Greenblatt v. GoldinGreenblatt v. Goldin
ROBERTS, Justice.
We are here concerned with Chapter 28243, Laws of Florida, Acts of 1953 — its meaning and its validity. This Act amended
“(a) In the event a direct contract calls for the expenditure of three
thousand dollars or more, the owner may require and in such event the contractor shall furnish the owner a surety bond * * * payable to the owner in at least the amount of the original contract price, conditioned to pay all laborers, subcontractors and materialmen. If for any reason the contractor fails to furnish the bond and notwithstanding the provisions of any other section of this chapter, the owner shall not pay any money on account of the direct contract prior to the visible commencement of operations and any amounts so paid shall be held improperly paid, and the owner shall withhold twenty percent of each payment when it becomes due under the direct contract. And in no event shall the owner pay more than eighty percent of the contract price if the bond is not furnished until the contract has been fully performed and final payment is due and the contractor has furnished the owner statement under oath required by § 84.04(3) . * * * If for any reason the owner fails to comply with the requirements of this section, he shall be liable for, and the property improved shall be subject to, a lien in the full amount of any and all outstanding bills for labor, services, or materiаls furnished for such improvement regardless of the time elements set forth in this chapter.”
The petitioners, as owners, entered into a written contract with a general contractor for the construction of a residence on their premises. The contract did not require a surety bond and authorized the owner to pay to the contractor 90 percent of the contract price prior to the time whеn final payment was due. After the owners had paid this amount, the contractor abandoned the contract. The owners then discovered that the contractor had falsified receipted bills in order to obtain progress payments from them and that there were many outstanding bills for materials and services supplied to the contractor for the job. The instant suit was filed by the owners against the contractor and all subcontractors and materialmen claiming a lien against the property, to obtain a decree declaratory of their rights under
The owners contended in the lower court and argue here that the Act should be interpreted as requiring the withholding of 20 percent of the progress payments and contract price only if an owner actually incorporates a bond requirement in his direct contract, and that, in the absence of such a bond requirement, its provisions are not activated. They also attacked the validity of the Act. The lower court held that the Act is applicable to the direct contract here involved and that it is constitutional. A summary decree was entered in favor of one of the lienors, who is the respondent here, for the full amount of his lien “irrespective of the amounts of other liens and irrespective of the amounts of such sums as the Plaintiffs may have paid to the General Contractor.” We here review this decree on petition for certiorari filed by the owners.
As to the applicability of
We now come to the question of the validity of
Mechanics’ lien laws “find sanction in the dictates of natural justice” and in the equitable principle that “every one who, by his labor or materials, has contributed to the preservation or enhancement of the property of another, thereby acquires a right to compensation.” Jones v. Great Southern Fireproof Hotel Co., 6 Cir., 1898, 86 F. 370, 385. By the application of this equitable principle, it has become settled law that “[m]aterialmen and laborers may be secured by mechanics’ liens upon land improved or affected by their material or labor, and this without reference to technical and ancient concepts of privity of contract. * * * For like reasons they may be secured as against the owner by a lien upon any moneys due to the contractor, and secured as against the contractor by a lien upon any moneys collected from the owner * * *.” Hartford Accident & Indemnity Co. v. N.O. Nelson Mfg. Co., 1934, 291 U.S. 352, 54 S.Ct. 392, 395, 78 L.Ed. 840. It has been said, however, that if such legislation “is the mere arbitrary exercise of the powers of government, unauthorized by the established principles of private right, and not having the sanction of natural justice, it is not the law of the land.” Jones v. Great Southern Fireproof Hotel Co., supra, 86 F. 370.
Thus, in Gibbs v. Talley, 1901, 133 Cal. 373, 65 P. 970, 971, 60 L.R.A. 815, the court held unconstitutional a statute,
See also Hess v. Denman Lumber Co., Tex.Civ.App. 1920, 218 S.W. 162, 164, where
We have found only one decision upholding a statute that requires a contractor‘s performance bond and makes the owner personally liable for the claims of subcontractors and materialmen if no such bond is provided. In Rio Grande Lumber Co. v. Darke, 1917, 50 Utah 114, 167 P. 241, L.R.A. 1918A, 1193, the provision of the statute, Laws 1915, c. 91, requiring a bond was attacked as an unconstitutional restraint of the liberty of contract and was upheld by the Utah Supreme Court against such attack, under the authority of Roystone Co. v. Darling, 1915, 171 Cal. 526, 154 P. 15. The Utah court did not, however, discuss the question of whether the penalty of personаl liability imposed upon the owner for his failure to secure the bond was valid.
Roystone Co. v. Darling, supra, 154 P. 15, 19, was concerned with a statute,
It can be seen that the Act here in question goes far beyond the California statute upheld in the Roystone case, supra, under the liberal provision of Sec. 15, Art. XX, of the California Cоnstitution. It makes no attempt to establish the “direct lien” theory of mechanics’ liens, which was the avowed purpose of the California statute; it imposes a personal and property liability independently of and without regard to the other provisions of the Mechanics’ Lien Law, for the full amount of all outstanding bills, as a penalty against the unwary or negligent owner who fails to comply with the other requirements of thе Act. Manifestly, such a penalty cannot be justified under the mandate of
In a petition for rehearing filed by the respondent-lienor and in briefs filed with the court‘s permission on behalf of amici curiae, it is suggested that the question
It may well be that, if it had known that the personal liability and time element clauses would be held invalid, the Legislature would have provided that subcontractors and materialmen could perfect a lien under the Mechanics’ Lien Law against the owner‘s property in the full amount of their outstanding bills, if the owner failed to comply with the other provisions of the Act. But it did not do so. It intended to and did provide for a personal and property liability against the owner entirely outside the scope of the Mechanics’ Lien Law. These provisions are void, and the legislative purpose has failed for the reasons before stated. When the personal liability and time element clauses fail, the entire sentence of which they are an integral part must also fail because the part remaining is not a valid expression of the Legislative will. Cf. Ex parte Smith, 100 Fla. 1, 128 So. 864, holding an entire ordinance invalid because the objectionable clause was аn integral part of the ordinance and could not be separated from it without doing violence to the intention of the council.
Accordingly, we hold unconstitutional and void the following provision of
The deletion of the penalty clause carries with it the remainder of
It is so ordered.
TERRELL, C.J., and O‘CONNELL, J., and GILLIS, Associate Justice, concur.
THOMAS and HOBSON, JJ., concur in part and dissent in part.
HOBSON, Justice (concurring in part and dissenting in part).
I agree that the provision of
In my opinion that portion of
I hold the view that the provision for a lien in the “full amount” of any and all outstanding bills is not so harsh and oppressive as to warrant a determination by this court of invalidity, because the act provides a method whereby the owner may avoid the penalty set forth in the law by requiring the contractor to furnish the owner a surety bond payable to the owner in at least the amount of the original contract price, conditioned to pay all laborers, sub-contractors and materialmen, or in the alternative follow the requirements for withholding 20% of each payment due under the contract, taking precaution that such payments are “properly paid” as defined in
In my judgment this act is invalid only insofar as it provides for personal liability against the owner for any and all outstanding bills regardless of the time elements set forth in
The owner is entitlеd to the protection afforded by the “time element” which requires a lienor to file his claim within three months after the final performance of labor or service or the furnishing of materials,
I would grant the petition for certiorari and declare invalid only those portions of the act detailed above. By so doing the
I deem it appropriate to restate the observation which was made by this court in the case of Allstate Pipe Supply Co. v. McNair, 89 So.2d 774, 775, when, in speaking through Mr. Justice O‘Connell, we said:
“There is nothing to be gained in condemning or applauding the Mechanics’ Lien Law for it is the law of this State. Admittedly it is harsh in many respects, as applied to an owner, and no one improving property can ignore its provisions without coming to grief.”
THOMAS, J., concurs.