Best v. Baumgardner, Eberman & Co.

15 A. 691, 122 Pa. 17, 1888 Pa. LEXIS 587

• Court: Supreme Court of Pennsylvania
• Decided: October 1, 1888
• Docket: No. 418
• Status: Published

Opinion

Otixiox,

Mr. Justice G-jreex :

The act of May 1, 1861 P. L. 550, gave to mechanics and material men a lien for repairs, but limited its operation to the counties of Delaware, Chester and Berks. The act of March 22, 1865, P. L. 580, simply extended the act of 1861 to the county of Lancaster. The act of May 18, 1887, P. L. 118, extended the act of 1861 to all the counties of the commonwealth, but added two provisos, by the latter of which it is enacted that the claimant must give notice of his intention to file a lien, in order to be entitled to the benefit of the act. The acts of 1861 and 1865 contained no such requirement. Tt is, however, perfectly plain that it was the intention of the legislature by the act of 1887 to give a lien for repairs by general law applicable over the whole commonwealth, but subject to the condition that the claimant shall give notice of his intention to file a lien to the owner when the materials are furnished or work done. As this condition was not imposed by the act of 1861, it is necessarily and materially inconsistent with that act; but as the act of 1887 was clearly intended to cover the same subject matter as the act of 1861, by way of general instead of local law, it must be regarded as a substitute for the latter, and the latter must therefore yield. If it does not, we would have one kind of law upon this subject in the four counties named, and another and different kind of law upon the same subject, in the remaining counties of the commonwealth. And this, too, although the act of 1887 extends the act of 1861, not to the remaining, but to all the counties of the commonwealth, thus expressly including the four counties named in the acts of 1861 and 1865, as well as all the other counties. In this respect the act of 1887 supersedes the previous acts, and therefore repeals them by necessary implication: Nusser v. Commonwealth, 25 Pa. 126 ; Keller v. Commonwealth, 71 Pa. 413.

The only remaining question is whether, inasmuch as a few of the articles in question were sold and delivered a day or two before the passage of the act of 1887, that act is, therefore, inapplicable. That act was undoubtedly the law of the state when the delivery of the goods was completed, when the lien was filed, and when the present action was commenced. Such being the case, it would be clearly applicable unless the right to have the lien is to be regarded as so imbedded in the contract of sale as to become a part of its obligation, impregnable against any subsequent legislation. But the mere statement of that proposition is its refutation. The contract of sale is but a sale, conferring, of course, whatever rights are essential to it as a sale, but quite distinct from the matter of the remedies which the law affords for its enforcement. These may be greater or less, more favorable in some cases than in others, but they are remedies still. In an eminent degree is this true of the remedy by claim of lien. It is a pure creature of statute, favoring and intended to favor certain classes of persons, and not all alike, formerly having no existence, and latterly a somewhat wider scope. The power which gave it may at any time take it away entirely, and still not in any sense become answerable to the imputation of impairing the obligation of contracts. How much more may that same power modify or restrict the remedy, or re-arrange the terms upon which it may be invoked and exercised ? In the present case the remedy may not be used unless a notice of intention to resort to it is previously given. Surely this provision in no manner touches the obligation of the contract, and hence the constitutional objection has no application.

Judgment reversed, and new venire awarded.