The Somerset herald. [volume] (Somerset, Pa.) 1870-1936, 1893-10-11
The Mechanics lien Act Uncon-
stiiutionaI.

Property owners, builders, contractors
aud mechanics are al interested in the de-
oision of Judge Hempbill, Of Chester ccun-
I ty. which declares that the Mechanics
Lien Law Of June s. 1921, is not legislation
bat usurpltion. irespasses upon the inhe--
ent and iRdsfeasioie rights Of property. vi
olates the fundamental principles Of both
contracts and sssney, eliminating from the
one mutually Of assent aud from the other
the authorization Of the principal, and is
therefore unconstitutional aEd void.
The act Of 1891 declares, firss, that no
contract shall prevent the fling Of a me.
ehanics lien for work done or materials
furnished unless the sgb-ccrtrscior shall
consent to the contract ia writing, and that
without such written contract all contracts
which declare that no Len shall be flied
shall be invalid IS against the right Of the
sub contractor to f.e the same. Secondly,
the act declares that all persons contracting
with the owner shall be considered the
agents Of the owner in ordering work and
materials for The erection OF a building
Under this act David McMasiers, q sub con-
tractor, filed lien against the West Chester
Normal School. The schoolas aeorporaiion
had dealt directly with Davis Peunock, who
contracted to erect the building. With him
written sgIeement had been made in
which Pennock, for himseifand his sub con-
tractors, waived the right to file any lien or
claim against the property or owner, and
agreed to file no such len. McMasters, who
was Pennoek' 5 sub contractor, did not unite
in the agreement. McMasters attempted to
recover, claiming that PennOck was the
agent Of the school corporation and tha, he
had not, by written contract. parted with
his right to file lien in accordance with tee
terms Of the sci Of 1891.
Judge Hsmphili summaries the decisions
of the United States and State courts under
the law of contracts. TIE tits. point to be
ascertained gss whether the act of 1891
affected the original contract or remedy
provided. The judge points out that the
act gives no new remedy, for the contractor
had the right of lien before its passage, and
that it affects solely the contract taking
effect and becoming operative at the in
eepiion Of the contract, while the remedy
provided by law for the enforcement of the
contract becomes operative only when the
contract has been broken. Continuing the
Judge holds that the section Of the act which
makes the original contractor the agent OF
the owner creates an involuntary agency,
not when the contract IS br0k en-, but " hen
made As in the case decided the contract
was made subseq uent 70 the Law. and the
latter would therefore become part of the
act Of 1891 does not impair the obligation Of
contracts, but decides it TO be unconstitu-
tional on other grounds. These grounds
are that the act attempts to interfere with
the owners right Of contract aad creates
without his consent an agency between him
and the sub-contractor. He therefore holds
that the Legislature attempts to do great
injustice to the owner aud exercise power
never conferred upon it, but. on the other
hand, expressly reserved to the individual
citizen by the declaration of rights of the
State Constitution.
Practically the act would put the owner
a; the mercy Of the first sub-contrac;or,
since there might easily be sub contractors
of whom the owners could have no knowl-
edge. A contractor could not contract for
the erection Of building in satisfaction Of
debt without running the risk of being
worse of than he was before, since the
debtor could by coneealing the sub-cOntIact,
appear to satisfy the debt and subsequently
liens could be filed which would absorb the
value ofthe building.
The objections to the act stated by Judge
Hemphill are 50 serious hat they will at
oHoe be apparent to every reader of the
decision The wonder might exist that
these objections were not seen when the
Legislature and press were discussing the
suhjact at the time the act was passed were
it not for the fact that Legislatures are con
stanily engaged in the attempt to make
unconstitutional laws at the instigstion Of a
class which does no, see very clearly the
rights Of other classes.-P Philadelphia IN
quirer.