John T. Howard, Appellant, vs. David Moore et al., Appellees, 20 Fla. 163

Mr. Justice Westcott delivered the opinion of the court. David Moore and a number of others who are named as plaintiffs filed their bill against Howard and the Pensacola and Atlantic Railroad Company, in which they allege that the said company is engaged in building a railroad through Jackson county, Florida ; that they were employed as laborers in the latter part of the year 1882 by one James A. Colson, in the building and construction of the railroad then being built by the Pensacola and Atlautic Railroad Company through said county, and that said Colson was a subcontractor under the defendant, John T. Howard.

They set out the amounts due them respectively by said Colson and aver that they have obtained judgments against said Colson. They allege also that he is utterly insolvent; that he had absconded and could not be found in the county; that they had demanded payment of their claims of the said Howard, and had given uotice of the nature of their claims to the said company. Plaintiffs pray that it may be decreed that they have á lien upon the said railroad and a sale of part of the road in'Jackson county. In this bill Howard interposed a demurrer, which being 'overruled he enters an appeal.

Unquestionably no decree affecting this property can. be made here without having the company a party to the proceedings, and it does not appear from the record that the company has been served with subpoena or has appeared. In view of the conclusion we reach, however, we deem it necessary here to examine but one question, as the solution of that finally disposes of the ease as it now stands. It is insisted that-there is no equity in the bill. In other words, that the complainants have no lien against the road. It is not contended that these persons have any lien unless it is authorized by the provisions of

Chapter 8132, Laws. The Legislature there enacted: “

Section 1. That hereafter every person who shall perform labor upon, in or for the benefit of any railroad, mill or manufactory in this State, whether in the construction, working or repairing thereof, to whom there shall he anything due for such services shall have a lien of prior dignity to all others upon such railroad, mill or manufactory, whether operated or owned by an incorporated company or not. “

Section 2. That such lien- may be enforced by bill in equity, and all or any number of persons holding such lien may be joined as parties complainant. “

Section 3. That in case suit be brought for such debt at law the Judge having jurisdiction may order-execution to be levied upon the property of such railroad, mill or manufactory, and the sheriff or other officer shall proceed to sell the same notwithstanding any claim of exemption interposed.” The claim here is not that of a contractor or laborer for the company, nor is it a demand for work performed for the contractor, Howard.

The services are rendered for a sub-contractor between whom and the company it is not even alleged there is any privity of contract, nor is it alleged that-there is any sum due the contractor hy the company. The question, therefore, is, has such a person a lien under the statute. In the argument of this case it was insisted upon one side that statutes of this character should be ■liberally construed, they being in aid of the laborer.

While upon the other side it was contended that such statutes created secret liens, were contrary to common right, conferred special privileges and rights upon one class of a community not enjoyed hy others, and that they should therefore receive a strict construction. A slight examination of the hooks will show that such contradictory rules of construction have been announced hy the courts in treating the subject generally.

Our examination, however, leads us irresistibly to the conclusion that the eases which approach nearer to the precise question here involved do not sanction Ihe view that the road here is subject to the claim of laborers for the sub-contractor. In the case of Wood aiid Wood vs. Donaldson, 17 Wend., 551, a similar question arose in the Supreme Court of New York. The first

section of

an act of the Legislature of that State provided “ that every mechanic, workman or other person doing any work toward the erection' of any building in the City of New York erected under a contract in writing between the owner and builder, or other persons, whether such work he performed as journeyman, laborer, cartman, sub-contra.etor or otherwise, and whose demand has not been paid, may deliver to the owner an attested account of the amount and value of the work thus performed remaining unpaid, and thereupon such owner shall retain out of his subsequent payment to the contractor the amount of such work for the benefit of the person performing the same.” It was held that such a statute gave no lien to the creditor of a sub-contractor. 'See also same case, 22 Wend., B95, where Chancellor Walworth discusses the subject generally under the first

section of the Hew York statute. In the case of Hartman vs. Rand, 27 Penn.

State, 515, Lowrie, J., speaking of the relation of a materiel man to the owner of the property under a general lien law, in the head note, says: “ Ho one has power to bind the building for work done or material furnished, except the owner or contractor under him.” In the body of the opinion he uses this language: “The claims of workmen and materiel men do not become liens on a house from the mere fact that the work was done or the materials found for its erection, for they must be founded on a contract, express or implied, direct or indirect, with the owner of the estate sought to be charged.” Like principles are asserted iu Kirby vs.

McCarry, 16 Wis., 68, and in Greenough vs. Nickols, 30 Vermont, 768. Our statute provides for payment for sums due for services. This language implies the existence of a contract. So also the provisions of the third

section contemplate contract relations, for what' is there provided for is the satisfaction of a judgment, at law agaiust (he railroad company, mill or manufactory, and certainly it will not be pretended that the laborers under a sub-contractor stand in any such contract relation as enables them to obtain a judgment at law against such company, mill or manufactory. A person who does labor under contract with the company has a lien under the statute.

It may be also that one who labors or does work for a contractor,has a lien, as it seems that there is such privity between such laborer and the company as justifies the existence of a lieu. But this question is not here involved. As to laborers under a sub-contractor, however, there is no privity between them and the company, and a fair examination of all the cases on the subject leads to the conclusion that no such lien exists unless the words of the statute clearly contemplate it. Phillips on Mechanic’s Liens, §§45 to 51, inclusive, and cases cited.

The judgment overruling the demurrer is reversed, and the case will be remanded with directions to enter final judgment for- defendants upon the demurrer, unless the plaintiffs desire to make a case by amendment, in which event the usual practice will be followed.