Barrett v. Millikan

• Decision Date: 23 April 1901
• Docket Number: 19,063
• Citation: 60 N.E. 310,156 Ind. 510
• Parties: Barrett et al. v. Millikan
• Court: Indiana Supreme Court

60 N.E. 310

156 Ind. 510

Barrett et al. v. Millikan

No. 19,063

Supreme Court of Indiana

April 23, 1901

From the Marion Superior Court.

Affirmed.

W. R Gardiner, C. E. Barrett and E. A. Brown, for appellants.

J. E Kepperley, for appellee.

OPINION

Dowling, C. J.

This action was brought by the appellee, Millikan, against the appellants, Barrett and wife, to enforce a lien for materials furnished for and used in the repair of a dwelling-house erected on a lot owned by Barrett in the city of Indianapolis, Marion county, Indiana. The materials were sold by E. H. Eldridge & Co., an incorporated company, to one Roberts, who had the contract for making the repairs, and notice of the lien claimed was filed by that company. They afterwards sold and assigned the claim and lien to the appellee. In addition to a general denial, Barrett and wife filed a special answer setting up, among other things, the fact that before the filing of the notice, and without any knowledge of the claim and lien of Eldridge & Co., or of the appellee, Barrett paid Roberts, the contractor, in full.

The errors assigned and discussed present the question of the constitutionality of the act generally known as the Mechanics' Lien Law. Acts 1883, p. 140; Acts 1885, p. 95; Acts 1889, p. 257; §§ 7256, 7257, 7258, 7259 Burns 1894.

The validity of these acts, so far as they apply to the facts stated in the answer, is assailed on the following grounds (1) The act seeks to deprive the owner of land of his property without due process of law, and denies him the equal protection of the laws as guaranteed by the Constitution of the United States. (2) It attempts to create a lien upon real estate without notice to the owner, and without any contract between the person claiming the lien and such owner, and it impairs the obligation of contracts. (3) It interpolates into private contracts provisions for liens of third parties with whom the owner of the real estate has no contractual relation, and impairs the obligations of private contracts, and interferes with the rights of owners of real estate to make contracts relating to the improvement thereof. (4) It attempts to give one class of citizens rights not granted to all other citizens, and is therefore class legislation. (5) The act is not general in its operation, but is limited to a class of citizens of the State. (6) It purports to grant to one class of citizens engaged in mercantile and manufacturing pursuits privileges which do not belong to and which are not granted to all other citizens of the State engaged in like pursuits.

These six objections may fairly be reduced to three, viz., (1) the act authorizes the appropriation of the property of the landowner without due process of law; (2) it impairs the obligation of contracts; (3) it grants to one class of citizens privileges not granted upon the same terms to others.

In discussing the case, counsel for appellants also contend that the statute violates the Bill of Rights, §§ 1, 21, 22, article 1, because it is injurious to the well-being of the citizens of the State; because it demands the particular services of the landowner in protecting the interests of the subcontractor, or material man, without compensation; and because it interferes with the freedom of the citizen to make contracts for the improvement of his property.

While the constitutionality of similar statutes has been denied in some courts of last resort, their validity has generally been recognized. The principal authorities on each side of the question are collected in the leading text-books and need not be mentioned here. Boisot on Mechanics' Liens, §§ 22-31; Jones on Liens (2nd ed.), § 1184, et seq.

The principle upon which the claims of both contractors and subcontractors are usually held to rest was clearly stated by Shaw, C. J., in the early case of Donahy v. Clapp, 12 Cush. 440: "Before the statute of 1851, no one could create such a lien by a building contract, except the owner, or person having an interest therein, to the extent of such interest. But by that statute, one who had contracted with the owner to erect a building had power, by his subcontract with another for the whole or part of the work, to create a similar lien on the estate in favor of such subcontractor. * * * Before that statute took effect as law, the contract gave a lien to Hilt [the original contractor] only, which was the act of the owner charging his own estate. But under the operation of that statute, a precisely similar contract by the owner of land would give the contractor a power to bind the estate by other liens in favor of subcontractors, for labor thereon. Such liens, in favor of subcontractors, would equally bind the estate by consent of the owner; because such a contract, by force of the existing law when it was made, of which the owner is presumed to be cognizant, gives his irrevocable power to his contractor, to charge and bind his estate; and when such power is executed by the actual making of such subcontract for labor, it is in law the act of the owner, hypothecating his own estate to the extent of the price of such labor." Phillips on Mech. Liens, §§ 65, 79; Laird v. Moonan, 32 Minn. 358, 20 N.W. 354; O'Neil v. St. Olaf's School, 26 Minn. 329, 4 N.W. 47; White v. Miller, 18 Pa. 52; Deardorff v. Everhartt, 74 Mo. 37; Spofford v. True, 33 Me. 283, 291, 54 Am. Dec. 621; Jones on Liens, §§ 1304, 1306.

The judgment in Jones v. Great Southern, etc Co., U.S.C. C. for southern district of Ohio, 79 F. 477, referred to in appellants' brief, was overruled by the Circuit Court of Appeals, 86 F. 370, 30 C. C. A. 108, Lurton, J., Taft, J., and Clark, District J., sitting. The opinion of the court was delivered by Lurton J., who fully reviewed the Ohio statutes on the subject of mechanics' liens, and said: "The validity of such statutes need not be rested upon mere authority. They find sanction in the dictates of natural justice, and most often administer an equity which has recognition under every system of law. That principle is 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. * * * The legal effect of the contract is to give a lien to all who, at the instance of his contractor, shall be employed to furnish labor or materials for the work which he has let out. So far as such a...