George Bolln Co. v. North Platte Valley Irrigation Co.

121 P. 22, 19 Wyo. 542, 1912 Wyo. LEXIS 9

• Court: Wyoming Supreme Court
• Decided: February 13, 1912
• Docket: No. 678
• Status: Published

Opinion

Beard’, Chiee Justice.

This case comes to this court on questions reserved by the district court of Converse county and certified here for .decisión as to the constitutionality of Chapter 78 of the Session Raws, 1909, entitled: “An act to protect laborers, mechanics, ranchmen, farmers, merchants and other persons furnishing work or labor, material, ranch or farm products, goods or provisions, to contractors or sub-contractors in the construction of ditches, canals and reservoirs;” and now being Sections 3823, 3824 and 3825, Comp. Stat. 1910. The reserved questions being as follows':

‘T. In the passage of Chapter 78 of the Sssion Raws of Wyoming, 1909, did the legislature violate the provisions of Section 28 of Article III of the Constitution of the State of Wyoming?”

“2. Does the journal of the senate of the Tenth State Regislature of the state of Wyoming sufficiently show the signing by the president of the senate in the presence of the senate of Chapter 78 of the Session Raws of Wyoming, 1909?”

“3. Does the first sentence of Section 1 of Chapter 78 of the Session Laws of Wyoming, 1909, violate the provisions of Section 6 of Article I of the Constitution of the State of Wyoming?”

“4. Does the first sentence of Section 1 of Chapter 78 of the Session Laws of Wyoming, 1909, violate -the provisions of Section 1 of the fourteenth amendment to the Constitution of the United States?”

Section 28, Article III of the Constitution, referred to in the first question, is as follows: “The presiding officer of each house shall, in the presence of the house over which he presides, sign all bills and joint resolutions passed by the legislature immediately after their titles have been publicly read, and the fact of signing shall be at once entered upon the journal.” On this branch of the case two questions are presented. First — Is this provision of the constitution mandatory? And second — If so, does the senate journal show a compliance with such provision? The first question is very ably and elaborately discussed in State ex rel. Hynds v. Cahill, 12 Wyo. 225; and while the question was there left undecided because not necessary to a determination of. the case, we think one reading that discussion can arrive at no other conclusion than that the court as then constituted would have held the provision mandatory had it been necessary to decide the point. The court as now constituted deems it sufficient, without encumbering the reports by repeating what was there said, to concur in and adopt as the basis of its decision, the reasoning in that case, and to now hold the provisions of said Section 28, Article III of the Constitution to be mandatory.

Second — Does the senate journal show a compliance with that provision of the constitution ? It is contended by counsel for defendant that it does not; but, to the contrary, shows affirmatively that at the time the bill was signed by the president of the senate it bore a different title than that of Chapter 78, Session Laws, 1909, and relating to an entirely different subject.

The only entry found in the senate journal with reference to the signing by the president of the senate of the act in question is found on page 521, Senate Journal 1909, under the heading, “Signing of Enrolled Acts,” and is as follows: “Mr. President thereupon gave notice that he was about to sign, and he did, thereupon, in the presence of the senate, affix his official signature to the following enrolled acts, to-wit* * * “House Enrolled Act No. 73, original being: House Bill No.-96 — A bill for an act relating to the issuance of certificates o'f appropriation under permit, and to the use of the waters of the State of Wyoming for power purposes.” The journal entries under the heading and recital above set out, describe more than twenty bills as being then signed, two preceding and the others following the one set out above, and in each instance describes the bill in the same manner by giving the number of the enrolled act, the number of the original house bill and the title of the act. An examination of said Chapter 78, Session Raws 1909, on file in the office of the secretary of state, discloses that it bears at the top of the first page the following: “Original House Bill No. 69.” “Enrolled Act No. 73,” followed by the title and body of the act as published in the Session Laws 1909, as Chapter 78. The house journal shows that House Bill No. 96, bearing the title as recited in the senate journal, passed the house (H. J., p. 313), went to the senate and was there referred to a committee (S. J., p. 272), was reported back to the senate by the .committee without recommendation (S. J., p. 317), and was indefinitely postponed by the adoption of the report of the committee of the whole of the senate so recommending. (S. J., pp. 330-1). House Bill No. 96, therefore, never passed the senate or became an enrolled act. The history of House Bill No. 69, briefly stated, is as follows: as introduced and as it passed the house it bore the title of Chapter 78, S. L-, was amended in the senate, the house concurred in the senate amendment and passed the bill as amended, was reported by the house enrolling committee as properly enrolled as “Enrolled Act No. 73,” and as such signed by the speaker of the house. (H. J., pp. 154, 554, 557 and 579'; and S. J., pp. 314 439, 443 and 478.) House Bill No. 69, therefore, as shown by the journals, was regularly passed by both houses, was properly enrolled as “Enrolled Act No. 73,” and duly signed by the speaker of the house; and the enrolled act on file in the office of the secretary of state bears the signature of the speaker of the house, the president of the senate and of the governor, approving the same. If there was simply a conflict between the enrolled act and the senate journal as to the signing of the bill, the latter being the best evidence should control. But here we find not only such a conflict, but a conflict in the journal recital itself. Either the recital that the bill then signed was “House Enrolled Act No. 73,” or that it was “House Bill No. 96 — a bill for an act,” etc., is erroneous. We must therefore look beyond the single journal entry for evidence as to which of the two is correct. Tracing the history of the two bills — House Bill No. 69, and House Bill No. 96 — as shown by the journals,-wé have little difficulty in arriving at the conclusion that it was “Enrolled Act No. 73,” which was in fact House Bill No. 69. The senate journal recites that the president of the senate gave notice that he was about to sign and did then sign certain enrolled acts. Then follows the description of the bills then signed, and in each instance the number of the enrolled act is given as well as the other description; and had the journal, in this instance, contained the number of the enrolled act only, it would no doubt have been sufficient. Again, House Bill No. 96 never having passed the senate or become an enrolled act, could not properly have been among the bills then signed; while House Bill No. 69 had been regularly passed by both houses, and had been properly enrolled, bore the signature of the speaker of the house, and was in proper condition to be then signed by the president of the senate. How the error in the senate journal occurred we have no means of knowing; but it seems' quite probable that on that last busy session of the senate, the clerk inadvertently transposed the figures 6 and 9, and in writing up the journal in full from his minutes took the title from House Bill No. 96, instead of from Enrolled Act 73. But, however the error may have occurred, we think the recital in the journal, which is supported by the enrolled act and by all other recitals in the journal with reference to the bill, must be taken as speaking the truth and that the other description of the bill must be rejected as the erroneous one. Such being our opinion, the first reserved. question is answered in the negative, and the second in the affirmative.

The third and fourth questions call for a determination of the validity of the first sentence of section one of the statute in .question on other grounds. Counsel for defendant contend that it violates Section 6, Article I of the Constitution of this state, which provides, “No person shall be deprived of life, liberty or- property without due process of law;” and also the provisions of the fourteenth amendment to the Constitution of the United States, that- no state shall make or enforce any law' denying to any person within its jurisdiction the equal protection of the laws. The part of the statute thus questioned is as follows: “Whenever anv ditch or canal company, or other owner or owners, shall contract with any person, persons or corporation, for the construction of its, his or their ditch, canal or reservoir, or any part thereof, such company, owner or owners, shall take from the person, persons or corporation with whom such contract is made, a good and sufficient bond in some guarantee or' surety company authorized to do business in this state, conditioned that such contractor or contractors shall pay or cause to be paid all laborers, mechanics, material men, ranchmen, farmers, merchants and other persons who supply such contractor or contractors, or any of his or their sub-contractors with labor, work, materials, ranch or farm products, provisions or goods of any kind, all just debts incurred therefor in carrying on such work, which bond shall be filed by such company or other owner in the office of the county clerk and ex officio register of deeds in the county where the principal work of such contractor shall be carried on; and if any such ditch or canal company or other owner or owners shall fail to take such bond, such ditch or canal company or other owner or ownérs shall be liable to the persons herein mentioned to the full extent of all such debts so contracted by such contractor, or contractors, or any of his or their sub-contractors.” The other provisions of the act relating to actions on the bond, etc., are not involved in this' case.

The effect of the statute, if it can be upheld, is to extend the application of the principles' upon which mechanics’ lien laws are founded and to render the owner personally liable not only for the labor and materials which actually go into the improvement, and thereby enhance the value of the property, but also for all just debts incurred by the contractor or any of his sub-contractors for labor, work, material, ranch or farm products, provisions or goods of any kind in carrying on such work, unless he takes from the contractor the bond provided for by the statute. That the legislature cannot make the owner personally liable for other things or to a greater amount than it can create á lien upon his property we have no doubt; and if the statute under consideration does so, to that extent it is invalid. In many states the liens given for labor performed for, or for materials furnished to the contractor, or sub-contractor are limited by the statutes to the contract price between the'owner and the original contractor, or to a lesser amount, or to the amount due or to become due to the contractor at the time of giving notice, etc. In other states a lien is given for labor and materials without regard to the contract price or the state of the account between the owner and the contractor. The latter class of statutes has been many times attacked as unconstitutional on the grounds that are here urged against the statute above quoted. In a majority of the state courts, and in the federal courts, the constitutionality of such statutes have been upheld to the extent of the value of the labor or materials which have actually gone into the building or other structure or improvement, upon the principle that, equitably, those who have furnished labor or materials which have gone into' and thereby increased the value of the property should be compensated therefor by the owner who has been benefited thereby. Mant-eases are cited and reviewed by Judge Lurton in the case of Jones et al. v. Great Southern Fireproof Hotel Co., 86 Fed. 370, which decision was affirmed by the Supreme Court of the United States, 193 U. S. 532. But our statute goes much further and imposes upon the owner an obligation to require the contractor to give security for debts that he or any of his sub-contractors may contract with third persons for supplies and goods of any kind in carrying on the work, and which do not enter into or become a part- of the work, or enhance its value, and for which, but for the statute, the owner is in no wise liable. To illustrate.. The first eight items of the account in suit are:

“March 3. 2 kerchiefs 20, Oshoes 1.75, W. Sox 1.00, Rowe 2.95.

“Mits 1.25, 2 shirts 1.00, Underwear 2.75, Rowe 5.00.

“Jumper 85, Blánket 1.25, Rowe 2.10.”

The account containing many items of like kind, and also dry goods, pipes and tobacco, etc. Upon what principle of natural justice can one who lets a contract for the construction of a ditch, canal or reservoir be required to take security or to become personally liable for debts which may be contracted by the contractor or any of his sub-contractors for goods or supplies which do not enter into the work or add to its value and from which one derives no benefit? What justice is there in requiring a homesteader, desert entryman or other land owner who lets a contract for the construction of a ditch to conduct water onto his land to take security from such contractor that he (the contractor) will pay all debts contracted by him or any of his, sub-contractors for groceries, clothing, bedding, etc.-, in carrying on the work? We confess we can see none. The statute goes beyond the principles upon which lien laws have been sustained, viz:' that the property is enhanced in value to the extent of the value of the labor and materials actually going therein. In the Jones case, supra, 86 Fed., oh page 388, it is said: “If, then, this statute does not unduly restrain the owner’s liberty of contract, considered as an incident to 'the right of owning, possessing and enjoying property, the law must be constitutionally unobjectionable. If, however, this legislation is the mere arbitrary exercise of .the powers of government, unauthorized by the established principles of private right, and not having the sanction of natural justice, it is not the law of the land. But we have already seen that the underlying purpose of the act is not to arbitrarily and unnecessarily oppress the owner in any incident of his right as owner, but to secure those who, by their labor or materials, have contributed to the improvement of the owner’s property. That the liens under consideration are given to secure debts which are primarily the debts of another would be fatal to the legislation, as taking the property of one to pay the debts- of another, but for the equity arising from the use of the labor and materials by the owner.” In the present case there is no allegation that a single item of the account sued on was for labor or materials that went into the work; but for goods, wares and merchandise to be used as supplies in the construction'of a tunnel on the line of an irrigating canal, as set forth in an itemized account attached to the petition, the account consisting principally of provisions, clothing, bedding, hay and grain. .The equities upon which the law giving a lien for labor and materials was upheld in the Jones case are entirely wanting in this case; and the statute, insofar as it requires the owner to take security or become personally liable for other debts of the contractor or sub-contractors than for those things —labor or materials — entering into the construction of the work and contributing to the improvement of the property and enhancing its value, in effect takes the property of the owner to pay the debts of another and is “fatal to the legislation.”

A statute of Kansas 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 material men, and persons who supply such contractor with provisions or goods of any kind, all just debts due to such persons, or to any person to whom any part of such work is given, in carrying ■'on such work,” etc. This seems to have been taken as the model from which our statute was drawn, as it appears to be in almost identical language with a few additions and extending the liability to, debts contracted by any sub-contractors; and as we learn by reference to the House Journal, pp. 251 and 2, the words “In some guarantee or surety company authorized to do business in this state,” were not in the original bill but were inserted by amendment. We are aware that the Kansas statute has been enforced by fhe courts of that state, but fail to find where its constitutionality has been raised, or passed upon by the courts of that state on the questions involved in this case.

In California a statute required a bond to be filed with the contract in at least twenty-five per cent, of the contract price to secure laborers and material men; and providing that a failure so to do made the owner personally liable. The statute had been enforced by the courts for some time without its constitutionality being questioned on the grounds that it deprived the party of his liberty of contract, or of his pfoperty without due process of law, or of equal protection of the laws. But the statute was so attacked in the case of Gibbs v. Tally, 133 Cal. 373, 65 Pac. 970, and held unconstitutional as violative of Section 1, Article I, of the constitution of that state, and the fourteenth amendment to the Constitution of the United States. Statutes making a railroad company liable for labor and materials instead of giving a lien on the road therefor have been upheld upon the same principle and to the same extent as mechanics’ lien laws, but no further, so far as we have been advised.

Another objection to this statute urged by counsel for defendant, while not a constitutional question, may be properly mentioned here. That is, the amount or penalty of the bond. The statute requires a good and sufficient bond conditioned for the paymeiit of all just debts contracted by the contractor or any of his sub-contractors, for specified items, in carrying on the work, but fails to provide any method by which the amount of the liability can be determined at the time the bond is executed. It seems unreasonable to require a bond in an unlimited amount; and equally unreasonable to suppose that any surety or guarantee company would be willing to become surety on a bond so conditioned without the extent of its liability being therein fixed at a specific sum. Suppose the owner takes a bond in an amount reasonably believed to be sufficient at the time, but it should turn out to be entirely insufficient in amount. By the terms of the statute he would be personally liable at least for the excess. When a bond is required by -a statute it should provide some method by which the obligor and his sureties —and in this instance the owner as well — can ascertain and fix a definite amount beyond which they could not be held.’ Whether a bond, if given, containing no penalty, would be valid and enforcible is quite a different question from requiring a bond containing certain conditions without prescribing the penalty for a breach of those conditions. Perhaps this defect might be cured by a provision for an official approval of the bond, in which case such approval might be held to attest the sufficiency of the penalty as well as of the sureties.

The only remaining question to be considered is, that the bond required by the statute must be “in some guarantee or surety company authorized to do business in this state.” Prior to the adoption of this statute, and a similar one applying to railroad companies, passed at the same session of the legislature, all bonds required by law, so far. as we have béen able to discover, were permitted to be given with either personal or surety company security; and if personal security is sufficient for public officers, executors, administrators, etc., and in court proceedings, why not in this class of bonds? As said by the supreme court of Ohio in the case of State v. Robins, 71 O. St. 273-291, “It is very plain that the security companies may be greatly benefited by this legislation, but an adequate corresponding benefit or protection to the general public, such as would justify such a radical and drastic limitation upon individual, rights, is not apparent.” The Ohio statute considered in that case requiring official bonds (with certain exceptions) and administrators’ bonds above $2,000, to be surety company bonds, unless an affidavit was filed that application had been made to such company and refused, was held to be unconstitutional. The statute we are considering places it within the power of the half dozen surety companies authorized to do business in this state to prevent any ditch or canal company, or other owner, from letting a contract for the construction of any ditch, canal or reservoir, except under the penalty of becoming personally liable for the unlimited debts of others for things which have not gone into the work, and due to persons with whom the owner has no com tractual relations. Or, if .they become surety on such bond, they may charge what they please therefor. Such a requirement, in our opinion, is not only an unwarranted restriction upon the liberty to contract, but a denial of the equal protection of the laws: and insofar as the statute requires a surety or guarantee company bond, and creates a personal liability for other things than labor and materials which actually go into the work and thereby enhance the value of the property, it must be held to be unconstitutional and void. To that extent the third and fourth questions are answered in the affirmative.

Scott and Potter, JJ., concur.