
    Marsh v. Bower et al.
    The mechanics’ lien Act of June 17,1887, entitled “An Act relating to the lien of mechanics and others upon buildings,” which provides, in | 1, “ that the provisions of the Acts of June 16,1836, and April 16,1845, according to the true intent and meaning thereof, shall be construed to include claims for labor done by mechanics and laborers in the erection or construction of a building, as liens are now allowed for materials furnished, is unconstitutional under article ill, \ 6, of the constitution, providing that “ no law shall be revived, amended, extended or conferred by a reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.”
    The Act is also an exercise of the judicial powers by the legislature by directing the courts to a certain interpretation in all cases that may be before them, in violation of article v, § 1, vesting the judicial powers in the courts.
    
      It seems that § 2 of the Act, providing for notice by material men, refers only to the class embraced by this Act and this section must fall with the rest of the Act.
    Oct. 23, 1888.
    Error, No. 79, Oct. T. 1888, to O. P. No. 2, Allegheny Co., to review a judgment for want of a sufficient affidavit of defense on a scire facias sur mechanics’ lien by John W. Power and D. O. Bower, doing business as John "W. Bower & Co., against Charles Dudgeon, contractor, and ¥m. Marsh, owner, at Jan. ..T. 1888, No. 344.
    The claim filed was for “ a debt contracted for work done and material furnished ” at the instance of the contractor named; and referred to a bill of particulars annexed as “showing the nature, kind and amount of work done and material furnished and the time when the same was done,” The following is the bill of particulars filed:
    1887.
    Sept. 23, 2086 sqr. ft. Tin Hoofing on house, . . . $125.16
    7 3-in. ■ — .—■ Pipes, 12,.......84
    14-in......... .15
    Oct. 3, 4 ft. 4-in. Cond., 13,.....• . .52
    1 Shoe,.........35
    60 ft. 3-in. Cond., 10, ...... 6.00
    7 Shoes, 25,.......1.75
    1 Porch Hoof, 234 sq. ft., 62, .... 15.21
    $149.98
    Oct.' By cash (credit),.......47.78
    Balance due, . ......$102.20
    Interest from Oct. 3d, 1887.
    The defendant, Marsh, filed an affidavit o'f defense in which he averred that he never contracted with plaintiffs for the furnishing of materials, and had no knowledge that said materials had been furnished nor work done by plaintiffs until the lien upon which suit was brought had been filed, or at least until he had settled with his contractor. He further averred that he relied on notice from all persons furnishing materials in the construction of his house as required by the Act of June 17, 1887, and that no notice was given under the Act. The court made absolute a rule for judgment for want of a sufficient affidavit of defense.
    
      
      The assignments of error specified the action of the court, 1, in making absolute the rule; and, 2, in not discharging the rule.
    
      John, F. Cox, for plaintiff in error.
    The bill of particulars shows that the claim was for materials furnished — nothing indicating that any labor had been performed.
    The Act of June 16,1836, relating to the lien of mechanics, etc., is repealed by the Act of June 17,1887. A subsequent general Act fully covering the cases provided for by a former one, repeals it by implication. Com. v. Adams, 37 Leg. Int. 405; Mechanics B. & L. Ass’n v. Minnich, 1 Kulp, 513; Rambo v. County Commissioners, 1 Ches. Co. R. 414. Repugnancy between the provisions of the new law and the old, so positive as to be irreconcilable, repeals a statute by implication. Barber’s Case, 86 Pa. 392; Com. v. Erie Railway Co., 98 Pa. 127; Siefried v. Com., 101 Pa. 200.
    
      S. A. McClung, with him L. L. Davis, for defendant in error.
    —The defendants in error are subcontractors and not material men, under § 2 of the Act of 1887. They did the tin work on the building. The word “ such ” should be inserted after “ no ” and before “ material man ” in § 2 of the Act.
    The Act is unconstitutional, being obnoxious to art. in, § 3, of the constitution. Borough of Sewickley v. Sholes, 118 Pa. 165. The Act is also bad under art. in, § 6, of the constitution.
    Nov. 5, 1888.
   Williams, J.,

The affidavit of defense set up no answer to the plaintiff’s claim on the merits. It rested wholly on the failure of the material man to give the notice of his intention to rely upon his lien as a security for his bill, which is provided for in the 2d section of the Act of 1887. We have held that Act to be unconstitutional, and, therefore, of no effect whatever, in the case of the Titusville Iron Works v. The Keystone Oil Co., decided at the present term. [Reported in 122 Pa. 627.] It is unnecessary to repeat the reasons there given. Whether Bower & Co. were within the provisions of the 2d section or not is a question of no consequence, for the Act falls as a whole. No part of it is in force, and our mechanic’s lien laws stand precisely as though it had never been passed. The court below was right, therefore, in holding the affidavit to be insufficient, and in entering judgment non obstante, and the judgment is now affirmed.

Cf. Barrett’s Appeal, 116 Pa. 486, for construction of art. hi, \ 6, of the constitution. See, also, the next case.  