Nexsen v. Ward

¶1 concurring and dissenting. This is a decision to enforce a landlord’s lien for advances to his tenant. The contract is not in writing. The sole question is, has the landlord a lien for advances to his tenant unless the contract is in writing and recorded? The question arises between the landlord and tenant solely. The General Statutes of 1882 provide for a lien for the landlord for rent and for advances. It provides that the lien for rent need not be in writing. In 1885, vol. XIX, p. 146, the legislature passed an act fixing the priority of liens upon crops, and provided 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.” This provision was left out of the Codes of 1902 and 1912. This raises the very interesting and important question as to the force and effect of the Codes.

¶2 The Codes in this State are adopted under article VI, section 5, of the Constitution of South Carolina, which is as follows:

1 “The General Assembly, at its first session after the adoption of this Constitution, shall provide for the appointment or election of a commissioner, whose duty it shall be to collect and revise all the general statute law *336 of this State then of force as well as that which shall be passed from time to time, and to properly index and arrange the said statutes when so passed. And the said commissioner shall reduce into a systematic Code the general statutes, including the Code of Civil Procedure, with all the amendments thereto, and shall, on the first day of the session for the year nineteen hundred and one, and at the end of every subsequent period of not more than ten years, report the result of his labors to the General Assembly, with such recommendations' and suggestions as to the abridgment and amendments as may be deemed necessary or proper. Said report, when ready to be made, shall be printed, and a copy thereof laid upon the desk of each member of both houses of the General Assembly on the first day of the first session, but shall not be taken up for consideration until the next session of said General Assembly. The said Code shall be declared by the General Assembly, in an act passed according to the forms of this Constitution for the enactment of laws, to be the only general statutory law of the State; but no alterations or additions to any of the laws therein contained shall be made except by bill passed under the formalities heretofore prescribed for the passage of laws. Provision shall be made by law for filling vacancies, regulating the term of office, and the compensation of said commissioner, not exceeding five hundred dollars per annum, and imposing such other duties as may be desired. And the General Assembly shall, by committee, inquire into the progress of his work at each session.”

¶3 While there are some things in this section that are not clear, yet there are some things that are clear.

¶4 The clear provisions are:

¶5 1st. The Code Commissioner is required to bring into, his report all the general statutes, of this State then of force.

¶6 2d. All general statutes not included are repealed. The Code contains “the only general statutory law of the State.”

¶7*337 3d. No changes can be made in the statutes contained therein except by bills that shall conform to all the requirements of the Constitution for the adoption of an act.

¶8 4th. The bill of adoption shall simply declare that the Code is the Code.

¶9 In 1882 the “general statutes” were adopted as an act, and all the changes made by the codifiers and even the sequence of sections under the rule that the last clause shall govern, in case of conflict, made changes in the statute laws of this State that the legislature, and even the codifiers themselves, did not, and could not, know until the lessons were learned by sad experience. It is very manifest that the constitutional convention intended that, in future, the codifiers should have no. such autocratic power, so the Constitution provided in unmistakable terms that each change in the general law should be made b)^ separate bill passed with all the formalities and safeguards provided by the Constitution. The application is more difficult but of great importance. In 1885 the legislature provided that the landlord shall have a lien for rent and supplies, and “that no writing or recording shall be necessary to create the liens of the landlord.” If the landlord has lost the fight to his lien for advances, it is because the general statute has been changed in the adoption of the Code. (There was no separate bill to change it.) That is just the thing the Constitution forbids. The Constitution provides, in the Codes to be adopted under it, a “City of Refuge” for all general laws. All without are destroyed, but -all within are preserved in their integrity. Let no one misunderstand. The Codes do not protect those things contained therein that are not law. If provisions are included that are not law, they do not become law by being incorporated. The codifier is to collect statutes that are in force, and everything else is forbidden, and, therefore, a nullity.

¶10*338 2 *337 The act of 1885 was not the result of inadvertence. The Senate Journal shows that it was the subject of vigorous and *338 determined attack. A motion was made to strike out section 2, and it failed. There can be no doubt that the legislature, in 1885, intended to provide, and did provide, “that no- writing or recording shall be necessary to create the liens of the landlord.” Both Codes declare that the landlord shall have his liens. The liens are not repealed under the provision. No. 2, not being repealed, it can not be changed by provision No. 3. It is said, however, that the Code contains the only general statutory law. If that be true, then the condition makes a conflict between provisions No. 2 and No. 3. The rule is well settled that No. 3 governs. The result is wise. The adoption of a different rule would work untold evil. A Code Commissioner or a printer, advertently or inadvertently, have no power to change the laws therein contained, and the Constitution so declares. “But no alteration or addition to any of the laws therein contained shall be made except by bill passed under the formalities heretofore prescribed for the passage of laws.” It is said, however,- that this unwritten and unrecorded lien would work great hardships. With that the Courts have nothing to do. The legislature doubtless knew that information must be sought from the landlord as to his rent, and at the same time and place, and from the same person the information could be obtained as to any lien for advances. The first word is “liens,” the second “lien.” This is clearly a consolidation or merger of the two liens into one lien.

¶11 It follows from the above that the landlord’s lien being in the Codes, are preserved in their integrity, and the appellant herein has a lien on the property seized, and the judgment of the Circuit Court should be reversed.