(dissenting).
I do not agree with the interpretation which the majority opinion places upon I. C. §§ 45-502 and 45-503. Said opinion in substance limits the application of said statutes to work which falls within the classification of being performed in the construction, alteration or repair of something public.
It is common knowledge that a great deal of public work is performed under contracts entered into by the public bodies referred to in said statutes and it seems clear that the only purpose of enacting them was to protect all persons who may furnish or supply any such contractor with labor, materials or supplies in the prosecution of such public work. The method pursued to effect that protection was through a bond required by said statutes to be executed by the con*471tractor undertaking to perform the public work.
There is nothing in said statutes themselves to indicate that the legislature intended the statutes to apply only to a public work involving a building or other structure. The title to I.C. § 45-502 specifies that it has to do with “Contracts for public work”. In fact the title to the last act of the legislature amending § 45-502 provides as follows:
“Amending Section 44 — 502 Idaho Code Annotated, relating to contracts for public work and bond for protection of laborers and materialmen by increasing the sum for which said bond shall be furnished to 100 per cent of the contract price; * * (Emphasis supplied.) Idaho Session Laws 1933, Ch. 164.
In determining the liability on the bond the inquiry should be: Is the work contracted to be done a public work; and was the labor, materials or supplies sought to be recovered for furnished the contractors and used in the prosecution of the public work stated in the contract?
The statutes here involved have been considered by this Court and contrary to the view expressed in the majority opinion I believe the two following mentioned Idaho ■cases are very much in point.
In People ex rel. White v. Storm, 49 Idaho 246, 287 P. 689, 691 it was urged that the complaint involved was fatally defective in not alleging that the labor or materials, sought to be recovered for, had been “used in the construction, alteration or repair” of the public work and that C.S. § 7341 (now I.C. § 45-502) makes such allegation a prerequisite to an action on the bond. This Court refused to sustain such contention.
It is significant that in said case this Court stated:
“The only statutory protection now afforded laborers and materialmen for labor and materials furnished for the construction of public works, is that given by C.S., § 7341, which was taken almost bodily from the act of Congress of August 13, 189U, 28 Stat., p. 278, chap. 280, as amended February 24, 1905, 33 Stat., p. 811, chap. 778. (See 40 U.S.C.A. sec. 270, p. 92).” (Emphasis supplied.)
The act of Congress referred to had been (prior to the enactment of I.C. § 45-502) repeatedly construed by the Supreme Court of the United States and in the case of Standard Accident Ins. Co. v. United States for Use and Benefit of Powell, 302 U.S. 442, 58 S.Ct. 314, 315, 82 L.Ed. 350, said:
“The statute often has been before us. (Citations omitted.) And we are committed to the doctrine that it should be liberally construed in aid of the evident public object — security to those *472who contribute labor or material for public works.” (Emphasis supplied.)
In State ex rel. Modern Motor Company, Inc. v. H & K Construction Company, 75 Idaho 492, 274 P.2d 1002 this Court held that the coverage of the bond required by said statutes covers all labor or materials that directly or indirectly contribute to the construction of the work. In the instant case the public work covered by the contract consisted of stockpiling gravel for repair and construction of public roads. Certainly such work would be considered as contributing indirectly, if not directly, to the construction of public roads which unquestionably is a public work.
In support of the view herein expressed attention is called to the fact that I.C. § 45-502 requires the following additional obligation in the bond:
“that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor or materials or supplies in the prosecution of the work provided for in such contract.” (Emphasis supplied.)
It is the writer’s view that said statutes clearly require the execution of a penal bond by any person who enters into a contract with any of the public bodies enumerated therein, when the contract price exceeds $200, for any one of the following:
(1)The construction, alteration or repair of any public building;
(2) public work; or
(3) quasi public work.
Said statutes do not limit the work to the construction, alteration or repair of public-buildings or structures, but apply to all public work which is performed under-formal contract entered into with the public bodies therein referred to.