Peters v. Killibrew

• Decision Date: 14 February 1916
• Docket Number: 858
• Parties: PETERS v. KILLIBREW, ET AL
• Court: Wyoming Supreme Court

154 P. 996

24 Wyo. 53

PETERS v. KILLIBREW, ET AL

No. 858

Supreme Court of Wyoming

February 14, 1916

ERROR to the District Court, Converse County; HON. CHARLES E WINTER, Judge.

Action by Howard G. Peters against W. L. Killibrew and another. Judgment for defendant and plaintiff brings error. The facts are stated in the opinion.

Affirmed.

Stansbury & Stansbury, for plaintiff in error.

The court erred in holding that school property is not subject to a mechanic's lien and that a judgment could not be rendered against a high school district because not enforcible by execution; the court also erred in holding the district not liable for negligence in not requiring a builder's bond from the contractor. The demurrer of the high school district admitted all facts pleaded. (State v. Grant, 12 Wyo. 5; State v. Irvine, 14 Wyo 351.) Comp. Stats, 1910, Section 3799, when read in its plain or ordinary and usual sense must be construed as being sufficiently broad to warrant a lien against the property of a high school district; the district is a body corporate (Section 2052 Comp. Stats. 1910), and is liable under the lien laws. (Municipal Corporations, Section 9; Davoust v. City of Alameda, 84 P. 7; Shipley v. Hachney, 55 P. 971; Cook on Corporations, Section 1.) No particular manner is prescribed by statute for bringing an action against the State, or any political subdivision thereof; there is no limitation on the term owner as used in the statute. (Davis v. Lumber Company, 14 Wyo. 523.) The District is an owner and is not exempt. (18 Cyc. 1380; People v. Society, 87 Ill. 246.) Exemptions of public property are defined by Section 4765 Comp Stats. 1910. A lien is a creature of statute. (Wyman v. Quayle, 9 Wyo. 326.) The Mechanic's Lien law has not been abrogated by an exemption statute. Our Constitution provides for protection of labor, (Art. 1, Section 22), and directs that laws of a general nature shall have a uniform operation. (Art. 1, Section 34.) The Constitution prohibits the taking of private property for public use without compensation. (Art. 1, Section 3.) Public property is exempt from taxation by the Constitution, (Art. 15, Sec. 12), but not for debts. Persons furnishing labor or material, which have gone into and enhanced another's property, should be compensated. (George Bolln Co. v. Irrigation Co., 19 Wyo. 552.) The statute gives the right to a lien. (Becker v. Hopper, 139 P. 179.) The Missouri decisions are not controlling. (Becker v. Hopper, rehearing, 147 P. 1086.) Under a similar statute it is held in Kansas that a lien would lie against school property. (Wilson v. School District, 17 Kans. 104; School District v. Conrad, 17 Kans. 522.) See also Board of Commissioners v. Snodgrass, 34 P. 741. The above case seems to be directly in point. The district was negligent in not requiring the execution of a bond, (Hydraulic Co. v. School District, 79 Mo.App. 665), and is therefore liable. (35 Cyc. 953; McKnight v. Parish, 30 La. 361.) Illinois recognizes the right of lien against public property. (Board v. Greenbaum, 30 Ill. 609.) There is no logical reason why a public corporation should not be liable for its indebtedness. A judgment may be rendered against a school district. (Western Tube Company v. District, 15 Wyo. 356.) Our position is supported by Lee v. Broley, 11 West L. Rep. 38; Mallet v. Kover, 14 West L. Rep. 327. See also McGarvey v. Swan, 17 Wyo. 120; Rathfon v. Payette District, 149 P. 1044. The question should be disposed of on principle. (Coal Co. v. State, 15 Wyo. 98; Ine re Emslie, 102 F. 291.) The court having acquired jurisdiction should confer complete relief.

John D. Clark, for defendant in error.

Defendant's demurrer was properly sustained by the trial court. The lien law is general in its terms, but unless public property is made subject to mechanics' liens, it is generally considered exempt. (27 Cyc. 25; Morganton Hardware Company v. Morganton Graded School, 150 N.C. 680, 17 Ann. Cas. 130; School District v. Smith, 61 Fla. 782.) Board v. Greenbaum, 39 Ill. 609, was subsequently overruled. Public property by the great weight of authority is exempt from mechanics' liens. (Bank v. County, 35 L. R. A. 141; National Co. v. Huntington, 20 L. R. A. N. S. 261; State v. Kilburn, 81 Conn. 9; Bridgeport v. Hubbell, 5 Conn. 237, 243; Wetherell v. Hollister, 73 Conn. 622, 625, 48 A. 826; Kelley v. Killourey, 81 Conn. 320, 70 A. 1031; Chaplin v. Persse & B. Paper Works, 30 Conn. 461, 79 Am. Dec. 263; Hubbell v. Kingman, 52 Conn. 17, 19.) A contrary rule appears in a few decisions of other states, among them the State of Kansas, but the weight of authority is against it. (Lessard v. Revere, 171 Mass. 294, 50 N.E. 533.) The bond provided by statute to be taken is for the protection of school districts and not for materialmen. A bond cannot help them, because they are not entitled to a lien under the law. (Hutchinson v. Krueger, 124 P. 591), which under the facts was a much stronger case than the one at bar.

BEARD, JUSTICE. POTTER, C. J., and SCOTT, J., concur.

OPINION

BEARD, JUSTICE.

The defendant in error, Converse County High School, is a school district and body corporate, organized and existing under and by virtue of Chapter 142, Comp. Stat. 1910. The other defendant in error, Killibrew, had a contract with the school district to furnish the materials for, and to construct a school building for said school district. The plaintiff in error furnished to Killibrew certain brick for said building. Killibrew failed to pay for all of said brick, and plaintiff sought by this action to hold the school district for the balance due him for said brick, and to establish and enforce a mechanic's lien on the building and the lots on which it is situated. A general demurrer was sustained to the petition, judgment was rendered for defendant for costs and plaintiff brings error. But two questions arise in the case. First: Is the property subject to mechanics' liens? And second: Is the school district otherwise liable under the facts alleged in the plaintiff's petition?

The first question has been before the courts of last resort in many of the states upon statutes similar to those of this state, and it has been almost uniformly held that public property, such as the school building and the lots upon which the same is situated as in this case, are not subject to mechanics' liens in the absence of a statute expressly so providing; and that such general or comprehensive language as is used in our statute, "Every mechanic or other person who shall do or perform any work or labor upon, or furnish any materials, * * * * for any building, erection or improvement upon land, * * * * shall have * * * * a lien upon such building," (Comp. Stat. 1910, Sec. 3799), etc., does not, under the well settled rules of construction of statutes, include public property such as court houses, school buildings, etc., belonging to the county or school district and used for public purposes. We shall not attempt to review the numerous decisions, or to quote from them, but content ourselves by saying that the reasons assigned for so holding in the numerous decisions accord with our views, and that such is the proper construction to be placed upon our statute. In support of our conclusion we cite the following cases from among many: A. L. & E. F. Goss Co. v. Greenleaf, 98 Me. 436, 57 A. 581; Phillips v. University, 97 Va. 472, 34 S.E. 66, 47 L. R. A. 284; Atascosa County v. Angus, 83 Tex. 202, 18 S.W. 563, 29 Am. St. Rep. 637; Board of Commissioners of Parke Co. v. O'Conner, 86 Ind. 531, 44 Am. Rep. 338; Fatout v. Board of School Commissioners of Indianapolis, 102 Ind. 223, 1 N.E. 389; Knapp v. Swaney, 56 Mich. 345, 23 N.W. 162, 56 Am. Rep. 397; Abercrombie v. Ely, 60 Mo. 23. For a more extended list of decisions on the question see, 20 A. & E. Enc. L. (2nd Ed.) 295; 27 Cyc. 25, 26; First Nat'l Bank of Idaho v. County of Malheur, 30 Ore. 420, 45 P. 781, 35 L. R. A. 141, and note; National Fire Proofing Co. v. Town of Huntington, 81 Conn. 632, 71 A. 911, 20 L. R. A. (N. S.) 261; 129 Am. St. Rep. 228, and note; Morganton Hardware Co. v. Morganton Graded School et el., 150 N.C. 680, 64 S.E. 764, 134 Am. St. Rep....