the opinion, but the Iowa statute reads somewhat differently from ours, and Iowa is classed as a strict construction state. The case does hold, however, that architects are not entitled to a lien for plans and specifications where no improvement is made. In Freeman v. Rinaker, 185 Ill. 172, 56 N. E. 1055, the court said that an architect was entitled to a lien for preparing plans and specifications for a building which was not erected, but the case was decided against plaintiff on another point. The Illinois statute specifically gives a lien to one who performs services as an architect for the purpose of building a house, etc. These cases are the only ones cited that bear at all directly on the precise point involved here. We place our decision on the language of the lien statute of this state, as it has been construed in the cases referred to, and hold that there may be a lien without an actual "improvement," and that we can fairly say that plaintiffs "constructively" contributed to an improvement of defendants' land in this case. We must not overlook the fact, as found by the trial court, that defendants prevented the improvement, thus of their own volition and through their breach of contract preventing the work of plaintiff's from actual contributing to the construction of an actual improvement on the land. We do not mean that the breach of contract created the lien. Of course it could not, but it is rather hard on those who have performed labor or furnished material in reliance upon the lien statute, if the owner can defeat their liens by refusing to go on with the building. It is true that the statute, in the various sections above noted, speaks of an "improvement" as an accompřished fact, and in every case that has The balance of the section, providing that, as against bona fide purchasers and mortgagees without notice, no lien shall attach "prior to the actual and visible beginning of the improvement on the ground,” seems to further justify the idea that, as against the owner, an actual beginning of the improvement upon the ground is not necessary, providing the first item of labor or material is furnished upon the premises, or specially prepared for the building in the shop of the laborer or materialman, or, as in this case, in the office of the architect. We, therefore, hold that plaintiffs had a right of lien on the land of defendants. 2. Was the lien statement filed in time? In deciding this question we will assume that the last work on the plans, specifications, and details was done March 27, 1913. If the ninety days run from this date the lien statement was clearly filed too late. But plaintiffs had no right to file a lien at that time, as they had not completed their contract, which called for supervision of the construction, as well as for plans and specifications. It was an entire contract, and had the building been constructed, plaintiffs could not have recovered their compensation or filed a lien therefor until the construction was completed, as their contract would not be fully performed until that time. Bentley v. Adams, 92 Wis. 386, 66 N. W. 505; Richardson v. Central Lumber Co. 112 Ill. App. 160, following Freeman v. Rinaker, 185 Ill. 172, 56 N. E. 1055. There can be no doubt that this is correct, and it is claimed therefore, that the date of defendants' repudiation of the contract, (Del.) 265, 78 Atl. 920, is opposed to this May 27th, is the date from which the stat-conclusion, and the authorities in support utory ninety days begins to run. But our of it are not entirely satisfactory, but a statute is plain and explicit: definite rule is better than one which leaves the question of what is a "reasonable time" to be litigated in each case, "The lien shall cease at the end of ninety days after doing the last of such work, or furnishing the last item of such skill, material, or machinery, unless within such period a statement," etc., shall be filed. Gen. Stat. 1913, § 7026. The time for filing the statement does not run from the completion of the building, as it does in many states, but from the doing of the last work or furnishing the last item of skill or material by the lien claimant. Under statutes which do not permit a lien to be filed until the building is completed, and which give a stated time thereafter in which it may be filed, it is manifestly logical to hold, as the authorities uniformly do, that the date of abandonment of the work is deemed the date when it is completed. 27 Cyc. 139, and cases cited. Otherwise lien claimants would be out entirely. But under statutes like ours, one who does work or furnishes skill or material may file a lien when his work is done or contract performed; he need not wait until the building is completed, unless his contract is not performed until then. And in such cases, when the work is abandoned or suspended without the fault of the lien claimant, he may immediately file a lien for the work already done or the skill or material already furnished, though he has not fully performed his contract. Knight v. Norris, 13 Minn. 473, Gil. 438. The present case clearly falls within this rule, and the only matter of doubt is: Within what time after the abandonment of the project by defendants could plaintiff's file their statement? Though in this particular case the ninety days from the date of furnishing the details had not expired when defendants repudiated the contract, A there being some thirty days still to run, there might well be cases where the ninety days had already expired when the contract was repudiated or work of construction abandoned. The manifest injustice in such cases of holding the right to a lien lost is apparent. Clearly plaintiffs had some length of time after May 27th in which to prepare and file their lien statement. We cannot say that it must have been done within the thirty days remaining, for such a rule would be, in many cases, an impossible one to apply. We must either say that they had a reasonable time thereafter in which to file their lien, or say that they had the full ninety days thereafter. A majority of the court favors the latter view. The case of Voightmann v. Wilmington Trust Bldg. Corp. 7 Penn. (May 12, 1914.) PPEAL by defendant from a judgment of the Appellate Division of the Supreme Court, Fourth Department, affirming a judgment of a Special Term for Monroe County in plaintiff's favor in an action brought to enjoin defendant from collectNote. Power of municipal corporation to grant exclusive right or create monopoly for removal of substances inimical to health. This note is supplementary to the note to Landberg v. Chicago, 21 L.R.A.(N.S.) 830; and for the earlier cases as to monoply in a contract for the removal of garbage, see also note to Smiley v. MacDonald, 27 L.R.A. 540. to the disposal of dead animals, including Generally, as to ordinances with respect the right of a municipality to grant the exclusive privilege of removing carcasses from him the materials in question. ing garbage without a license in violation | right to enter upon his premises and take of an ordinance of the city. Affirmed. The facts are stated in the opinion. Messrs. Wile & Oviatt, for appellant: The ordinance, if held to apply to the acts of the defendant, would be unreasonable and void as to such acts, even though it might be good as to other situations. Ford v. Standard Oil Co. 32 App. Div. 596, 53 N. Y. Supp. 48; Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636; Underwood v. Green, 42 N. Y. 140; New York Sanitary Utilization Co. v. Health Dept. 61 App. Div. 106, 70 N. Y. Supp. 510; Landberg v. Chicago, 237 Ill. 112, 21 L.R.A. (N.S.) 830, 127 Am. St. Rep. 319, 86 N. E. 638; Gregory v. New York, 40 N. Y. 273; Knauer v. Louisville, 20 Ky. L. Rep. 193, 41 L.R.A. 219, 45 S. W. 510, 46 S. W. 701; Meyer v. Jones, 20 Ky. L. Rep. 1632, 49 S. W. 809; Iler v. Ross, 64 Neb. 710, 57 L.R.A. 895, 97 Am. St. Rep. 676, 90 N. W. 869; State v. Morris, 47 La. Ann. 1663, 18 So. 711; Schwartz Bros. Co. v. Board of Health, 83 N. J. L. 81, 83 Atl. 762; River Rendering Co. v. Behr, 77 Mo. 91, 46 Am. Rep. 6; State v, Payssan, 47 La. Ann. 1029, 49 Am. St. Rep. 390, 17 So. 481. 20 Am. & Eng. Enc. Law, 1140; People ex rel. Dunn v. Ham, 32 Misc. 517, 66 N. Y. Supp. 264; Independence v. Cleveland, 167 Mo. 384, 67 S. W. 216; State v. Butler, 178 Mo. 272, 77 S. W. 560; State ex rel. Case v. Wilson, 151 Mo. App. 723, 132 S. W. 625; Sargent v. Clark, 83 Vt. 523, 77 Atl. 337; Chicago v. M. & M. Hotel Co. 248 Ill. 264, 93 N. E. 753; Iowa City v. Glassman, 155 Iowa, 671, 40 L.R.A. (N.S.) 852, 136 N. W. 899; St. Louis v. Dreisoerner, 243 Mo. 217, 41 L.R.A. (N.S.) 177, 147 S. W. 999; Peace v. McAdoo, 110 App. Div. 13, 96 N. Y. Supp. 1039; Buffalo Fertilizer Co. v. Cheektowaga, 61 Misc. 404, 113 N. Y. Supp. 901; State v. Mott, 61 Md. 297, 48 Am. Rep. 105; Chicago v. Ferris Wheel Co. 60 Ill. App. 384; Carrollton v. Bazzette, 159 Ill. 284, 31 L.R.A. 522, 42 N. E. 837; Ex parte Patterson, 42 Tex. Crim. Rep. 256, 51 L.R.A. 654, 58 S. W. 1011; Wiggins v. Chicago, 68 Ill. 372; Chicago v. Hardy, 66 Ill. App. 524; Morton v. Macon, 111 Ga. 162, 50 L.R.A. 485, 36 S. E. 627; Re McMonies, 75 Neb. 443, 702, 106 N. W. 454, 456. The ordinance is unconstitutional because it is in conflict with the Constitution of the state of New York, prohibiting the grant The city of Rochester possesses no charter power to prohibit defendant's acts, and to grant to any contractor the exclusive thereof, see notes to Fulton v. Norteman, 9 | animal matter detrimental to health, and L.R.A. (N.S.) 1197, and Whelan v. Daniels, 48 L.R.A. (N.S.) 979. All the recent cases in point, including ROCHESTER V. GUTBERLETT, affirming 151 App. Div. 900, 135 N. Y. Supp. 1104, which affirmed without opinion 73 Misc. 607, 133 N. Y. Supp. 541, are in accord with the earlier weight of authority, to the effect that a city, in the exercise of its police power, may regulate the collection and disposal of garbage and other substances inimical to health, and in so doing may, by ordinance or contract, grant an exclusive right or create a monopoly for the removal of such substances. As stated in Smith v. Spokane, 55 Wash. 219, 104 Pac. 249, 19 Ann. Cas. 1220: "Ordinances conferring the exclusive right to collect garbage and refuse substances upon some department of the city government, or upon a contractor with the city, have almost universally been sustained." So, in this case, it was held that a city having authority, under its charter and the general laws of the state, to define and abate nuisances, regulate and prohibit the carrying on of occupations which were of such a nature as to affect the public health, and make all needful rules and regulations for the health, comfort, and well-being of the city and its inhabitants, had power to pass ordinances creating a crematory department in the city government, and providing that such department should collect and dispose of all manure, garbage, offal, refuse, rubbage, dead animals, or any vegetable or making it "unlawful for any person, firm or corporation, or any agent or employee thereof, other than the authorized officers, agents, and employees of the crematory department, to haul, carry or convey, through, along, or upon any public street, alley or sidewalk within the city, any garbage, night soil, ashes, or any waste or refuse substances, except manure;" and that such ordinances were not unconstitutional as denying to one previously engaged in hauling garbage and refuse in the city, the right to engage in a lawful occupation to earn a livelihood for himself and his family, but were a proper exercise of the police power, as tending directly to promote the public health, comfort, and welfare, and did not deny to such person any right or privilege guaranteed to him by either the Federal or the state Constitution. Ibid. Likewise, under provisions of a city charter that the city council shall elect, among other officers and employees, one or more city scavengers, that the city shall have power to abate, in any manner it may deem expedient, a nuisances which may injure or affect the public health or comfort, to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease, and to pass all constitutional ordinances that may be necessary or proper to carry into effect the powers vested in it,the city has authority to pass and enforce an ordinance creating the office of city scav. ing of a monopoly or an exclusive fran- 119 Minn. 145, 41 L.R.A. (N.S.) 737, 137 chise. Quill v. New York, 36 App. Div. 476, 55 N. Y. Supp. 889, 5 Am. Neg. Rep. 423; Bishop v. New York, 21 Misc. 598, 48 N. Y. Supp. 141; Missano v. New York, 160 N. Y. 123, 54 N. E. 744, 6 Am. Neg. Rep. 652; Syracuse Water Co. v. Syracuse, 116 N. Y. 167, 5 L.R.A. 546, 22 N. E. 381; Fox v. Mohawk & H. River Humane Soc. 165 N. Y. 517, 51 L.R.A. 681, 80 Am. St. Rep. 767, 59 N. E. 353; Hallock v. Dominy, 7 Hun, 52; Conover v. Long Branch Commission, 65 N. J. L. 167, 47 Atl. 222; Kussel v. Erie, 8 Pa. Dist. Rep. 105. Equity will not interfere where the acts of the defendant do not constitute a nuisance in and of themselves, and where the plaintiff is a municipal corporation which has been unsuccessful in an action at law. New Rochelle v. Lang, 75 Hun, 608, 27 N. Y. Supp. 600; Brockport v. Johnston, 13 Abb. N. C. 468; Hudson v. Thorne, 7 Paige, 261; Dill. Mun. Corp. 3d ed. §§ 409412; St. Johns v. McFarlan, 33 Mich. 72, 20 Am. Rep. 671; High, Inj. § 1248; Waupun v. Moore, 34 Wis. 450, 17 Am. Rep. 446; Janesville v. Carpenter, 77 Wis. 288, 8 L.R.A. 808, 20 Am. St. Rep. 123, 46 N. W. 128; Mt. Vernon v. Seeley, 74 App. Div. 50, 77 N. Y. Supp. 250; Higgins v. Lecroix, enger and providing that the scavenger work within the city shall be done exclusively by him, and that it shall be unlawful for any other person or corporation to do such work, etc.; and such an ordinance is a valid exercise of the city's police power, and is not unreasonable or oppressive in that it prohibits any other person save the city scavenger from doing the work in question. Ex parte Howell, Tex. Crim. Rep., 158 S. W. 535. And under the provisions of a city charter that the city council shall have power to take such lawful measures as they may deem effectual to prevent the entrance of any pestilential, contagious, or infectious disease into the city, and to adopt any sanitary measures whereby the health of the city may be protected and improved, the city has power to pass an ordinance creating a garbage department and the office of superintendent thereof, and prohibiting any other person engaging in the business of carting trash, slops, and night soil for others; and such an ordinance is neither unreasonable nor violative of a constitutional provision against monopolies. Ex parte London, Tex. Crim. Rep. 163 S. W. 968. N. W. 417; Lawton v. Steele, 119 N. Y. 226, 7 L.R.A. 134, 16 Am. St. Rep. 813, 23 N. E. 878; Wood, Nuisances, 3d ed. p. 975; West v. New York, 10 Paige, 539; Mohawk Bridge Co. v. Utica & S. R. Co. 6 Paige, 554; Marvin Safe Co. v. New York, 8 Hun, 146; Wallack v. Society for Reformation of Juvenile Delinquents, 67 N. Y. 23; Coykendall v. Hood, 36 App. Div. 558, 55 N. Y. Supp. 718. Mr. John M. Stull, with Mr. W. W. Webb, for respondent: The provisions of the health ordinance in question are reasonable, constitutional, and valid. Rochester v. West, 164 N. Y. 510, 53 L.R.A. 548, 79 Am. St. Rep. 659, 58 N. E. 673; Tenement House Dept. v. Moeschen, 179 N. Y. 325, 70 L.R.A. 704, 103 Am. St. Rep. 910, 72 N. E. 231, 1 Ann. Cas. 439; Gardner v. Michigan, 199 U. S. 325, 50 L. ed. 212, 26 Sup. Ct. Rep. 106; California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306, 50 L. ed. 204, 26 Sup. Ct. Rep. 100; Atlantic City v. Abbott, 73 N. J. L. 281, 62 Atl. 999; Passaic v. Paterson Bill Posting, Advertising & Sign Painting Co. 71 N. J. L. 75, 58 Atl. 343; Dupont v. District of Columbia, 20 App. D. C. 479; Grand Rapids v. DeVries, 123 moval of all garbage, etc., and provided that such person should receive a license for that purpose, and that no license should be issued to any other person, firm, or corporation for the gathering of such garbage, and that no person, firm, or corporation, excepting the city, should collect or convey through the streets of the city any garbage, etc., or any other unsanitary matter, without having first received a license therefor, -the court said: "The right of a city, in the reasonable exercise of its police power, to enact an ordinance covering the collection and disposal of garbage, is not, as we understand it, questioned by counsel for appellant [who contended that a court of equity was without jurisdiction to entertain the bill]. Indeed, in view of the decisions of this and other courts, such right could not well be questioned." And under a charter giving a city the right to exercise within its limits the full police power of the state, the city has the power to pass an ordinance providing that no person except its employees engaged in public work, or persons under contract with it engaged in public work, shall convey any garbage, house offal, or other refuse, animal or vegetable matter, through any street or public way of the city without having first obtained a permit so to do; and that the commissioner of health may revoke the permit at any time when, in his judgment, the public health will suffer by the continuance thereof. Schultz v. State, 112 Md. 211, 76 Atl. 592. A. C. W. |