Cole Manuf'G Co. v. Falls

• Decision Date: 11 June 1891
• Parties: COLE MANUF'G CO. v. FALLS.
• Court: Tennessee Supreme Court

16 S.W. 1045 COLE MANUF'G CO.
v.
FALLS. Supreme Court of Tennessee. June 11, 1891.

Appeal from chancery court, Shelby county; B. M. ESTES, Chancellor.

Action by the Cole Manufacturing Company against I. N. Falls and others, to enforce material-man's lien. Defendants appeal from an order overruling a demurrer. Affirmed.

Casey Young and J. E. R. Ray, for complainant. Beard & Clapp and M. B. Trezevant, for defendants.

CALDWELL, J.

This is a material-man's bill, brought to enforce an alleged lien for materials furnished by complainant to Rempe, and by him used in the construction of a building for Falls. The action is founded on chapter 103, Acts 1889, and can

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be maintained, if at all, alone under that statute. The constitutionality of the act is called in question by demurrer. The demurrer was overruled, and appeal taken by special leave of the chancellor. The act, as a whole, and in each of its sections, is impeached as in conflict with the organic law, and therefore null and void. This makes a consideration of all its provisions necessary. For convenience, the different sections will be considered seriatim first, and after that the act will be considered as a whole. It is well to observe in the outset that all intendments are in favor of the constitutionality of an act of the legislature, passed with the forms and ceremonies requisite to give it the force of law; and that where one construction will make a statute void on account of conflict with the constitution, and another would render it valid, the latter will be adopted by the courts, even though the former, at first view, be otherwise the more natural interpretation of the language used. Every reasonable doubt must be solved in favor of the legislative action. Suth. St. Const. § 332; Cooley, Const. Lim. (5th Ed.) p. 218; 3 Amer. & Eng. Enc. Law, 673, 674; Morrell v. Fickle, 3 Lea, 81; Garvin v. State, 13 Lea, 162.

The first section is as follows: "That section 2 of the act of the legislature of 1881, chapter 67, above referred to in this caption, shall be amended so as to read as follows, viz.: Every journeyman or other person, employed by such mechanic, founder, or machinist, to work on the buildings, fixtures, machinery, or improvements, or to furnish material for the same, shall have this lien for his work or material: provided, that within thirty days after the building is completed, or the contract of such laborer, mechanic, or workman shall expire, or he be discharged, he or they shall notify, in writing, the owner of the property on which the building or improvement is being made, or his agent or attorney, if he reside out of the county, that said lien is claimed, and said lien shall continue for the space of ninety days from the date of said notice in favor of such subcontractor, mechanic, or laborer, and the same shall have precedence over all other liens for such time: provided, a statement of the amount due for such work, labor, or materials shall be filed with the county register, who shall note the same for registration, and put it on record in the trust-book in his office, for which he shall have fifty cents, and also twenty-five cents for registering the affidavit to the same, which shall be paid by the party filing the same; but said fee shall be receipted for on the statement of account, and shall be charged as part of the cost; and this registration shall be notice to all persons of the existence of such lien." This section gives all subcontractors and material-men ("every journeyman or other person") employed by the original contractor ("such mechanic, founder, or machinist") to work or furnish material a lien for their work or material on the two conditions mentioned, respectively, in the two provisos. The original contractor is the person who has undertaken the work of construction, erection, etc., "by special contract with the owner or his agent," as prescribed by section 1981 of the Code of 1858. By section 1986 of that Code, the same lien was given to the same classes of persons, on condition that notice, in writing, of an intention to claim it be communicated to the owner of the property at the time of beginning to work or furnish materials. That section was amended by the act of 1881, c. 67, § 2, so as to give the lien if such written notice be served on the owner during the progress of the work, or after its completion, if before the contractor has been paid the amount of such lien, not to exceed the amount due, or to become due, to the original contractor. Section 1986 of the Code, as thus amended by the act of 1881, is the statute amended and superseded by the first section of the act of 1889, which has just been quoted in full. Thus it is seen that the same idea of protection and compensation to the subcontractor and material-man has found expression, in one form or another, in successive acts since 1845, when the said section 1986 was first enacted. It cannot, therefore, be said that the scheme is either novel, or without recurring legislative indorsement in this state.

The lien given by the act of 1845 has been enforced by this court, in many cases, without the expression of even a doubt as to the constitutionality of the enactment; and there is as little room for doubt with respect to the validity of the amendatory act of 1881. The corresponding provision of the act of 1889 is assailed upon the assumption (1) that it undertakes to appropriate the property of the owner for the benefit of a person with whom he has made no contract; (2) that this result may be accomplished though the owner have no notice of the claim until after he has paid the original contractor in full; and (3) that the aggregate of the claims of subcontractors and material-men may exceed the amount agreed to be paid the original contractor, in which case the owner will be compelled to pay more than the contract price for the advantages received. The provision is not fairly subject to all of these animadversions, and such of them as are well made do not render it obnoxious to the constitution. It is true that a lien is provided for persons with whom the owner is supposed to have no direct contractual relations, but that fact alone does not invalidate the act, for the owner must be held to a knowledge of the existing law on the subject, and to the presumption that he employed the original contractor, and gave out his work with reference to that law. The right of lien to subcontractors and material-men is, by operation of law, incorporated into and made a part of the owner's contract, as much as if expressly included and written therein. He contracts about a subject in which the law declares certain advantages to all persons concerned, whether by direct contract with him or by the employment of his contractor. The law declares that a lien shall exist in favor of the subcontractor and material-man in certain contingencies; hence the owner who makes

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the contemplated contract cannot justly complain of the legal result, especially when he receives the benefit of the labor and material of those for whom...