E.I. Du Pont De Nemours Powder Co. v. National Sur. Co.

• Decision Date: 11 March 1916
• Docket Number: 12944.
• Citation: E.I. Du Pont De Nemours Powder Co. v. National Sur. Co., 155 P. 1050, 90 Wash. 227 (Wash. 1916)
• Court: Washington Supreme Court
• Parties: E. I. DUPONT DE NEMOURS POWDER CO. v. NATIONAL SURETY CO.

155 P. 1050

90 Wash. 227

E. I. DUPONT DE NEMOURS POWDER CO. v. NATIONAL SURETY CO.

No. 12944.

Supreme Court of Washington

March 11, 1916

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by the E. I. Dupont De Nemours Powder Company against the National Surety Company. From a judgment for plaintiff defendant appeals. Reversed and action dismissed.

John W Roberts and Geo. L. Spirk, both of Seattle, for appellant.

Sullivan & Christian, of Tacoma, for respondent.

HOLCOMB J.

Respondent brought this action against appellant to recover the purchase price of powder furnished by respondent to the Keasel Construction Company, which had a contract with the Puget Sound & Willapa Harbor Company for the construction of 13 miles of railroad in Pacific county. The railway company took from the construction company a bond with the appellant as surety, conditioned that the construction company would faithfully perform the contract and pay all claims for labor, materials, supplies, etc. The bond was not filed for record in Pacific or any other county. The construction company having failed to pay for the powder and being unable to do so, the respondent, without having filed any notice of lien against any one, instituted this direct action against the appellant alone. Judgment was entered against the appellant for the amount prayed, this appeal resulting. The facts are not in dispute.

Respondent contends that it can recover on the bond as a statutory one and, if not, then upon it as a common-law obligation. Whether either of these theories is correct is determinative of this case.

Section 1129, Rem. & Bal. Code, reads as follows:

'Every person performing labor upon or furnishing material to be used in the construction, alteration or repair of any * * * railroad * * * has a lien upon the same for the labor performed or material furnished by each, respectively, whether performed or furnished at the instance of the owner of the property subject to the lien or his agent; and every contractor, subcontractor, architect, builder or person having charge, of the construction, alteration or repair of any property subject to the lien as aforesaid, shall be held to be the agent of the owner for the purposes of the establishment of the lien created by this chapter: Provided, that whenever any railroad company shall contract with any person for the construction of its road, or any part thereof, such railroad company shall take from the person with whom such contract is made a good and sufficient bond, conditioned that such person shall pay all laborers, mechanics, and materialmen, and persons who supply such contractors with provisions, all just dues to such persons or to any person to whom any part of such work is given, incurred in carrying on such work, which bond shall be filed by such railroad company in the office of the county auditor in each county in which any part of such work is situated. And if any such railroad company shall fail to take such bond, such railroad company shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor.'

Appellant avers that this section is unconstitutional in so far as it provides that a bond must be taken by the railroad company from its contractors to relieve itself from the liability of a lien against its property, because it was not included within the title of the act. In support of its contention it cites Armour & Co. v. Western Construction Co., 36 Wash. 529, 78 P. 1106. The first law upon this subject was passed in 1893, and in that act the words 'labor and materials' were used in the title of the act, but not the word 'supplies,' which was used only in the proviso. The purchase price of supplies was sought to be recovered in the Armour Case, and we there held that the word 'provisions' used in the proviso did not come within the reasonable scope of the meaning of the word 'materials' used in the title, and in so far as the act attempted to give a cause of action against the bond for supplies it was unconstitutional. In referring to the Armour Case, supra, in Laidlaw v. Portland, etc., R. Co., 42 Wash. 292, 84 P. 855, the court remarked that, in the Armour Case it was held that that portion of the body of the act which purported to create a liability upon a railway company for failure to take a bond from a contractor conditioned to pay for provisions is not sufficiently comprehended in the title.

'What the court would have held if the controversy had been concerning the failure to take a bond to pay for 'labor,' since labor is named in the title, does not appear from the decision.'

In 1905 the Legislature amended the act only by putting the words 'supplies and provisions' in the title of the act. In Tsutakawa v. Kumamoto, 53 Wash. 231, 101 P. 869, 102 P. 766, we held that this did not cure the original defect declared in the Armour Case, as the word 'provisions' appeared only in the proviso and not in the declaratory portion of the act, and that the Legislature cannot write an enacting clause and a proviso and call it a statute. Many other cases referred to declare that the whole portion of the act which requires the railway company to take a bond from its contractor to avoid liability is unconstitutional, but only in so far as supplies and provisions are concerned as being a liability, since they appear only in the proviso and not in the declaratory portion of the act.

In the Laidlaw Case, supra, the court practically held this bond feature of the act valid, since we said that the bond was to take the place of the lien; that is, if the bond was taken by the railway company, it relieved the property of the railway company from being lienable. But if the railway company neglected to take the bond, then a lien could be enforced against this property, and if this was not sufficient a personal judgment could be had for the balance. The court then said:

'Such a construction is urged by respondents, and we think it is entirely reasonable. It gives force to the whole section as pertaining

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