J. D. Campbell v. J. W. Fields and others, 35 Tex. 751

Walker, J. This was a proceeding in the District Court of Colorado county to enforce a mechanic’s lien upon property held and occupied as a homestead.

Under the charge of the court, the jury found for the plaintiff, and the defendant appeals from the judgment of the court, as entered on the verdict, and it is assigned for error that the court overruled the defendants’ exception to the petition ; also that the court erred in its charge to the jury, that the present Constitution of the State became operative, for the purpose of creating a lien upon the homestead, prior to the ratification by Congress, on the twenty-seventh day of March, 1870; and also in overruling the defendants’ motion for a new trial. The fifteenth

section of the twelfth

article of the present Constitution does not deprive the Legislature of the power to regulate the manner in which the mechanic’ s lien may be contracted and secured; nor does it repeal existing laws on this subject. It enlarges the scope of the-lien by adding to the old law a new object upon which it may be made to operate, viz., the homestead ; but we apprehend that a lien which is to operate upon the homestead must be contracted in the same manner, and with the same solemnity, as when intended to operate upon other real property.

If, then, this contract was not made in writing, and recorded in the clerk’s office within thirty days from the time of its execution, it could neither operate against a homestead nor any other real property; and the charge of the court, wherein it contravened this rule, is erroneous, and the exception to the petition should have been sustained. (See Articles 4592 and 4593, Paschal’s Digest.) The instruction of the court, as given to the jury, that the present Constitution became the fundamental law of the State when'ratified by a majority of the votes of the people polled for and against it, is undoubtedly correct.

The Constitution was made and adopted in pursuance of the Reconstruction Act of March 2, 1867, and the acts supplemental thereto. And there is believed to be nothing therein contained which would contradict this construction, though it would certainly be erroneous to say that a Legislature, Governor, Lieutenant Governor, etc., have been elected under the present Constitution; they were elected at the same ballot which ratified the Constitution itself, and it may be said that the political action of the people prior to the thirtieth of March, 1870, was only authorized by the reconstruction laws.

The approval of the Constitution by Congress was only a condition precedent to the representation of the State in the National Legislature; and this condition of the reconstruction laws did not prevent the Constitution from becoming the organic law of the State on its ratification by the people, for all the purposes of State government.

Section 47 of

Article 12 of the Constitution gives to mechanics and artisans of every class a lien on the articles manufactured or repaired by them, for the value of their labor done thereon, or materials furnished therefor, and the Legislature shall provide by law for the speedy and efficient enforcement of said liens. This is but the application of the principles of the common law; and in order to create a lien on personal property, no legislation is necessary under this section, other than that which applies to the enforcement of such liens. We are of the opinion that under this

section of the Constitution no contract in writing, nor record of any contract, would be necessary to give the mechanic and artisan a lien for labor performed or materials furnished upon any articles manufactured or repaired by them. But the word articles in this

section of the Constitution does not refer to houses and lands ; and, while a verbal contract merely may be good to secure the mechanic a lien upon a watch or a carriage, or any other

article properly so called, such a verbal contract would not be good to secure a lien upon real estate. We think, then, the judgment of the District Court was erroneous, and must be reversed and the cause dismissed. Reversed and dismissed.