#### Rogers-Ruger Company, Appellant, vs. Murray, Respondent.

*September*4

*September 23, 1902.*

*Liens: Logs and lumber: Liability of purchaser: Constitutional law: “Due process of law”: Construction of statutes.*

*1.*Sec. 3336, Stats. 1898 (providing that if any property upon which a log lien is claimed shall he sold during the pendency of the claim, the owner “and every purchaser thereof or person acquiring any interest therein during the pendency of such claim” shall he personally “liable to the lien claimant for the amount 'which may be adjudged to he due him”), is arbitrary, unjust, and oppressive, imposing upon the purchaser the penalty of the entire debt, without regard to the value of the property purchased or the resulting loss to the lien claimant, and is therefore void under sec. 1, Amendm. XIV, Const, of U. S., because it deprives persons of property “without due process of law.”

2. The language’ of the statute being plain, the court cannot read into it words which would limit the purchaser’s liability to the actual value of the property received.

Appeal from an order of tKe superior court of Douglas county: Oitables Smiti-t, Judge.

*Affirmed.*

Tbe complaint sets out that plaintiff is a corporation. Prior to April 10, 1899, plaintiff became the owner of certain time checks amounting to $5,079.02, issued by J. W. Howes Company to divers persons for work done by them for said firm during the logging season of 1898-99, in cutting logs and manufacturing the same into lumber. At the same time such persons assigned their claims for a lien upon the logs and timber to plaintiff. On May 16, 1899, plaintiff duly filed a lien for said several time checks, and within four' months com*268menced an action to enforce tbe same. After tbe commencement of tbe work represented by tbe time checks, said J. W. Howes Company sold 72,000 feet of tbe lumber cut from tbe logs to tbe defendant, said lumber being of tbe value of $15 per 1,000 feet. Prior to the commencement of this action plaintiff made a demand on defendant for the value of said lumber, which was refused. Judgment was demanded for $5,079.02 and interest. A demurrer on tbe ground that tbe complaint did not state facts sufficient to constitute a cause of action was sustained. Tbe plaintiff appeals from tbe order sustaining tbe demurrer.

II. *V.*Gard, for tbe appellant.

For tbe respondent there was a brief by Gatlin, *Butler &*Lyons, and oral argument by *T. E. Lyons.*

BaedeeN, J.

This action involves tbe validity of sec. 8336, Stats. 1898. Such section is as follows:

> “If any property upon which a lien is claimed under tbe foregoing provisions shall, during the pendency of tbe claim therefor, be transported out of this state, secreted, destroyed, sold, incumbered or so changed in character by intermingling it with other property as to prevent tbe property upon which tbe lien is claimed from being subjected to tbe satisfaction of tbe lien, tbe owner of such property and every purchaser thereof or person acquiring any interest therein during the pendency of such claim shall be liable to the lien claimant for the amount which may be adjudged to be due him, which amount may be recovered against any such person in a personal action; provided the petition for lien is filed in accordance with law and an action to foreclose the same is begun within the time limited therefor.”

It will be observed from the complaint that the plaintiff has complied with the requirements of this statute, and is seeking to recover from defendant the entire amount of time checks it has purchased. According to the literal reading of the statute, any person who buys an interest in property upon which a log lien, is *claimed,*and uses or so disposes of *the property*
      *269that tlie lien cannot be enforced, renders bimself liable for the entire debt due the lien claimant. It is also to be observed that this extreme liability is not made to rest upon the fact that a lien has been adjudged and determined, but may be declared in any case where a lien is claimed, a petition filed, and action commenced. The good faith or diligence of the person purchasing the property is no protection to him. The lumber may be sold in open market, it may pass through many different hands, it may go into the possession of innocent purchasers, and yet the original owner, and every person acquiring any interest therein “during the pendency of such claim,” is liable to the lien claimant for the full amount his due, regardless of the value of the property which may have come to his hands. The value of the property received by the purchaser may be infinitesimal when compared with the amount due the claimant. In this case it was about one fifth. For the simple act of purchasing personal property the statute makes the purchaser liable with the real debtor to the extent stated. The lien claimant need not exhaust his remedy against the real debtor. He need not have the. amount his due determined in the suit brought against the party primarily liable. He has only to file his lien, and commence a suit, and then the liability of the other becomes absolute.

Is this a valid enactment ? Does it do violence to that provision of the federal constitution which provides that “no state shall . . . deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of the laws.” Sec. 1, XIVth Amendment. That it imposes upon the purchaser of any of the commodities upon which the statute gives a lien a penalty if he purchases during the pendency of such claim is perfectly obvious. It thrusts upon such purchaser an obligation having no relation to the value of the property he receives or the loss which the lien claimant sustains. It may be a just and proper thing for the legislature to protect the lien claim*270ant against acts that tend to defeat Ms lien. Indeed, it may go farther, and pass statutes which shall be read into the contracts of the parties when made, and date the inception of the lien from the commencement of the operations which give rise to the lien. Such legislation was sustained in the cases of *Lampson v. Bowen,*41 Wis. 484; *Vilas v. McDonough Mfg. Co.*91 Wis. 607, 65 N. W. 488; *J. B. Alfree Mfg. Co. v. Henry,*96 Wis. 327, 71 N. W. 370; and *Fitzgerald v. Walsh,*107 Wis. 92, 82 N. W. 717. This principle was carried to its limit in *Mallory v. La Crosse Abattoir Co.*80 Wis. 170, 49 N. W. 1071, which sustained the subcontractor’s lien under ch. 333, Laws of 1889, on the theory that such law made the •owner a surety for the original contractor for the payment of work which resulted in the improvement of his1 property. This statute was to be read into the contract of the original parties, and could be sustained, because it gave the property owner a remedy over in case he was compelled to pay more than the •amount called for in his contract. The statute under consideration contains no such provision. It gives the purchaser no remedy, while it imposes a burden beyond the contemplation of the parties. It is the imposition of the penalty mentioned that makes the law vicious. Because it is arbitrary, unjust, and oppressive, because it creates a liability having no just relation to the loss sustained by the lien claimant or benefits received by the purchaser, it comes fairly within the condemnation of the federal constitution.

Much judicial thought has been expended in interpreting the meaning of the section of the fourteenth amendment mentioned, and many cases have arisen in wMch the learning of the judges has been displayed. All agree that the legislature cannot take the property of one and give it to another. It cannot create or enforce penalties, except in the exercise of the police power or for the general welfare of the poeopole. Legislation that is so partial and arbitrary as to result in the spoliation of property has always been condemned. In fact, *271tbe range of decision has been so wide, and the cases so numer-ohs, that an attempt at citation of authorities would result in confusion.

Counsel for the appellant, while not admitting the invalidity of the statute, argue that it can be sustained by holding that it was only intended to make the purchaser liable for the actual value of the property received, and that the statute may be so construed. No canon of construction of which we are aware sanctions this contention. In words as plain as any that could have been selected, the legislature has manifested its intention. The language is that the party “shall be liable to the lien claimant for the amount which may be adjudged to be due him.” The construction contended for would make the statute read “shall be liable to the lien claimant for the value of the property received by him.” This court can only construe. It cannot legislate. Words should not be read into or read out of a plain statute. To adopt the construction asked would be to make a new statute. This we cannot do: It must be left as written by the legislature, and its terms, being in violation of the organic law, must be held invalid.

Plaintiff having no basis for its alleged cause of action, the demurrer was properly sustained. .

*By iTie Court.*— Order affirmed.

Oassoday, O. J.

I concur in the decision in this case, but in doing so I do not wish to be regarded as approving the decision of this court in *Mallory v. La Crosse Abattoir Co.*80 Wis. 170, 49 N. W. 1071, or *Vilas v. McDonough Mfg. Co.*91 Wis. 607, 65 N. W. 488, cited in the opinion of my Brother BabdbeN.