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." 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. A contract not accompanied by such bond is not declared to be invalid, but it furnishes no protection to the owner against liens for labor and material on the building. Do these regulations come within the doctrine of Latson v. Nelson, supra, and the other cases above cited? The amendment of 1880 to section 1183 purported to confer liens for work and material on buildings without any regard whatever to the contract between the owner and the contractor. It gave the owner no method of exercising his right to contract with the builder for improvements on his property, without practically assuming total responsibility 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 have 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. Failing 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 quoted clause of section 14 is therefore obviously 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 reasonable and permissible regulation of the right of enjoying property and of making 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 the efficient enforcement of such liens, it is obvious that any legislative provision to that 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 considered as a legitimate exercise of the constitutional mandate. The plan of the amendment of 1880 was deemed unreasonable 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, quired, and held that this provision for a bond is in violation of the inalienable right to acquire and possess property and contract in relation thereto. The section did not specify 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. 'while the amendment of 1885 was considered involved the validity of the bond thus rereasonable because it provided a practical method for the making of improvements under such contracts, although it did to some extent infringe upon liberty of contract. This 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. 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 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. 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 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 latter clause of the section. The other cases 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 these differences are sufficient to distinguish 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 claims in full, provided they do not exceed the penal sum. The statute, being descriptive of the terms of a bond, should be given the same meaning. [3] Some minor points remain to be noticed. It is urged that the provisions of the act requiring persons who make building contracts to file a bond, while no such requirement 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 natural or intrinsic or constitutional distinction. To this it has been added, in some cases, that the distinction must have some reasonable relation to the legislation enacted respecting the class. The fact that the Constitution confers upon persons performing labor or furnishing materials for the construction of a building the right to a lien thereon, at once establishes these persons as a class and makes a constitutional distinction between them and all other persons making contracts. This justifies legislation for the benefit of such claimants and governing the conduct and contracts of the owner of the property and the person contracting to construct buildings thereon. There is no improper classification. [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 the general contract, as a part thereof, but they are not set forth in the bill of exceptions, nor elsewhere in the record. Therefore the finding of the court must be sustained on the presumption that the court below, upon examining the specifications, ascertained that they call for No. 29 wall beds, and that there was no change in the original contract nor any departure therefrom. The objection that the allowance of $144 includes some small amount, not inquired into at the trial or shown by the record, charged for the labor of making the changes, which would not be chargeable to the owner, or to the surety on the bond, is made in appellant's brief, but it was not made at the trial, or in the court below, and for that reason we refuse to consider it on appeal. Our conclusion that the revision of 1911, as a whole, and the part thereof requiring the bond are valid enactments, disposes of all other points urged by the appellant. The judgment is affirmed. We concur: ANGELLOTTI, C. J.; SLOSS, J.; LORIGAN, J.; LAWLOR, J. HENSHAW, J. I concur in the foregoing judgment, but solely for the following reasons: It would seems when the Constitution of this state declares, as it does, that "mechanics, materialmen, artisans, and laborers of every class shall have a lien upon the property for the value of such labor * "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 contract 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 due from the owner to the contractor." * * 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 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 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- 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 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 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 ex-erty upon which he has bestowed his labor if tent 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 prop 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. While under certain circumstances the court may feel warranted in entertaining a second 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 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes favor of Edward E. Gehring. From an order refusing to entertain the contest, contestant appeals. Affirmed. iff of the city and county of San Francisco | against an order of final distribution in under a judgment of the superior court thereof adjudging him guilty of contempt of court. The application is addressed to the Chief Justice, and not to the court. [1] The petition is defective in that it does not state whether any prior application has been made to any court for a writ in regard to the same detention or restraint, and, if there was any such application, does not show the proceedings therein. Section 1475, Penal Code. As a matter of fact, a prior application in regard to the same detention or restraint was made by petitioner to this court, as our records show, on December 1, 1915, and such application was denied by the court on December 2, 1915. Not only was such application in regard to the same detention or restraint, but the grounds of the former application were the same as those now urged, with a greater degree of elabora Carl L. Lindsay and H. C. Lucas, of Oakland, for appellant. Burton Jackson Wyman, of Oakland, for respondent. Gutsch & Lempke, of San Francisco, for residuary legatee. HENSHAW, J. [1] Elizabeth Wenks died testate, disposing of all her property by will. Joseph Wenks, appellant, is her stepson, the son of her predeceased husband. During his lifetime that husband conveyed to her a piece of real property. No administration was had upon the estate of the husband of Elizabeth Wenks. Upon her death his son appeared and filed a contest in the matter of the final distribution of the estate, alleging that his father, the husband of Elizabeth, in his lifetime conveyed to Elizabeth certain [2] While it may be that under certain real property which was community propercircumstances the court itself might feel war- ty; that the character of the property as ranted in entertaining a second application community property was not changed by this from a party regarding the same detention or conveyance, and that it remained the comrestraint, it is manifest that no single mem-munity property of the two spouses until the ber of the court, be he Chief Justice or Associate Justice, is warranted in granting a writ where the same has been denied as to the same detention or restraint by the whole tion. court in bank. The application to me for a writ of habeas corpus is denied. (171 Cal. 607) In re WENKS' ESTATE. (Supreme Court of California. Dec. 22, 1915.) 314 ORDER OF DISTRIBUTION-SCOPE OF RELIEF. Where appellant as heir of his father sought to reach property which he claimed was the community property of his father and testatrix, who was the father's second wife, such claim should either be asserted by an action by appellant as heir or by the administrator of the father's estate, and cannot be presented on objections to an order of distribution of the estate of the testatrix. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 1274-1297; Dec. Dig. 314.] 2. EXECUTORS AND ADMINISTRATORS 314 ORDERS OF DISTRIBUTION-CONTESTS-COMMUNITY PROPERTY. Civ. Code, § 1386, subd. 8, authorizing, in a proceeding for the distribution of the property of a decedent, contests arising out of the community property, applies only in case of intestacy. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1274-1297; Dec. Dig. 314.] Department 2. Appeal from Superior Court, Alameda County; William S. Wells, Judge. In the matter of the estate of Elizabeth Wenks, deceased. Contest by Joseph Wenks death of the husband; that after the death of the husband Elizabeth sold this property, and that the property of her estate for which distribution is sought is the proceeds of this sale. The court refused to entertain the contest or to hear the proffered evidence in support of these allegations. In this the court was clearly right. Appellant had abundant opportunity to establish the facts which he here asserts by appropriate action as an heir of his deceased father, and it was his duty to have brought or to have caused the bringing of such an action either by himself as heir or by the administrator of his father's estate. His claim here presented is a claim of title adverse to that of the estate, and "the law does not contemplate or provide for the distribution of property or money in the hands of the executor or administrator to persons who may claim adversely to the estate, but leaves all such questions to be determined by an action on behalf of or against the executor." Estate of Rowland, 74 Cal. 523, 16 Pac. 315, 5 Am. St. Rep. 464. [2] Moreover, section 1386, subdivision 8 of the Civil Code, upon which appellant apparently bases his right to be heard, is applicable only to cases of intestacy. Estate of Brady, 151 Pac. 275. Here the deceased died leaving a will disposing of all of her property. No support can be found for appellant's position in Estate of McCauley, 138 Cal. 546, 71 Pac. 458. There the court declared that under this section, in case of intestacy, the named relatives of the spouse first deceased are heirs so far as concerns the common property of the spouse last dying intestate. The decision then proceeds to |