Joseph B. Dunn & Sons v. Brager

• Decision Date: 23 June 1911
• Parties: JOSEPH B. DUNN & SONS v. BRAGER.
• Court: Maryland Court of Appeals

81 A. 516

116 Md. 242

JOSEPH B. DUNN & SONS v. BRAGER.

Court of Appeals of Maryland

June 23, 1911

Appeal from Circuit Court of Baltimore City; Chas. W. Heuisler Judge.

Action to enforce a mechanic's lien by Joseph B. Dunn & Sons subcontractors, against Albert A. Brager, in which Charles Lee Merrikin, trustee in bankruptcy of the Engineering & Contracting Company, contractor, intervened as a party defendant. Judgment for defendants on sustaining demurrers to the bill, and plaintiffs appeal. Affirmed.

Argued before BOYD, C.J., and PEARCE, BURKE, URNER, and STOCKBRIDGE JJ.

Randolph Barton, Jr., for appellants.

Louis N. Frank and Carville D. Benson, for appellees.

PEARCE J.

The bill of complaint in this case was filed by the appellants, for the enforcement of a mechanic's lien claim for work done and materials furnished and used in the construction of a building belonging to Albert A. Brager, originally the sole defendant, and situated in the city of Baltimore. This work was done and materials furnished under a contract between the appellants and the Engineering & Contracting Company, a body corporate, engaged in the erection of said building for the said Brager under their contract with him, and all the formal requirements of law preliminary to the enforcement of a valid claim were complied with. The said Brager, however, demurred to the whole bill, assigning three grounds of demurrer: (1) Because the plaintiffs have not stated in their bill such a case as entitles them to any relief in equity against him. (2) Because the court is without jurisdiction to grant the relief prayed. (3) Because there is no valid law of the state of Maryland which entitles the plaintiffs to the right to a mechanic's lien, as stated in their bill. Thereafter, the Engineering & Contracting Company having been adjudicated a bankrupt, Charles Lee Merrikin, its trustee in bankruptcy, was on his petition made a party defendant, and he filed the following demurrer and answer:

"Answering said bill of complaint, this respondent says:

"(1) That this respondent admits the allegations contained in paragraphs 1, 2, 3, 4, and 5 of said bill, but denies that the act of Assembly of the state of Maryland of the year 1910, chapter 52, is a valid and legal statute of the state of Maryland, giving a mechanic's lien for materials, in the city of Baltimore: Because section 30 of the Constitution of the state of Maryland provides as follows: 'Every bill, when passed by the General Assembly and sealed with the great seal, shall be presented to the Governor, who, if he approves it, shall sign the same in the presence of the presiding officers and chief clerks of the Senate and House of Delegates.' And because said alleged act of Assembly, known as chapter 52 of the Acts of 1910, when passed by the General Assembly and sealed with the great seal, read, in part. as follows: 'Every building erected and every building repaired rebuilt or improved to the extent of one fourth its value in Baltimore City and in any of the Counties shall be subject to a lien for the payment of all debts contracted for work done for or about the same and in the Counties Every such building shall also be subject to a lien for the payment of all debts Contracted for Materials furnished for or about the same'--as will more fully appear by the original act, as passed by the yea and nay vote of the Senate and House of Delegates of the state of Maryland, which is herewith filed, marked 'Respondent C. L. M. Exhibit A,' and which it is prayed may be taken as part hereof, and as will more fully appear by said original bill, as engrossed and referred to the Attorney General, and by the advice of said Attorney General, and at the request of the General Assembly of Maryland, returned to said General Assembly for amendments, and, as amended passed by said General Assembly by the yea and nay vote of each house thereof, and sealed with the great seal of the state of Maryland, as will more fully appear by said last-mentioned bill, which is herewith filed, marked 'Respondent C. L. M. Exhibit B,' and which is prayed may be taken as part hereof.

"And said alleged act of Assembly, when passed and sealed as aforesaid, was enrolled, and during said enrollment, through error inadvertence, was made to read, by the improper, inadvertent, and unauthorized insertion of a period, contrary to the acts and intent of the General Assembly of Maryland, as follows: 'Every building erected and every building repaired rebuilt or improved to the extent of one fourth its value in Baltimore City and in any of the Counties shall be subject to a lien for the payment of all debts contracted for work done for or about the same and in the Counties. Every such building shall also be subject to a lien for the payment of all debts Contracted for Materials furnished for or about the same.' And as enrolled as last above set forth was signed by the Governor of the state of Maryland, and by reason thereof said act of Assembly, signed as aforesaid, is not a valid

law of the state of Maryland. And because said alleged act, as signed by the Governor of the state of Maryland, 'was not passed in each house by a majority of the whole number of members elected,' in accordance with the requirements of section 28 of the Constitution of the state of Maryland. Wherefore, having as fully answered said bill as this respondent is advised is necessary and proper, this respondent prays to be hence dismissed with costs. And as in duty bound, etc. Carville D. Benson, Sol. for Respondent. Chas. Lee Merriken, Respondent. [Affidavit attached.]"

An agreed statement of facts was filed, admitting that "C. L. M. Exhibit A," referred to in the answer, is the original bill mentioned therein as passed by the General Assembly of Maryland, and that "C. L. M. Exhibit B," referred to in the answer, is the enrolled copy of said bill so passed, and presented to the Governor of the state for his signature, and that these exhibits should be used in the circuit court and in this court, for the purpose of viewing the writing and punctuation, and for any purpose for which they would be admissible, if regularly offered and proved; but the plaintiffs reserved the right to object to their admissibility as evidence for any purpose. The testimony of Carville D. Benson, a member of the House of Delegates of Maryland at the January Session of 1910, when the bill referred to was passed, and who was thoroughly familiar with the method and routine of enacting laws, and with the history of the passage of that particular bill, was also taken, and he explained at length every step in its passage, in support of the averments of the answer relating thereto. The plaintiffs objected to the introduction of Exhibits "C. L. M. A" and "C. L. M. B," and to all the evidence of Carville D. Benson, and, these objections being overruled, they excepted to these rulings, and the court sustained the demurrers and dismissed the bill, and this appeal is from that decree. The record thus raises the question, both of the validity and interpretation of chapter 52 of the Acts of 1910, relating to mechanics' liens.

The appellants contend that the act is valid, and that by its provisions a lien is given in Baltimore city, as well as in the counties of the state, for the payment of debts, both for labor and material. The appellee contends that under the true interpretation of the act the lien for material debts is confined to the counties, and does not exist in Baltimore city, and also suggests, rather than contends, that the act, as signed and printed in the published volume of Laws of 1910, differs from the act as it actually passed the General Assembly, and is therefore not a valid act at all. The circuit court held the act to be valid, and sustained the interpretation placed upon it by the appellee.

The most satisfactory way to determine what was the situation after the passage of chapter 52 of 1910 is to ascertain what was the situation immediately preceding its passage. At that time section 1 of article 63, Public General Laws, title "Mechanic's Lien," was as follows:

"Every building erected and every building repaired, rebuilt or improved to the extent of one fourth its value in Baltimore city and in any of the counties shall be subject to a lien for the payment of all debts contracted for work done for or about the same; and in the counties, except Baltimore county, every such building shall also be subject to a lien for the payment

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