National Bank v. Petterson

102 Ill. App. 501, 1902 Ill. App. LEXIS 556

• Court: Appellate Court of Illinois
• Decided: July 2, 1902
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion of the court.

Counsel for appellant call attention to the following excerpt from section 204 of Sutherland on Statutory Construction.

“ When a statute creates a right and also provides the remedy, the latter is exclusive; it implies the negation of any other.”

The section of the statute under consideration in this case is a part of a statutory enactment in respect to mechanics’ liens. The statute gives liens and provides methods for the enforcement thereof. Section 24 provides for a lien on the “ money bonds or warrant,” “ due or to become due ” to any contractor for a public improvement; and makes it the duty of the officials whose.duty it is to pay the contractor, having been notified of the lien,‘‘to withhold a sufficient amount to pay such claim until it is admitted or by law established and thereupon to pay the amount thereof to such person ” (lienor).

It is manifest that a person bringing himself within the laws of this statute can compel the city to pay him the amount which its officials (agents) are commanded to withhold and pay to him.

Having under the statute obtained a lien upon money, bonds or warrants due or to become due a contractor, and duly notified the proper officials of his claim, neither the city nor its officials can deprive him of his lien by transferring the subject thereof; nor can any action upon their or its part divest bonds or warrants of the lien which he has thereon. Spalding Lumber Co. v. Brown, 171 Ill. 487-493.

It is conceded that the special assessment bonds are not negotiable instruments. Such being the case appellee holds those it has, subject to the liens existing thereon when they were held by the city. Other sections of the act provide a remedy by proceedings in a court of chancery for liens accruing under section 24, as well as other sections of the mechanics’ lien act.

The remedy by suit against officials “ violating the duty ” imposed is cumulative, not exclusive of that provided by other portions of the statute. If section 24 were an act by itself, it might well be argued that the remedy therein provided was exclusive; a rule being that the provisions and objects of the particular enactment must be looked at in order to discover whether it was intended to confer a right which might be the subject of a common action, or to create a duty sanctioned only by a particular penalty; in which latter case the only remedy for breach of the duty would be by proceedings for the penalty. Vallance v. Falle, L. R. 13, Q. B. Div. 109; O’Flaherty v. McDonnell, 6 House of Lords Cases, 141.

The decree of the Circuit Court is affirmed.