Owen J. Roberts

“ The act of 1917, on the other hand, instead of creating a right of lien against the owner, who is a stranger to the subcontract, requires that if a bidder for public works is to become the contractor therefor he must procure a bondsman for the payment of his subcontractors. The statute itself confers no contractual right on any subcontractor, nor does it by its own force confer upon him any new remedy for the enforcement as against the principal contractor of the obligation of any contract the two may make. A bondsman is invited to come forward and agree to indemnify the subcontractor. ”

“ This is not to substitute a new for the old remedy against the surety. It is to declare the surety's obligation unenforceable, in short, no longer a subsisting obligation. Beyond doubt the statute thus violates the contract clause of the Constitution.
The respondent insists that as the appellant joined the Equitable Company, surety on the refunding bond, as a defendant, it sought to take advantage of the amendatory act of 1929 and is now estopped to question the constitutional validity of the statute. ”

“ March 12, 1928, National Construction Company made a contract with the state, through its Department of Highways and Public Works, for the construction of a bridge. An act of 1917 required such a contractor to furnish a bond with surety to protect the state and to secure payment to persons furnishing materials, supplies, and labor for the project. [1] The company executed such a bond with the appellee as surety. The appellant agreed with the Construction Company to furnish certain labor and materials for the erection of the bridge. ”