By the Court,
Dixon, C. J.
Under the common law sys-tern of pleading and practice, this would have been denominated an action of assumpsit for wort and labor. It was commenced by the respondent against the appellant in the circuit court of Milwaukee county, in the month of May, 1857, to recover the price and value of work done by the respondent as a laborer, in the construction of the line of railroad of the appellant, in the year 1856, under the provisions of chap. 86, Laws of 1855, entitled, “ an act for the protection of laborers on railroads.” The respondent was employed as such laborer by a sub-contractor of the appellant.
Before this action was commenced, viz: on the 28th day of February, 1857, the act above referred to, and under which the respondent -performed his labor, was repealed by the third section of chap. 27, Laws of 1857, entitled “ an act further to protect laborers on railroads.” The act of 1855 was in the following words: “All railroad corporations within this state shall be responsible and obligated in law to the laborers on the line or lines of railroads being constructed by said corporations, and are responsible and liable to pay for all labor performed by said laborers severally, upon said road or roads, to the persons performing such labor ; and it shall be the duty of said corporations, to require of all contractors and sub-contractors ample bond or other security, satisfactory to said corporations, conditioned that all laborers on said road or roads shall be first paid, before the estimates due said contractors or sub-contractors by said corporations, shall be paid by [72] said companies to said contractor or contractors, sub-contractor or sub-contractors, and for the purposes of this act all the usual remedies by action are given to any and all such laborers against any such corporations. No suit shall be maintained under the provisions of this act, until such laborer shall have given thirty days’ notice, in writing, to the president or secretary of such company, that wages are due him, and that the company is required to make payment for such wages so due, stating the amount claimed.” The act took effect and was in force from and after its passage. The act of 1857, by the third section of which the foregoing act was repealed, continued the liabilities of railroad companies to pay laborers for work performed on their roads, but provided that such companies should not be liable when the claim or demand of the laborer was less than twenty dollars ; that the laborer should give notice to the company, within thirty days after his claim or demand should accrue, that he had such claim or demand; and that such claim or demand should have accrued within sixty days prior to the giving, of such notice, which notice should be in writing, specifying the nature and amount of the claim, and be served on the secretary or chief engineer, &c. The notice required by the act of 1855, to be given to the president or secretary of the company, thirty days prior to the commencement of suit, was proved to have been given by the respondent in the month of October, 1856.
Upon the trial the circuit judge instructed the jury, “that the notice to the defendant having been given before the passage of the act of 1857, made the right of the plaintiff to hold the defendant responsible for wages, a vested right, which no subsequent legislation could impair. To this instruction the counsel for the appellant excepted. The counsel for the appellant likewise requested the court to instruct the jury, “ that the law of 1857 repealed the law of 1855, and that the plaintiff was seeking to recover under the act of 1855, and that the papers in the case showed that the suit was not commenced until after the act of 1857 had gone into effect, and that, by virtue of the act of 1857, the plaintiff had shown no cause of action against the defendant.” This instruction was refused, and the counsel for the appellant [73] excepted. A verdict having been found for the respondent for the amount of his claim, and judgment thereupon perfected against the company, ¿they appealed to this court, for the purpose of obtaining a review of the questions involved in these exceptions. The cause was argued at the January term, 1859, and the judgment of the circuit court reversed. At the June term, 1859, a motion for rehearing was made and granted. At this time a reargument was had, and it now becomes our duty to express the views of a. majority of the court upon the questions presented.
The former' decision of this court proceeds upon the idea that the act of 1855 created, and gave to the laborer, a mere remedy against the company, where by law none before existed ; that it did not' create or impose upon it any obligation, or give the laborer any right; and that inasmuch as all mere matters of remedy are at all times subject to modification and control by the legislature, its repeal took away such remedy, and no action could thereafter be maintained. With the doctrines of the .opinion there given, as to the power of the legislature to reg'ulate, modify, change, or repeal remedies, we entirely concur, but we dissent at the very threshold of the inquiry, as to the construction of the act itself. It is fairly to be implied from the reasons there given, that if by virtue of the act and the subsequent transactions of the parties under it, an obligation or duty was imposed upon the company to pay the respondent for his labor, its subsequent repeal would not have affected his rights; and yet not one word is said by way of showing that no such obligation or duty, on the part of the company, existed or was created. It was taken for granted that' there was none. It is needless for us to enter into an argument, or to cite authorities to show that if, by the dealings of the parties while the act was in force, the appellant became obliged, in law, as upon a contract, to pay the respondent for his labor, no subsequent legislation could impair or defeat such obligation. It seems to us' that the intention of the legislature to create such obligation, could not by any language have been more plainly and unmistakeably manifested. The act declared, that all railroad corpor[74] ations within this state should he responsible and obligated in lorn, to the laborers on the line or lines of railroads being constructed by said corporations, and were responsible and liable to pay for all labor performed by said laborers severally, upon said road or mads, to the persons performing such labor. It furthermore made it the duty of such corporations to secure themselves against such liability, by ample bonds or other securities from their contractors and sub-contractors. The act was prospective, and the power of the legislature, as to all future transactions, to regulate and control contracts, by prescribing the manner in which they shall be made, how they shall be evidenced, and by what forms and ceremonies they shall be solemnized, by declaring what future voluntary acts of parties, in relation to a particular subject matter, shall be deemed a contract, and, if it pleases, by creating implications from such acts, from which certain declared obligations shall flow, cannot be denied or doubted. Instances of the exercise of this legislative power are frequent It was in the exercise of this power that the act in question was passed. After its passage, and while it was in full force, the appellant carried'on the business of constructing its road, and, through the agency of contractors and sub-contractors, contracted with and employed laborers for that purpose. The laborers, through the same agency, contracted with the appellant to perform the labor, and having done so, were entitled to look directly to it for their pay. The appellant, by prosecuting its work, assented to the obligation imposed by' law to pay the laborers their wages; and the laborers, relying upon such assent and obligation, performed their work. In this, as in all other cases where contracts are regulated by law, the parties are presumed to have acted with reference to it, to have consented to such conditions and duties as it imposed, and to have acquired such rights as it gave. Thejr acts are to be interpreted by it. The appellant, by letting its contracts and setting in motion the means by which laborers were employed, thereby agreed and promised to pay them. The laborers, by accepting such employment and doing the work, assented to such agreement and promise. Upon this point, the minds of the parties just as com[75] pletely and effectually met, constituting a contract, distinct and independent from tbat wbicb existed between tbe laborer and bis immediate employer, except so far as tbe price was concerned, as 'if tbey bad reduced tbe agreement to writing, and witnessed it by signatures and seals. We are, therefore, of opinion, tbat tbe transaction was a contract between tbe parties, under wbicb tbe right of tbe respondent to demand and recover bis pay from tbe appellant, became vested, while tbe act was in force, and tbat tbe legislature could not, by its subsequent repeal, impair or divest them. It could, indeed, repeal tbe law; but it could not repeal tbe acts of tbe parties done under it, or destroy tbe rights of ffhe respondent, acquired by virtue of such acts. Tbey were past transactions, over wbicb tbe legislature bad no control.
It seems to us tbat tbe court, in its former decision, failed to discriminate between a right and a remedy. Tbe refusal of tbe circuit judge to give tbe instruction asked by tbe appellant’s counsel, is not referred to or commented upon at all. Tbat portion of tbe charge in wbicb tbe circuit judge told tbe jury, “ tbat tbe notice to tbe defendant having been given before tbe passage of tbe act'of 1857, made tbe right of tbe plaintiff to bold tbe defendant responsible for wages, a vested right,” &c., is alone noticed, and arguments are used to show tbat tbe giving of this notice.was a part of tbe remedy; and because it was, it was concluded tbat tbe act created or gave merely a new remedy, wbicb went down with its repeal, and, therefore, tbe action could not be maintained. To tbe point tbat tbe giving of tbe notice was a part of tbe remedy and no part of tbe right, we fully assent. Tbe circuit judge was undoubtedly in error, when be said tbat it was tbe giving of tbe notice wbicb vested tbe right.. Tbe giving of tbe notice was one of tbe steps made necessary by tbe statute, towards tbe enforcement of tbe previously perfected obligation, by an action in .a court of law. It was intended, no doubt, to' enable tbe corporation, by having notice of tbe nature and extent of tbe claim, to adjust and pay it, without incurring tbe expense and trouble of litigation. It was a restriction upon tbe action or rem[76] edy of the laborer, which, the legislature could, and very properly did impose. The legislature foresaw that, without it, the company would be liable to suit at once, without warning as to the amount due, or an opportunity given for voluntary payment. It was the performance of the labor, under an agreement on the part of the company to pay, which gave the right and created the obligation, and these existed just as completely'before the giving of the notice as afterwards. If, in an action brought by a laborer, while the act was in force, judgment had gone against him, because he had not given, or for the reason that he failed to prove the service of such notice, such judgment would have been no bar to a future action, commenced after he had given the requisite notice, or when he made the proof of service. Such neglect or failure could have gone only in abatement, which proves clearly, that the giving of the notice pertained to the remedy, and not to the right.
It seems to have been supposed that because the legislature, out of an excess of caution, after having declared that the corporation should be liable to pay for all labor to the persons performing the same, gave to such laborers all “ the usual remedies by action,” that the case is thereby taken out of the operation of the general rule, and that thereby the legislature had some superior or reserved power to strike down and annihilate the contracts of parties made under the act. We do not think this is so. The rights of the laborers, and their remedies to enforce them, would have been as complete without the clause giving “ the usual remedies by action,” as with it. The obligation to pay being established by the acts and contract of the parties, the courts of the state would have afforded the laborer a remedy for his damages in case of a breach, as well without as with this clause; and therefore its repeal took nothing away from, as its enactment added nothing to, his rights. He was thereafter at liberty to resort to his remedy as he would have done before, with this difference only, that its repeal removed the restriction of thirty days’ notice before suit brought, which he need neither give, aver nor prove.
It is said in the former opinion, that “ it is manifest that [77] the law of 1845 gave a laborer upon a railroad a right of action against a company, where none would have existed common law. In the ordinary and regular course of justice, the laborer would have been compelled to bring his action alone against the party employing him. But this act, and the subsequent one of 1857, enables a party to bring a suit, under certain limitations, directly against the corporation, although in fact no contract, express or implied, exists between him and such corporation. Notwithstanding this additional remedy, the employee might still pursue the principal debt- or, and enforce payment against him, if he saw proper. This new remedy is one given by the statute, and the legislature could rightfully alter or modify this remedy, as might be deemed expedient, without affecting any contract existing between the parties.” Now, while it is true that the law gave a new remedy, yet it did so by declaring that certain future voluntary acts of the parties should b.e a contract, by which they should be bound, and for the breach of which courts ,of law would afford redress in damages. This was the only legitimate and constitutional method of giving the remedy; and we deny that the legislature can by act give a right of action, when no contract, express or implied, exists between the parties, except it be for a penalty or forfeiture incurred after the passage of the law inflicting it; or by way of garnishment or warning to a person having property in his hands belonging to a defendant, which is in reality not a right of action against the person warned, but a proceeding against the property of the principal debtor in his possession, and in no way affects his right or liabilities. It is plain that the obligations imposed upon the companies were not in the nature of penalties or forfeitures, which would be swept away by a repeal of the law. Nor do they resemble the proceeding of garnishment. Their liability was not made to depend upon the state of their accounts with then contractors or sub-contractors, or upon the fact of them being indebted to them. It was made them duty to indemnify themselves against such liabilities, by securities to be taken from such contractors, and if they did not do so, it was their own fault. Tt was therefore necessary for the legislature to pro[78] vide for tbe creation of tbe obligation by tbe consent of tbe parties, before it could give tbe remedy. Tbe remedy follows tbe obligation, and gives damages for its violation. It is impossible to conceive of a remedy, in a case like tbe present, without tbe existence of tbe previously broken promise or agreement. Tbe legislature cannot give a remedy against one person to compel bim, against bis will, to pay tbe debt of another. It could not give one against tbe company to compel it to pay tbe debt of its contractor. It gave tbe remedy to compel it to pay its own debt and perform its own promise. Tbe fact that tbe contractors and sub-contractors were likewise holden to pay tbe laborers, made no difference. It frequently happens that two or more persons are severally bound for tbe payment of tbe same debt; and because they are so, tbe obligation as to any one of them is none tbe less sacred or binding, until it is discharged by payment. Tbe creditor is at liberty to take as many securities as be pleases, and to resort to any or all of them until bis debt is paid. If tbe act of 1855 bad given a specific remedy upon tbe contract of tbe company, as debt or covenant, when by tbe common law tbe action would have been as-sumpsit, and tbe plaintiff, after its repeal, tbe common law as to remedies being still in force, bad brought bis action of debt or covenant instead of assumpsit, then we think it would have been a proper case for tbe application of tbe doctrines of tbe former opinion of this court, but now we are of opinion that it is not.
Tbe instruction given containing no error for which tbe judgment ought to be reversed, and that requested by tbe counsel for tbe appellant having been properly refused, tbe judgment of tbe circuit court is affirmed.
[Mr. Justice Cole adhering to tbe opinion of tbe court, as delivered by Mm at tbe January term, 1859, it is here inserted by Ms dbection, as bis dissenting opimon.]
Cole, J.
Tbe real question in tMs case is fairly presented by tbe following instruction, wMcb was given to tbe jvny, by tbe circmt court, and excepted to by tbe counsel for tbe company, to wit: “ That tbe notice to tbe defendant, having [79] been given before tbe passage of the act of 1857, made the right of the plaintiff to hold the defendant responsible for wages, a vested right, which no subsequent legislation could impair.”
The legislature, by chap. 86, Sess, Laws 1855, p. 87, provided, in substance, that all railroad companies within this state, should be obligated, in law, to pay laborers on the lines of railroad being constructed, wages which might be due from any contractor or sub-contractor, and the act gave laborers the usual remedies by action directly against the corporation. The act contained words of restriction, which declared that no suit should be maintained under its provisions until the laborer should have given thirty days’ notice in writing to the president or secretary of the company, that wages were due him, and that the company was required to make payment of such wages so due, stating the amount claimed. By chapter 27 of the Sess. Laws of 1857, p. 82,-the legislature repealed the aforesaid provision of the act of 1855, and provided in lieu thereof, that whenever any laborer upon any railroad in this state, should have a just claim to the amount of thirty dollars or more, for labor performed on such railroad, against any person being a contractor with the company for the construction of any part of the road, the company should be liable to pay such laborer the amount of such claim; provided the laborer gave notice to the company that he had such claim, within thirty days after the claim had accrued; and.provided further, that the claim had accrued within sixty days prior to the giving of the notice.
This is the substance of the two acts which materially affect the correctness of the instruction given.
The action was not commenced until the law of 1857 had gone into effect, and hence it was contended in the circuit court, and the point is relied upon here, that though the work might have been performed, and the notice given, while the act of 1855 was in force, yet it was competent for the legislature to change, and it had, in fact, changed the remedy, before the suit was brought, and that therefore the respondent could not recover, unless his case should come [80] within the provisions of the former act. It appears to ns that this argument is unanswerable.
It is manifest that the law of 1855 gave a laborer upon a railroad, a right of action against a company, where none would have existed at common law. In the ordinary and regular course of justice, the laborer would have been compelled to bring his action alone against the party employing him. But this act, and the subsequent one of 1857, enables a party to bring a suit, under certain limitations,- directly against the corporation, although, in fact, no contract, express or implied, exists between him and such corporation. Notwithstanding this additional remedy, the employee might still pursue the principal debtor, and enforce payment against him, if he saw proper. This new remedy is one given by the statute, and the legislature could rightfully alter or modify this remedy, as might be deemed expedient, without affecting any contract existing between the parties. The circuit court held, that the notice having been given by the respondent before the passage of the act of 1857, that he should hold the company liable for his wages, a vested right accrued to him, which no subsequent legislation could impair. But, as we have remarked, the act of the legislature gave the laborer a remedy against the company — one which he would not have without the statute — and made it the condition of maintaining Ms suit, that he should, give a certain notice. The giving of the notice was a condition precedent to his bringing his action, but how could it create a vested right in the remedy? All the adjudged cases declare the principle, “that legal remedies are, in the fullest sense, under the rightful control of the legislatures of the several states, notwithstanding the provision in the federal constitution, securing the inviolabilty of contracts; and that it is not a valid objection to legislation on that subject, that the substituted remedy is less beneficial to the creditors than the one wMck obtained at the time the debt wras contracted.” Morse vs. Goold, 1 Kern, 281; Bigelow vs. Pritchard, 21 Pick., 169; Walter vs. Bacon, 8 Mass., 468; Smith vs. Morrison, 22 Pick, 430; [81] Stocking vs. Hunt, 3 Denio, 274, and tbe cases referred to in tbe above decisions. '
We do not think tbe respondent bad any vésted right in tbe mere remedy given him by tbe law of 1855, and as be did not bring bis suit until tbe act of 1857, altering, in some respects, tbis remedy, bad gone into operation, be can only recover under tbe latter statute.
Judgment affirmed.