Municipal Engineering & Contracting Co. v. City of Farmer City

Mr. Presiding Justice Eldredge delivered the opinion of the court. It is urged that no mechanic’s lien can be enforced for any material, apparatus or fixtures that did not enter into and become a part of the improvement, and the argument of counsel for the appellant in support of this contention is particularly addressed to the claims of the Municipal Engineering & Contracting Company and Alexander Lumber Company. The lien of the former is for rental for the two machines and the repairs on the same. They consisted of a sewer excavating machine and a hack filler. The furnishing of material, apparatus or machinery to a contractor, which is not attached to or does not become a part of the improvement, cannot be made the basis for a mechanic’s lien by a subcontractor under the laws of this state, and no lien should have been allowed for the rental of these machines nor for the repairs thereon. R. Haas Elect. & Mfg. Co. v. Springfield Amusement Park Co., 236 Ill. 452. And it makes no difference whether such articles were bought or rented by the contractor. McAuliffe v. Jorgenson, 107 Wis. 132. The lien of the Alexander Lumber Company, in so far as it is represented by lumber used in the shoring or bracing of the trench, for trackage for the trenching machine and the portion taken away by it, can not be sustained. Rittenhouse & Embree Co. v. F. E. Brown & Co., 254 Ill. 549. It follows also that the lien of S. Gr. Arbogast should not have been allowed for that part of his claim based upon the rental of an engine and pump for the pumping of water from the trench, the gasoline and oil used in the running of the engine and pump, the tile used for running the water off which did not become a part of the improvement, and the charges for hauling the tank and pump. Likewise, it was error to allow the lien of H. L. Williams in so far as it was based upon his claim for pipe and fittings used in running the water from a tank to the engine, to the mixing boxes and to the concrete mixer. So, also, no lien should have been allowed upon the 'claim of Joseph C. G-ould for repairs upon the machines and tools. For the same reason the allowance of a lien to E. M. Burr & Company for the pipe used in holding the sheeting and stringers in place which did not become a part of the improvement cannot be sustained. In our opinion, however, none of the liens established by the decree can be maintained for other reasons. The act providing for mechanics’ liens, being in derogation of the common law, in this State receives a strict construction. Schmidt v. Anderson, 253 Ill. 29; Turnes v. Brenckle, 249 Ill. 394. It has also been held that a strict construction shall apply to the Local Improvement Act in so far as determining the liability of a city under the act is concerned. City of Chicago v. Brede, 218 Ill. 528. It is claimed by appellees that the money payments made to the contractor out of the general, special and general-special funds were illegally made and that the city should be charged with having that amount of money on hand. The amount so paid- was $6,631.32. The ordinance provided that the cost of the sewer to the amount of $8,000 should be raised by general taxation. Ample time had elapsed between the passage of the ordinance and these payments to have levied and collected this general tax. There is nothing in the record to show that this was not done. If this general tax had been collected and was in the treasury of the city, and if these payments were made out of the money procured by a general tax for such purpose, then they were legally made. First Nat. Bank of Du Quoin v. Keith, 183 Ill. 475. Under the pleadings in this case the burden of proving the liability of the city was upon appellees. Section 39 of the Local Improvement Act (J. & A. 1429) makes it the duty of the officer making the assessment to estimate what proportion of the total cost of the improvement would be of benefit to the public, and section 41 (J. & A. ft 1431) provides that the assessment roll shall show what amount has been so assessed against the public and against each tract of land, and the amount of each instalment. No assessment roll was introduced in evidence. . Counsel for appellees did make an offer to introduce a portion of the assessment roll, stating that the offer was limited to a description of the lots etc., name of the owner, total amount assessed, its division into five instalments with the affidavit of the officer preparing the same, file mark of the county court, the amount assessed as a whole and the amounts of the different instalments. This offer was objected to by appellant and the court made no ruling on the objection. Neither the assessment roll, nor even that part which was offered, appears in the record, and all the information that can be gathered from the offer, with the exception of the amounts of the five different instalments, is substantially what has been stated above. An assessment roll and the order of its confirmation are the basis of a special assessment under the Local Improvement Act, are jurisdictional, and without which no assessment proceedings can be maintained. Morrison v. City of Chicago, 142 Ill. 660. In order for appellees to sustain their bills and intervening petitions in the court below, it was essential for them to prove that an assessment roll had been filed and that a judgment of confirmation had been entered thereon. Such evidence was the foundation of their case, and upon its proof depended the competency of the other proof offered. The assessment roll not having been introduced in evidence, we have no means of knowing whether the cash payments made aforesaid were made out of the $8,000 to have been raised by general taxation, or out of any sum which might have been assessed as public benefits or otherwise. Without this proof there can be no competent evidence that any assessments were ever made by virtue of this ordinance, or that the city had any funds derived therefrom, and no lien under section 23 of the Mechanic’s Lien Act (J. & A. 7161) can be established. The rights of appellees to liens are subject to another fatal objection. They were sub-contractors under the statute, and like claimants have been so treated in all cases construing this section. West Chicago Park Com’rs v. Western Granite Co., 200 Ill. 527; Haynes & Lyons v. County of Coles, 234 Ill. 137; Spalding Lumber Co. v. Brown, 171 Ill. 487. The original contract made the ordinance a part thereof, and the rights of appellees as subcontractors are dependent upon the contract and are controlled by all the provisions therein. Rittenhouse & Embree Co. v. Warren Const. Co., 264 Ill. 619. Section 11 of the contract provided that no part of the work could be subcontracted without the written consent of the board of local improvements indorsed thereon. Where the original contract provides that the improvement shall be delivered free from all liens, subcontractors can establish no liens thereon. Rittenhouse & Embree Co. v. Warren Const. Co., supra. By analogy, when a contract provides that the contractor shall perform all the work and furnish all the tools and material therefor, and that no part of the work shall be subcontracted without consent of a nominated party, such consent is a condition precedent to the establishment of a lien by a subcontractor. While in the present case no lien could have been established on the improvement itself, but only on the money, bonds or warrants due the contractor, yet the principle involved is the same. Although section 16 of the contract recognizes the right to liens under section 23 of the statute, yet the.whole contract must be construed together, and section 11 having provided that no part of the work should be subcontracted without the written consent of the board of local improvements indorsed thereon, subcontractors acquired no right to liens unless they had first procured the written consent of said board to their contracts with the original contractor. Benedict v. Danbury & N. R. R., 24 Conn. 320. None of the appellants had procured such consent. For the reasons above stated, the decree must be reversed and the cause remanded with directions to dismiss the bills and intervening petitions for want of equity. Reversed and remanded with directions.