De Witt v. Smith, 63 Mo. 267; Hewitt v. Truitt, 23 Mo. App. 443.

Our Mechanics' Lien Law (art. 1, chap. 47, Rev. Stat. 1879), if construed to bind the owners' property in favor of a subcontractor where the contractor has been paid the contract price in full due under the contract between the owner and the contractor, is unconstitutional and void. Where there is no contract between the owner and contractor no lien exists in favor of any materialman or subcontractor.

Roland v. Centerville, M. & A. R. Co. 61 Iowa, 380; Andrews v. Burdick, 62 Iowa, 714; Whittier v. Hollister, 64 Cal. 283; O'Donnell v. Kramer, 65 Cal. 353; Turner v. Strenzel, 70 Cal. 28; Wiggins v. Bridge, 70 Cal. 437; Rosenkranz v. Wagner, 62 Cal. 154; Campbell v. Scaife, 1 Phila. 187.

Section 4 of the Bill of Rights, in the Missouri Constitution of 1875, provides that "All persons have a natural right to life, liberty and the enjoyment of the gains of their own industry." The phrase, “enjoyment of the gains of their own industry," involves of necessity the right to make contracts and to be secured in the fruits of the same. See Cooley, Const. Lim. 2d ed. p. 393.

Burlamaqui, Politic Law, chap. 3, § 15; Godcharles v. Wigeman, 4 Cent. Rep. 887, 113 Pa. 431; Stewart v. Wright, 52 Iowa, 337; Henry v. Hinds, 18 Mo. App. 497.

Mr. R. B. Middlebrook, also for respondent, Dickinson:

It is presumed that the subcontractor has notice of the terms of the contract between the owner and the original contractor.

Scott v. Cook, 8 Mo. App. 193; Garnett v. Berry, 3 Mo. App. 205; Henry v. Hinds, 18 Mo. App. 497; Stewart v. Wright, 52 Iowa, 335; Greenway v. Turner, 4 Md. 296; Jensen v. Brown, 2 Colo. 697,698.

The object of giving notice to the owner by subcontractors is to enable the owner to withhold from the original contractor sufficient to pay the subcontractor.

Jensen v. Brown, 2 Colo. 697, 698; McIntire v. Barnes, 4 Colo. 285; Epley v. Scherer, 5 Colo. 536; Morrison v. Hancock, 40 Mo. 561; Colter v. Frese, 45 Ind. 96.

The lien of the subcontractor and materialmen is always in strict subordination to the terms of the original contract between the owner and his immediate contractor.

McIntire v. Barnes, 4 Colo. 285; Garnett v. Berry, 3 Mo. App. 205.

Barclay, J., delivered the opinion of the

court:

In this action plaintiff, a subcontractor, seeks to establish, as a lien, a demand for materials furnished towards the erection of a building on land of defendant, Dickinson. The exact controversy presented for decision arises from the following undisputed facts:

Evans was the original contractor with Dickinson for the erection of certain buildings on land of the latter. Plaintiff, under a contract with Evans, supplied materials used in their construction. Plaintiff's account therefor was not paid. Notice of the demand was served on the owner, and the account filed in due time as a lien on the property, in accordance with the Lien Law.

No defect in the formal steps taken by plaintiff is suggested, but it appears that the owner had paid the original contractor the full amount of the agreed price for the buildings before notice or knowledge of plaintiff's demand, and that the contractor had applied that amount to discharge other valid claims against the property for labor and materials furnished, reserving nothing for himself.

The circuit court rendered a personal judg ment for the amount of plaintiff's demand against the contractor Evans, but denied the claim for a lien against the property. After the usual steps for a review of that ruling, plaintiff has brought the case here.

It is necessary to determine in this case whether payment of the full contract price, in good faith, by the owner to the contractor, in the circumstances above described, prevents the establishment of a lien against the property by a subcontractor who has furnished materials for the erection of a building, and otherwise complied with the statute.

The law of this State concerning these liens is the product of a gradual development. Its foundations were laid in our early jurisprudence (Laws Mo. 1804-1824, p. 803, chap. 346), and improvements were made thereon from time to time until its present form was reached. Rev. Stat. 1879, chap. 47.

It is unnecessary to give the details of its history, further than to remark that its framers embodied in it some materials acquired from the statutes of other States, and some of the products of their own labor, forming thus a composite structure in many respects unlike the laws elsewhere on the subject. The points of dissimilarity must be clearly borne in mind to avoid the error of applying to the interpretation of our own statute decisions of courts in other States construing language quite different.

Liens of the kind mentioned in our statute did not exist under the common law of England. They are founded on principles of natural justice which the civil law recognized, more than a thousand years ago, by giving workmen and materialmen a similar right of compensation (called a "privilege," which took precedence even over prior mortgages) against property they had improved.

The Missouri statute undertakes to define the facts which shall create such a lien, and to provide a remedy for its enforcement. It should receive a liberal and reasonable construction to effectuate the purposes disclosed by its terms. De Witt v. Smith, 63 Mo. 263.

To arrive at a sound interpretation, we must consider the law in all its parts, and ascertain, as best we may, and give expression to, the true intent of the Legislature. It is our duty to give full effect to that intention when discovered, without attempting to enlarge or to restrict the legislative meaning to harmonize with any views of our own concerning its wis dom or expediency.

The first section of the law in question is as follows (omitting the parts immaterial to this case): "Every mechanic or other person, who shall... perform any. labor upon, or furnish any materials. for, any buildings or improvements upon land under any contract with the owner

or his

contractor upon complying with the provisions of this article, shall have for his labor done, or materials . . . furnished, a lien upon such building or improve ments, and upon the land belonging to such owner .. on which the same are situated to secure the payment for such labor done, or materials furnished." Rev. Stat. 1879, § 3172.

.

It has been already decided that in no event can a subcontractor assert a lien against the property for a greater amount than the reasonable market value of the labor or materials he furnished towards the erection of the building or improvement. Deardorff v. Everhartt, 74 Mo. 37; Schulenberg v. Prairie Home Inst. 65 Mo. 295.

But there is nothing in this or in any other section expressly limiting the aggregate liens to the amount which the owner agreed to pay the original contractor for the completed work; yet such limitation, in definite terms, appears to have been thought necessary by the Legislature of other States desiring to express that purpose in their laws. We shall mention some of those statutes to indicate the differences between them and our own in this particular.

The limitation now referred to has usually assumed one of two forms. In some States the clause conferring the lien is of nearly as broad a scope as our own; but the limitation is supplied by another section, to the effect that the lien notice by the subcontractor to the owner shall give the former a claim against and right to any sum" due, or to become due, under the contract," by the owner to the contractor. Such was the law of Colorado when the decision in Jensen v. Brown (1875), 2 Colo. 697, was announced. Sess. Laws Colo. 1872, p. 150, § 6. The law of Iowa was somewhat similar when Stewart v. Wright (1879), 52 Iowa, 335, was decided; the language defining the status of a subcontractor there being as follows:

"And, from and after the service of such notice, his lien therefor shall have the same force and effect," etc., "as a lien by the contractor, but shall be enforced against the property only to the extent of the balance due to the contractor at the time of the service of such notice upon the owner, his agent or trustee." Code Iowa 1873, p. 386, § 2133.

In other States this limitation has been expressed as a proviso in the section defining the right of lien, or as a distinct part of the statute, Thus the Law of 1851, applicable to New York City, contained the following as a part of the sentence creating the lien:

"But such owner shall not be obliged to pay for or on account of such house, other building, or appurtenances, in consideration of all the liens authorized by this Act to be created, any greater sum or amount than the price stipulated and agreed to be paid therefor in and by such contract" (i. e., the contract between the owner and original contractor). Laws N. Y. 1851, pp. 953, 954, § 1.

Kansas laws added this condition to the right of lien: "Provided, that the owner shall not be liable to such subcontractor for any greater amount than he contracted to pay the original contractor." Laws Kan. 1872, p. 295, § 2.

In Connecticut it was declared that "No such lien shall attach to any building or its appurtenances, or to the land on which the same may stand, in favor of any person, to a greater amount in the whole than the price which the owner agreed to pay for such building and its appurtenances." Gen. Stat. Conn. 1875, p. 360, § 12.

Such limitations, in one or another form, have been in force at different times in many States. Some of them have been changed by later laws. They are mentioned here as types of the forms that have been thought effective to limit the subcontractor's lien to the amount due under the owner's original contract, when the law makers so intended.

The case at bar turns, of course, on the proper construction of our own law. The latter contains no such language as has been quoted from other States, nor anything substantially similar. The question then arises whether our Legislature intended a like limitation to be supplied by construction. If so, the expression of that intent is singularly unfortunate and obscure, when it evidently might have been very plain.

The terms of section 3172, above given, are clear and comprehensive in relation to the question before us. They contain nothing sug gestive of any implied condition upon or limitation to the right of lien therein defined. The words of a law are to be taken in their ordinary, usual and natural meaning.

When the Legislature says that a mechanic or materialman "shall have a lien" (certain facts occurring) are we to assume, without more, that it meant thereby to say that such a lien should only exist when the owner had not already fully paid the contractor, and in no event for more than the original contract price? Would not such a ruling, in effect, require more facts to be established as essential to a lien than those mentioned by the law makers?

So it appears to us, and that it is not our province to make such additions to the statute. If a law is constitutional, it is our duty merely to interpret and declare it, exactly as made by the legislative department, on which the responsibility for its wisdom and policy rests. We cannot properly add to it a meaning not intended by its terms.

Let us now consider such parts of the context to the section already quoted as may throw light on the supposed intention of the Legislature as to its scope. The section requiring notice by the subcontractor, in cases like this, should perhaps be noted. It is this:

or agent, or either of them, that he holds a claim against such building or improvement, setting forth the amount, and from whom the same is due."

This section noticeably omits any qualifica

The owner may stipulate with the contractor to defer his payment until the time has passed for filing other liens, or to pay the subcontractors himself, or he may take security or any other suitable steps that circumstances may require for the protection of himself, and of those whose labor and materials enter into the building, upon its credit.

On the other hand, if the original contract price were the limit of the liability of the property for its improvement, no subcontractor could be sure of securing a lien, when supplying materials or labor, without first ascertaining, not only the contract price, but also the amount of all other outstanding subcontracts. Even then he would assume the further risk of conflict with subcontracts afterwards made by the chief contractor, which the latter might, if he saw fit, satisfy first on the contract account. Thus would difficulties and uncertainties in the operation of the law exist which we think the Legislature did not intend.

ford v. True, 33 Maine, 283; Langston v. Anderson, 69 Ga. 65; Treusch v. Shryock, 51 Md. 173; Winslow v. Urquhart, 39 Wis. 260; Vreeland v. O'Neil, 36 N. J. Eq. 399; Sims v. Bradford, 12 Lea, 434; Atwood v. Williams, 40 Maine, 409. In the matter before us the Mechanics' Lien Law is assumed to be in contemplation of all parties making a building contract. There is hence no injustice in treating them as having accepted the consequences fixed by that law. We conclude that there is no constitutional objection to the enforcement of a lien by a subcontractor in such a case as that at bar. The result we have reached is reinforced by decisions from some other States, commenting on the effect of statutes like ours: Laird v. Moonan, 32 Minn. 358; Ballou v. Black, 21 Neb. 147; Ainslie v. Kohn, 16 Oreg. 371; Lonkey v. Cook, 15 Nev. 58; Merritt v. Pearson, 58 Ind. 386; Shenandoah Valley R. Co. v. Miller, 80 Va. 821; Jensen v. Brown, 2 Colo. 697; Hill v. Witmer, 2 Phila. 72.

We have given due consideration to the decision of the Kansas City Court of Appeals in Henry v. Hinds, 18 Mo. App. 497, wherein a different conclusion was reached. Though entertaining great respect for that court, and for the able writer of that opinion, we find ourselves unable to adopt their views of the question presented by the present appeal.

ute relates.

By virtue of the law the contractor is invested with a power to charge the property for the reasonable value of the labor and materials supplied to it by subcontractors. The right of lien arises from the statute, which applies, by its own force, to every transaction that parties by their voluntary action bring within its terms. No one is deprived thereby of the "gains of his own industry."

The legislative purpose is quite the contrary. It is rather to prevent one man from enjoying, without compensation, the gains of another's industry, in circumstances which the law-makers regard as imposing a duty on the former to see that the latter is paid therefor.

The principle controlling this branch of the case has been frequently recognized and approved in other jurisdictions, in its application to this subject and others. Briefly stated, it is that contracts must be construed and interpret ed according to existing laws, when made in relation to the subject matter of those laws, within their jurisdiction. McMurray v. Brown, 91 U. S. 266 [23 L. ed. 324].

A familiar illustration of the principle is found in admiralty. A bottomry bond or mortgage on a vessel may be validly executed, yet the mariner's lien for subsequent wages will have priority over either, because the law to that effect is assumed to have entered into every such instrument when made. 1 Conk. Adm. 2d ed. 112.

Many other illustrations are at hand, but we will abbreviate the statement of them by mere

We believe the effect of that decision would be to introduce into the statute an implied restriction of the subcontractor's right of lien which the Legislature did not intend should be

as a precedent for the decision of this case.

The Supreme Court of California has also announced a different interpretation of a stat ute similar to our own in Renton v. Conley, (1874) 49 Cal. 187, and earlier cases mentioned therein. That decision has been expressly disapproved in Nevada. Although the same statute had been re-enacted there, the supreme court declined to follow such a construction of it. Hunter v. Truckee Lodge, 14 Nev. 32.

Since that decision was rendered the Legis lature of California has made several changes in that law, the last and most comprehensive being found in the Acts of 1884 (Ex. Sess.) p. 143.

From the nature of these amendments, it appears probable that the law-makers of that State do not regard that ruling as a correct construction of the intention they endeavor to ex press with regard to this subject in the original statute.

At all events, we do not agree with the views contained in that decision. We regard them as at variance with the language and meaning of our law, for reasons that have been already stated in this opinion.

It follows that the judgment of the trial court should be reversed, and the cause remanded, with directions to set aside the finding in favor of defendant on the issue of the lien, and thereupon to enter proper findings and a judgment on the agreed case in accordance with this opinion.

With the concurrence of all the Judges, it is so ordered.