Board of Commissioners v. Snodgrass & Young Manufacturing Co.

The opinion of the court was delivered by

It is contended that a mechanic’s lien cannot attach against public property. In this case, the public building is a courthouse, situated in the city of Mankato, in *257Jewell county. We are asked to reconsider the case of Wilson v. School District, 17 Kas. 104, and other similar decisions of this court. The decision referred to was rendered in 1876 — over 17 years ago — before any of the present members of the court were upon the supreme bench. The opinion was delivered by Brewer, J., now of the supreme court of the United States, and was concurred in by his associates, Chief Justice Kingman and Mr. Justice Valentine. It has been followed so many times by the court that, under all of the circumstances, we deem it best to adhere to it. (School District v. Conrad, 17 Kas. 522; Lumber Co. v. Water Co., 48 id. 187, and cases cited.) The decision works no injustice. It protects the laborer or material man who has contributed his service or material to a public building better than the contrary decisions of other states.

It is next contended that §§ 638e and 638/ of the civil code imply that the lien ought not to attach to a public building, and that the bond provided for in said sections is a substitute for a iien. (Laws of 1887, ch. 179, §§ 1, 2.) These sections were enacted to protect mechanics, laborers and other persons furnishing material for the construction or improvement of public buildings. The remedy given by these sections to any person to whom there is due any sum for labor •or material does not supersede the mechanic’s lien law, but is an additional remedy to laborers and material men. With this conclusion, both statutes are made operative.

If the legislature had intended the bond mentioned in § 638e to be a substitute for the lien law, it would have used language similar to that in Laws of 1889, ch. 168, § 13. (Civil Code, § 638dL) It is therein provided that the bond permitted to be filed prevents any lien from attaching, and also discharges any lien existing when a bond is filed.

In the construction of the courthouse at Mankato, the county officers who entered into a contract for th,e purpose of having the courthouse constructed did not take from the contractors the bond prescribed by the statute, and therefore the parties named in the pleadings, who filed mechanics’ liens, *258had no bond upon which to bring an action for the recovery of their indebtedness. If their liens will not attach, it is probable they will lose their claims. If the officials of Jewell county had required the bond prescribed by the statute to be executed and filed, it is probable that the parties filing liens would have' preferred an action upon the bond for the recovery of their indebtedness, rather than to suffer the delay in collecting their judgment by the slow process of the levy of a tax to pay the same.

The judgment of the district court will be affirmed.