I concur in the foregoing judgment, but solely for the following reasons: It would seem 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 done and material furnished," that it was 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 *Page 545 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 well-defined 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 legislature 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 ofLatson v. Nelson, 2 Cal. Unrep. 199, 11 Pacific Coast Law J. 589, 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 the right to a lien in the very language of the constitution. It does away with much of the pre-existing technical requirements 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 seems that the legislature had at last decided to give to these lien claimants everything that the *Page 546 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, "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." 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 been the deliberate design of the legislature, 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.