This is an appeal from an order refusing to quash an indictment, charging the defendant with a violation of sections 337 and 338 of the Criminal Code, which are as follows:
Section 337. "Any person or persons, who shall sell or dispose of any personal property, on which any mortgage or other lien exists, without the written consent of the mortgagee or lienee, or the owner or holder of such mortgage or lien, and shall fail to pay the debt secured by the same, within ten days after such sale or disposal, or shall fail in such time, to deposit the amount of said debt, with the clerk of the Court of Common Pleas for the county, in which the mortgage or lien debtor resides, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be imprisoned, etc. *Page 23
Section 338. "It shall be the duty of any contractor or contractors, in the erection, alteration or repairing of buildings in the State of South Carolina, to pay all laborers, subcontractors and material men, for their lawful services and material furnished, out of the money received for the erection, alterations or repairs of buildings, upon which said laborers, subcontractors and material men are employed or interested, and said laborers, as well as all subcontractors and persons who shall furnish material for said building, shall have a first lien on the money received by said contractor or contractors, for the erection, alteration or repair of said buildings, in proportion to the amount of their respective claims. Nothing herein contained, shall make the owner of the building responsible in any way:Provided, That nothing contained in this section, shall be construed to prevent any contractor or contractors or subcontractors, from borrowing money on such contract.
"Any contractor or contractors or subcontractors, who shall, for other purposes than paying the money loaned upon said contract, expend and on that account fail to pay to any or all laborers, subcontractors and material men, out of the money received as provided in this section, and as admitted by such contractor or contractors, or as may be adjudged by any Court of competent jurisdiction, shall be deemed guilty of a misdemeanor and upon conviction, when the consideration for such work and material shall exceed the value of one hundred dollars, shall be fined not less than one hundred dollars, nor more than five hundred dollars, or imprisonment not less than three months nor more than twelve months; and when such consideration shall not exceed the value of one hundred dollars, shall be fined not more than one hundred dollars, or imprisoned not longer than thirty days: Provided, Said contractor or contractors or subcontractors, may have the right of arbitration by agreement with said laborers, subcontractors and material men." *Page 24
The appellant's exceptions will be reported.
The first question that will be considered is, whether laborers, subcontractors and material men have a lien under section 338, for services rendered and material furnished by them, on money received by the contractor, from those with whom he entered into the contract, to erect the buildings, etc.
The appellant's attorneys in their argument contend, that the act of 1896, whose provisions are incorporated in the Criminal Code as section 338, is unconstitutional, on the ground that it violates section 17, article III, of the Constitution, which provides that "every act or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title."
This question, however, is not properly before the Court for consideration, as it was not urged on Circuit, and there has been no ruling upon it.
As the statute, in express terms, gives a lien to laborers, subcontractors and material men, it must be held that they have such right, unless it is obnoxious to some other provision of the Constitution.
And, it is next contended, that it is repugnant to section 24, article I, of the Constitution, which provides that "no person shall be imprisoned for debt, except in cases of fraud."
The title of the act of 1896 is, "An act to require contractors, in the erection, alteration or repairing of buildings to pay laborers, subcontractors and material men, for their services and material furnished." Our construction of that act is, that section 1 thereof, was intended to provide a civil remedy, to protect the rights of laborers, subcontractors and material men. It creates a lien in their favor on money received by the contractor, for the erection, alteration or repairing of buildings, and, likewise makes it the duty of the contractor to pay them, for their services and the material furnished, out of the money *Page 25 received by the contractor. Section 2 was intended to punish the contractor criminally, for failing to pay the laborers, subcontractors and material men, out of the money received by him, for the erection, alteration or repairing of buildings. The act was not intended to punish him for disposing of property under lien. The title of the act and the language of section 2 show, that it was not intended to provide a punishment for disposing of property under lien (as the word "lien" is not mentioned in either of them), but for failure to pay the amount due the laborers, subcontractors and material men.
Section 2 of the act of 1896 is therefore repugnant to section 24, article I, of the Constitution. Ex parte Hollman,79 S.C. 9, 60 S.E. 19, 21 L.R.A.N. S. 242n;Bailey v. Alabama, 31 Sup. Ct. Rep. 145.
The next question to be determined is, whether the first and second sections of the act of 1896, are so interdependent that one cannot operate without the other.
The rule is thus stated in Cooley's Con. Lim., page 209: "If when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed, in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. * * *
"If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect, complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object, without the aid of the invalid portion. And, if they are so mutually connected with and dependent upon each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and, if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all *Page 26 the provisions which are thus dependent, conditional or connected, must fall with them." See also Gilreath v.Greenville, 63 S.C. 75, 40 S.E. 1028.
Section 1 of the act of 1896 was intended to create a civil remedy, while section 2 had in contemplation a criminal proceeding, for the punishment of a contractor, who failed to pay the parties therein mentioned, out of the money received by him. The two remedies are, in every respect, separate and distinct, and there is no reasonable ground for supposing, that the legislature would not have enacted section 1, if it had known that section 2 could not be carried into effect.
The appellant's attorneys recognize this principle, for, in their argument they say: "We do not contend, that the first section is unconstitutional, for the reason that the power of the legislature to create liens by statute, cannot be denied; but we contend that the second section is unconstitutional."
The next question for consideration is, whether the statute is in violation of section 5, article I, of the Constitution, which is as follows:
"The privileges and immunities of citizens of this State, and of the United States under this Constitution, shall not be abridged, nor shall any person be deprived of life, liberty or property, without due process of law, nor shall any person be denied the equal protection of the laws."
The principle is thus stated in the case of Simmons v.Tel. Co., 63 S.C. 425, 41 S.E. 521, 57 L.R.A. 607: "Legislation is not unequal nor discriminatory, in the sense of the equality clause of the Constitution, merely because it is special or limited to a particular class. The decisions of the United States Supreme Court establish that the legislature has power to make a classification of persons or property, for public purposes, provided such classification is not arbitrary and bears reasonable relation to the purpose to be effectuated, and that the equality clause is not violated, when all within the designated class are treated alike." *Page 27
The case of Gulf C. S.F. Ry. Co. v. Ellis, 165 U.S. 150, decides that the classification must not be arbitrary — that is, "must always rest upon some difference, which bears a reasonable and just relation to the act in respect to which, the classification is proposed," also that such classification must be "based upon some reasonable ground, some difference which bears a just and proper relation, to the attempted classification, and is not a merely arbitrary selection." This language is quoted with approval in Porter v. Ry., 63 S.C. 169, S.E. 108; Simmons v. Tel. Co., 63 S.C. 425,41 S.E. 521, 51 L.R.A. 607, and Oil Co. v. Spartanburg,66 S.C. 37, 44 S.E. 781.
These authorities are conclusive of this question, and show that the classification is not obnoxious to section 5, article I, of the Constitution.
The appellant also contended that the act of 1896 was inimical to the fourteenth amendment of the United States Constitution, which provides that no State shall deny to any person within its jurisdiction, the equal protection of the laws.
What has just been said, disposes of this question.
Construing the valid portion of section 338 with section 337 of the Criminal Code, it will be seen that section 338 creates a lien on money received by contractors in the manner therein mentioned, and that section 337 is applicable to such a lien.
Section 337 was construed by the Court in the case ofState v. Barden, 64 S.C. 206, 41 S.E. 959, and it was held that it was not in conflict with section 5, article I, of the Constitution.
The defendants cannot be tried, under that count of the indictment charging a violation of section 338 of the Criminal Code, but can be tried under section 337 for unlawfully disposing of the money covered by the lien described in section 338 of the Criminal Code.
For these reasons I dissent. *Page 28
MR. JUSTICE WATTS concurs.