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lien upon the property for the value of the The court below found that the bond was labor done and materials furnished, proceeds given in pursuance of section 1183 aforesaid. as follows:

It is not claimed by the respondents that it “The liens in this chapter provided for shall | is good as a common law bond, or that there be direct liens, and shall not in the case of any was any consideration for its execution other claimants, other than the contractor be limited,

than the belief that it was required by said as to amount, by any contract price agreed upon between the contractor and the owner except as

section. The contention of the appellant is hereinafter provided."

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 unenforcethat the fling of the contract, or modifica- able. If the premises are correct the contion thereof, in the office of the county re-clusion that the bond creates no obligation corder before the commencement of the work, would follow. The principle that a bond givsball be equivalent to actual notice thereof to en solely to comply with a statute, which is lien claimants. Then follows the important itself void, or which does not require the provision of the section in these words: | bond as supposed, is without binding force

"In case said original contract shall, before is settled by the cases of Powers v. Chabot, the work is commenced, be so filed, together 93 Cal. 270, 28 Pac. 1070, Coburn v. Townwith a bond of the contractor with good and send. 103 Cal. 235. 37 Pac. 202. Reay v. Butsufficient sureties in an amount not less than fifty (50) per cent of the contract price nam- ter, 110 bar. 110, o acte orice nam.ler, 118 Cal. 115, 50 Pac. 375, and similar

rac. 510, and ed in said contract, which bond shall in addi- cases, and, on the other hand, if the statute tion to any conditions for the performance of the is valid in this respect it would necessarily contract, be also conditioned for the payment follow that there was a sufficient considera, in full of the claims of all persons performing labor upon or furnishing materials to be used tion for the bond, and that it was binding in such work, and shall also by its terms be upon the surety. The validity of the act as made to inure to the benefit of any and all a whole and the provision requiring such persons who perform labor upon or furnish ma

bond in particular are, therefore, questions terials to be used in the work described in said contract so as to give such persone a right of necessary to the determination of the case. action to recover upon said bond in any suit We have shown that when this act was * * * to foreclose the liens provided for in passed it was the established doctrine of this chapter or in a separate suit brought on

this state that the Legislature cannot create said bond, then the court must, where it would be equitable so to do, restrict the recovery un mechanic's liens against real property in exder such liens to an aggregate amount equal to cess of the contract price, where there is a

mount found to be due from the owner to valid contract, but that it is within the legis. the contractor, and render judgment against the

lative power, in order to protect and enforce contractor and his sureties on said bond for any deficiency or difference there may remain be the liens provided for in the Constitution, tween said amount so found to be due to the and so far as for that purpose may be necescontractor and the whole amount found to be sary, to make reasonable regulations of the due to claimants for such labor or materials or both. No change or alteration of the work or

mode of contracting, and even of the terms modification of any such contract between the of such contracts, and to declare that conowner and his contractor shall release or exon- tracts shall be void if they do not conform to erate any surety or sureties upon any bond giv- such regulations. This court has never in en under this section. It is the intent and pur

any case departed from this doctrine. The pose of this section to limit the owner's liability, in all cases, to the measure of the con- case of Laidlaw v. Marye, 133 Cal. 170, 65 tract price where he shall have filed or caused Pac. 391, and similar cases holding that, alto be filed in good faith with his original con- I though a contract not in conformity with the tract a valid bond with good and sufficient sureties in the amount and upon the conditions as

statutory regulations is void, and therefore herein provided. It shall be lawful for the own does not limit the lien claimant to the coner to protect himself against any failure of the tract price, that it is binding in controversies contractor to perform his contract and make note

between the contractor and owner to fix the full payment for all work done and materials furnished thereunder by exacting such bond or

amount of the contractor's recovery in asother security as he may deem satisfactory.sumpsit for the value of the work he has

Section 14 of the revising act is as fol. done, are not in conflict with this doctrine, lows:

but in recognition of it. Merced L. Co. v. "The provisions of this act shall be liberally Bruschi, 152 Cal. 372, 92 Pac. 844, and construed with a view to effect its purpose. Burnett v. Glas, 154 Cal. 249, 97 Pac. 423, They are not intended as a re-enactment of the had to do with invalid contracts. They do provisions of former statutes, with the policy

not impugn the doctrine stated; they assert heretofore impressed upon the same by the courts of this state, but are intended to reverse and enforce it. Nor is there any suggestion that poliey to the extent of making the liens contrary thereto in the recent case of Martin provided for, direct and independent of any | v. Becker, 169 Cal. 301. 146 Pac. 665.' account of indebtedness between the owner and

mial The portions of the act of 1911 above quotcontractor, thereby making the policy of this / state conform to that of Nevada and the other ed clearly show that the Legislature did not

but that, on the contrary, the design was to as an alternative, he must see to it that the follow it and to protect lienholders by means value of the work and materials used in the of regulations concerning the mode of con- building by the contractor is paid to the pertracting and dealing with property for the sons who furnish the same. A contract not purposes of erecting improvements thereon. accompanied by such bond is not declared to The first declaration on the subject is that be invalid, but it furnishes no protection to the liens provided in the chapter shall be the owner against liens for labor and mate"direct liens" (whatever that may mean), and rial on the building. Do these regulations that persons, other than the contractor, shall come within the doctrine of Latson v. Nelnot be limited by the contract price "except son, supra, and the other cases above cited ? as hereinafter provided." The proviso re The amendment of 1880 to section 1183 ferred to is found in the following declara- | | purported to confer liens for work and matetion in the same section:

rial on buildings without any regard what"It is the intent and purpose of this sec ever to the contract between the owner and tion to limit the owner's liability, in all cases,

the contractor. It gave the owner no method to the measure of the contract price where he shall have filed or caused to be filed in good

of exercising his right to contract with the faith with his original contract a valid bond builder for improvements on his property, with good and sufficient sureties, in the amount

without practically assuming total responsiand upon the conditions as herein provided."

bility for all failure of such builder to pay A plainer declaration of the intent to make for the labor and material thereon. It prothe contract price the limit of the owner's vided no means whereby he could avoid liens liability, where the bond and contract bave placed upon the property for the value of been filed as required by this section, could such work and materials. The right of perscarcely be made. The rather vague state- sons to contract in that manner respecting ment in section 14 of the revising act of 1911 their property was, to that extent, taken that said act is intended to make the liens away. This was held to be a violation of therein provided for "direct and independent the inalienable right to acquire and possess of any account of indebtedness between the property guaranteed by section 1, article 1, owner and contractor," should not be in- of the Constitution. The revision of 1885 terpreted as in contravention of section 1183, also interfered with the right of contract. unless no other reasonable construction is Under its provisions the owner of property, apparent. It is not difficult to find a better in all proceedings to have improvements application of the expression. Section 1183 placed thereon by a builder, was not allowed describes two classes of liens. One class con- to make payment in advance of the work. sists of liens in cases where the bond has He was required to make his contract pronot been filed, in which case, the state of ac- vide that three-fourths of the contract price counts between the owner and contractor, should be paid in installments as the work and even the contract price, are immaterial progressed, or at completion, and one-fourth to the lien, except as to the contractor. The 35 days or more after completion. Falling other classes consist of all cases in which the in this he was declared to have made no conproper bond and contract are duly filed. In tract at all, and the property was made subthese cases, by the express language of the ject to all claims for work and material used section, the contract price is made to control, in the structure erected. This, although and the account of the indebtedness thereon clearly a destruction, pro tanto, of the right from the owner to the contractor is decisive of the owner freely to contract for the imof the amount of the liens which can be ad-provement of his property, was held to be a judged against the property. The above reasonable and permissible regulation of the quoted clause of section 14 is therefore obvi- | right of enjoying property and of making ously applicable only to the first-mentioned contracts in relation thereto. The difference class of liens, those where the bond and con- in the decisions upon these two differing tract are not filed. To apply it to the other laws points to the solution of the first part class of liens would work a practical repeal of the question. In view of the fact that our of very many of the elaborate provisions of Constitution itself gives to workmen and mathe chapter as revised, since, for the most terialmen a lien upon property for the value part, they would be wholly unnecessary and of the work and materials they bestow upon useless. The intent of the statute is to re- it and directs the Legislature to provide for strict liens to the contract price in all cases the efficient enforcement of such liens, it is where the provisions of the statute regarding obvious that any legislative provision to that the bond are observed, and to impose upon end which offers to the property owner a the owner the penalty of paying all liens to reasonable and practical mode of improving the extent of the value of the work done and his property through a contractor at a fixed materials furnished where he shall neglect price and without further liability, should be to comply with the statute.

considered as a legitimate exercise of the The effect is that persons contracting for constitutional mandate. The plan of the the erection of buildings or structures on amendment of 1880 was deemed unreasonable their property must require the contractor because it deprived the owner of all right to to furnish such bond and must file the same contract for improvements on his property for with the contract in the recorder's office, or 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. j in relation thereto. The section did not specie This theory has not been put in this way fy who should file the bond, nor to whom it nor fully expressed in the several decisions should be made payable, nor who should exon the subject. But the discussion therein ecute the same. In Gibbs v. Tally the conplainly points to this as the true reason for tract for the building was valid under the the differentiation of the two enactments. lien law as it then existed, and the persons The case of Latson v. Nelson, and others fol. who filed claims of lien had foreclosed the lowing it, construing the amendment of 1880, same, and had caused all of the contract price and the case of Stimson Mill Co. v. Braun, remaining unpaid from the owner to the supra, holding that the Legislature may not contractor to be applied upon their liens, but require such contracts to be made payable it was not sufficient to pay them in full. only in money, go far toward the limit of Gibbs, one of the lien claimants, then began reason on the point that section 15, article the action against Tally, the owner, to re20, of the Constitution, is subordinate to the cover the damages which the statute purportDeclaration of Rights in section 1, article ed to allow in case of the failure to file the 1. The law of 1911 here involved does not required bond. The gist of the decision is deprive the owner of the right to contract that to allow such recovery, where there for the improvement of his property. It al-was a valid contract between the owner and lows him to contract freely for such improve the contractor, would make the owner liable ment and upon such terms as he may deem for a debt which he did not owe, for an for his best interests. All it exacts from amount in excess of the contract price and him, as a condition of such exemption from which he had not agreed to pay. This, it was liability, and in order to make his contract declared, was an unlawful infringement of effective, is that he shall provide a reason- section 1, article 1, of the Constitution. The able security for the constitutional lien given facts involved in the case have no necessary for labor and materials furnished to his con- bearing upon the question whether or not tractor. It is not an unreasonable burden. the Legislature could in any case require the It is one which we think the people have the contractor to file a bond for the benefit of power to impose and which we believe to be persons having claims against him regarding within the scope of the constitutional man- the same before entering upon the work. date in the section conferring such liens, and In Shaughnessy V. American Surety Co., of the police power.

supra, the question of the power of the LegUpon the point that any provision requir- islature to require the bond specified in secing a bond to secure such liens, whether tion 1203 was directly involved. It was said given by the contractor or the owner, is un- that the requirement of such a bond was enconstitutional, the appellant cites a line of tirely outside of any protection of the concases beginning with Gibbs v. Tally, 133 Cal. stitutional lien given to mechanics and mate373, 65 Pac. 970, 60 L. R. A. 815. The other rialmen, and that it was in violation of the cases are Shaughnessy V. American Surety constitutional right of contract respecting Co., 138 Cal. 543, 69 Pac. 250, 71 Pac. 701; property. The other cases above cited merely San Francisco, etc., CO. V. Bibb, 139 Cal. 192, follow the decision in Shaughnessy V. Amer. 72 Pac. 964; Snell v. Bradbury, 139 Cal. 380, ican Surety Co. without further discussion of 73 Pac. 150; Montague v. Furness, 145 Cal. the subject. There is a marked difference 206, 78 Pac. 640; and Hampton v. Christen- between the law denounced as void in these sen, 148 Cal. 729, 84 Pac. 200.

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 rect relation to the constitutional lien and to should render the owner and contractor lia- the effect of the contract for the improve ble in damages to any person entitled, under ment. The efficacy of the contract as a prothe mechanic's lien law, to a lien upon the tection against such liens is made to depend property affected by the contract. Gibbs v. directly upon the act of securing and filing the Tally involved the consideration of the lat-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 to the penalty thereof. The fact that such by the execution and filing of such bond the suit may be joined with a suit to foreclose owner may be protected against the delin- the liens does not make it any the less a suit quencies of his contractor while, at the same on the bond. The statement that the bond time, lien claimants are afforded a security must be "conditioned for the payment in full for the payment of their claims. We there of the claims" of lienholders, is the usual fore hold that the foregoing decisions are not phraseology of the obligation of a bond at applicable, and that the provision for re- common law. This is not understood to crequiring this bond is not unconstitutional or ate an obligation in excess of the penal sum invalid.

named, but only an obligation to pay such [3] Some minor points remain to be notic claims in full, provided they do not exceed ed. It is urged that the provisions of the act the penal sum. The statute, being descriptive requiring persons who make building con. of the terms of a bond, should be given the tracts to file a bond, while no such require- same meaning. ment is made of any other person who may [5, 6] The objection to the allowance of wish to make other kinds of contracts, creates $144 to the respondent Hughes Manufactura lack of uniformity and is class legislation. ing and Lumber Company, for extras on its There is an intimation to this effect in subcontract for wall beds in the building Shaughnessy V. American Surety Co., supra, cannot be sustained on the record before us. but the point was not directly involved, and That company agreed with Thomas, the conthe case does not hold to that doctrine. It tractor, to furnish the wall beds, of a kind is not sustained by authority. The rules re- described as No. 40, for $600. While they garding legislation respecting classes have were being installed, the architect interfered, been thoroughly settled in this state. The stating that the specifications of the contract case most often cited is Pasadena v. Stim called for wall beds known as No. 29, and dison, 91 Cal. 238, 27 Pac. 604. The decision in rected that No. 29 wall beds be placed in the that case has been followed in very many building, which was done, with the consent of cases since it was rendered. The principle Thomas. The $144 was the additional charge announced is that a law is general and con. on account of this change. The plans and stitutional when it applies equally to all per. specifications were attached to and filed with sons embraced in a class founded upon some the general contract, as a part thereof, but natural or intrinsic or constitutional distinc- they are not set forth in the bill of exception. To this it has been added, in some tions, nor elsewhere in the record. Therecases, that the distinction must have some fore the finding of the court must be sustainreasonable relation to the legislation enacted ed on the presumption that the court below, respecting the class. The fact that the Con upon examining the specifications, ascertainstitution confers upon persons performing la.ed that they call for No. 29 wall beds, and bor or furnishing materials for the construc- that there was no change in the original contion of a building the right to a lien thereon, tract nor any departure therefrom. The obat once establishes these persons as a class jection that the allowance of $144 includes and makes a constitutional distinction be

some small amount, not inquired into at the tween them and all other persons making

trial or shown by the record, charged for the contracts. This justifies legislation for the labor of making the changes, which would benefit of such claimants and governing the not be chargeable to the owner, or to the conduct and contracts of the owner of the surety on the bond, is made in appellant's property and the person contracting to .con

brief, but it was not made at the trial, or in struct buildings thereon. There is no improp the court below, and for that reason we reer classification.

fuse to consider it on appeal. [4] The claim that the terms of the bond,

Our conclusion that the revision of 1911, as prescribed in section 1183, would authorize as a whole, and the part thereof requiring the a recovery on the bond for the full amount bond are valid enactments, disposes of all found due to lien claimants and in excess of

and in excess of other points urged by the appellant. the sum named therein as the penalty there

The judgment is affirmed. of, is untenable. The penalty of the bond is to be not less than one-half the amount of the We concur: ANGELLOTTI, O. J.; SLOSS. contract price. This measures the obligation J.; LORIGAN, J.; LAWLOR, J. and the liability of the surety. The subse quent statement that after applying to the HENSHAW, J. I concur in the foregoing payment of liens the sum due from the own- judgment, but solely for the following reaer to the contractor, such claimants may, in sons: It would seems when the Constitution a suit on the bond, recover the unpaid bal- of this state declares, as it does, that "meance of their claims, cannot be construed to chanics, materialmen, artisans, and laborers authorize a recovery on the bond of more of every class shall have a lien upon the than the penal sum thereof. The provision property * * * for the value of such labor wholly beyond the power of the Legislature, "If the original contract shall, before the to destroy or even to impair this lien. The work is commenced, be so filed, together with a

in bond of the contractor with good and sufficient Legislature, controlling all procedures in

sureties, in an amount not less than fifty per courts of justice, could prescribe reasonable

cent of the contract price named in said conregulations with which the lien claimant tract * * * then the court must, where it must comply in the matter of the enforce

would be equitable so to do, restrict the recov

ery under such liens to an aggregate amount ment of his lien and declare in effect that for

equal to the amount found due from the owner a noncompliance with these reasonable reg. to the contractor.” ulations the lien claimant shall be deemed to The owner may have paid the contractor have waived his lien. Again, as a part of its (and he is not prohibited from so doing) powers in this matter, it may interpose be everything that is due, and in such case this tween the lien claimant and the property language would limit the right of the recovowner some other fund and exact of the lien ery of the lien claimant to what he could claimant that he first exhaust this fund be- lohtain under the h

| obtain under the bond. In short, he would fore enforcing his lien upon the property. have no lien upon the property at all. Here But it would also seem that there is a well is as radical a denial of the constitutional defined limitation upon the Legislature's lien as is found in any of the earlier statpower in the matter of this lien so solemnly

| utes. The inconsistency between this language guaranteed by the Constitution itself, and I and other parts of t

and other parts of the act is too apparent to that limitation is that if the interposed fund

require comment. Yet, as this seems to have (or bond) shall prove inadequate, the Legis- been the deliberate design of the Legislature. lature cannot say to the lien claimant that he it is perhaps incumbent upon this court unmust be satisfied with this fund, though he der its former decisions to give that design do not receive from it all that the Constitu- legal effect. If the Legislature in fact means tion bas guaranteed him. But by a long to give claimants the rights which the Concourse of judicial decisions, beginning with stitution guarantees them, as it declares its what I believe to be a mistaken view, first an- | desire to do in section 14 above quoted, it nounced in the unreported case of Latson v. alone has the power to do so by language Nelson, this court has held that the legisla

which will make it apparent that a lien tive powers are greater than those I have in- claimant may still have recourse to the propdicated, and that those powers go to the ex

erty upon which he has bestowed his labor if tent of permitting the Legislature to impair

the interposed intermediate undertaking or or even to destroy the lien. It is too late,

fund shall not be sufficient to pay him in perhaps, for this court to recede from what I

full. This court is, however, justified I think believe to have been the mistaken view thus

in waiting for a plainer exposition of the forced upon it. The fact still remains, how

Legislature's views and intent in the matter ever, that under our decisions the Legislature

than can be found in this confused and concan and does control the whole matter. Thus,

fusing statute. if the Legislature desires to do so, it may give the lien claimant all the rights touching his I concur: MELVIN, J. lien, which the Constitution guarantees him.

It would appear that by the new act here under review the Legislature undertook to do

Ex parte UDELL. (Cr. 1993.) this thing. The act to begin with declares as to the right to a lien in the very language

(Supreme Court of California. Dec. 20, 1915.) of the Constitution. It does away with much

1. HABEAS CORPUS 54 - APPLICATION

SUFFICIENCY OF. of the pre-existing technical law of filing con

Under Pen. Code, $ 1475, an application tracts, etc., and in its last section declares: for a writ of babeas corpus should state wheth

"Sec. 14. The provisions of this act shall be er a previous application has been had and what liberally construed with a view to effect its pur- | the proceedings thereon were. pose. They are not intended as a re-enactment (Ed. Note.-For other cases, see Habeas Corof the provisions of former statutes, with the pus, Cent. Dig. $ 51; Dec. Dig. Om54.) policy heretofore impressed upon the same by 12. HABEAS CORPUS 120 – ISSUANCE OF the courts of this state, but are intended to re

WRIT-POWER OF JUDGE. verse that policy to the extent of making the

While under certain circumstances the liens provided for, direct and independent of

court may feel warranted in entertaining a secany account of indebtedness between the owner

ond application for a writ of habeas corpus, no and contractor, thereby making the policy of this state conform to that of Nevada and the

single member of the court after the denial of

a writ may entertain a second writ. other Pacific Coast states.”

[Ed. Note.-For other cases, see Habeas CorBy this language it would appear that the pus, Cent. Dig. 121; Dec. Dig. 120.] Legislature had at last decided to give to these lien claimants everything that the Con

In Bank. Application by Alva Udell for a stitution declares they should have. But by

| writ of habeas corpus. Application denied. a most singular interpolation by way of an Alva Udell, of San Francisco, pro se. amendment to this act as originally proposed the question is again thrown into confusion.' ANG ELLOTTI, C. J. This is an applicaBy the language of this interpolated amend- tion for a writ of habeas corpus by one Alva ment it is declared:

| Udell who is now in the custody of the sher

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