Randolph v. Builders' & Painters' Supply Co.

• Decision Date: 16 May 1895
• Citation: 106 Ala. 501,17 So. 721
• Parties: RANDOLPH ET AL. v. BUILDERS' & PAINTERS' SUPPLY CO.
• Court: Alabama Supreme Court

17 So. 721

106 Ala. 501

RANDOLPH ET AL. v. BUILDERS' & PAINTERS' SUPPLY CO.

Supreme Court of Alabama

May 16, 1895

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

The bill in this case was filed by the appellee corporation, the Builders' & Painters' Supply Company, against Mary A Randolph, A. Schultz and M. Dominitz, for the purpose of enforcing a material man's lien upon a house and lot of the respondent, Mary A. Randolph. It is averred in the bill that the complainant furnished material to A. Schultz, who was a contractor with the said Mary A. Randolph for the erection of a building and other improvements upon a lot owned by her, which materials were used by said A. Schultz in the erection of said building; that the complainant also furnished materials to M. Dominitz, a subcontractor of A Schultz, which materials were also used in the erection of said buildings; and that it, complainant, had not been paid for said material. It was also further averred in said bill that Mrs. Mary A. Randolph "made payment to the said Schultz as said contractor for services performed and materials furnished under said contract, without demanding of said contractor a complete list of all material men, laborers and employés who had furnished any material or thing, or had done any labor or performed any service or was under any contract or engagement to furnish any material or thing, or to do any labor or service for said contractor," etc as provided by the statute. The bill also avers that the complainant has done such things as are necessary to enforce a lien upon the property of the respondent, Mrs. Mary A Randolph, as provided by the act of the general assembly, approved February 12, 1891, and the prayer of the bill is for the enforcement of the material man's lien for the material so furnished to the contractor Schultz and to the subcontractor Dominitz. The respondent, Mrs. Mary A. Randolph, demurred to the bill, among others, upon the following ground: "That the said bill seeks to hold defendant liable for money that it shows she had already paid to Schultz, because she had not demanded of said Schultz a list of laborers and material men as required by the act of the general assembly, approved February 12, 1891; and respondent avers that said act is unconstitutional, and not binding on her." Upon the submission of the cause, upon the demurrers interposed, the chancellor decreed that they were not well taken, and overruled them. This appeal is prosecuted by the respondents, who assign as error the decree of the chancellor overruling the demurrer interposed to the bill. Reversed.

David T. Blakey, for appellants.

Horace Stringfellow, for appellee.

HARALSON J.

The caption of the act we are to construe is "An act to provide liens for mechanics and material men, and to repeal sections 3018, 3022, 3025, 3026, 3028, 3041, of the Code, and section 3027, as amended by the acts of 1888-89" (Acts 1890-91, p. 578). It is claimed by the appellant, that this statute is obnoxious to that provision of the constitution of this state (article 4, § 2) which provides, that "each law shall contain but one subject, which shall be clearly expressed in its title."

1. We have heretofore held in respect to this statute, that it was intended to be, and was, in effect, an amendment of the mechanic's lien law as we have it in the Code of 1886; that a repeal of a few of the sections of the old law, replacing them by other provisions deemed harmonious with the parts of the old not repealed, indicated legislative intent to amend the former statutes, so as to create an enlarged and amended system of laws on this subject, which would be complete within itself. Birmingham Building & Loan Ass'n v. May & Thomas Hardware Co., 99 Ala. 276, 13 So. 612; Colby v. St. James M. E. Church, 99 Ala. 259, 13 So. 516; Wimberly v. Mayberry, 94 Ala. 251, 10 So. 157; Wadsworth v. Hodge, 88 Ala. 503, 7 So. 194.

2. Fortunately, our former decisions on the question now presented, relieve us from any necessity for its further discussion, and we do no more now than repeat, for the purpose in hand, what has been heretofore said. "The intention of this constitutional provision," said the court, was, "that the title to the act or bill should inform the members of the legislature, and perhaps the public, of the subject on which the former were invited to vote and legislate. Matters foreign to the main objects of the bill had sometimes found their way into bills,-surreptitiously, at times, it was charged,-and thus members were induced to vote for measures in ignorance of what they were doing. The constitutional provision intended to render this abuse impossible." "This court has committed itself in favor of the following propositions, which are in harmony with the rulings elsewhere, in the best considered cases: That the clause is mandatory; that its requirements are not to be exactingly enforced, or in such manner as to cripple legislation; that the title of a bill may be very general, and need not specify every clause in the statute. Sufficient if they are all referable, and cognate to the subject expressed. And when the subject is expressed in general terms, everything which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in, and authorized by it." Ballentyne v. Wickersham, 75 Ala. 533, and authorities there cited; Wolf v. Taylor (Ala.) 13 So. 688.

3. It seems to be a general rule that the title to an amendatory act, reciting the title of the amended act, will be sufficient, if the new matter contained in the amendatory, is fairly indicated by the original act, and that the amendment of a statute is a subject within the constitutional requirement, that the subject of a statute shall be embraced in its title. 23 Am. & Eng. Enc. Law, 268, and authorities cited; Suth. St. Const. § 101. The title of this amendatory act does not recite the title of any other act, but proceeds as an independent act, although, as we have held, its evident design was of an amendatory character. As indicated by the title alone, it would appear to be legislation, intended to create an entirely new system of law on the subject indicated in the title.

4. An application of these rules of this statute, makes the result inevitable. It will be noticed, that the title is, "to provide liens for mechanics and material men." One would say, that mechanics as a class,-those employed in mechanical labors, artisans, artificers,-and material men, who supply material such as are used by mechanics in their trade, were the persons to be provided for in the act, and who were referred to in its title. Yet, section 2 provides for the lien for "every mechanic, firm, association, corporation,"-and to be sure to omit no one, there was added, "or other person," who does what is required to give the lien, whether it is to do or perform any work or labor, or furnish any materials. It thus appears that persons are included in the body of the act, other than those referred to in its caption. The section then provides, that any of these, "who shall do or perform any work or labor upon, or furnish any material, fixtures, engine, boiler, or machinery for any building, article, improvement or utility on land, or for altering, repairing or beautifying the same, under or by virtue of any contract with the owner or proprietor thereof," etc., "shall have a lien there for on such building, article, improvement or utility, and on the land on which the same is situated." What is meant by "article" on land, perhaps no one but the party who drew the bill can tell with certainty, but it must necessarily mean something on land, for which material, fixtures, engine, boiler, or machinery may be furnished.

5. When analyzed for the sake of arriving at the meaning of a sentence somewhat involved and lacking in clearness, the extract quoted above may be restated as follows: "(1) Who shall do or perform any work or labor on land; or, (2), who shall furnish any material, fixtures, engine, boiler, or machinery for any building, article, improvement or utility on land, or for altering, repairing or beautifying the same, by virtue of any contract with the owner or proprietor thereof, shall have a lien therefor, on such building, article, improvement or utility, and on the land on which the

same is situated." So, it is land, or the building article, improvement, or utility on land, on which labor and work are to be bestowed, and for which the material and other things specified in the statute are to be furnished. Who then, besides mechanics and material men, supplying materials used by mechanics, are not included, and for what kind of work or labor on the land to make the same useful and ornamental, does the statute not provide? The word "utility," is defined to mean: "The state or quality of being useful; usefulness; production of good; advantageousness; profitableness; benefit; service; profit; avail." Worcester. Anything that may be placed on land, which answers this definition of utility, the statute is meant to cover. It goes further and extends to the altering, repairing, or beautifying of any building, article, improvement or utility on the land. Among other things, it seems, it may include such improvements as ditching, hedging and fencing dams and ponds, opening mines and quarries, cultivating crops, planting and tending orchards and graperies, and landscape and flower gardens. In some states, the lien is extended to the persons furnishing labor or materials in construction of the improvements just specified, and to almost every other conceivable fixture, structure, improvement, or utility on land; and if anything of such...