233 P. 285 | Wash. | 1925
A demurrer was sustained to an information charging the defendants with grand larceny by reason of the violation of § 2604, Rem. Comp. Stat. [P.C. § 8947], that section being:
"Every person having entered into a contract to supply any labor or materials for the value or price of which any lien might lawfully be filed upon the property of another, who shall receive the full price or consideration thereof, or the amount of any account stated thereon, shall be deemed within the meaning of section 2601, subdivision 3, to receive the same as the agent of the party with whom such contract was made, his successor or assign, for the purpose of paying all claims for labor and materials supplied."
Section 2601, subd. 3, Rem. Comp. Stat. [P.C. § 8889], being the general statute on larceny by embezzlement, provides:
"Every person who, with intent to deprive or defraud the owner thereof.
"(3) Having any property in his possession custody or control, as bailee, factor, pledgee, servant, attorney, agent, employee trustee, executor, administrator, guardian or officer of any person, estate, association or corporation or as a public officer, or a person authorized by agreement or by competent authority to take or hold such possession, custody or control, or as a finder thereof, shall secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; or . . . Steals such property and shall be guilty of larceny."
The information alleges that the defendants, being contractors for certain persons, had entrusted to them by reason of such relationship some $1,500 with which to pay for labor and materials, but failed to do so and appropriated the money to their own use. The state, feeling aggrieved, appeals.
The demurrer was sustained to the information on *123
the theory that § 2604, supra, is unconstitutional, the attack being made on the ground that it represents class legislation, provides for imprisonment for debt, and interferes with liberty of contract. Taking these in their order, it would first appear that the statute is not vulnerable to the attack as being class legislation, for it applies equally to all persons who are similarly situated. It provides that everyone who shall come within the operation of the mechanics' lien law who shall receive payment on account of his contract shall be deemed to receive it as the agent of the party with whom the contract was made and for the purpose of paying the claims for which liens might be filed. The mechanics' lien law (§ 1129, Rem. Comp. Stat.) [P.C. § 9705], has been held to be constitutional, in Spokane Manufacturing Lumber Co. v. McChesney,
(2) The act does not provide for imprisonment for debt. The contractors are not being punished for any indebtedness which they may owe their contractee by reason of the receipt of the contract price or any part thereof, but they are being punished for their fraud, which is an altogether different matter. The statute provides, not that the contractor shall be punished because he owes the money, but for the reason that he has secreted it or failed to pay it as he should, "with intent to deprive or defraud the owner thereof," and has appropriated it to his own use. It is the fraudulent act and not the indebtedness which is made the determining feature in establishing guilt under this section. In re Milecke,
(3) The act does not interfere with the liberty of contract, for contractors must enter into their engagements with a knowledge of the act, just as much as they must enter into their engagements with a knowledge of the existence of the mechanics' lien law. There are many situations arising under the laws of this state of which persons acting thereunder must take knowledge, and those provisions enter into and become a part of their contracts. In Duke v. National Surety Co.,
Statutes similar to ours seem to have been considered in only three states. These are Wisconsin (Pauley v. Keebler,
Upon both reason and authority, it would appear that the demurrer was improperly sustained, and the judgment is therefore reversed.
TOLMAN, C.J., HOLCOMB, MITCHELL, and FULLERTON, JJ., concur. *126