Action by the Hewitt-Lea Lumber Com

From a judgment for plaintiff, defendants W. R. Chesley and another appeal. Affirmed.

It seems to me that an injustice has been done to respondent in this case, and that the judgment of the lower court should have been affirmed.

William H. Gorham, of Seattle, for appellants. Alexander & Bundy, of Seattle, for respondent.

CROW, J. Action by the Hewitt-Lea Lumber Company, a corporation, against Philip D. Sloan, W. R. Chesley, and J. W. Kerry to establish and foreclose a lien on a barge. From a decree in plaintiff's favor, the defendants Chesley and Kerry have appealed. The amended complaint, in substance, al

(68 Wash. 53)

26, 1910, respondent sold and delivered lumber and materials to the defendant Philip D. Sloan, at his shipyard in Seattle, to be used, and which were used by Sloan, in the con

1. MARITIME LIENS (§ 17*)-STATUTORY PROVISIONS-CONSTRUCTION AND OPERATION. Sess. Laws 1909, c. 45, providing that no person furnishing materials for the alteration or repair of structures, including steamers, vessels, and boats, shall have a lien, unless at the time the materials are delivered a duplicate statement of such materials is delivered to the owner, did not repeal Rem. & Bal. Code, § 1182, providing that demands for materials furnished for the construction or operation of vessels, steamers, or boats shall constitute liens thereon, but merely provided an additional requirement, which must be complied with before the lien attaches.

[Ed. Note. For other cases, see Maritime Liens, Cent. Dig. §§ 20, 22; Dec. Dig. § 17;* Admiralty, Cent. Dig. § 153.]

2. STATUTES (§ 158*) — REPEAL BY IMPLICA

TION.

Repeal of statutes by implication is not favored by the courts.

[Ed. Note. For other cases, see Statutes, Cent. Dig. § 228; Dec. Dig. § 158.*]

3. MARITIME LIENS (§ 32*)—STATUTORY PROVISIONS-CONSTRUCTION AND OPERATION.

Under Sess. Laws 1909, c. 45, providing that a person furnishing materials for the construction or repair of structures, including steamers, vessels, and boats, shall not have a lien, unless at the time the materials are delivered a duplicate statement of such materials is delivered to the owner, where a materialman delivers materials to the owner under a contract with him, such duplicate statement is unnecessary.

[Ed. Note.-For other cases, see Maritime Liens, Cent. Dig. §§ 49-52; Dec. Dig. § 32.*] 4. MARITIME LIENS (§ 32*)-STATUTORY PROVISIONS-CONSTRUCTION AND OPERATION.

Rem. & Bal. Code, §§ 1182, 1183, giving liens on steamers, vessels, and boats to materialmen and providing for their enforcement, do not require the filing and recording of such lien as is required by section 1134 in connection with liens to which that section applies.

[Ed. Note. For other cases, see Maritime Liens, Cent. Dig. §§ 49-52; Dec. Dig. § 32.*]

Department 2. Appeal from Superior court, King County; Boyd J. Tallman, Judge.

8"; that the lumber and materials were of the reasonable value of $1,677.69, of which $547.69 was due and unpaid; that Sloan was the owner of and in the possession of the barge when the materials were sold and delivered; that the barge, at the time of filing the amended complaint was in the possession of a receiver appointed by the trial court in this action; and that Chesley and Kerry had or claimed some interest in or to the barge, subject and subsequent to respondent's lien. The defendant Sloan was served with summons, but defaulted. Appellants, answering the amended complaint, admitted that the barge was constructed by Sloan, that it was in the possession of the receiver, that they claimed some interest or title in or to the barge; denied every other allegation of the amended complaint, and asked that the action be dismissed, that the receiver be discharged, and that the barge be delivered to them. On the trial, respondent, by competent evidence, sustained all the allegations of his complaint. No evidence was offered by appellants.

[1] This action is prosecuted under sections 1182 and 1183, Rem. & Bal. Code, which provide for liens and their foreclosure on steamers, vessels, and boats for materials furnished and used in their construction and repair. Appellants' controlling contention is that so much of section 1182 as provides that all steamers, vessels, and boats are liable for material furnished in this state for their construction or repair, and which further provides that demands for the same constitute liens on such steamers, vessels, and boats, is repealed by implication by chapter 45, Session Laws 1909 (section 1133, Rem. & Bal. Code), entitled "An act relating to materialmen's liens and the enforcement thereof." The act of 1909 contains but one section, which reads as follows: "Every person furnishing material or supplies to be used in the construction, alteration or re

It will be observed that this section includes steamers, vessels, and boats within its provisions, as well as all structures mentioned in section 1129, Rem. & Bal. Code, relating to liens of mechanics and materialmen. Calling attention to this fact, appellants contend that the act of 1909 thereby draws within its operation, as subject to materialmen's liens, not only all structures mentioned in section 1129, but also all steamers, vessels, and boats mentioned in section 1182; that by reason thereof duplicate statements of materials furnished to be used in the construction of the barge should have been delivered or mailed to the owner of the barge, which was not done; that a claim of lien for the materials furnished should also have been filed and recorded, as required by section 5 of chapter 24, Session Laws 1893, p. 34 (section 1134, Rem. & Bal. Code), which was not done; that respondent was not entitled to any lien or the foreclosure thereof. It is apparent that the act of 1909 was not intended to be complete legislation on the subject of liens of materialmen. On the contrary, its sole purpose was to require that every person furnishing materials to be used in the construction or repair of any of the structures therein named (including steamers, vessels, and boats) should, at the time of the delivery of such material to any person or contractor, deliver or mail duplicate statements thereof to the owner or reputed owner of the property. It did not repeal or amend any existing laws pertaining to liens, but simply imposed this additional burden upon materialmen who intend to assert any such liens.

In Spokane Grain & Fuel Co. v. Lyttaker, 59 Wash. 76, 109 Pac. 316, the validity of the act of 1909 was assailed, the contention being then made that it violated section 37 of article 2 of the state Constitution, which declares that "no act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length;" but this court, after quoting at length from numerous authorities, said: "It seems to us the foregoing authori

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tive act of a general nature changes or modifies some existing statute, either directly or by implication; and, as said by the court in Ex parte Pollard, supra, 'whether an amendatory or an original act should be employed is a matter of legislative judgment and discretion which the courts cannot control.' So long as a legislative act is complete in itself, and has a sufficient title, it satisfies the requirements of the Constitution, whether it contains much or little. The Legislature may embody all legislation relating to a given subject in a single act, or it may cover the subject by a succession of acts. This is entirely a matter of legislative discretion over which we can assume no control."

The only effect of the act of 1909 upon claims for liens for materials furnished to be used in the construction or repair of steamers, vessels, or boats was to require a compliance with its terms relative to delivering or mailing duplicate statements.

"Where two legislative acts are repugnant to, or in conflict with, each other, the one last passed, being the latest expression of the legislative will, must govern, although it contains no repealing clause. But it is not sufficient to establish such repeal that the subsequent law covers some, or even all, of the cases provided for by the prior statute, since it may be merely affirmative, or cumulative, or auxiliary." 36 Cyc. 1073.

"When two statutes cover, in whole or in part, the same subject-matter, and are not absolutely irreconcilable, no purpose of repeal being clearly shown, the court, if possible, will give effect to both. Where, however, a later act covers the whole subject of earlier acts and embraces new provisions, and plainly shows that it was intended, not only as a substitute for the earlier acts, but to cover the whole subject then considered by the Legislature, and to prescribe the only rules in respect thereto, it operates as a repeal of all former statutes relating to such subject-matter, even if the former acts are not in all respects repugnant to the new act. But, in order to effect such repeal by implication, it must appear that the subsequent statute covered the whole subject-matter of the former one, and was intended as a substitute for it." 36 Cyc. 1077.

[2] The acts in question are not repugnant or in conflict; nor does the later act of 1909 purport to cover the entire subject-matter of materialmen's liens. Repeals by implication are not favored by the courts; and we cannot conclude there has been any repeal of section 1182, even to the extent for which appellants contend.

[3] The question then arises whether in this action respondent was required to deliver or mail duplicate statements to the owner of the barge, which the allegations of the

in fact. We have so held in a number of cases. Reference to the latest two will be sufficient.

In State v. Kruger, 60 Wash. 542, 111 Pac. 769, we said: "It is true that the greater includes the less, but the defendant is not guilty of either unless the testimony brings him within the definition of a crime. It was never the intent of the law to submit a possible verdict upon a so-called included crime because included in law. It must be included in fact, and by the facts of the particular case."

In State v. Pepoon, 62 Wash. 635, 114 Pac. 449, it is said: "It is no doubt true that the crime of murder includes the lesser crimes of murder in the second degree and of manslaughter, and it is equally true that the jury has a right to determine the degree of crime which was committed. But that determination must, of course, be based upon evidence. That is all that gives the determination any value. The anxiety of the law is to give the defendant the full benefit of trial by jury on all questions of fact, and it will not give its sanction to a farcical and arbitrary determination of any alleged fact which the jury has had no possible means of determining. If the defendant had been informed against for manslaughter, and the state had failed to produce any evidence tending to show the commission of manslaughter, as it did fail in this case to do. there would have been no duty resting upon the jury, and it would clearly have been the duty of the court to discharge the jury because there was nothing upon which the function of a jury could take hold and to discharge the defendant. The legal function of the jury is not at all changed because the question for determination arises upon an information in .the first degree. We are of course not speaking with reference to weight of testimony, but of a case where there is no testimony whatever to weigh tending to show the commission of the lesser degree." Answering the rule of these cases, the state contends that inasmuch as it is admitted that manslaughter is included in law in a charge of murder in the first degree, and as under our practice jurors are sole judges of the facts, the court cannot say as a matter of law there is no testimony to establish any of the lesser or included crimes, but must admit the legal inclusion and submit the inclusion in fact to the jury. This would be required where there was any fact or facts to be determined by the jury. But the court is not required to submit any determination of a fact to a jury when there is no fact, nor to permit a jury to establish by its verdict a fact which there is no evidence to sustain. Verdicts must be founded upon facts in evidence, and the court can only submit to the jury such verdicts as may be found from a review of the facts in evidence when there

the court cannot weight it nor determine its relative merit. Nor can it convert an inclusion in law into an inclusion in fact, until there is a fact. The inclusion in fact being established, the inclusion in law follows; but the latter cannot exist alone, nor find a place in any criminal trial, until the essential and indispensable facts appear in the evidence. Neither can we accept the argument of the state that appellate courts should not shut their eyes to the fact that jurors sometimes refuse to obey the instructions of the court, when there is no alternative between finding a man guilty of murder in the first degree and finding him not guilty, and ofttimes, unler the impulse of sentiment or other motive, acquit rather than subject the accused by their verdict to the penalties of murder in the first degree. That jurors refuse to do their sworn duty in homicide cases cannot influence judges in not doing theirs; and, if actuated by motives other than their obligation to the state and to themselves, jurors permit guilty men to escape their just dues, the fault must rest with the jurors, and not with the courts, who must ever refuse to commit one legal wrong in order to palliate another. We are therefore of the opinion that it was error for the court to submit an instruction involving the crime of manslaughter.

Having reached this conclusion, we are brought face to face with another grave problem-the effect of this ruling upon the appellant. It is contended, following the rule laid down in State v. Robinson, 12 Wash. 349, 41 Pac. 51, 902, State v. Murphy, 13 Wash. 229, 43 Pac. 44, and State ex rel. Moorehead v. Chapman, 64 Wash. 140, 116 Pac. 592, that the verdict of manslaughter is in legal effect an acquittal of the higher degree of homicide; and appellant cannot again be tried for those crimes without being twice put in jeopardy for the same offense; and, as there was no evidence upon which to justify a conviction of manslaughter, the result must be the discharge of the defendant. One of these rules must be departed from, or else in this case, as in many others where the verdict results from an erroneous view of the law by the court below and the submission of improper verdicts, the appellate court, in correcting the error and thus seeking to do justice as between the state and the defendant, must lay down a rule which results in the greatest injustice, and turns loose murderers and other violators of the law to prey upon other victims of their criminal lust. We have therefore carefully and conscientiously reviewed these two rules in or der to satisfy ourselves which is best founded in reason, and which best serves the justice and purpose of the law. The first of these rules, as found in State v. Kruger, and State v. Pepoon, supra, was first reviewed by the court in State v. McPhail, 39 Wash.