Hutchinson v. Krueger

• Decision Date: 14 May 1912
• Citation: 124 P. 591,34 Okla. 23,1912 OK 368
• Parties: HUTCHINSON v. KRUEGER et al.
• Court: Oklahoma Supreme Court

124 P. 591

34 Okla. 23, 1912 OK 368

HUTCHINSON v. KRUEGER et al.

Supreme Court of Oklahoma

May 14, 1912

Syllabus by the Court.

In the absence of a statute in express terms authorizing it, there can be no mechanic's lien on the public buildings of a state, or the subdivision thereof, since such lien would be contrary to public policy and incapable of enforcement.

While it is the general rule that the Legislature of one state, in adopting a statute of another state, is presumed to have adopted the construction placed on such statute by the highest court of such other state prior to its adoption, yet this rule has its exceptions, first, where the construction is contrary to the Constitution or the well-defined legislative policy of the adopting state; second, where the adopted statute exists in many other states and such construction is contrary to the decided weight of authority in such other states having substantially the same statute.

Where the condition of a bond is "to pay all claims for labor and material contracted in the erection of said county jail building to each and all persons entitled thereto, and which claims might be the basis of liens on said lots and buildings," etc., held, that the obligation of the bond extended only to such claims as "might become liens," and that the sureties were not liable on account of claims that are not and could not become liens.

Commissioners' Opinion, Division No. 2. Error from Superior Court, Oklahoma County; A. N. Hunden, Judge.

Suit by B. Z. Hutchinson against Robert Krueger and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Weaver & Scothorn, of Oklahoma City, and G. N. Longfellow, for plaintiff in error.

Shartel Keaton & Wells and S. A. Horton, all of Oklahoma City, for defendants in error.

BREWER C.

This is a suit on a building contractor's bond. It grew out of the building of the Oklahoma county jail. The bond appears to have been given and the conditions stated under the provisions of section 6163, Comp. Laws 1909, which provides that the contractor or owner may execute a bond to the state for the use of all persons in whose favor liens may accrue for furnishing labor or material. This section of the statute manifestly was intended to apply to other than public buildings, and the bond may or may not be given, as the contractor or owner elects. If given in compliance with the law, it discharges the liens. The obligation of the bond in this suit is: "Now, if the said Robert Krueger shall pay all claims for labor and material contracted in the erection of said county jail building to each and all persons entitled thereto, and which claims might be the basis of liens on said lots and building, then this bond to be void, otherwise to remain in full force and effect in law for the use and benefit of any person in whose favor liens might accrue." A demurrer was sustained in the lower court to this petition, evidently upon the ground that the petition did not state facts sufficient to show a liability on the bond.

It is clear that, if the claims for labor or material alleged to have been furnished could not be the basis of a lien against the building, then there was no obligation upon the bondsmen under the condition named in the bond. The trial court evidently was of the opinion that the claim in suit could not be the basis of a lien against the county jail which is, of course, a public building. Two reasons might be urged in support of this contention: First, that the petition shows that plaintiff is neither a contractor, subcontractor, or a laborer or artisan in the employ of the contractor, the class specifically protected by the language of the statute, but that his petition discloses that he is a subcontractor of a subcontractor, and therefore, if the statute is strictly construed, that plaintiff would not come within the terms of the statute, and could therefore assert no lien. There is authority supporting this contention, but there is authority and strong reasons against it, and it is unnecessary to determine that precise point.

There is, however, another contention why the claim in this case could not afford the basis of a lien; i. e., that such a lien cannot arise against a public building whose use is strictly a public use. On this question the general rule is that the public property of a state, county, or municipality, acquired and used by and for the benefit of the public, is not subject to seizure or sale, and that a mechanic's lien does not lie and cannot be enforced against property which is not subject to sale on execution. The reasons assigned for this exemption are that the seizure and sale of such property would interrupt and suspend the functions of government and would therefore be against public policy, and also that other provisions of law, and other means, are available for the collection and payment of public obligations.

The general rule that a lien will not lie against public property devoted exclusively to public use has been almost universally adopted in the various states of the Union, and has been announced by all of the American text-writers discussing mechanics' liens whose work we have been able to examine. Boisot on Mechanics' Liens at section 208: "There can be no mechanic's lien on public property unless the statute creating such lien expressly so provides, since such a lien would be contrary to public policy, and also would be incapable of enforcement; public property not being subject to forced sale. For this reason there can be no mechanic's lien on a county courthouse nor on county buildings," etc. Jones on Liens says at section 1375 vol. 2: "On grounds of public policy the mechanic's lien laws do not, in the absence of express provisions, apply to public buildings erected by states, counties, and towns for public use," etc. Bloom on Mechanic's Liens at section 192 is to the same effect. Rockel on Mechanic's Liens at section 10 is to the same effect. Phillips on Mechanic's Liens at sections 179 and 179 (a) is to the same effect. 27 Cyc. at pages 25 and 26 states the same rule. 20 Amer. & En. Ency. L. (2d Ed.) p. 295, states the same rule. Alabama: In Nunnelly v. Dorand, 110 Ala. 539 18 So. 5, a schoolhouse being involved, the court say "The authorities are many and uniform against the right to declare a lien upon such property." Arkansas: Such lien cannot be enforced against a school building. Fluty v. School District, 49 Ark. 94, 4 S.W. 278. Nor against a courthouse. Riggin v. Hillard, 56 Ark. 476, 20 S.W. 402, 35 Am. St. Rep. 113. California: In Mayrhofer v. San Diego, 89 Cal. 110, 26 P. 646, 23 Am. St. Rep. 451, the court say: "No public property or building is subject to a mechanic's lien," etc. Colorado: In Florman v. El Paso County, 6 Colo. App. 319, 40 P. 469, the right to a lien on a school building was denied on the ground that the relation sustained by the school district to the school property was not that of owner. Connecticut: In National F. P. Co. v. Town of Huntington, 81 Conn. 632, 71 A. 911, 20 L. R. A. (N. S.) 261, 129 Am. St. Rep. 228, the right to a lien was denied although the statute was broad enough to include all buildings. Georgia: In Neal Millard Co. v. Chatham Academy, 121 Ga. 208, 48 S.E. 978, it was held that, in the absence of an express statute authorizing it, a mechanic's lien could not exist against public property. In that case a school building was involved. Indiana: In Townsend et al. v. Cleveland Fire Proofing Co. et al., 18 Ind.App. 568, 47 N.E. 707, it is said: "A mechanic's lien can neither be acquired nor enforced upon or against property held for public use." Iowa: In Breneman v. Harvey et al., 70 Iowa, 479, 30 N.W. 846, it was held that such lien could not be enforced against a county; this was a county bridge case, the court following Loring & Co. v. Small et al., 50 Iowa, 271, 32 Am. Rep. 136, and Lewis v. Chickasaw County, 50 Iowa, 234, which involved a county building. Illinois: Chicago v. Hasley, 25 Ill. 595, holds that public municipal property cannot be sold under process. Kentucky: The rule is conceded in Noonan v. Hastings, 101 Ky. 312, 41 S.W. 32, 72 Am. St. Rep. 419. Massachusetts: In Lessard v. Revere, 171 Mass. 294, 50 N.E. 533, it is held that the general words of the lien statute do not include school buildings. Michigan: Follows the rule in Knapp v. Swaney, 56 Mich. 345, 23 N.W. 162, 56 Am. Rep. 397. Minnesota: In Burlington Mfg. Co. v. Board, etc., 67 Minn. 327, 69 N.W. 1091, the doctrine is applied in a courthouse case. Montana: Holds that the general words of the statute, which are broad enough to include all property in the state, do not apply to school property, in Whiteside v. School Dist., 20 Mont. 44, 49 P. 445. Mississippi: In Panola County v. Gillen et al., 59 Miss. 198, the rule is announced in a courthouse case. Missouri: In St. Louis v. O'Niel Lbr. Co., 114 Mo. 74, 21 S.W. 484, the rule is stated in the text. Maine: In Goss Co. v. Greenleaf et al., 98 Me. 436, 57 A. 581, in construing the mechanic's lien statute, which was broad enough in its language to cover and include all property in the state, the court say: "It is an established canon of statutory interpretation that the state, the public, is not to be considered as within the purview of a statute unless expressly named therein, however general and comprehensive the language otherwise." "Second, as a corollary, public buildings, buildings constructed by the state or by a political subdivision of the state for public purposes and not for pecuniary profit, are not to be considered as within the purview of the statute imposing a lien on buildings in certain cases unless they are expressly named as included." Nebraska: In Ripley v. Bd. County Commissioners of Gage County,...