¶1I concur in the result reached in this case, namely, the reversal of the order and the discharge of the plaintiff in error. I cannot, however, agree with the *441conclusion expressed in the majority opinion as to the constitutionality of sub. 3, sec. 3315, Stats. First, I think no conviction should in any event be allowed to stand under the statute as now worded, because.it fails to require proof that such alleged misapplication of the funds received by the contractor from the owner is done with an unlawful intent, and the reference in that statute to the embezzlement statute is not sufficient to make this statute complete by such reference or by implication. Second, I think the statute in question attempts to do, indirectly at least if not directly, that which is prohibited by sec. 16, art. I, Const., which provides: “No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.”
¶2The obligation of the principal contractor towards the subcontractors and materialmen for services rendered or materials delivered is .a contract obligation of the simplest and plainest kind. A statute, therefore, attempting to provide that the failure of a person for whom services had been rendered or materials delivered to pay for the same should be denominated a felony and punished by imprisonment would be a clear violation of the provision above quoted, or else the constitution in that regard is an idle waste of words.
¶3By express agreement the principal contractor himself or his surety may lawfully undertake with an owner that such contractor and his surety will, for a valuable consideration, pay to said subcontractors or materialmen money to become due them on account of their employment by the contractors, and such subcontractors and materialmen may maintain an action upon such contract although it may have been' entered into without any consideration moving from them, and even without -their knowledge or consent at the time of the making thereof. New York C. J. F. Co. v. Kenosha, 167 Wis. 371, 376, 167 N. W. 451, and cases there cited; Builders L. & S. Co. v. Chicago B. & S. Co. 167 Wis. 167, 169, 166 N. W. 320, being an application to this particular kind of contracts of the general rule so often repeated in this court *442since Tweeddale v. Tweeddale, 116 Wis. 517, 93 N. W. 440. Many of the subsequent cases on that rule are cited in Sedgwick v. Blanchard, 164 Wis. 421, 424, 160 N. W. 267. These all recognize the relationship that is here presented between the principal contractor as promisor, the owner as promisee, and the subcontractors or materialmen as beneficiaries as being a contract obligation, nowhere designating it as a trust relationship. The statute now being upheld by the majority punishes a breach of such contract obligation by imprisonment in what seems to me to be á disregard of the letter and the spirit of the constitutional provision.
¶4In Bailey v. Alabama, 219 U. S. 219, 31 Sup. Ct. 45, the United States supreme court declared unconstitutional the so-called peonage law of Alabama, which by the supreme court of that state had been declared constitutional as reported in 161 Ala. 75, 78, 49 South. 886. The federal court said (p. 238) as follows:
“We cannot escape the conclusion that, although the statute in terms is to punish fraud, still its natural and inevitable effect is to expose to conviction for crime those who simply fail or refuse to perform contracts for personal service in liquidation of a debt, and judging its purpose by its effect that it seeks in this way to provide the means of compulsion through which performance of such service may be secured.”
¶5Here as there the real purpose of the statute is to' provide means of forcing payment of a debt by threatened confinement in the penitentiary of those who fail to perform that which is a simple and plain contract obligation.