A vessel being constructed under contract for the United States
is a public work within the meaning of the Act of August 13, 1894,
c. 280, 28 Stat. 278, as amended by the Act of February 24, 1905,
c. 778, 33 Stat. 811, and materialmen can maintain an action on the
bond given pursuant to such statute by the contractor.
Whether a work is public or not depends on whether it belongs to
the representative of the public, and not on whether it is or is
not attached to the soil.
Where title to the completed portion of a vessel being
constructed for the United States passes to the United States as
payments are made, laborers and materialmen cannot assert liens
under the state law, but can maintain actions on the contractor's
bond given under the Act of 1894 as amended by the Act of 1905.
United States v. Ansonia Brass & Copper Co.,
218 U. S. 452
The court will, in the absence of clear and established
construction, reach its own conclusion in construing a statute,
notwithstanding opinions of the Attorney General looking in the
in this case, that the suit had been properly
brought, and that the United States was not necessarily a party,
the suit being begun in the name of the United States to the real
Although the plaintiff may not have applied for copy of the bond
and filed an affidavit that the labor and materials had been
supplied, the defect was formal, and not vital, as the intervenors
had complied with the statute in that respect.
Objections to allowing claimants the benefit of the bond given
by the contractor under the Act of 1894 as amended by the Act of
1905, either because they had a lien or because the service was too
remote, if carried to an extreme, would defeat the purpose of the
Where a bond is under seal, consideration is presumed; in this
case, although the bond was not executed until ten days after
Page 219 U. S. 25
of the contract which it was given to secure, the transactions
may be regarded as simultaneous.
Assignments of claims of materialmen on a public works
in this case not to have affected the remedy of
enforcing the same against the surety on the contractor's bond.
In a suit to enforce claims of materialmen against surety on a
contractor's bond, each claimant is entitled to a docket fee of
$10.00. Although the claims are consolidated in a single suit, the
causes of action are distinct.
163 F. 168 affirmed.
The.facts, which involve the construction of the Materialmen's
Act of August 13, 1894, as amended by the Act of February 24, 1905,
are stated in the opinion.
Page 219 U. S. 31
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action brought under the Act of August 13, 1894, c.
280, 28 Stat. 278, as amended by the Act of February 24, 1905, c.
778, 33 Stat. 811, upon a bond given to the United States, as
required by that act. The contract to secure which the bond was
given was a contract by the Puget Sound Engine Works to build and
deliver a single screw wooden steamer for the United States, and
the main question in the case is whether the statute applies to a
contract for such a chattel. If not, parties like the plaintiffs,
who furnished labor or materials for the work, have no standing to
maintain the suit. We proceed, as soon as may be, to dispose of
that question, leaving details and minor objections to be taken up
later in turn. It was raised by demurrer to the declaration, and
subsequently by what was entitled an affirmative defense pleaded by
the surety and a demurrer by the plaintiffs. The decision was for
the plaintiffs, against the surety, in the circuit court of
appeals. 163 F. 168.
The amended statute requires any person
"entering into a formal contract with the United States for the
construction of any public building, or the prosecution and
completion of any public work, or for repairs upon any public
building or public work, . . . to execute the usual penal bond . .
. with the additional obligation that such contractor or
contractors shall promptly make payments to all persons supplying
him or them with labor and materials in the prosecution of the
It gives any person who has furnished labor or materials used in
the construction or repair of any public work, which have not been
paid for, the right to intervene in a suit upon the bond. In short,
besides securing the United States, the act is intended to protect
persons furnishing materials or labor "for the construction of
public works," as the title
Page 219 U. S. 32
declares. The question narrows itself, accordingly, to whether
the steamer was a "public work" within the meaning of the words as
As a preliminary to the answer, it is relevant to mention that,
by Article 3 of the contract, partial payments are provided for as
the "labor and materials furnished" equal certain percentages of
the total, and that, by Article 4 "the portion of the vessel
completed and paid for under said method of partial payments shall
become the property of the United States," although the contractor
remains responsible for the care of the portion paid for, and by
Article 2 there is to be a final test of the vessel when completed.
The vessel has been built and accepted, and is now in possession of
the United States. Notwithstanding these facts, it was argued that
the statute did not apply to the contract, because the laborers and
materials had a lien by the state law, and that, even if the
statute applied, they had lost their rights by not asserting them
before the delivery of the vessel, as before that, it is said, the
title did not pass to the United States. Among other things, this
ended the right to subrogation that the surety might have claimed.
But the very recent decision in United States v. Ansonia Brass
& Copper Co., 218 U. S. 452
establishes that the title to the completed portion of the vessel
passed, as provided in Article 4, and that the laborers and
materialmen could not have asserted the lien supposed to exist.
The case cited shows, therefore, that such claimants are within
the policy of the statute. It also contains a strong intimation
that they are within the meaning of its words. For it refers to the
statute, and says that it was in recognition of the inability of
such persons to take liens upon the public property of the United
States that Congress passed the act, and adds that, in view of this
purpose to provide protection for those who could not protect
themselves, the statute has been given liberal construction by this
Page 219 U. S. 33
See also Hill v. American Surety Co., 200 U.
. The reference and comment when the attempt was
made to enforce a lien under state laws would have had no relevance
unless they had been intended to point out the true remedy
available in such a case. The argument that the vessel was not a
public work loses most of its force when it appears that the title
was in the United States as soon as the first payment was made. Of
course, public works usually are of a permanent nature, and that
fact leads to a certain degree of association between the notion of
permanence and the phrase. But the association is only empirical,
not one of logic. Whether a work is public or not does not depend
upon its being attached to the soil; if it belongs to the
representative of the public, it is public, and we do not think
that the arbitrary association that we have mentioned amounts to a
coalescence of the more limited idea with speech so absolute that
we are bound to read "any public work" as confined to work on land.
It is not necessary to discuss in detail some opinions from the
Attorney General's office in cases where the title to the vessel
did not pass that looked rather in the opposite direction. It is
enough to say that there has been no such clear and established
construction as to cause us to yield our own view. On the other
hand, the decision of some other courts has been in accord with the
judgment below and with what we now decide. United States v.
Perth Amboy Shipbuilding & Engineering Co.,
137 F. 689,
693; American Surety Co. v.Lawrenceville Cement Co.,
F. 717, 719; United States v. Aetna Indem. Co.,
Another defense, set up in the same manner as the first, is that
the United States should have been made a party, and, in connection
with this, a further one, that the suit cannot be maintained unless
the plaintiff has applied, as provided in the statute, for a copy
of the bond, and furnished an affidavit that labor or materials
have been supplied
Page 219 U. S. 34
by him for the prosecution of the work. The latter is the more
substantial, as, of course, the suit was begun in the name of the
United States, to the real plaintiffs use. But the objection is not
serious in either form. No suit had been brought by the United
States for more than six months from the completion of the work,
affidavits were made and copies filed by interveners, and in the
circumstances the omission was only a formal defect. The language
of the statute that, after giving the affidavit, the party should
be furnished with a certified copy of the contract and bond, "upon
which he or they shall have a right of action," etc., may be read
as meaning "upon which bond" as easily as "upon doing which," and
hardly can be construed as making a condition precedent. The
conditions are attached in the form of provisos by later words.
Next, it is objected that certain claimants are not entitled to
the benefit of the bond, either because they had a lien or because
the service was too remote. Of the former class are claims for
cartage and towage to the spot where the work was going on. We
agree with Judge Putnam in American Surety Co. v.Lawrenceville
110 F. 717, that, in these smaller matters, the
objection, if carried to an extreme, would defeat the purpose of
the statute, that such liens ordinarily are not insisted upon, and
that it would be unreasonable to let the statute "interfere with
the convenience of minor dealings in such methods as the usual
practices establish." Of the other class are the claims for
patterns furnished to the molding department of the Puget Sound
Engine Works. As was said by the judge below, those who furnish the
patterns have as fair a claim to be protected as those who erect
the scaffolding upon which the carpenters stand in doing their work
upon the ship.
Next it is said that the bond was without consideration because
the contract was made on February 17, and the bond not executed
until February 27, ten days later. But
Page 219 U. S. 35
the transactions may be regarded as simultaneous in a practical
sense, and the bond being under seal, consideration is
The assignment of some of the claims did not affect the remedy.
United States v. Rundle,
100 F. 400.
The allowance of a docket fee of $10 to each claimant appears to
us to be correct. Rev.Stat. § 824. The claims are several and
represent distinct causes of action in different parties, although
consolidated in a single suit.