Goss, J.
Plaintiff corporation brings this action to foreclose its. chattel mortgage upon a threshing engine, and to determine priority of liens thereon, and particularly as against a blacksmith’s lien filed against the engine by Boyle Brothers, defendants. Plaintiff sold the engine to one Russell in 1906, taking a mortgage back, which was duly filed and has been renewed, and admittedly is, and always has been, a valid lien upon the property. On April 11, 1911, Russell wrote plaintiff for its. written consent to a sale of the mortgaged engine, receiving a reply dated April 15, 1911, in effect withholding consent until it could investigate and until certain conditions were complied with. Russell, however, took no further steps to obtain such written consent, and sold it to Arbogast, for valuable consideration, who bought with notice of the encumbrance. Arbogast thereafter consulted Boyle Brothers, machinists, at Jamestown, as to repairing the engine, and one of them Avent to Russell’s [271] place, where the machine still remained, and inspected the same as to the probable cost of overhauling, rebuilding, and putting it in suitable condition, and made an estimate that to do so would cost in the neighborhood of $800. Defendants Boyle Brothers, were then engaged by Arbogast, with the knowledge and acquiescence of Bussell, to move the engine to the machine shop of Boyle Brothers for repairs, and rebuilding the engine, which was thereafter completed at an expense for labor, material, and repairs and incidental expenses, totaling $882.11, and incurred between April 27 and May 26, 1911, and for which amount a blacksmith’s lien was soon filed by Boyle Brothers against Arbogast, Bussell, and the Beeves Company, by the filing of an affidavit of lien, accompanied with an itemized and verified statement of all labor and items of material and charge entering into the account. Written notice of this was at once given. Blaintiff thereupon demanded possession from Boyle Brothers, who had at all times since the completion of the work retained possession of the engine, and upon their refusal thereof the property was taken under warrant of foreclosure. Boyle Brothers in defense pleaded their artisan’s lien and possession for the purpose of foreclosure thereof, and asked that their lien, claimed both under § 6295, Bev. Codes 1905, and chap. 168, Laws of 1907, be adjudged to be a prior lien to the mortgage of the plaintiffs. With this question of priority of liens, plaintiff seeks to raise the following questions: (1) Whether an artisan’s lien takes priority over a mortgage of record on the property liened; and (2) whether chap. 168 of the Session Laws of 1907, amending § 6295, Bev. Codes 1905, passed after this mortgage lien had accrued, and in express terms declaring that “said lien shall have priority over all other liens, chattel mortgages, 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 chap. 168 to be unconstitutional on several grounds alleged. Bor 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.
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Goss, J.
Plaintiff corporation brings this action to foreclose its. chattel mortgage upon a threshing engine, and to determine priority of liens thereon, and particularly as against a blacksmith’s lien filed against the engine by Boyle Brothers, defendants. Plaintiff sold the engine to one Russell in 1906, taking a mortgage back, which was duly filed and has been renewed, and admittedly is, and always has been, a valid lien upon the property. On April 11, 1911, Russell wrote plaintiff for its. written consent to a sale of the mortgaged engine, receiving a reply dated April 15, 1911, in effect withholding consent until it could investigate and until certain conditions were complied with. Russell, however, took no further steps to obtain such written consent, and sold it to Arbogast, for valuable consideration, who bought with notice of the encumbrance. Arbogast thereafter consulted Boyle Brothers, machinists, at Jamestown, as to repairing the engine, and one of them Avent to Russell’s [271] place, where the machine still remained, and inspected the same as to the probable cost of overhauling, rebuilding, and putting it in suitable condition, and made an estimate that to do so would cost in the neighborhood of $800. Defendants Boyle Brothers, were then engaged by Arbogast, with the knowledge and acquiescence of Bussell, to move the engine to the machine shop of Boyle Brothers for repairs, and rebuilding the engine, which was thereafter completed at an expense for labor, material, and repairs and incidental expenses, totaling $882.11, and incurred between April 27 and May 26, 1911, and for which amount a blacksmith’s lien was soon filed by Boyle Brothers against Arbogast, Bussell, and the Beeves Company, by the filing of an affidavit of lien, accompanied with an itemized and verified statement of all labor and items of material and charge entering into the account. Written notice of this was at once given. Blaintiff thereupon demanded possession from Boyle Brothers, who had at all times since the completion of the work retained possession of the engine, and upon their refusal thereof the property was taken under warrant of foreclosure. Boyle Brothers in defense pleaded their artisan’s lien and possession for the purpose of foreclosure thereof, and asked that their lien, claimed both under § 6295, Bev. Codes 1905, and chap. 168, Laws of 1907, be adjudged to be a prior lien to the mortgage of the plaintiffs. With this question of priority of liens, plaintiff seeks to raise the following questions: (1) Whether an artisan’s lien takes priority over a mortgage of record on the property liened; and (2) whether chap. 168 of the Session Laws of 1907, amending § 6295, Bev. Codes 1905, passed after this mortgage lien had accrued, and in express terms declaring that “said lien shall have priority over all other liens, chattel mortgages, 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 chap. 168 to be unconstitutional on several grounds alleged. Bor 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.
Section 6295, Bev. Codes 1905, 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 [272] 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 liens, the first consideration is whether the lien is one given at common law, or is instead dependent for its existence solely upon the terms of the statute. Where the statute is merely declaratory of the common law it is construed together with, and in the light of, the common law; the legislature being presumed to know the common law on the subject and to enact the statute as merely declaratory thereof, and to be so interpreted in the light of its origin and common-law definition where the statute does not depart from the governing common-law principles. And this here applies, as artisans’ liens are a creation of the common law, and not a special lien originating under, and dependent upon, statute for its 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 chap. 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, without 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 chap. 168 of the Laws of 1907, granting priority to the artisan’s lien, was not innovation, and did not create any new rights not already 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 ¶ 12, p. 1519) § 6295, taking its place as § 4844 of the Code of 1895. But chap. 88 of the Laws of 1890 (almost identical with chap. 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 subdiv. 2 of § 1814 of the Revised Codes of Dakota territory 1877, which, like § 6295, Rev. Codes 1905, 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 [273] 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, which section must be held to grant the artisan a superior lien to that of the mortgagee, evén though the same is not declared by statute: And such was the law in 1906, when plaintiff took this mortgage. So, without any reference to chap. 168, Laws of 1907, plaintiff’s mortgage must be held to be subordinate to the lien of defendants, as such was the law at the time the mortgage was taken, where the party entitled to the lien has retained possession, as have defendants, at all times after the completion of the work. And this is decisive of the rights of appellant, as chap. 168 of the Laws of 1907, if applicable, is but declaratory of the equivalent of § 6295, Rev. Codes 1905, as supplemented by "the common law concerning priority, which by express terms it purports to amend. It consists, among other things, in declaring the procedure necessary for the perfection and foreclosure of 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 chap. 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, which would then be valid under § 6295, Rev. Codes 1905, they having at all times, after completion of this work, retained possession of the personal property upon which the work was performed under a claim of lien therefor, demanding payment of their charges for labor, material, and repairs. If § 168 is constitutional, Boyle Brothers, having strictly complied therewith, are then certainly entitled to prevail, as possessing a prior lien, not only declared by common law, but expressly defined by chap. 168, Laws of 1907. Plaintiff is thus caught upon one horn or the other of the dilemma, one or the other of which he must choose. Hence he is in no position to exact a holding upon the feonstitutionality of the law of 1907, as any discussion thereof must be unnecessary to a decision. Under such circumstances, it is the duty of [274] the court to refrain from passing upon constitutional questions. This likewise disposes of whether’ appellant waived its rights under its mortgage. The holding that the artisan’s lien in any event is prior to the mortgage lien is the equivalent of deciding that appellant had no rights to waive under its mortgage. Nor is there any merit in appellant’s contention that Arbogast, in buying the mortgaged property without written consent having been given the mortgagor to sell the same, could acquire no right ór interest sufficient to constitute him an implied agent of the mortgagee, as is the owner of mortgaged property, for the authorization of repairs thereto, whose act as such binds the mortgagee and subordinates the mortgage lien to that of the artisan. Russell acquiesced in the contract for repairing, though the same was wholly immaterial, as Arbogast, by purchase from Russell, became the owner of said property, and as such enjoyed all rights formerly possessed by Russell. True, the sale hy Russell without written consent of the plaintiff constituted commission of a crime by the seller under § 9442, Rev. Codes 1905, but no liability, civil or criminal, unless arising by implied contract from provisions of the mortgage of record (Ellestad v. Northwestern Elevator Co. 6 N. D. 88 — 93, 69 N. W. 44) was assumed by the purchaser by a mere purchase of mortgaged property. Sanford v. Duluth & D. Elevator Co. 2 N. D. 6-10, 48 N. W. 434; Black v. Minneapolis & N. Elevator Co. 7 N. D. 129-134, 73 N. W. 90; Willard v. Monarch Elevator Co. 10 N. D. 400-407, 87 N. W. 996; Gorder v. Hilliboe, 17 N. D. 281 — 284, 115 N. W. 843; Taugher v. Northwestern P. R. Co. 21 N. D. 111, 112, 129 N. W. 747. And Arbogast therefore became owner thereof, and as such could repair the property and subject it to an artisan’s lien for repairs so authorized. The judgment appealed from is affirmed.