Hightower v. Bailey, &c. (section 740).. When it appears of record that the time has passed within which the transcript is required to be filed, and no extension of time has been granted, the appeal will be dismissed, on motion, without notice. In this case the correspondence between counsel, which apparently misled counsel for appellant to believe that no motion to dismiss would be made, occurred after the time had expired for filing the record, and also after the extended time had expired. We must adhere to the rule so long estab lished, that application for extension of time to file trans cripts must be made before, and not after, the time has expired, under the provisions of section 738 of the Code. 108 198 113 423 108 198 f122 833 122 834 CASE 29-ACTION TO ENFORCE MECHANIC'S LIEN-MARCH 29. Hightower v. Bailey, &c. APPEAL FROM HENDERSON CIRCUIT COURT. ACTION BY F. M. HIGHTOWER, LUMBER MERCHANT, V. BAILEY & KOER- JUDGMENT FOR THE DEFENDANTS AND PLAINTIFF APPEALS. AFFIRMED. MECHANIC'S LIEN-MATERIAL MEN-CONSTITUTIONALITY OF STATUTE 2463. Held: 1. Section 2463, Kentucky Statutes, giving a lien to a person who performs labor or furnishes material in the erection of a building by contract with "the owner, contractor, sub-contractor, architect, or authorized agent," is not unconstitutional, though it provides a lien for persons with whom the owner is supposed to have no contractual relations. 2. A lien is not given for the price of material furnished by one material man to another, but only for material furnished by contract, with the owner, contractor, architect, sub-contractor, or authorized agent. Hightower v. Bailey, &c. R. H. CUNNINGHAM, ATTORNEY FOR APPELLANT. 1. The Mechanics' Lien Law, Kentucky Statutes, sec. 2463, as amended by the act of March 21, 1896, is constitutional. 2. Difference in rules as to constitutionality of State and Federal legislation. Griswold v. Hepburn, 2 Duval, 24. 3. The fifth amendment to Constitution of the United States has no application to the States. Thorington v. Montgomery, 147 U. S., 490. 4. The fourteenth amendment confers no right, privilege, or immunity, but simply restricts the exercise of State sovereignty. U. S. v. Cruikshank, 2 Otto, 542; C. B. & Q. R. R. v. Chicago, 166 U. S., 226. 5. The validity of an act is presumed until its nullity is shown beyond reasonable doubt. Collins v. Henderson, 11 Bush, 74; Cooley's Const. Lim., 216, 433, 434; Wellington, Petr., 16 Pick., 87; Alexander v. People, 7 Col., 755; Crowley v. State, 11 Oregon, 512; Kelly v. Meeks, 87 Missouri, 396; Robinson v. Schenck, 102 Ind., 307; Talbot v. Hudson, 16 Gray, 417; Louisville v. Hyatt, 2 B. Mon., 178; Lexington v. McQuillan, 3 Dana, 513; Waller v. Martin, 17 B. Mon., 191; C. & O. R. R. v. Barren Co. Ct., 10 Bush, 313. 6. What constitutes "due process of law." Tribunal, jurisdiction, notice. Bank of Columbia v. Okely, 4 Wheaton, 235, 244; Janes v. Reynolds, 2 Texas, 240; Pearson v. Yewdall, 5 Otto, 294; Taylor v. Porter, 4 Hill, 140; Walker v. Sauvinet, 2 Otto, 678; U. S. v. Ferreira, 13 How., 40; People v. Essex Co., 70 N. Y., 229; Osborne v. Nicholson, 13 Wall., 654; Den v. Hoboken, etc., Co., 18 How., 272; Wilkerson v. Leland, 2 Peters, 658; Leeper v. Texas, 139 U. S., 462; Davidson v. New Orleans, 6 Otto, 97; Pennoyer v. Neff, 5 Otto, 714; Kennard v. Louisiana, 2 Otto, 480; 1 Hen. & Mun., 531. 7. Discussion of authorities relied on contra. Farmers Loan & Trust Co. v. Canada, &c., R. R., 11 L. R. A., 740; McHugh v. Gault, 86 Mich., 133; Kirkwood v. Hoxie, 95 Mich., 62. 8. The owner by his contract authorizes the contractor to procure all such material, and to have done such work as is necessary; and settlement with the contractor is no defense to a claim of lien by the sub-contractor and material-man. Smith v. Neubauer, 144 Ind., 95; Philips Mech. Liens, 2d Ed., sec. 33; Colter v. Frese, 45 Ind., 96; Barker v. Buell, 35 Ind., 302; White v. Miller, 18 Pa., 52; Neely v. Seabright, 113 Ind., 316; Hamilton v. Naylor, 72 Ind., 175; Adams v. Buhler, 116 Ind., 100; Ferguson v. Despo, 8 Ind. Ap., 523; Kellogg v. Howes, 81 Cal., 170; Parker v. Bell, 7 Gray, 429; Weeks v. Walcott, 15 Gray, 54; Clark v. Kingsley, 8 Allen, 543; Cole Mfg. Co. v. Falis, 90 Tenn., 466; Hightower v. Bailey, &c. So. Dakota, Reeves v. Henderson, 90 Tenn., 521; Bardwell v. Mann., 46, Minn., 285; Mallory v LaCrosse Abattoir Co., 80 Wisconsin, 170; Albright v. Smith, ; French v. Bauer, 20 L. R. A., 560; Jones v. Hotel Co., 86 Fed. Rep., 370. 9. Every contract is made in contemplation of the law which enters into and is a part of such contract and governs it. YEAMAN & YEAMAN, ATTORNEYS FOR APPELLEE. 1. Mechanics' liens are purely statutory. They had no existence at common law. 2. The only question involved in this case is the constitutionality of the Mechanics' Lien Law, sec. 2463, Kentucky Statutes. 3. The statute as amended eliminates the requirement of notice to the owner by the contractor, or to the sub-contractor by the material-man. The owner may have paid his contractor in full for the work, yet the sub-contractor in the first, second or third degree of the material man whom he never heard of may, at any time, within six months after he has ceased to labor or to furnish material assert a lien against the property (sec. 2468, Ky. Stat.) If such is the purpose of the act, we submit that the Legislature has exceeded its powers. It can not thus appropri ate and apply one's property without consent, and such act is unconstitutional. AUTHORITIES CITED. Mechanics' Lien Law prior to act of March, 1896, Ky. Stats., ed. 1894, sec. 2463. Mechanics' Lien Law of March 21, 1896, Ky. Stats., ed. 1899, Statutes similar to the act of March, 1896, held unconstitu- Waters v. Wolf, 42 Am. St. Rep., 815. Meyer v. Berlandi, 12 Am. St. Rep., 663. Jones v. Great Southern, &c., 79 Fed., 474. Randolph, &c., v. Builders, &c., 17 Southern Rep., 721. Selma Sash, &c., v. Stoddard, 22 Southern Rep., 555. APPELLANTS' AUTHORITIES REVIEWED. Kellogg v. Howes, 6 L. R. A., 588. French v. Bauer, 20 L. R. A., 560. Hightower v. Bailey, &c. OPINION OF THE COURT BY CHIEF JUSTICE HAZELRIGG-AFFIRMING. Walling & Co., desiring to build a grain elevator on their lot in the city of Henderson, Ky., contracted with Bailey & Koerner to furnish all the necessary material and to construct the improvement. Bailey & Koerner, who were builders and contractors, contracted with H. W. Clark, Jr., a lumber merchant at Henderson, for a large quantity of the lumber necessary for the building. Clark then contracted with Hightower, a lumber dealer at Ragan, Ala., for a quantity of lumber, for the purpose of using it in filling his contract with Bailey & Koerner. On the completion of the work, it appears that Bailey & Koerner have paid Clark in full for the lumber furnished under his contract, including the Hightower lumber, but Clark has failed to pay Hightower. The latter has therefore brought this action in the Henderson Circuit Court, claiming a lien on Walling & Co.'s lot and building for what Clark owes him. It is the contention of counsel that, under our statute, Hightower, as a material man, has this lien, without regard to the state of the account between Walling & Co. and Bailey & Koerner, or between the latter and Clark. But because there was no averment in Hightower's peti tion, as there could not truthfully have been, to the effect that Bailey & Koerner or Walling & Co. were indebted to Clark, the chancellor dismissed the petition on demurrer, -holding that while the statute as amended by the act of March 21, 1896 (Ky. St., section 2463), in terms gave Hightower the lien, the statute as so amended is unconstitutional; and this is the first question considered. The statute is as follows: "A person who performs labor or furnishes materials in the erection, altering or repair. ing a house, building or other structure, or for any fixture Hightower v. Bailey, &c. or machinery therein, or for the excavation of cellars, cisterns, vaults, wells or the improvement, in any manner of real estate by contract with, or by the written consent of, the owner, the contractor, sub-contractor, architect or authorized agent, shall have a lien thereon, and upon the land upon which said improvement shall have been made or on any interest such owner has in the same, to secure the amount thereof with costs; and said lien on the land or improvements shall be superior to any mortgage or incumbrance created subsequent to the beginning of the labor or furnishing of the materials; and said lien, if asserted as hereinafter provided, shall relate back and take effect from the time of the commencement of the labor or the furnishing of the materials: provided, that such lien shall not take precedence of a mortgage or other contract lien or bona fide conveyance for value without notice, duly r corded or lodged for record according to law, unless the person claiming such prior lien shall before the recording of such mortgage or other contract lien or conveyance have filed in the clerk's office of the county court of the county wherein he shall have performed labor furnished material, or shall expect to perform labor or furnish materials as aforesaid, a statement showing that he has performed or furnished, or that he ex pects to perform or furnish, such labor or materials, and the amount in full thereof, and his lien shall not, as against the holder of said mortgage or other contract lien or conveyance, exceed the amount of the lien claimed, or expected to be claimed, as set forth in such statement. The liens provided for herein shall in no case be for a greater amount in the aggregate than the contract price of the original contractor; and should the aggregate amount of liens exceed the price agreed upon between the or |