#### ORINOCO SUPPLY COMPANY et al. v. MASONIC AND EASTERN STAR HOME et al.

(Filed 12 November, 1913.)

1. Liens — Material Men — Filing of Claims — Balance Due Upon Contract — Contract Abandoned — Completion by Owner.

It is necessary, to enforce a lien on a building for materials furnished the contractor, that he file with the owner an itemized statement of the amounts due for materials, or the material man give notice to the owner of the amount due him before the owner settled with the' contractor, and theh only to the extent of the amount then due; and when this required notice has not been *514given before tbe last payment bas been made to tbe contractor, who fails to complete the building, and tbe owner in completing tbe building bas paid out the balance of the contract price, no lien attaches. Revisal, secs. 2019, 2020, 2021.

2. Interpretation of Statutes — Proviso—Purview.

When a proviso in a statute is directly contrary to the purview of the statute, the proviso is good and not tbe purview, because the proviso speaks the later intention of tbe Legislature.

3. Interpretation of Statutes — Restrictive Laws — Strict Construction.

Chapter 761, Laws 1911, relative to a lien law applicable to Durham, Rowan, Guilford, and Randolph counties, is local in its nature, and -contrary to the general lien laws of tbe State, and must be strictly construed.

4. Interpretation of Statutes — Liens—Material Men — Proviso—Contradictory Terms.

Chapter 761,. Laws 1911, enacting a lien law for materials furnished for a building, etc., applying by section 5 only to Durham, Rowan, Guilford, and Randolph counties, provides that it shall-not be enforced in Union or S'tanly counties, with a further proviso that where materials are furnished by any person, etc., out-' side of Union County, “this act shall not apply in the collection of said debt, but the law as it now stands on the statute-books shall apply”: Sold, that the act is contradictory, self-destructive, and void.

Appeal by defendant from Shaw, J.¡ at October Term, 1913, of Guilford.

Civil action beard upon exceptions to report of referee. His Honor overruled all tbe exceptions of tbe defendant, confirmed tbe report of tbe referee^ and rendered judgment against tbe defendant, tbe Masonic and Eastern-Star Home, incorporated, from wbicb it appealed.

L. M. Swinlc, Hastings & Whicker, Manly, Ilendren ■& Wam-ble for plaintiff.

Charles A. Hines for the Wharton Builders Supply Company, one of the appellees.

W. F. Harding for defendant.

Brown, J.

Tbis is an action brought by tbe plaintiffs to subject tbe property of tbe defendant to a lien for material fur*515nished to tbe Auge Construction. Company, a contractor that bad undertaken to erect under contract a building upon skid defendants’ lot in Guilford County.

Tbe contractor failed to complete tbe building and was»adjudicated a bankrupt. Tbe owner completed it and expended more tban tbe contract price, and at tbe date of tbe adjudication in bankruptcy, tbe owner owed tbe contractor nothing.

None of tbe creditors, parties in this cause, filed any notice of their claims with the owner prior to tbe adjudication of tbe contractor in bankruptcy, except tbe Orinoco Supply Company, who gave notice of their claim on 16 April, 1912; but this notice was given after the last payment to tbe contractor by tbe owner on 8 April, 1912, and at tbe time tbe notices were filed nothing was owing to tbe contractor by tbe owner.

Under tbe general lien law of this State, Revisal 1905, secs. 2019, 2020, 2021, material men have no ben for materials furnished tbe contractor unless tbe contractor files with tbe owner an itemized statement of amounts due for material, or tbe material man gives notice to tbe owner of tbe amount due him before tbe owner makes settlement with tbe contractor, and then only as to such amount as may be due tbe contractor from tbe owner on its contract.

No notice having been given'either by tbe contractor or by tbe material man before tbe payments were made by tbe owner to the contractor, and there being no funds in tbe bands of the owner due tbe contractor on bis contract at tbe time notice of claims were given, such claims cannot, under tbe general statute, be a lien on tbe property of tbe owner. 27 Cyc., 102; Clark v. Edwards, 119 N. C., 115.

But tbe plaintiffs contend that tbe act of 1911, chapter 761, Public-Local Laws, gives them a lien on defendant’s property, irrespective of notice to tbe owner, and without regard to bis indebtedness to tbe contractor..

Tbe special statute provides that tbe owner shall require tbe contractor to furnish him, before paying any part of tbe contract price, an itemized statement duly verified, of tbe amount owing any person for materials furnished, and that tbe owner *516stall pay such amount shown by the statement to the person furnishing materials. The statute further provides that in the event of failure of the owner to require the itemized statement duly verified, that such failure shall not in any way affect the rights of the laborer or material man to file and enforce his lien:

It is contended by the defendant that such special statute is void for ambiguity as well as in violation of the Federal and State constitutions.

Section 5 of the special statute provides that “This act shall apply only to Durham, Rowan, Guilford, and Randolph counties : Provided, this act shall not apply nor shall it be enforced in Union and Stanly counties: Provided further, that where material is furnished by any' person, firm, or a corporation outside of Union County, the provisions .of this act shall, not apply in the collection of said debt, but the law as now on the statute-books shall apply.”

This special statute, entirely local in its nature, is in abrogation of the general lien law of the State, and undertakes to confer on the furnishers of building material in four counties privileges, legal rights, and advantages not common to the citizens of other counties in the State.

Its constitutionality is doubtful. But we are not called upon to pass upon it, as we think the act is self-destructive'and void on its face. Being in abrogation of the general law, it should 'be strictly construed. 27 Cyc., 20.

It has long been held that if a proviso in a statute be directly contrary to the purview of the statute, the proviso is good and not the purview, because the proviso speaks the later intention of the Legislature. 1 Kent Com., 430; Potter’s Dwarris, p. 118; Bacon Abr., title “Statute.” It was held by all the Barons of the Exchequer in the case of Attorney-General v. The Governor and Company of the Chelsea Waterworks, 9 B. and C., 835, that where the proviso of an act of Parliament was directly repugnant to the purview of it, the proviso should stand and be held a repeal of the purview, because, as was said, “it speaks the last intention of the lawgiver.” It was compared to a will, in which the latter part, if inconsistent with the former, supersedes and revokes it.

*517Dwarris says, page 118: “It bas been remarked upon this ease in Fitzgibbon, tbat a proviso repugnant to tbe purview, renders it equally nugatory and void as a repugnant saving clause; and it is difficult to see wby tbe act should be destroyed by tbe one and not by tbe other; or wby tbe proviso and the saving clause, when inconsistent with tbe body of tbe act, should be destroyed by tbe one and not by tbe other.” See, also, Rex v. Justices of Middlesex, 2 B. and A., 818; Townsend v. Brown, 24 N. J., 86.

In Farmers Bank v. Hail, 59 N. Y., at page 59, tbe opinion says: “Tbe saving clause is only an exception of a special thing out of tbe general things mentioned in tbe statute, and if repugnant to tbe purview, is void. Tbe office of tbe proviso is more extensive; it is used, to qualify or restrain tbe general provisions of an act, or to exclude any possible ground of interpretation, as extending to cases not intended by tbe Legislature to be brought within its purview, and if repugnant to tbe purview, it is not void, but stands as tbe last expression of tbe Legislature. As between conflicting provisions of tbe same statute, tbe last in order of arrangement will control.” See, also, tbe following pertinent cases: Hall v. Equator Mining and Smelting Co., Fed. Cases, No. 5931; Quick v. White Water Township, 7 Ind., 570; Rhyne v. State, 5 Neb., 276; Ex Parte Hewlet, 24 Nev., 333; 40 Pac., 96; Packer v. Sunbury and E. R. Co., 19 Pa., 211; Hightower, Lessee, v. Wells, 14 Tenn., 249; Savings Inst. v. Makin, 23 Me., 360.

Tbe statute under' consideration declares on tbe one band tbat it shall apply only to Durham, Guilford, and Eandolpb counties, and especially tbat it shall not apply nor be enforced in Union and Stanly counties, and on tbe other band it provides where material .is furnished by any persons, firm, or corporation outside of Union County tbe provisions of tbe act shall not apply in tbe collection of said debt, but tbat tbe law now' on tbe statute-books shall apply. So it makes no difference whether in Union or out of Union, tbe statute is inapplicable to tbe facts in this case, and admits of no construction which can give any force or effect to it.

*518We are led to the conclusion that the special statute relied upon by the plaintiffs is contradictory, self-destructive, and void.

Reversed.

"Walker and Alleh, JJ"., concurring, in result.