Judge ANDERSON, who joins me herein, and I are of the opinion that sections 2275 and 2276, Code of 1930, have no application here, and that the rights of the several parties hereto are governed by section 5971, Code of 1930. Sections 2274 to 2280, inclusive, constitute the statutory scheme for securing the payment to subcontractors, laborers, and materialmen of the money due them in the construction of privately owned buildings or works, and article 6 of the chapter on Public Works, Code of 1930, in which section 5971 appears, is the statutory scheme for securing the payment to subcontractors, laborers, and materialmen of the money due them in the construction of public buildings and works. Each of these schemes is all-inclusive and excludes the other, and to intermingle them is not only confusing but creates situations, and results in imposing hardships on a contractor for the construction of a public building, never contemplated by the legislature.
Section 5971 first appeared in our statutes as section 1, chapter 217, Laws of 1918, but section 2274, to which sections 2275 and 2276 are ancillary, is a very old statute. The language of section 2274 is broad enough to cover *Page 848 public buildings and works, but early in its history this court restricted it by interpretation to privately owned buildings and works only. Panola County v. Gillen, 59 Miss. 198; McGraw v. Board of Supervisors, 125 Miss. 420, 87 So. 897; McKinnon v. Gowan Bros., 127 Miss. 545, 90 So. 243.
In 1918 the legislature decided to extend to subcontractors, laborers, and materialmen in the construction of public buildings and works the protection given to such persons in the construction of publicly owned buildings and works. Two courses were open to it for that purpose: (1) An amendment to section 2274, Code of 1930, which then appeared as section 3074, Code of 1906; or (2) a separate statute dealing only with public buildings and works. It adopted the second of these methods by enacting chapter 217, Laws of 1918, which now appears as article 6 of the chapter on public works in the Code of 1930, being sections 5971-5976, inclusive, thereof.
Under section 3074, Code of 1906, when a contractor assigned the proceeds of a contract for the construction of a privately owned building, the assignee had the right to collect from the owner of the building the money due by him to the contractor to the exclusion of the subcontractors, laborers, and materialmen to whom the contractor may have become indebted in the construction of the building. To remedy this defect, the legislature at the same session thereof in 1918, at which it enacted chapter 217, Laws of 1918, enacted chapter 128 of the laws of that year, by which section 3074 was amended so as to enlarge the rights conferred therein upon subcontractors, laborers, and materialmen, and to prohibit the assignment of the proceeds of a contract for the construction of a privately owned building unless and until the contractor gives a bond to the owner of the building being, or to be, constructed "guaranteeing the faithful performance of such contract . . . such bond [the statute further provides] shall also be subject to the *Page 849 additional obligations that such contractor or subcontractor, shall promptly make payments to all persons furnishing labor or material under said contract." The statute then provided in detail for the enforcement against the bond of the payment of all persons furnishing labor or material in the construction of the building. This statute now appears in the first volume of the Code of 1930 in the chapter on Liens as sections 2274-2280, inclusive, which chapter deals only with liens on privately owned property.
The contract referred to in sections 2 and 3, chapter 128, Laws of 1918, the proceeds of which the contractor was prohibited from assigning to the prejudice of subcontractors, laborers, and materialmen until he had given the bond required by the statute, is manifestly the contract under which the preceding section of the statute gave subcontractors, laborers, and materialmen a qualified lien on the building to be constructed under the contract, which building, in order for the statute to come into operation, must be one that is privately owned. Authorities supra.
It is true that the contract between the Davis Company and Dabney is a private contract. Nevertheless the subject-matter thereof — the construction of a public bridge — is not within the contemplation of section 1, chapter 128, Laws of 1918. That the sections of that statute now constitute separate sections of the code is of no consequence, for they appear there in the same relative order as in the original statute.
The rights of subcontractors, laborers, and materialmen under section 5971 are broader than the rights of such persons under section 2274. Under the first the principal contractor and his sureties are liable to all subcontractors, laborers, and materialmen who contribute to the construction of the building or work for the payment of debts due them therefor, however remote their contracts for labor and materials may be from the principal *Page 850 contractor. Oliver Const. Co. v. Dancy, 137 Miss. 474, 102 So. 568. But under sections 2275 and 2276 the principal contractor is liable only to subcontractors, laborers, and materialmen who contract directly with him. Alabama Marble Co. v. U.S.F. G. Co., 146 Miss. 414, 111 So. 573. If this difference between the two statutes is observed, the decree appealed from cannot be affirmed, for it permits the Davis Company to recover on the bond given it by Dabney for the money the decree compels it to pay to laborers and materialmen who contracted, not with the Davis Company, but with Dabney, the subcontractor — a liability which should not be imposed on that bond unless Alabama Marble Co. v. U.S.F G. Co., supra, is to be overruled.
The opinion of the majority seems to proceed on the theory that the question here for decision is "whether the principal contractor in a public building contract has the same right to subrogation as his surety upon the payment by the principal contractor of debts due laborers and materialmen contracted by a bonded subcontractor." I think this is a misconception of the issue. The question for decision is this: Has the Davis Company the right, in settling with Dabney's assignee, to deduct from the amount it agreed to pay Dabney for constructing the bridge the money paid by it to laborers and materialmen to whom Dabney was indebted for labor and material contributed in the construction of the bridge? The right of the Davis Company to make this deduction in no wise depends on the equitable doctrine of subrogation; in fact, there is no possible person to whose right so to do the Davis Company could be subrogated. That right is purely legal and undoubtedly exists under section 5971, and, I presume, would not be here questioned had the Davis Company not received from Dabney a bond for the faithful performance of his contract. *Page 851
To construe these statutes as is here done places a contractor for the construction of a public building, who receives bonds for the faithful performance of their contracts from his subcontractors, in a worse situation than he would have been had he not received the bonds, for he thereby, in event the subcontractors assigned the proceeds of their contracts, becomes liable not only to pay to these assignees the full amount he had agreed to pay his subcontractors, but in addition thereto to pay the debts incurred by these subcontractors to laborers and materialmen who contributed to the construction of the building — a result which neither statute contemplates, and which is in conflict with Alabama Marble Co. v. U.S.F. G. Co., supra. It is true that if Dabney and his bondsmen repay the Davis Company the money paid by it to these laborers and materialmen it will have lost nothing; but the Davis Company should not be compelled to assume this risk, and the statute did not so intend.
For these reasons Judge ANDERSON and I are of the opinion that the decree of the court below should be reversed and a decree should be rendered here according the Davis Company its rights under section 5971.