Red Wing Sewer Pipe Co. v. City of Pierre , 36 S.D. 276 ( 1915 )

WHITING, J.

One Karbel, as a contractor working under a written contract with the city of Pierre, constructed a sewerage system in a certain sewerage district .of such city. Plaintiff, as a subcontractor, furnished such contractor 'certain material that entered into the construction of such system. Plaintiff brought .this action for the purpose of enforcing a mechanic’s lien which it claimed to have acquired against a certain sum unpaid and due the contractor under ’his contract. That plaintiff acquired & valid' lien was not questioned, but the trial court held that it had lost such lien. From the judgment so bolding, plaintiff appealed'.

Respondents contend that such lien became invalid and. discharged: (1) Because this action was not commenced until more than 30 days after the city of Pierre accepted the work under the contract; (2) because this action was not commenced until more than 30 days after the lien claim was filed. I't clearly appears that the trial court held' against appellant upon the first ground alone, and in no manner considered the. second one. Appellant’s lien was filed, and its rights thereunder, if it has any, rest upon the provisions of sections 713-721, C. C. P. Section 717 provides:

“All claims for liens under the provisions of this article shall cease to have any validity or to be binding upon the corporation or the contractor unless an action to enforce the same, as herein provided, shall 'be commenced within thirty days from the acceptance of the work for which tire same shall 'be claimed.”

Section 718 provides:

“Any such lien may be discharged: * * * 2nd. By lapse of time. When thirty days shall have elapsed since the filing of the claim and no action shall have been commenced on the same.”

[1] Appellant commenced this action on March 18, 1913. ' The trial court found that the work under the contract was accepted December 23, 1912. Appellant contends that such finding is not supported by tíre evidence, but that the evidence shows that such work was accepted on March 10, 1913. Respondents base their contention, not upon any proof that the work was accepted by any formal action ■ of ■ the commissioners of the city of Pierre, but: (1) Upon the fact that, on December 23, 19,12, the city engineer filed a report showing the work to have been done in accordance with the contract; and (2) upon the claim, that the contract in question authorized the engineer to accept the work for the city. Appellant claims that the contract did not authorize the the engineer to accept such work, and that, even if such contract should be construed as intending to give the engineer such, authority, such part of the contract would be invalid. Numerous statutes relating 'to the construction of sewerage systems have been enacted in this state, but there lias never been any law authorizing the construction of sewerage systems that did not contain a provision requiring the work 'to be accepted by the city council or commissioners.. Section 1366, P. C.; section 18, c. 213, Laws 1903; section 17, c. 110, Laws 1909; seotion 2, c 228, Laws 1911. Respondents contend that the contract in question was entered' into under sections 1341 to 1345, P. C., and that the above-cited sections requiring an acceptance of work done by the city council or commissioners do not apply to a contract entered under said section's 1341 to 1345. We can find nothing to support such contention. The statute requiring the city commissioners to accept -the work, such, duty could not be delegated to the city engineer. The certificate Of the city engineer certifying that the work had been completed in accordance with the contract might be conclusive evidence of the fact so certified to, and therefore to be treated as such by the commission when' they came to consider the question of accepting the work. Respondents have cited McGuire v. Rapid City, 6 Dak. 346, 43 N. W. 706, 5 L. R. A. 752, in support of their contention that the acceptance of the work by the city engineer was 'an acceptance by the city. The question before the court in that case was the evidentiary force of a certificate made by the engineer. There was nothing said in the opinion in that case that is authority for the claim that an engineer can accept work for a city when the statute provides that isuch work shall be accepted by the city council or commissioners. There was offered and received in evidence proof that on March 10, 1913, the commissioners did formally accept such work.

[2] Respondents contend .that, if the work was not accepted December 23, 1912, there is no proof that a right of action has accrued' to appellant, because there is no proof that notice had been given to the interested property owners notifying them that the question of approving such work would be before the commissioners at the meeting of March 10, 1913. If, under the statute, such a notice should have been 'given, it must be presumed that it was given, no proof -to the contrary appearing, and no objection to the offer of the evidence showing acceptance on March 10, 1913, having been made based upon the ground of want of proof of such notice. It is clear that the court erred in finding that the work was accepted December 23, 1912.'

[3] Was the lien discharged through failure of appellant to bring his action within 30 d'ays from the date when it filed its lien? Appellant contends that respondents cannot now raise this question, for the reason that said section- 718, C. C. P., is a statute of limitations, and respondents failed to plead such limitation in their answers." There is no merit in tliis contention. This statute purports -to .provide more than a limitation upon the time within which an action -can he brought; if valid, it treminatss and destroys the lien itself.

[4] But we are -of the opinion that -the particular provision of such section quoted above must be held inoperative and void, upon the ground that it is absolutely inconsistent with, the clear purpose and intent of the law of which said section 718 is but a part. Under this law, if a ¡subcontractor file his lien within 20 day after he has done work" or furnished material, 'he has a lien for all that is due him, regardless of whether the contractor has been paid in full; if he file his lien after such 20 days, he has a lien on any sums due or which may become due the contractor. Sections 713, 714, C. C. P. All liens filed attach from the time of filing. Section 715, C. C. P. It will be seen that the law favors the one who moves promptly in filing .his lien, yet, under these provisions, no cause of action to enforce a Hen can arise until there is something due the contractor, except where a lien is filed within the 20 days above mentioned. One of the .things the court must determine, when action is brought, is “the amount due the contractor.” Section 716, C. C. P. It follows that a subcontractor whose lien was filed after such 20-d'ay period cannot bring his action until there is something due the contractor. Can it be possible that the Legislature intended to enact a provision which, if given effect, would, 'through mere lapse of time, discharge a lien because the Hen claimant had not brought an action thereon, even though a right of action upon such Hen had never come into existence? To so- hold would be to insult the intelligence of the lawmaking body. Neither could it be presumed that, where, as in. this case, certain sums became due to the contractor from time to time prior to the final acceptance of such contract, a lienholder, upon such a sum becoming due within 30 days from the time his Hen was filed, must, within such 30 days, bring an action to enforce such lien, and thereafter have, for any balance still remaining due him, no lien upon other sums that might fall due after such 30 days. The statute, as .above noted, provides that one filing a claim shall have a Hen upon all moneys due or .to become due under the contract. Neither does the law require several actions to be brought as several sums- may from time to time become due the contractor. The provisions of section 716, supra, require that, whenever any action is brought to enforce or determine a lien — • whether brought by the contractor, by the corporation with whom he contracted, or by the Hen claimant — the corporation, the contractor, and all lien claimants shall be brought in and a final determination and adjustment of all claims shall be made. To enforce the above provision of section 718, supra, would be to nullify the clear purpose of the act.

[5] In interpreting statutes the most important thing to be ascertained is the intent of the lawmaking power in enacting same. This intent must be gathered, if possible, from the words of the statute itself. Where the words used in any part of a statute are plain and clear in their meaning, full effect should usually be given to them as written; but this rule does not hold when to give such effect to a part of a statute would 'bring a result that would be absurd when considered! in the light of the clear intent of the statute taken as a whole. 36 Cyc. 1107. The general intent of a statute -is the key to the meaning of the parts, and the intention of the whole aot should control the interpretation of the parts. Sutherland on Statutory Construction, §§ 240, 241. We therefore hold that the Legislature, in enacting such provision of section 718, supra, did not intend that a lien filed should be “discharged” before it would become discharged under the provisions of sections 717, supra.

The judgment and ord'er appealed from are reversed.