I dissent. The main opinion holds that the case is not one in which stop notices can be given under the mechanic's lien law. Section 1184 of the Code of Civil Procedure provides specifically that upon such notice being given by a workman or materialman "in the case of property which, for reasons of public policy or otherwise, is not subject to the liens in this chapter provided for, the owner or person who contracted with the contractor, shall withhold from his contractor sufficient money due or that may become due to such contractor to answer such claim." The essential purpose of this provision is to create, by means of the stop notice, an equitable garnishment in all cases of public work where, if the work were on private property, the workman or materialman would have a lien. This is the established construction of the provision (Bates v. SantaBarbara, 90 Cal. 543, [27 P. 438]), and one plain on its face. The real question, therefore, is as to whether or not a workman or materialman would have a lien in such a case as the present if the work were done on private property.
This question is not touched on in the main opinion. The main opinion reasons that the words "wagon road" in section 1183 of the Code of Civil Procedure (the section providing for liens) mean a private wagon road and not public, and that, therefore, the provision of section 1184, as to stop notices in case of public work, does not apply. *Page 512 This is a complete non sequitur and simply begs the whole question. Of course, section 1183 applies only to private wagon roads. It applies only to private property in any case, whether it be a wagon road or a building or what not. But it does not follow that because section 1183 means private wagon roads only, section 1184 does not apply to public wagon roads. The very purpose of the latter section is to make the stop notice good in the very case of public work where section 1183 does not apply to give a lien because the work is public and not private. If the reasoning of the main opinion is sound, it means that in no case of public work will a stop notice be effective, since in no case does section 1183 apply to public work and property, but always to private work and property. Yet our decisions are all the other way.
In this connection it should be noted that section 1183 does not apply to public work, not because of any limitation on the power of the legislature so to provide, but because it has been held that it was intended to apply only to private work (Mayrhofer v. Board of Education, 89 Cal. 110, [23 Am. St. Rep. 451, 26 P. 646], the leading case in this state on the point).
The main opinion also advances the argument that because section 1191 of the Code of Civil Procedure provides that where street work is done at the instance of an abutting property owner, workmen and materialmen shall have a lien upon the abutting property, it is to be inferred that they are to have no right under a stop notice where the work is not done at the instance of a private party, but by the public. I do not see any ground for such inference and no ground is stated. On the contrary, it seems to me the inference is very plainly the other way. Section 1191 is a part of the mechanic's lien law. When it provides for a lien on private property for street work done at the instance of a private property owner, where no lien exists upon the property improved, the street, because it is public property, the inference would seem to be plain that such work, street work, does come within the general operation of the mechanic's lien law so far as that law can be applicable. If this is true, the provision in regard to stop notices applies. *Page 513
The main opinion also advances the argument that because, by a separate act of the legislature, a bond in favor of workmen and materialmen is required of a contractor for public work, when under the mechanic's lien law, the giving of such a bond is optional in the case of private work, it is to be inferred that such bond is the exclusive protection for workmen and materialmen under a contract for street work. But why exclusive as to street work as distinguished from other kinds of public work? If the act mentioned required such a bond in the particular case of street work alone, then, possibly, there might be some ground for inferring that the bond was intended as the sole protection in such a case. But the act does not so provide. It covers all kinds of public work — work as to which there can be no doubt that it is not the exclusive protection. If it were not intended to be exclusive as to public work in general, to which it in terms applies, why is it exclusive as to a particular kind of public work, to wit, street work. There is nothing in the act to indicate such distinction. Street work, in fact, is not mentioned in the act.
It is also intimated, rather than plainly stated, in the main opinion, that the provision of the statute for stop notices in case of public work does not apply to street work for the reason that in such a case the work is not done at the instance of the "owner." Presumably the thought is that streets and highways belong to the public at large, so to speak. But certainly, in the doing of street work, the county or municipality is the instrumentality or agency through whom the public at large acts, and why should not a stop notice to it, the agency, and the paying agency, be effective? Furthermore, the code section specifically provides that in case of public work the stop notice may be given to either "the owner orperson who contracted with the contractor," and certainly the county or municipality is the person who contracts with the contractor. As to the case of Adamson v. Paonessa, 180 Cal. 157, [179 P. 880], to which the main opinion refers in this connection, suffice it to say that the conclusion there reached was very carefully put wholly upon the ground that, under the particular act involved, there was no fund upon which the stop notices could operate and they were, therefore, ineffective. *Page 514 Such is not the case here. The contractor is paid directly by the county, and by the county alone, and there is a fund upon which the notices can operate, and that fund is in the hands of the county which is, in the language of the statute, "the person who contracted with the contractor," and who is required to recognize the notices.
When we come to the real question in the case, namely, whether or not the improvement here is of such a character that a lien would exist upon it if it were a private improvement upon private property, there can be little doubt as to the correct answer. Section 1183, after enumerating a number of improvements for which a lien may exist, concludes the enumeration by the words "wagon road or other structure." A reasonable fair construction of the words "wagon road" would probably include the improvement in the present case. It would seem fairly certain that "wagon road" is used in contradistinction to the word "railroad," which immediately precedes it in the enumeration, and means a road in the ordinary sense, a way prepared and used for ordinary vehicular traffic. The present improvement is just that, whether it be termed a street, or a highway, or a county road. But however this may be, it certainly comes within the words "or other structure" when those words are used in immediate connection with a "wagon road." If a wagon road is a structure, certainly the street or road here is an "other structure." InHelm v. Chapman, 66 Cal. 291, [5 P. 352], approved inWilliams v. Mountaineer etc. Co., 102 Cal. 142, [34 P. 702, 36 P. 388], and Hines v. Miller, 122 Cal. 517, [55 P. 401], it was held that the word "structure," as used in the mechanic's lien law, included an excavation on the property. If an excavation be a structure, certainly a built road is one. The question may be tested by a practical illustration. Would there be any doubt but that if private parties upon their own land had built an improvement such as that here (and private parties have done that very thing), a lien would exist in favor of workmen and materialmen contributing to the work? But if workmen and materialmen would have a lien in such a case upon private property, they are entitled here to the equitable garnishment which the statute provides they shall have in case *Page 515 of public work, when, because the work and the property are public, they cannot have a lien.
Angellotti, C. J., and Lawlor, J., concurred.
Rehearing denied.
Shaw, J., Wilbur, J., Lennon, J., and Kerrigan, J., pro tem., concurred.