Peters v. Killibrew

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 á 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, * * '* [57] * * 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 Atl, 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; Tatout 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 Pac. 781, 35 L. R. A. 141, and note; National Fire Proofing Co. v. Town of Huntington, 81 Conn. 632, 71 Atl. 911, 20 L. R. A. (N. S.) 261; 129 Am. St. Rep. 228, and note; Morganton Hardware Co. v. Morganton Graded School et al., 150 N. C. 680, 64 S. E. 764, 134 Am. St. Rep. 953; 17 A. & E. Ann. Cases, 130, and note; Special Tax School District v. Smith, 61 Fla. 782, 54 So. 376; 26 A. & E. Ann. Cases, 757, and note; State v. Tiedermann, C. C. 7, 10 Fed. 20; Ford v. State Board of Education, 166 Mich. 658, 132 N. W. 467. As to the other question, the averments of the petition are to the effect that by the contract between plaintiff and Killibrew the plans and specifications for the building were made part of the contract and that said specifications contained the following: “Persons making proposals will be [58] required to deposit with their bids, a sum in cash, or by-certified check, equal to one per cent of the amount of their bid. If the party making a proposal for the work fails to execute a contract and give a satisfactory surety bond for the performance of such proposal, and give a satisfactory bond for the full amount of contract price against mechanic’s liens;- when same shall 'be awarded to him by the board of education, the deposit of such party shall be forfeited to the board as liquidated damages.” That the board waived and neglected to require Killibrew to give such bond against mechanics’ liens, and that by such negligence plaintiff was deprived of any remedy except under the mechanics’ lien statute; and that Killibrew_ had become bankrupt. It is not material to consider what rights the school district or any one else might have on such bond if it had 'been required or given, for the reason that plaintiff does not come within its terms. By its terms, as alleged, it was for protection against mechanics’ liens only, and, had it been given, it would have availed plaintiff nothing, he not being entitled to such lien. We have been cited to' no statute, nor are we aware of any., requiring the officers of the school district when entering into a contract for the erection of a school building, to take such bond, or any bond, for the protection of sub-contractors. Their failure to do so would not, therefore, render the district liable to such sub-contractor. For the reasons above stated we are of the opinion that the petition failed to state a cause of action against the school district, and that the demurrer thereto was properly sustained. The judgment of the district court, therefore, is affirmed. Affirmed. Potter, C. J., and Scott, J., concur...