The opinion
Carter and Boggs, JJ., dissenting:
We do not concur in the decision rendered in this case, making the municipal corporation liable to pay a second time the moneys in question because of the default of its officials. The statute under which the proceeding is brought does not create any right in the sub-contractor to hold the corporation liable in such a case. It was not the intention of the legislature to create a lien on public property enforceable against the corporation. The statute makes it the duty of the officials (after proper notice) whose duty it is to pay the contractor, to withhold a sufficient amount to pay the sub-contractor, and if they violate the duty so imposed on them by the statute, the sub-contractor’s remedy is by action at law on the official bond of the officer so violating his duty. Such seems to be the plain provisions of the statute. Where no liability or remedy is created or given by the statute against the municipality and none existed before its enactment, we cannot agree that the courts may create both the liability and the remedy.