
    WINDER BROS. v. STERLING et al.
    (No. 1127—5064.)
    Commission of Appeals of Texas, Section A.
    Jan. 9, 1929.
    
      Harris & Harris, of Austin, for relator.
    Claude Pollard, Atty. Gen., and Paul D. Page, Jr., Asst. Atty. Gen., for respondents.
   NICKELS, J.

1. Henry Winder and J. D. Winder (composing the film of Winder Brothers) were .allowed to file their petition in mandamus against Sterling, Johnson, and Ely, respondents, qualified and acting members of the state highway commission.

In November, 1925, a contract was made by relators, on the one hand, and the state of Texas acting through its highway commission, etc., on the other, whereunder relators undertook certain highway construction in Austin county (giving the statutory bond) •and the state became obligated to pay compensation stipulated. The “work” was “accepted” in October, 1927, and all compensation paid except $624.88, warrants for which were withheld (and are now withheld) account of things to be stated.

February 23, 1925 (Gen. Laws Thirty-ninth Leg., Reg. Sess., Í925, p. 44) it was enacted:

“Sec. 1. That any person, firm or corporation, or trust estate, furnishing any material, ■apparatus, fixtures, machinery or labor to any contractor for any public improvements in this State, shall have a lien on the moneys, or bonds, or warrants, due or to become due to ■such contractors for such improvements; provided, such person, firm, corporation, or •stock association shall, before any payment is >made to such contractor, notify in writing the ■officials of the State, county, town or municipality whose duty it is to pay such contractor •of his claim. .
“Sec. 2. That no public official, when so notified in writing, shall pay all of said moneys, bonds or warrants, due said contractor, but shall retain enough of said moneys, bonds or warrants! to pay said claim in case it is established by judgment in a court of iproper jurisdiction.”

Prior to acceptance of the work, notice of claims were filed with the highway commission by the commissioners’ court of Austin county for and in behalf of “Road District No. 4” thereof, and by “Fishers Market” of Belle-ville, respectively. Items stated in the account of Austin county, or the road district, are:

5 -wheelers furnished and not returned at $100.00 per wheeler. $500 00

1254 pounds reinforcing steel at 0.0285 per pound. 35 74

One concrete mixer rented at $5.00 per day, one day . 5 00

Repair on mixer. 12 00

Expense of returning mixer. 5 00

The account of “Fishers Market,” in the sum of $64.17, is for “meats” furnished. The claims were filed, notice thereof given, and warrant for the aggregate amount thereof ($624.88) has been and is withheld under purported authority of the statute quoted. The parties at interest and to the case have assumed (and we therefore assume for instant purposes) compliance with the statute in matters of form and as to the place of filing notices.

Judgment requiring respondents to procure and deliver warrant or warrants covering the amount withheld is now sought upon charges made and to be severally noticed.

2. The statute operates denial of process of law (section 19, art. 1, Constitution), it is said, in two particulars:

(a) It “undertakes to direct public officials whose duty it is to pay contractors * * * money due them” upon “simple unverified un-itemized declarations” to withhold payment for a period of “indefinite” (maybe, “permanent”) duration, since there is no requirement made as to time within which a claim must be reduced to judgment. We pass, for the nonce, whatever differentiation is to be made as between legislative conditioning of disbursement of public moneys, on the- one hand, and legislative regulation, etc., of private affairs on the other, and indulge in favor of relators assumption of ground for strictest application of the indispensable requisite of due process. But even when that is done, answer to the instant complaint immediately projects itself in this wise: “The laws which subsist at the time and place of the making of the contract and where it is to be performed” (saving presently immaterial exceptions in respect to judicial remedies, etc.), “enter into and form a part of it, as if they were expressly referred to, or incorporated in its terms.” Smith v. Elliott & Deats, 39 Tex. 201; Kerr v. Galloway, 94 Tex. 641, 646, 64 S. W. 860; McCracken v. Hayward, 2 How. 612, 11 L. Ed. 397; Cook v. Moffat, 5 How. 315. 12 L. Ed. 169; West River Bridge v. Dix, 6 How. 540, 12 L. Ed. 548. Winder Brothers’ contract, in effect, included agreement to the things named in the statute. Entry into the arrangement, with its evidential words 'thus expanded, was voluntary; m consequence, whatever delay in payment there has been or will be (even of “indefinite” extent) is consensual rather than a burden placed in invitum. Id.; Interstate Consolidated Street Ry. Co. v. Massachusetts, 207 U. S. 79, 28 S. Ct. 26, 52 L. Ed. 111, 12 Ann. Cas. 555; I. & G. N. R. Co. v. Anderson County, 246 U. S. 424, 433, 38 S. Ct. 370, 62 L. Ed. 807.

(b) The language of the statute includes fatal obscurity — is the second claim.

As we interpret the statute, the “notice in writing” provided for in the last clause of section 1, and referred to in section 2, is a “notice” inclusive of .declarations appropriate to showing that the charges in the account arose in “furnishing material, apparatus, fixtures, machinery or labor” for which a lien is named in the first clause of section 1. Hence, the urgence that the claimant is not required to show that his account “is for material furnished or labor done in the furtherance of the work” is without just basis.

The provision for withholding money, warrants, etc., for payment of a claim as and when reduced to judgment, with lack of requirement for judgment within any given time, it is said, renders the statute indefinite. To this is added a charge of arbitrariness in forcing the contractor to await the pleasure of the claimant in respect to time ofi judgment. The statute, however, but names a contingency upon whose occurrence in an appropriate case moneys, etc., become due and payable to the contractor, and for which, as noted, the parties to the contract (by reference and imputation) stipulate. Besides, no reason is apparent for precluding adjudication of the claim or its invalidity on move of the contractor, if he becomes dissatisfied with procrastination of the claimant.

3. Another contention as stated by counsel for relators, “is that the Bill of Rights, Section 50, declares ‘The Legislature shall have no power to give or lend, or to authorize the giving or lending of the credit of the State in aid of, or to any person, association or corporation, whether municipal or otherwise, * * *” and, contrarily, the statute works a giving or lending of the state’s credit.

Naming the subjects of liens and the conditions for their registration and enforcement is a familiar legislative power. We are given no reference to precedents (and we know of none) against inclusion of public moneys and securities of the legislating sovereign (as and when payable or deliverable to contractors, etc.) within the subject-matter of liens declared for materialmen, mechanics, etc. And when the lien (in this statute provided) attaches, the property to which it attaches is the property of the contracting debtor and not of the state or municipality,' the latter being debtor of that debtor or bailee, etc. Perforce, there is no contempt of the letter or spirit of section 50, article 3, of the Constitution, to which- we assume counsel intended to refer.

4. It cannot be said as a matter of law that all of the articles listed in the accounts, or either of them, were not furnished as “material, apparatus, fixtures, machinery,” etc., within terms of the statute. Relators’ contrary insistence at most presents questions of fact (see Brogan v. National Surety Co., 246 U. S. 257, 261, 38 S. Ct. 250, 62 L. Ed. 703, L. R. A. 1918D, 776, and cases there cited; U. S. Fid. & Guaranty Co. v. Henderson County [Tex. Civ. App.] 253 S. W. 835; Id. [Tex. Comm. App.] 276 S. W. 203; B. F. & C. M. Davis Co. W. E. Callaghan Const. Co. [Tex. Comm. App.] 298 S. W. 273) of which jurisdiction is lacking.

5. “Road District No. 4” of Austin County may be a “body corporate,” etc. (section 52, art. 3, Constitution; articles 746, 748, R. S. 1925), or the description may signify merely an administrative device of Austin county itself. In the one event, the claim was filed by an entity of that name, and in the other event it was in legal effect filed in behalf of Austin county — in either event it was filed by a “person” or “corporation.” No reason is apparent for excluding a road district or a county, asi claimant, from benefits of the statute and we hold they and each of them are within its protection.

If “Fisher’s Market” be not a “firm or corporation,” etc., its status rests in facts not disclosed and is nonjusticiable in this proceeding (the claimant not being a party) even with disclosure of facts.

In consequence, it cannot be ruled (as prayed) that the claimants are beyond operation of the statute. '

6. Accordingly, we recommend that the relief prayed be denied.

OURETON, O. J.

The opinion of the Commission of Appeals is adopted, and mandamus refused.  