
    LIENS ON PUBLIC IMPROVEMENTS OF THE STATE.
    Common Pleas Court of Greene County.
    The State of Ohio, ex rel Merritt & Company, v. D. Q. Morrow et al.
    
    Decided, July, 1910.
    
      Mandamus — When a Public Officer May Be Directed to Issue His Toucher —Mechanic’s Lien not Enforceable Against the State — Nor Can a Lien be Claimed Against Funds in the Hands of the State Set Apart for Public Improvements — Section 882J/, General Code. . .
    
    1. A peremptory writ of mandamus will not be allowed directing a public officer to issue his voucher and warrant for the payment of money, unless the relator makes it appear that he has a clear legal right to the fund and that no other person has or can have any claim or interest in and to the same.
    2. There are no proceedings in law whereby a mechanic’s lien may be enforced against the state of Ohio.
    3. The mechanic lien law, although general in its nature, and the language in the code broad enough to include public improvements of the state, does not apply to any public improvement made by the state. And any steps taken pursuant to the mechanic lien act to establish a lien or claim against funds in the hands of the state set apart for any public improvements have no effect in law and afford no ground for action either in law or equity against the state.
    
      
      Carpenter, Young & Stokes, M. J. Hartley and C. W. Whitmer, for relator.
    
      U. G. Denman, Attorney-General, and Marcus Shoup, contra.
    Authorities relied upon by the court:
    
      State v. Smith, 71 O. S., 38; The People, ex rel Hudson, v. Butler, 2 Neb., 5; The State of Ohio, ex rel Parort, v. Board Public Works of State of Ohio, 36 O. S., 409; Greene Tp. v. Campbell, 16 O. S., 11; State v. Kinne, 41 N. H., 238; Josselyn v. Stone, 28 Miss., 753; Carter v. Mayor, 43 N. Y., 369; Tice v. Atlantic Construction Co., 53 N. Y. App. Div., 284 (65 N. Y., Supp.), 79; Mason v. N. Y. S. Hospital, 100 N. Y. Supp., 272.
    
      
       Affirmed by the circuit court, October 21, 1910, in the following memorandum opinion:
      “We think that the judgment of the lower court should be affirmed for the reasons given by Judge Kyle in his opinion, and in addition this reason:
      “There is a doctrine laid down in 38th Law Bulletin, 212, which is the law that where a contractor absconds that that ends his rights, and that the owner may proceed with the completion of the work and without paying to the-contractor or his sub-contractor anything, even though he should complete the work at a less price than originally contracted for.”
    
   Kyle, J.

The relator brings this action, against certain defendants as trustees of the Ohio Soldiers and Sailors Orphans Home; and E. M. Fullington, as Auditor of the State of Ohio.

■ The petition avers in substance that the said trustees entered into a contract with the General Concrete Construction Company for the construction of a sanitary sewer system and disposal plant in connection with the property controlled by them at a contract price of $13,307.25 to be paid upon estimates duly issued by the engineers about once a month as the work progressed; that the relator on the 30th of December, 1909, by contract furnished said construction company certain aerlock sequence siphons of the value of $600 and which were used by said construction company in the construction of said sewer system, and thereby said sum of $600 became due and payable to it from said construction company on said contract, no .part of which has been paid; that said relator on or about the 4th day of April, 1910, and within four months from the furnishing of such material, duly filed an itemized account thereof with said board and with the recorder, of Greene county, Ohio, and took the steps as provided by law for the perfection of a mechanic’s lien for the material furnished; that on or about-the 15th day of May, 1910, upon the estimate by virtue of a certificate of the engineers there became due to the said construction company the sum of $800, as provided by the contract, and that there still remains at least $2,500 applicable to the payment for labor -and -material furnished under said contract; that: said board of trustees-and auditor upon demand refused and still- refuse to issue their warrant to the relator for its said claim of $600 and interest; that, the relator is not in a position by any proceeding by law to enforce its said claim to said funds, the- same belonging to the state of Ohio, and the said the General Concrete Construction ■ Company being now insolvent, it has no remedy at law".

The relator therefore prays for writ of mandamus commanding the said board of trustees to issue or cause to be issued to the relator a voucher for the sum of $600 and interest; and commanding said defendant, Fullington, as auditor, to deliver his warrant on- the treasury of the state of Ohio in favor of the relator for said amount.

The ■ defendants by answer substantially admit all the allegations of the petition, and aver-that on or about the 15th day. of May, 1910, the sum of $800 was paid to the General Concrete Construction Company upon estimates in accordance with the law, and further aver that shortly thereafter the General Concrete Construction Company, as principal and contractor, abandoned its work and wholly neglected and refused to perform any more work in pursuance of said original-contract, and .that the said board of trustees, as provided by law, are now proceeding to complete the construction of the public works provided for in the original contract with- the said construction company, and aver that there is not now, nor has there been since the 15th day of May, 1910, nor will there at any time in the future be due from the defendant trustees to said the General Concrete Construction Company any payment whatever.

Thereupon the. defendants pray that the alternative writs- heretofore issued against the defendants be quashed and the petition be dismissed at the costs of the relator.

To. the answer of -the -defendants the relator filed a general demurrer.

The question for determination is whether or not the relator, as a matter of law, is entitled upon the facts submitted upon the pleadings to its writ of mandamus as prayed for.

It is claimed by the relator that the language used in Section 8324, General Code, which provides that a material-man may assert his lien under a contract which provides ‘ ‘ for the construction, improvement or repair.or any turnpike, road improvement, sewer, street or other public improvement, or public.building” is broad enough to include relator’s claim against the defendants. Assuming such to be the proper construction, are the facts presented, as admitted by the demurrer to the answer which searches the record, sufficient' to .entitle the relator to the writ prayed for.

It is a well settled rule that a peremptory -writ of mandamus will not in any case be granted, unless the right of the relator thereto be clear,'.and the act, performance of which is desired, be one of absolute obligation on the part of the person or officer sought to be coerced, and.before such right will be allowed the relator must show- not only a clear legal right to have done the specific act desired, but to have it done by the particular person or officer sought to be coerced;' and a plain dereliction of duty must be established against, such person or officer before the right will be awarded.

The facts show that on April-. 4th, 1910, the relator took the steps required to assert its lien; thereafter on May 10th, the sum $800 was paid by the defendants, duly made .as provided for in the principal contract, to the principal contractor. If the claim of the relator was valid and its lien perfected by the steps which it had taken and came within the provisions of the mechanic’s lien act, its lien would be good and the relator might be entitled to be paid by the -defendants if the proper facts were made to appear.

By a proceeding for writ of mandamus no opportunity is given for bringing the fund into, court and marshalling liens to determine who would be entitled to it. And before the relator would be entitled as- of absolute right to this- fund by a writ of mandamus — if one could issue — it must also be made to appear that there are no other liens, or claims of any kind against such funds in the hands of-the defendants. .There could be no dereliction of duty on the part of the defendants, unless it was made further to 'appear that no other person was entitled to that fund as against the claim of the relator. For aught that appears there may be other liens and claims of the same kind against this fund. Therefore, in my judgment, if the relator had a lien by reason of the steps which it took.to assert the same under the lien law, the absence of any allegation that no other person had any claim or lien upon such' funds so found in the hands of the defendants would defeat its right to a writ of mandamus against the defendants as prayed for.

■ 'There is a second question more difficult of solution, and that is: by the steps taken on the part of the relator did it acquire any lien on the fund in the hands of the defendants, or under their control, which were appropriated for the construction of said sewerage system? Or. in other words, does the lien law apply in a case where the state of Ohio is a party? It is conceded by the relator that no lien can be asserted against a public improvement or building, but steps taken as provided by the lien act when the improvement is a public improvement, it is claimed, operates as a subrogation of the rights of the principal contractor to the fund, to the extent of the lien, and the relator by taking the steps provided acquired an interest in and a right to the fund to the extent of its claim. That the words of the statute, “or other public improvement, or public building” are broad enough to embrace the claim of the relator could not be disputed; but it is contended that the state is not embraced within the general words of the statute and could be held to be within the purview of the same only when so declared expressly, or by necessary implication. The doctrine of the common law as expressed in the maxim, ‘ ‘ The king is not bound by any statute if he be not expressly named to be so bound” is the law of the state of Ohio. The doctrine seems to be that a sovereign state, which can make and unmake laws, in prescribing general laws intends thereby to regulate the conduct of subjects only, and not its own conduct. It is a familiar doctrine that the state is not affected by the statute of limitations, however general its terms may be. Upon the same principle it has been held that the statute providing that “costs shall follow the event of every action or petition” does not apply to a party prevailing against the state even in a civil case. If in such cas.es the statute has no binding force upon the state, no good reason could be given as to why any statute of a general nature, should apply to the state unless it was expressly provided..

It.is claimed on the part of the relator that it has a right to this fund to the extent of its claim, and if there is a right there must be a remedy. And since the plaintiff can not sue the state of Ohio because the state is not liable to be sued at the instance of any. citizen, and the General Concrete Construction Company being wholly insolvent, the relator is without remedy save its right to a writ of mandamus as prayed for in this action against the defendants. The reasoning of the relator, is that it has a right which it attempts to assert .in this case and if it has such right it must have a remedy. If the relator has any right it is purely statutory and has been acquired through its steps taken under the mechanic’s lien law, and if it has acquired no rights under the lien law there could be no remedy. There is no express provision or necessary implication that the state is included within the lien act. And, therefore, the mechanics lien law does not apply to the state, and if it does not apply the relator acquired no rights by its steps taken to secure a lien. If it is true there is no right without a remedy, it would follow that if there is no remedy provided there has been no right acquired. And as the law provides no remedy for a claim asserted against the state no rights against the state can be acquired under the lien law. t

It is conceded by the relator that, it is without power to enforce its lien until there could be a judicial determination and judgment of the validity and priority of its lien. The writ of mandamus would presuppose a judgment and judicial determination of such right. But the state is not within the purview of courts or subject to their intervention, unless expressly provided by statute to determine its action in any matter.

Since the sovereign state in proscribing general laws intends thereby to regulate the conduct of its subjects only, and not its own conduct, the law for perfecting liens does not apply against the state where the state is a party, and if the lien law does not apply to the state then the relator acquired no right by his attempted asserted lien, and if it acquired no right it has no remedy. Although the terms of the statute would be held to include the state under the.lien law the provisions for the enforcement of the law are limited to municipal corporations and do not apply to the state, and hence there is no method by which a lien against the state may be enforced.

There áre no provisions for the enforcement, of a lien given by such statutes where the state is made a party defendant in an action to foreclose such lien.

Since no action could be brought to determine the right of the defendants or of any other person to this fund, to issue a writ of mandamus requiring the defendants to pay over this fund to the relator would be to hold that the trustees and auditor must judicially determine who has a right to the fund by virtue of any liens and pay the same at their peril. The trustees know no one in the transaction save the principal contractor, and under the law it was the duty of them to have an estimate made to such principal contractor, and having certified such estimate to the auditor it was the duty of the auditor'to pay the same to such principal contractor, there being no provision for the determination of any other person’s rights to such fund by them. Hence, it is my opinion that the state .of Ohio is not subject or bound by the provisions of .the lien law, and no person can acquire any interest in any money by any steps taken under such lien law against any fund in the hands of the board of trustees or the Auditor of State, and that, therefore, .the relator is not entitled to a peremptory writ of mandamus, and the writ will be quashed and the petition dismissed at the costs of the plaintiff.  