lien upon the property for the value of the labor done and materials furnished, proceeds as follows:

"The liens in this chapter provided for shall be direct liens, and shall not in the case of any claimants, other than the contractor be limited, as to amount, by any contract price agreed upon between the contractor and the owner except as hereinafter provided."

The court below found that the bond was given in pursuance of section 1183 aforesaid. It is not claimed by the respondents that it is good as a common law bond, or that there was any consideration for its execution other than the belief that it was required by said section. The contention of the appellant is that the entire scheme of the provision is inIt then provides that such liens shall not valid because it invades the right of conextend to any labor or materials not em- tract preserved by section 1, article 1, of the braced within the original contract, or mod- Constitution, and that, even if its provisions ification thereof, if the claimant has had ac- are otherwise valid, the requirement of a tual notice thereof before the performance bond is beyond the legislative power and of labor or furnishing of material. It fur- void, and that, for these reasons, the bond is ther provides, with respect to such notice, without any consideration, and is unenforceIf the premises are correct the conthat the filing of the contract, or modifica- able.

tion thereof, in the office of the county re-clusion that the bond creates no obligation corder before the commencement of the work, shall be equivalent to actual notice thereof to lien claimants. Then follows the important provision of the section in these words:

"In case said original contract shall, before the work is commenced, be so filed, together with a bond of the contractor with good and sufficient sureties in an amount not less than fifty (50) per cent of the contract price named in said contract, which bond shall in addition to any conditions for the performance of the contract, be also conditioned for the payment in full of the claims of all persons performing labor upon or furnishing materials to be used in such work, and shall also by its terms be made to inure to the benefit of any and all persons who perform labor upon or furnish materials to be used in the work described in said contract so as to give such persons a right of action to recover upon said bond in any suit

* to foreclose the liens provided for in this chapter or in a separate suit brought on said bond, then the court must, where it would be equitable so to do, restrict the recovery under such liens to an aggregate amount equal to the amount found to be due from the owner to the contractor, and render judgment against the contractor and his sureties on said bond for any deficiency or difference there may remain between said amount so found to be due to the contractor and the whole amount found to be due to claimants for such labor or materials or both. No change or alteration of the work or modification of any such contract between the owner and his contractor shall release or exonerate any surety or sureties upon any bond given under this section. It is the intent and purpose of this section to limit the owner's liability, in all cases, to the measure of the contract price where he shall have filed or caused to be filed in good faith with his original contract a valid bond with good and sufficient sureties in the amount and upon the conditions as herein provided. It shall be lawful for the owner to protect himself against any failure of the contractor to perform his contract and make full payment for all work done and materials furnished thereunder by exacting such bond or other security as he may deem satisfactory."

Section 14 of the revising act is as follows:

"The provisions of this act shall be liberally construed with a view to effect its purpose. They are not intended as a re-enactment of the provisions of former statutes, with the policy heretofore impressed upon the same by the courts of this state, but are intended to reverse that policy to the extent of making the liens provided for, direct and independent of any account of indebtedness between the owner and contractor, thereby making the policy of this state conform to that of Nevada and the other Pacific coast states."

would follow. The principle that a bond given solely to comply with a statute, which is itself void, or which does not require the bond as supposed, is without binding force is settled by the cases of Powers v. Chabot, 93 Cal. 270, 28 Pac. 1070, Coburn v. Townsend, 103 Cal. 235, 37 Pac. 202, Reay v. Butler, 118 Cal. 115, 50 Pac. 375, and similar cases, and, on the other hand, if the statute is valid in this respect it would necessarily follow that there was a sufficient consideration for the bond, and that it was binding upon the surety. The validity of the act as a whole and the provision requiring such bond in particular are, therefore, questions necessary to the determination of the case.

We have shown that when this act was passed it was the established doctrine of this state that the Legislature cannot create mechanic's liens against real property in excess of the contract price, where there is a valid contract, but that it is within the legislative power, in order to protect and enforce the liens provided for in the Constitution, and so far as for that purpose may be necessary, to make reasonable regulations of the mode of contracting, and even of the terms of such contracts, and to declare that contracts shall be void if they do not conform to such regulations. This court has never in any case departed from this doctrine. The case of Laidlaw v. Marye, 133 Cal. 170, 65 Pac. 391, and similar cases holding that, although a contract not in conformity with the statutory regulations is void, and therefore does not limit the lien claimant to the contract price, that it is binding in controversies between the contractor and owner to fix the amount of the contractor's recovery in assumpsit for the value of the work he has done, are not in conflict with this doctrine, but in recognition of it. Merced L. Co. v. Bruschi, 152 Cal. 372, 92 Pac. 844, and Burnett v. Glas, 154 Cal. 249, 97 Pac. 423, They do had to do with invalid contracts. not impugn the doctrine stated; they assert and enforce it. Nor is there any suggestion contrary thereto in the recent case of Martin v. Becker, 169 Cal. 301, 146 Pac. 665.

The portions of the act of 1911 above quoted clearly show that the Legislature did not intend thereby to depart from this doctrine,

154 PACIFIC REPORTER

but that, on the contrary, the design was to follow it and to protect lienholders by means of regulations concerning the mode of contracting and dealing with property for the purposes of erecting improvements thereon. The first declaration on the subject is that the liens provided in the chapter shall be "direct liens" (whatever that may mean), and that persons, other than the contractor, shall not be limited by the contract price "except as hereinafter provided." The proviso referred to is found in the following declaration in the same section:

"It is the intent and purpose of this section to limit the owner's liability, in all cases, to the measure of the contract price where he shall have filed or caused to be filed in good faith with his original contract a valid bond with good and sufficient sureties, in the amount and upon the conditions as herein provided."

A plainer declaration of the intent to make the contract price the limit of the owner's liability, where the bond and contract have been filed as required by this section, could scarcely be made. The rather vague statement in section 14 of the revising act of 1911 that said act is intended to make the liens therein provided for “direct and independent of any account of indebtedness between the owner and contractor," should not be interpreted as in contravention of section 1183, unless no other reasonable construction is apparent. It is not difficult to find a better application of the expression. Section 1183 describes two classes of liens. One class consists of liens in cases where the bond has not been filed, in which case, the state of accounts between the owner and contractor, and even the contract price, are immaterial to the lien, except as to the contractor. The other classes consist of all cases in which the proper bond and contract are duly filed. In these cases, by the express language of the section, the contract price is made to control, and the account of the indebtedness thereon from the owner to the contractor is decisive of the amount of the liens which can be adjudged against the property. quoted clause of section 14 is therefore obviThe above ously applicable only to the first-mentioned class of liens, those where the bond and contract are not filed. To apply it to the other class of liens would work a practical repeal of very many of the elaborate provisions of the chapter as revised, since, for the most part, they would be wholly unnecessary and useless. The intent of the statute is to restrict liens to the contract price in all cases where the provisions of the statute regarding the bond are observed, and to impose upon the owner the penalty of paying all liens to the extent of the value of the work done and materials furnished where he shall neglect to comply with the statute.

The effect is that persons contracting for the erection of buildings or structures on their property must require the contractor to furnish such bond and must file the same with the contract in the recorder's office, or

(Cal.

as an alternative, he must see to it that the value of the work and materials used in the building by the contractor is paid to the persons who furnish the same. accompanied by such bond is not declared to A contract not be invalid, but it furnishes no protection to the owner against liens for labor and material on the building. Do these regulations son, supra, and the other cases above cited? come within the doctrine of Latson v. Nel

purported to confer liens for work and mateThe amendment of 1880 to section 1183 rial on buildings without any regard whatthe contractor. It gave the owner no method ever to the contract between the owner and of exercising his right to contract with the builder for improvements on his property, without practically assuming total responsifor the labor and material thereon. It probility for all failure of such builder to pay vided no means whereby he could avoid liens placed upon the property for the value of such work and materials. The right of persons to contract in that manner respecting their property was, to that extent, taken away. the inalienable right to acquire and possess This was held to be a violation of property guaranteed by section 1, article 1, of the Constitution. The revision of 1885 also interfered with the right of contract. Under its provisions the owner of property, in all proceedings to have improvements placed thereon by a builder, was not allowed to make payment in advance of the work. He was required to make his contract provide that three-fourths of the contract price should be paid in installments as the work progressed, or at completion, and one-fourth 35 days or more after completion. Failing in this he was declared to have made no contract at all, and the property was made subject to all claims for work and material used in the structure erected. clearly a destruction, pro tanto, of the right This, although of the owner freely to contract for the improvement of his property, was held to be a right of enjoying property and of making reasonable and permissible regulation of the contracts in relation thereto. The difference in the decisions upon these two differing laws points to the solution of the first part of the question. In view of the fact that our Constitution itself gives to workmen and materialmen a lien upon property for the value of the work and materials they bestow upon it and directs the Legislature to provide for obvious that any legislative provision to that the efficient enforcement of such liens, it is end which offers to the property owner a reasonable and practical mode of improving his property through a contractor at a fixed price and without further liability, should be constitutional mandate. considered as a legitimate exercise of the amendment of 1880 was deemed unreasonable The plan of the because it deprived the owner of all right to contract for improvements on his property for a sum fixed by his contract with the builder,

while the amendment of 1885 was considered involved the validity of the bond thus rereasonable because it provided a practical quired, and held that this provision for a method for the making of improvements un- bond is in violation of the inalienable right der such contracts, although it did to some to acquire and possess property and contract extent infringe upon liberty of contract. in relation thereto. The section did not speciThis theory has not been put in this way nor fully expressed in the several decisions on the subject. But the discussion therein plainly points to this as the true reason for the differentiation of the two enactments. The case of Latson v. Nelson, and others following it, construing the amendment of 1880, and the case of Stimson Mill Co. v. Braun, supra, holding that the Legislature may not require such contracts to be made payable only in money, go far toward the limit of reason on the point that section 15, article 20, of the Constitution, is subordinate to the Declaration of Rights in section 1, article 1. The law of 1911 here involved does not deprive the owner of the right to contract for the improvement of his property. It allows him to contract freely for such improvement and upon such terms as he may deem for his best interests. All it exacts from him, as a condition of such exemption from liability, and in order to make his contract effective, is that he shall provide a reasonable security for the constitutional lien given for labor and materials furnished to his contractor. It is not an unreasonable burden. It is one which we think the people have the power to impose and which we believe to be within the scope of the constitutional mandate in the section conferring such liens, and of the police power.

Upon the point that any provision ing a bond to secure such liens, whether given by the contractor or the owner, is unconstitutional, the appellant cites a line of cases beginning with Gibbs v. Tally, 133 Cal. 373, 65 Pac. 970, 60 L. R. A. 815. The other cases are Shaughnessy v. American Surety Co., 138 Cal. 543, 69 Pac. 250, 71 Pac. 701; San Francisco, etc., Co. v. Bibb, 139 Cal. 192, 72 Pac. 964; Snell v. Bradbury, 139 Cal. 380, 73 Pac. 150; Montague v. Furness, 145 Cal. 206, 78 Pac. 640; and Hampton v. Christensen, 148 Cal. 729, 84 Pac. 200.

fy who should file the bond, nor to whom it should be made payable, nor who should execute the same. In Gibbs v. Tally the contract for the building was valid under the lien law as it then existed, and the persons who filed claims of lien had foreclosed the same, and had caused all of the contract price remaining unpaid from the owner to the contractor to be applied upon their liens, but it was not sufficient to pay them in full. Gibbs, one of the lien claimants, then began the action against Tally, the owner, to recover the damages which the statute purported to allow in case of the failure to file the required bond. The gist of the decision is that to allow such recovery, where there was a valid contract between the owner and the contractor, would make the owner liable for a debt which he did not owe, for an amount in excess of the contract price and which he had not agreed to pay. This, it was declared, was an unlawful infringement of section 1, article 1, of the Constitution. The facts involved in the case have no necessary bearing upon the question whether or not the Legislature could in any case require the contractor to file a bond for the benefit of persons having claims against him regarding the same before entering upon the work.

In Shaughnessy v. American Surety Co., supra, the question of the power of the Legrequir-islature to require the bond specified in section 1203 was directly involved. It was said that the requirement of such a bond was entirely outside of any protection of the constitutional lien given to mechanics and materialmen, and that it was in violation of the constitutional right of contract respecting property. The other cases above cited merely follow the decision in Shaughnessy v. American Surety Co. without further discussion of the subject. There is a marked difference between the law denounced as void in these cases and the act of 1911. The provisions of In 1893 the Legislature amended section section 1203 do not appear to have had any 1203 by requiring a bond to be filed to secure direct relation to the validity or invalidity of claims of workmen and materialmen on a the contract for the building. It was an adbuilding. The foregoing cases construe this ditional requirement, an additional burden section. It provided that every contract re- upon the parties. It had no connection with quired to be filed by the mechanic's lien law or relation to the constitutional mechanic's should be accompanied by a bond in the sum lien. The bond required to be given by the of at least 25 per cent. of the contract price, act of 1911, on the contrary, is provided for which should be made to inure to the benefit the express purpose of enabling the owner to of persons performing labor and furnishing escape liability for his building in any sum materials for the building. To this was add-in excess of the contract price. It has a died a provision that a failure to file such bond should render the owner and contractor liable in damages to any person entitled, under the mechanic's lien law, to a lien upon the property affected by the contract. Gibbs v. Tally involved the consideration of the lat

rect relation to the constitutional lien and to the effect of the contract for the improvement. The efficacy of the contract as a protection against such liens is made to depend directly upon the act of securing and filing the bond with the building contract. We think

this case from the line of cases above cited. | strued it seems that the recovery, being had
We are unable to perceive any constitutional in a suit on the bond, is necessarily limited
objection to the expedient of providing that
by the execution and filing of such bond the
owner may be protected against the delin-
quencies of his contractor while, at the same
time, lien claimants are afforded a security
for the payment of their claims. We there-
fore hold that the foregoing decisions are not
applicable, and that the provision for re-
quiring this bond is not unconstitutional or
invalid.

[4] The claim that the terms of the bond, as prescribed in section 1183, would authorize a recovery on the bond for the full amount found due to lien claimants and in excess of the sum named therein as the penalty thereof, is untenable. The penalty of the bond is to be not less than one-half the amount of the contract price. This measures the obligation and the liability of the surety. The subsequent statement that after applying to the payment of liens the sum due from the owner to the contractor, such claimants may, in a suit on the bond, recover the unpaid balance of their claims, cannot be construed to authorize a recovery on the bond of more than the penal sum thereof. The provision property 串 * for the value of such labor must be construed as an entirety. So con

"If the original contract shall, before the work is commenced, be so filed, together with a bond of the contractor with good and sufficient sureties, in an amount not less than fifty per cent of the contract price named in said con* then the court must, where it would be equitable so to do, restrict the recovequal to the amount found due from the owner ery under such liens to an aggregate amount to the contractor."

* *

The owner may have paid the contractor (and he is not prohibited from so doing) everything that is due, and in such case this language would limit the right of the recovery of the lien claimant to what he could obtain under the bond. In short, he would have no lien upon the property at all. Here is as radical a denial of the constitutional lien as is found in any of the earlier statutes. The inconsistency between this language and other parts of the act is too apparent to require comment. Yet, as this seems to have

wholly beyond the power of the Legislature to destroy or even to impair this lien. The Legislature, controlling all procedures in courts of justice, could prescribe reasonable regulations with which the lien claimant | tract must comply in the matter of the enforcement of his lien and declare in effect that for a noncompliance with these reasonable regulations the lien claimant shall be deemed to have waived his lien. Again, as a part of its powers in this matter, it may interpose between the lien claimant and the property owner some other fund and exact of the lien claimant that he first exhaust this fund before enforcing his lien upon the property. But it would also seem that there is a welldefined limitation upon the Legislature's power in the matter of this lien so solemnly guaranteed by the Constitution itself, and that limitation is that if the interposed fund (or bond) shall prove inadequate, the Legis-been the deliberate design of the Legislature, lature cannot say to the lien claimant that he must be satisfied with this fund, though he do not receive from it all that the Constitution has guaranteed him. But by a long course of judicial decisions, beginning with what I believe to be a mistaken view, first announced in the unreported case of Latson v. Nelson, this court has held that the legislative powers are greater than those I have indicated, and that those powers go to the extent of permitting the Legislature to impair or even to destroy the lien. It is too late, perhaps, for this court to recede from what I believe to have been the mistaken view thus forced upon it. The fact still remains, however, that under our decisions the Legislature can and does control the whole matter. Thus, if the Legislature desires to do so, it may give the lien claimant all the rights touching his lien, which the Constitution guarantees him.

It would appear that by the new act here under review the Legislature undertook to do this thing. The act to begin with declares

as to the right to a lien in the very language of the Constitution. It does away with much of the pre-existing technical law of filing contracts, etc., and in its last section declares:

"Sec. 14. The provisions of this act shall be liberally construed with a view to effect its purpose. They are not intended as a re-enactment of the provisions of former statutes, with the policy heretofore impressed upon the same by the courts of this state, but are intended to reverse that policy to the extent of making the liens provided for, direct and independent of any account of indebtedness between the owner and contractor, thereby making the policy of this state conform to that of Nevada and the other Pacific Coast states."

By this language it would appear that the Legislature had at last decided to give to these lien claimants everything that the Constitution declares they should have. But by a most singular interpolation by way of an amendment to this act as originally proposed the question is again thrown into confusion. By the language of this interpolated amendment it is declared:

it is perhaps incumbent upon this court under its former decisions to give that design legal effect. If the Legislature in fact means to give claimants the rights which the Constitution guarantees them, as it declares its desire to do in section 14 above quoted, it alone has the power to do so by language which will make it apparent that a lien claimant may still have recourse to the property upon which he has bestowed his labor if the interposed intermediate undertaking or fund shall not be sufficient to pay him in full. This court is, however, justified I think in waiting for a plainer exposition of the Legislature's views and intent in the matter than can be found in this confused and confusing statute.

I concur: MELVIN, J.

SUFFICIENCY OF. Under Pen. Code, § 1475, an application for a writ of habeas corpus should state whether a previous application has been had and what the proceedings thereon were.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 51; Dec. Dig. 54.] 2. HABEAS CORPUS 120

ISSUANCE OF

WRIT-POWER OF JUDGE. court may feel warranted in entertaining a secWhile under certain circumstances the ond application for a writ of habeas corpus, no single member of the court after the denial of a writ may entertain a second writ.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 121; Dec. Dig. ~120.]

In Bank. Application by Alva Udell for a writ of habeas corpus. Application denied. Alva Udell, of San Francisco, pro se.

ANGELLOTTI, C. J. This is an application for a writ of habeas corpus by one Alva Udell who is now in the custody of the sher