Nexsen v. Ward

80 S.E. 599, 96 S.C. 313, 1914 S.C. LEXIS 205

• Court: Supreme Court of South Carolina
• Decided: January 8, 1914
• Docket: 8713
• Status: Published

Opinions

On account of a division of the Court on a constitutional question, this case was argued before the Court en banc.

The opinion of the Court was delivered by

Mr. Justice Hydricic.

In 1912, plaintiff rented defendant a farm and advanced him fertilizer of the value of $100.91 to make his crop. Defendant refused to pay for the fertilizer, and was disposing of the crop1 when plaintiff obtained a warrant from the clerk of the Circuit Court, and had two bales of cotton seized, claiming that he had a statutory lien on it for his debt. On motion of defendant, the Court set aside the warrant, on the ground that the statutes do not give the landlord a lien for advances to his tenant, unless the same is in writing. This appeal questions that ruling.

Some apparent conflicts in the provisions of the statutes, as they appear in the Codes of 1882, 1902, and 1912, disappear when we consider the original enactments, and the order in time and purpose of their adoption. The agricultural lien law was adopted piecemeal, and it has been frequently amended, so that a careful study of its history is necessary to reach a correct conclusion upon the question for decision.

In 1866 (13 Stat. 380), “any person” who advanced supplies to one engaged in the cultivation of the soil to make his crop was given a preferred lien thereon, provided the agreement was in writing. In 1869 (14 Stat. 229), laborers were given a prior lien on the crops for their wages. The statute did not specifically require that the contract should be in writing, but in Hair v. Blease, 8 S. C. 63, the Court construed the statute to require that the contract should be in writing to have the effect of giving the laborer a lien. By act, approved March 4, 1878 (16 Stat. 410), which was in effect a re-enactment of the act of 1866, with amendments, landlords were given a prior and preferred lien for rent to the extent of one-third of the crops to be valid without recording or filing, and the act ¡further provided that every lien for advances and for rent, when the agreement was for more than one-third of the crop, should be filed and indexed in the office of the register of mesne conveyances. By act, approved December 23, 1878 (16 Stat. 743), entitled “An act for the further protection of landlords in the collection of moneys due by tenants for rents and advances,” the landlord’s lien for rent was extended to all crops raised on the leased land, whether by his tenants or other persons. Section 2 of that act reads: “That, subject to the liens provided for in said act (the act of March 4, 1878), and enforcible in the same way as therein provided, the landlords shall have a lien on all the crops raised by the tenant for all advances made by the landlord during the year.”

Although the statute did not provide in terms that the landlord’s lien for advances need not be in writing, it is clear that that was the intention of the legislature, because, otherwise, the section is meaningless, and had no force or effect whatever, since, under the prior act of March 4, 1878, the landlord, being included in the general class, “any person,” could have had a lien for advances by making an agreement therefor in writing. The rules of construction require that this section must have some meaning, and it can be given no other. The subsequent act of 1880 (17 Stat. 413) shows also that the legislature gave it that construction, because that act required that all liens therein provided for, except the landlord’s lien for rent, should be in writing —a requirement which was useless and meaningless, unless section 2, supra, had the effect of giving the landlord a lien for- advances without writing, because there was no other provision in the statutes for a lien without writing.

This brings us to the act of 1880, supra, by which section 6 of the act of March 4, 1878, was amended. The body of the section, as amended, may be passed over as not affecting the question under consideration, but a proviso was added to it, which reads: “Provided, That all liens herein provided for shall be in writing, except the landlord’s lien for rent, when the amount does not exceed one-third of the crop: Provided, further, That so much of any act or acts as are inconsistent with the provisions of this act be, and the same is hereby, repealed.” As we have already. shown, this proviso was intended to repeal section 2 of the act ot ■December 23, 1878, above quoted.

The statutes above referred to were codified in the General Statutes of 1882, in chapter XCV, headed, “Of Chattel Mortgages and Liens,” and under the subhead, “Liens on Crops,” in the following sections. Only the general purport of sections 2397 and 2304 is given, because the remainder of these sections throws no light on the question under consideration.

Section 2397 gives a preferred lien to “any person” making advances, provided it is in writing.

Section 2399 reads as follows: “Each landlord leasing lands for agricultural purposes shall have a prior and preferred lien for rent to the extent of all crops raised on the lands leased by him, whether the same be raised by the tenant or other persons, and enforcible in the same manner as liens for advances, which said lien shall be valid without recording or filing: Provided, That, subject to the liens herein provided for and enforcible in the same way, the landlord shall have a lien on all the crops raised by the tenant for all advances made by the landlord during the year: Provided, further, Every lien for advances and for rent, when the agreement is for more than one-third of the crop, shall be indexed in the office of the register of mesne conveyances of the county in which the lienor resides,” etc. (The remainder of the section relates to the details of indexing, and is not pertinent.)

Section 2400. “All liens herein provided for shall be in writing, except the landlord’s lien for rent when the amount does not exceed one-third of the crop.”

Section 2403 gives laborers a prior lien on the crops for their wages.

It appears that section 2 of the act of December 23, 1878, was codified in the italicized part of section 2399, supra. It also appears, upon the face of these sections, that they are in conflict, in that the person who makes advances, the landlord and the laborer, each appears to have a prior lien on the crops. This led to the passage of the act of 1885 (19 Stat. 146), entitled “An act to prescribe the priorities of certain statutory liens.”

Section 1. “That from and after the passage of this act the landlord shall have a lien upon the crops of his tenant for his rent in preference to all other liens. That laborers who assist in making any crop shall have a lien thereon to the extent of the amount due them for such labor next in priority to the landlord, and as between such laborers there shall be no preference. That all other liens for agricultural supplies shall be paid next after the satisfaction of the liens of the landlord and laborers, and shall rank in other respects as they do now under existing laws.”

Section 2. “That no writing or recording shall be necessary to create the liens of the landlord, but such lien shall exist from the date of the contract, whether the same be in writing or verbal.”

Section 3 repeals all inconsistent acts.

It is contended that the use of the word “liens” in section 2 of the act of 1885 indicates an intention to include both the landlord’s lien for rent and his lien for advances. Several considerations seem to show that the word “liens” was unintentionally substituted for the word “lien” by a slip of the pen or an error of the printer. The statute had made direct reference to only- one lien of the landlord, and the word “liens” is immediately followed by the words “such lien,” showing that both words should be plural or both singular. The headnote to the section reads: “Lien for rent need not be in writing.” Of course, that is only the construction of the Code Commissioner of that time, and is of no consequence, except that it gives us the benefit of a contemporaneous construction. Of more consequence is the fact that, as the lien law then stood, section 2400 of the General Statutes required all liens to be in writing, except the landlord’s lien for rent, and it is hardly conceivable that the legislature would have undertaken to repeal such an unequivocal declaration of its intention by such an inconclusive circumstance as the mere use of the plural word “liens” in the section above quoted. Finally, that section was codified in the first italicized sentence in section 3057 of the Civil Code of 1902, which is copied below, and the word “lien” is there used, which is, I think, conclusive of the question. For these reasons, I do not think that the act of 1885 was intended to have the effect of giving the landlord a lien for advances without writing.

But since that time, the legislature has made material changes in the statutes, the necessary effect of which, I think, accomplishes that result.

1 Section 5, of article VI, of the Constitution of 1S95, pro* vided for the codification of all the general statutes of the State every ten years, and it was therein provided further that the Codes adopted thereunder shall be declared “to be the only general statutory law of the State.” In pursuance of that provision, the Code of 1902 was adopted, and declared by the legislature “to be the only general statutory law of the State.”

The inevitable consequence of that enactment and declaration is to repeal all general statutory laws which were not included in the Code; because, if the Code contains the only general statutory law of the State, of course, there can be none other. To say that a general law which has been left out of the Code is, nevertheless, still of force, is to destroy the effect of the declaration. We are not at liberty to say that the lawmakers did not mean what they said in plain and unmistakable language.

It is equally clear that any matter, which was not, theretofore, a part of the general statutory law of the State, but which was introduced into the Code and adopted with it, became by virtue of that adoption, a part of the general statutory law of the State. To hold otherwise would be to override the legislative declaration. In Park v. Laurens Cotton Mills, 75 S. C. 560, 56 S. E. 234, it was held that a statute, which was unconstitutional, because of a defective title, became a part of the law of the State when adopted as a part of the Code. It follows, therefore, that any matter which the legislature may constitutionally enact as law becomes such when it has been inserted in the Code, and adopted with it. In Central etc. R. Co. v. State. 104 Ga. 831, 42 L. R. A. 518, the Supreme Court of Georgia had the same question under consideration. The Court said: “It would be difficult to conceive how language could more clearly or forcibly express the real intent of the legislature in this matter- than the words used in the title and body of this act. If it means anything, it means a purpose of the legislature to adopt and make of force a code of laws, and hence to breathe into every provision in that code the vitality of a legislative enactment. Any other construction would ascribe to the legislature the folly of declaring, in effect: ‘We adopt as law in this Code everything which would be law anyway without further sanction.’ ” (Italics added.) Again, the Court said: “It is further contended by plaintiff in error that the embodiment in the Code of an unconstitutional law is an error which the legislature did not intend to sanction by its act adopting the Code. If the infirmity of the act relates to matter upon which the Constitution prohibits any legislation at all, of course, the act would be void, it matters not where found, nor how often adopted. Where, however, the defect is not inherent in the subject matter itself, but relates simply to its manner of passage under a defective title, it is, of course, permissible for the legislature to re-enact the measure under a proper title.”

If this be not so, the adoption of the Code failed to accomplish the purpose thereby intended, which was to bring together in a systematized body all the general statutory law of the State of foixe at the time of its adoption, so that the people could rely upon it with certainty for their guidance.

It is true that mischief may result from the omission of valid statutes, or the insertion of invalid ones, or of other matter not theretofore a part of the statute law, whether done inadvertently or designedly. But that is a matter for legislative, rather than judicial, consideration. The Constitution and statutes have guarded against such alterations by requiring the report of the Code Commissioner to be printed and laid on the desks of the members of the General Assembly a year before it can be taken up for legislative action. The intent necessarily to .be implied is that each member shall have ample time and opportunity to consider it carefully, and see that it contains all that it should, and nothing that it should not. The Court must assume that the members have done their duty. Moreover, the legislature meets annually, and errors and omissions may be readily corrected.

2 Having shown that we must look to the Code alone for the general statutes of the State at the time of its adoption,' it follows that we must construe it just as any other statute, and give effect to all of its provisions. The rule sustained by all the Courts requires that every word, clause, and sentence must be given some meaning, force, and effect, if it can be done by any reasonable construction.

Coming, thep, to the Code of 1902, we find the provisions of all the statutes hereinbefore referred to incorporated therein and re-enacted, except section 2400 of the General Statutes of 1882, which provided that all liens on crops rhould be in writing, except the landlord’s lien for rent. We have no way of knowing — we can not inquire — whether the omission was accidental or intentional. But according to the well settled rule above stated, we must give effect to the statute and to every part of it, as it stood without that provision.

Section 3057 reads: “Every landlord leasing land for agricultural purposes shall have a prior and preferred lien for his rent to the extent of all the crops raised on the lands leased by him, whether the same be raised by the tenant or other person. No writing or recording shall be necessary to create such lien, but it shall exist from the date of the con tract, vuhether the same be in writing or verbal, and the landlord shall have the right to enforce such lien in the same manner, upo'n the same conditions, and subject to the same restrictions as are provided in this article for persons making advances for agricultural purposes. And, subject to the liens hereinafter provided for, and enforcible in the same zvay, the landlord shall have a lien on all the crops raised by the tenant for all advances made by the landlord to such tenant during the year(Italics added.)

Section 3059 is the same as section 2397 in the General Statutes of 1882, and provides that “any person” making advances shall have a lien, provided it be in writing.

For the reasons which have already been stated, the last sentence italicized above must be given the same construc tion which it was originally intended to have — that the landlord shall have a lien for his advances without an agreement therefor in writing — because, if it is not given that construction, it means nothing, and we convict the legislature of the folly of writing into the Code a provision which has no meaning, force, or effect whatever, since, without that provision, the landlord could have obtained a lien for his advances by making an agreement therefor in writing, under section 3059.

But this is not all. In 1906 (25 Stat. 83) the legislature amended section 3057, supra, so as to give the landlord “and his assigns” the right to enforce not only his lien for rent provided for in the first sentence of that section, but also his lien for advances provided for in the last sentence thereof. We must infer from this the positive intention that that part of the section should be as effective as the other; because, otherwise, it would have been omitted. The section was again re-enacted, without change, in the Civil Code of 1912, being section 4162 thereof.

When a statute creates a lien, unless the intention is expressed, or should be inferred from the context, that it shall be in writing, it is valid without a contract in writing. In Harby v. Wells, 52 S. C. 156, 29 S. E. 563, this Court held that, under the statute which gives the owner of a stock horse a lien on the issue for the service fee, he had such a lien, even though no contract in writing was made therefor. The statute merely declared that the owner of such horse, “having a claim by contract against the owner of any mare * * * shall have a prior lien on the issue of such mare,” etc. The Court held that the contract need not be in writing to entitle the owner of the horse to a lien. To the same effect is State v. Lanier, 79 S. C. 103, 60 S. E. 225.

It is argued that, as the statute expressly provided that the landlord should have a lien for his rent without writing, we must infer the intention that he should have no other without writing, on the principle, expressio unius est exclusio alterius. That argument is not without force, but it is 'only an inference which is not sufficiently conclusive to compel the complete destruction of the words of the section which we have italicized, because the provision in question is not so inconsistent with them that they can not both stand together, and both be given some meaning, force, and effect. Moreover, when the circumstances and dates of enactment of the several statutes are considered, the reason why it was specifically provided in the act of March 4, 1878. that the landlord’s lien for rent need not be in writing is apparent, aiicl destroys the force of the argument.

It is also suggested that this construction is not consistent with the provisions of section 3061, that “every lien for advances shall be indexed,” etc. There are two answers to that objection: First, the requirement of recording is intended only for the benefit of subsequent creditors or purchasers, while the landlord’s unwritten lien for advances is expressly made subject to other liens. Second, that provision was inserted before the adoption of the act giving the landlord a lien for advances without writing, and, therefore, it falls in the category of other apparent inconsistencies in the statutes on that subject, some of which have already been mentioned. That section was not intended to make indexing a prerequisite of the validity of the lien. The Court held in Lyons v. Tedder, 7 S. C. 69, that a lien was valid as between the parties without indexing. Therefore, the statute must be construed to mean that, to have the effect of protecting the lienee against subsequent creditors or purchasers, it must be indexed. This construction harmonizes and gives effect to all the provisions of the statutes. The other completely destroys some of them.

Having seen that the Civil Code of 1902 should be construed to give the landlord a lien for advances without writing, we next inquire what effect, if any, the act of 1909 (26 Stat. 178), which repealed section 3059 of the Civil Code of 1902, had upon that right. The act of 1909 merely repealed section 3059, which provided that “any person” making-advances should have a lien, provided it was in writing. The intention to repeal the provision of section 3057, supra, which gave the landlord a lien without writing for advances was not expressed, and it is not to be implied, because the implication is not necessary. Repeals by implication are not favored. The implication of the intention to repeal must be necessary, and it must arise out of a repugnancy between the statutes so direct and positive that they can not be reconciled. If, by any reasonable construction, both can be allowed to stand, that construction must be adopted. We have already shown that the provision in question is not only not repugnant to the other provisions of the law upon the subject, but that it is in harmony with them.

The conclusion which I have reached is fortified by the decision of this Court in State v. Lanier, 79 S. C. 103, 60 S. E. 225. In fact, it is the necessary logical sequence of that decision. The Court had held in Hair v. Blease, 8 S. C. 63, that, under the act of 1869, the laborer did not have a lien on the crops unless his contract was in writing. But, in State v. Lanier, decided in 1908, after the repeal, by its omission from the Code of 1902, of section 2400 of the General Statutes of 1882, which required all liens on crops, except the landlord’s lien for rent, to be in writing, the Court overruled Hair v. Blease, and held that a laborer has a lien on the crops without a contract in writing. While it is true that the repeal of section 2400, supra, was not mentioned, nor was it made a ground of the decision, yet that decision could not have been reached in the face of the positive requirement of that section so long as it was a part of. the statute law of the State. That case can not be distinguished, and, upon the principle involved, we must conclude that, as between him and his tenant, the landlord also has a lien for advances without writing. Of course, if he wishes his lien to protect him against subsequent creditors and pur chasers, he must make his contract in writing, and have it indexed as required by the statute.

For the foregoing reasons, the order appealed from is reversed.

Circuit Judges Prince, DeVore, Sease, Rice, Bowman, concur.