Ripley v. Board of County Commissioners

3 Neb. 397 | Neb. | 1874

Lake, Ch. J.

The single question presented for our determination in this case, is whether our mechanic’s lien law can have any application whatever in a case where work is done, or materials are furnished for the erection of county buildings.

The case has been so ably presented, and the authorities so fully cited, in support of the position taken by the respective counsel, that I have been greatly aided in my examination of the question.

This precise question being a new one in this court, in view of the great conflict in the authorities cited from the various states, we feel at liberty to give that construction which seems to us to be most in harmony with the policy • of our own statutes, and the previous decisions of this court upon analagous questions.

The lien law in question provides remedies for two distinct classes of persons viz: original contractors, and subcontractors, laborers, and material men. To the former there is given by the first section of the act a sjiecific lien against the property, in the erection of which the work was done, or materials were furnished, while to the latter there is given no lien upon the structure, but, by a compliance with the requirements of section two, they may, under certain conditions, have a personal claim against the owner thereof, to be enforced by an ordinary civil action.

The plaintiff seeks to recover against the county, as a material man, under section two, he having furnished to Messrs Binns and Fordham, the contractors for the erection of a court house, the brick used by them in its construction, and having also taken all the steps required by the statute to entitle him to recover the amount of his demand from the owner of the building, if it belonged to a private person.

It is undoubtedly true that the real object of the legislature in giving to mechanics and other persons, liens for work done in, or materials furnished for the construction of any building, was to furnish them with a substantial security for the payment of their demands, where none existed before," as against the owner thereof. But in case of contractors for the erection of public buildings, there was no necessity for any such protection, for ample provision already existed for raising the necessary funds, on account of any such demand, the public credit being pledged for the payment of all just demands against the. county.

Section fourteen, of chapter thirteen, General Statutes, 235, among other things provides, that the board of county commissioners shall have power “ to borrow upon the credit of the county a sum sufficient for the erection of county buildings.” This power, it is true, can only be exercised by permission of the electors of the county. Undoubtedly if the county had the necessary funds on hand, not pledged by the statutes to other uses, the commissioners could, of their own motion, and without a vote of the electors of the county, appropriate the same to the erection of a court house or other necessary county buildings, but it is equally clear that they have no authority to pledge the credit of the county to obtain the money for such purpose, unless expressly authorized by a vote of the people to do so.

Again, it is expressly provided in section six, of the same chapter, above refered.to, that no execution shall be issued on a judgment against a county, but that the amount thereof shall be raised by a tax levied upon all the taxable property within such county.

Now, I consider it to be quite, manifest from these statutes, that the legislature never intended that county buildings should be subject to sale by judicial process, no matter what the character of the demand may have been upon which the judgment was rendered, and that they are necessarily as completely withdrawn from the operations of the mechanics lien law, as if they had heen expressly excepted by the most positive and unambiguous words. But should we hold otherwise, it would follow, as a necessary sequence, that in case of a recovery by a contractor under the provisions of the lien law, the building in question could be seized and sold for its satisfaction, for it cannot be said that the lien exists unless the structure may be sold to satisfy it.

. But it was urged upon the argument, with considerable force, that although it shall be held that the first section of the act has no application to county buildings, yet as the remedy sought by the plaintiff, under the second section, is personal merely, and the judgment when recovered, to be satisfied by the levy of a tax for that purpose, as the statute provides, and not by a Sale of the court-house, there is no good reason w'hy the action may not be maintained.

This position, though urged with much plausibility, cannot be sustained. It is very clear to my mind, that the second section of the act applies only to those cases where the original contractor may have a lien on the building, under the first section. No other conclusion can possibly' be reached without totally disregarding the plain letter of the statute.

By section one it is enacted that “any person who shall perform any labor, or furnish any materials for the erection, reparation, or removal of any house, mill, manufactory, or other building or appurtenance, faj virtue of a contract or agreement, express or implied with the owner thereof \ or his agent, shall have a Hen, etc.” From this it will be seen that it is essential to the existence of the lien, that the work be done, or the materials be furnished, under a contract or agreement with the owner of the building or his agent.

The second section, under which the plaintiff has proceeded, provides that “every mechanic, or other person, doing or performing any work, or furnishing any materials for the erection, reparation, or removal of any house, mill, ¿tc., erected, repaired, or removed, wider a contract or agreement, express or implied, between the owner thereof, or his agent, cmd the builder or other person, * * * * whose demand for work so done, or materials furnished, has not been paid, may deliver to the owner of such building, or his agent, an attested account of the amount and value of the work and labor thus performed, or materials thus furnished, and remaining unpaid,” and thereupon such owner, or agent, is required to retain the amount thereof out of subsequent payments due the contractor, for the benefit of the person doing such work, or furnishing such materials. By subsequent sections, it is provided what steps shall be taken by the owner of the structure to ascertain the correctness of the account, and also under what circumstances he shall be liable, at the suit of such sub-workman or material-man, for the amount thereof. But, it should be observed, that by unambiguous language, the remedy afforded by the second section is confined to those cases, exclusively, wherein there is a contract or agreement between the owner of the building, or his agent, and the person for whose benefit the work is done, or the materials are furnished, the very cases indeed, in all respects, wherein the original contractor would be entitled to have a lien, upon the structure, for the amount due him on account of its construction.

Indeed, I think the conclusion is irresistible, that both the first and second sections of the act refer to precisely the same kind of structures, and that a mechanic or other person performing labor, or furnishing materials, as contemplated by the second section, can have no valid claim therefor against the owner of ■ the building, unless such building could be subject to a lien, under the law, at the-instance of the person for whom the work was done, or the materials were furnished.

The legislature having made ample provision for the payment of debts contracted for public buildings, this must be held to be exclusive, and to forbid a resort to any other method. Nor is there any hardship in this rule, for all persons who deal with municipal corporations, either directly or indirectly, are chargeable with full knowledge of their powers and liabilities, under the statutes creating or regulating them, and of course must be held to act at their peril.

For these reasons the judgment of the district court must be affirmed.

Judgment affirmed.

Mr. Justice Maxwell concurs.