(dissenting).
The Court of Appeal, First Circuit, recognized that Tilly v. Bauman, 174 La. 71, 139 So. 762, a 1932 Supreme Court decision, was clear and unambiguous, the latest pronouncement of this court, and indistinguishable from and therefore applicable to the case at bar. It readily acknowledged its duty and obligation to follow and apply the decisions of the Louisiana Supreme Court. However, it just as readily refused to follow that Supreme Court pronouncement. Faced with this arrogation and usurpation, we should probably have remanded the case to that court immediately upon granting writs without assigning the matter for a hearing and with clear instructions to follow the existing law of this state. However, to remand after the case has been argued and submitted here would cause delay and do harm to the litigants before us, who are not responsible for the error.
While all Courts of Appeal and other courts are urged in their written opinions to assist this court in noting previous errors and correcting decisions erroneously rendered, they are nevertheless obligated by the Constitution and their oath to follow the law as enacted by the Legislature and pronounced by this court. I recognize and sympathize with the frustration of the Courts of Appeal when they are in disagreement with this court.1 Although I *727take point with the Court of Appeal’s failure to follow its readily admitted duty to apply Tilly v. Bauman, supra, I agree with that court’s consideration and judgment that the former decision is erroneous.
This court should be cautious, vigilant, and prudent in overruling its prior pronouncements since those judgments are law and are entitled to be relied upon. However, when' certain opinions are obviously erroneous, when they have not established a rule of property, and when in fact they stand alone and contrary to the general concepts of our law, it then becomes necessary for this court to weigh and evaluate the harm which may result from overruling because of prior reliance or other reasons, against the harm which will result from embracing and compounding previous error. After cautious and concerned consideration, I believe it is obligatory upon us to specifically overrule Tilly v. Bauman, supra, as being in error.
' In this case certain subcontractors paid their laborers as the work progressed on construction under an unrecorded contract between the owner and a contractor, so this case does not concern unpaid laborers seeking to collect from the owner on recorded liens because of the contractor’s or subcontractor’s failure to pay.
The quotation from Tilly v. Bauman found in the majority opinion bears repeating here:
“These two claims involve exactly the same point of law, which is this, Is a subcontractor who pays off his laborers employed by him subrogated to the lien rights of such laborers?
“We think he is. Under the statute, the building (and therefore, in effect the owner of the building) is liable for the workmen’s wages, because they have a lien on it; the subcontractor is of course liable for these wages, because he employed the men. Again, since the laborer’s lien primes the mortgage and the subcontractor’s does not, the laborer’s lien is necessarily preferable to that of the subcontractor.
“We have therefore before us both cases provided for by the Civil Code, art. 2161 * * * ”
Tilly v. Bauman held that a subcontractor by simply paying the laborers’ wages as they accrued, although no laborer ever perfected a lien, met the requirements for legal subrogation under' Civil Code Article 2161(1) and (3). It is readily admitted that the subcontractors here have no contractual right of subrogation, and that if any right of subrogation exists, it must be that legal subrogation provided for in these paragraphs.
*729The subrogation provided in Civil Code Article 2161(1), “For the benefit of him who, being himself a creditor, pays another creditor, whose claim is preferable to his by reason of his privileges or mortgages”, is inapplicable because these laborers never had a privilege or mortgage. Recordation of the claim by “the said laborer” is necessary before any privilege comes into existence. Note the repeated and explicit requirements, and particularly the language of R.S. 9:48122 which reads: “ * * * which recordation * * * by * * * the said laborer, shall create a privilege upon the building * * * in favor of any such person who shall have performed service or labor * * *. The said privilege, recorded as aforesaid, shall constitute a privilege against the property for a period of one year from the date of its filing, * * * and such right of action shall prescribe within one year from the date of the recordation of the privilege * * *. * * Any person * * * performing any labor * * * shall have a personal right of action against the owner * * * for a period of one year from the filing of his claim * * *.” And finally the statute provides: “The wages of a laborer for work done by him on any building, shall, when properly presented and recorded by him in accordance with the provisions of this Sub-part, create in his favor a privilege on the land and improvements which will prime the right of mortgagees and vendors.” (All emphasis supplied.)
It is obvious that the laborers employed by these subcontractors never had the privileges or mortgages required in .Civil Code Article 2161(1), for the provisions of the law which create that privilege, R.S. 9:4812, have never been complied, with. (See quotation immediately preceding.) There was no creditor with preferable claims “ * * * by reason of his privileges * * * ”, from whom these subcontractors could purchase with right of subrogation under Civil Code Article 2161 (1)-
The majority rejects the French authorities such as Planiol and Aubry and Rau by stating in footnote that the court in Ziegler v. His Creditors (on rehearing), 49 La.Ann. 144, 187, 21 So. 666, 684 (1897), found some variance in the French authorities on the question of legal subrogation. I find in Ziegler only the perception that the Code needs no clarification on this issue under the facts of that case.
Note the quotation by the majority -from Ziegler: “ * * * [The Code’s] conciseness of expression that subrogation takes place in favor of the creditor who pays another whose debt is preferable by *731.reason of his privilege or mortgage, would certainly seem to prechide any aid for interpretation.” Obviously Ziegler is- not supportive of the majority’s interpretation .or analysis of legal subrogation under Civil Code Article 2161(1) since that case was concerned with a prior recorded mortgage purchased by another creditor. We are not here concerned with the purchase of any preferable privilege or mortgage which would give rise to subrogation under Civil Code Article 2161(1), for the only one in existence here is the mortgage the subcontractors seek to prime.
The majority contends, and Tilly v. Bauman held, that the subrogation created by Article 2161(3), “For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it”, is- applicable .here, and that the subcontractors-employers and the owner were solidarily bound for the laborers-employees’ wages. I contend that the owner with the unrecorded contract for “construction, improvement, repair, .erection, or reconstruction” is not solidarily liable with any contractor, subcontractor, or other employer for their employees’ wages simply because the employees are doing work on the owner’s property and may exercise the privilege of R.S. 9:4812.
The majority takes point with the Court of Appeal’s opinion, stating that that court’s deductions were' apparently based solely upon a consideration that R.S. 9:4812 created claims in rem, and that that court “ * * * failed to notice that the statute also provides a personal right of action in those parties entitled to a privilege against the owner for the amount of their claim for a period of one year from the filing of the claim”. Immediately following the majority concludes that laborers “ * * * are granted this personal right of action as soon as the services are performed * * ”. It has ignored the language it used in the previous sentence, but more particularly it has ignored the specific language of R.S. 9:4812, which is stricti juris and is to be rigidly interpreted without extension or enlargement. La. Civ. Code Art. 3185; Citizens’ Bank of Louisiana v. Maureau, 37 La. Ann. 857; American-La France & Foamite Industries v. Town of Winnfield, 184 La. 1043, 168 So. 293; Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336; Lumber Products, Inc. v. Crochet, 244 La. 1060, 156 So.2d 438.
R.S. 9:4812 is explicit and unambiguous .in limiting the personal obligation of the owner with the express words that there is “a personal right of action” against the owner only "from the filing” of the claim. The owner is not a debtor of the laborer unless a claim is properly and timely recorded by the laborer, nor is he a debtor if the claim is never filed. Since the required laborers’ claims were never filed in this proceeding, no privilege was created, *733and no personal obligation for wages ever existed. In fact, this owner was never a debtor of these laborers, and he therefore is not and never was solidarily liable with the subcontractors for their wages.
Rathborne Lumber & Supply Co. v. Falgout, 218 La. 629, 50 So.2d 295 (1950), is cited by the majority as being supportive of the solidary liability of the owner and the subcontractors. The majority fails to note the distinguishing feature of that case, which is that a materialman had timely recorded his claim, and this court through Mr. Justice Hamiter simply held that the defendants (owner and subcontractor) were solidarily liable for the personal right of action flowing from plaintiff’s recorded privilege. Rathborne lends no support to the majority’s position.
R.S. 9:4801 denies specifically and expressly what the majority opinion would accomplish indirectly. That statute, after providing that recorded vendors’ privileges and mortgages which meet certain conditions are superior to the claims of every contractor and subcontractor, provides in Subpart (D) : “The privilege given to the laborer * * * primes the rights of mortgagees and vendors.” Only laborers may perfect a claim superior to prior recorded mortgages, and contractors and subcontractors are expressly ranked below prior recorded mortgages. It is the legislative intent to protect certain recorded security devices from all but a laborer’s claim, and its wisdom is not to be questioned in applying its enactments. The effect of Tilly v. Bauman and the majority opinion is to do indirectly what has been expressly prohibited, and enrich certain subcontractors for wages paid (upon which they intended to make a profit) to the detriment of the legislatively preferred mortgagee and perhaps many small materialmen, who must stay subordinated to the recorded mortgage.
The majority opinion fails to give meaning to the unambiguous language in the Civil Code, is contrary to the civilian concept of subrogation by law, disregards a long line of jurisprudence and the Code which make privileges stricti juris, and particularly repudiates and contravenes the direct legislative expressions of ■ R.S. 9 :- 4801 and 4812. I am in total agreement with a statement quoted by the majority from Ziegler, supra: “After all, on this question, is not the Code itself enough? * * * ”
I find that the Civil Code, our jurisprudence (except for Tilly v. Bauman), and our statutory law are explicit — so explicit that Tilly v. Bauman should be overruled as being erroneous, eddying alone and apart out of the mainstream of our law.
I respectfully dissent.
. The late Judge George W. Hardy, Jr., presiding judge of the Court of Appeal, Second Circuit, once concluded an opinion where differences existed between the two levels of the judiciary with a paraphrase of the following quotation from Tennyson’s “Charge of the Light Brigade”:
“Theirs not to reason why,
“Theirs but to do and die”.
For the Court of Ajjpoal judges I would paraphrase:
“Theirs 6«i to reason why,
“And still to do and die”.
The Court of Appeal in this case could have followed the law and notwithstand*727ing preserved its integrity, its right to ■ disagree, and its right to vent some of its frustration by calling our attention to what it considered error in the former Supreme Court opinion.
. Section 4812 of Title 9 of the Revised Statutes of 1950, and not the .present version enacted in 1966, is applicable here since this case arose prior to the effe'c- ■ tive date of the later act. . ...