Dissenting Opinion by
Mr. Justice Mitchell :I am obliged to dissent entirely from this judgment, and the importance of the question seems to make it proper that I should in a general way indicate my reasons.
It is the province of the legislature to declare the public policy of the state, including what contracts shall be lawful, in what form they shall be made, and what shall be their effect. From the earliest days of the republic it has done this without question, whenever the contract itself or its collateral effect touches matters of public interest or policy, of which the legislature is the exclusive judge. Thus under statute all leases for more than three years are at will only, unless in writing, no matter how explicitly the parties contract for a longer term. Under statute a loan of money is only a loan at six per cent, no matter how plainly the parties express their intent that it shall be at a higher rate. Under statute as well as under the common law, partnership involves certain liabilities to third parties, no matter how strictly the partners may contract among themselves to avoid this result. And the courts without the least hesitation enforce the liability of a principal for the acts of his agent within the apparent scope of his authority, no matter how contrary to his orders in fact. But it is unnecessary to multiply examples, as the greatest example of all is the mechanic’s lien system itself. It has no other basis than the incorporation of liability for work and materials into contracts for building, by legislative mandate, without the slightest regard to the actual intentions of the parties. No one who contracts for having a house built intends, apart from statutory compulsion, to give a subcontractor or material man a claim against him or his land, any more than he contemplates, when he orders a suit of clothes, a liability to the merchant from *174whom the tailor buys the cloth, or to the workmen who sew it together. The result follows from the statute alone, because the legislature has enacted that a contract to build a house shall carry with it an authority to the contractor to pledge not only the house but the land on which it is to be built, for payment of the labor and materials sold on the credit of it, even though the materials do not in fact go into it. It is the creation of an agency, by the legislature, as a matter of public policy without regard to the will of the owner.
Of course there must be a contract as the foundation of the claim. The legislature has not undertaken to say that any man’s land shall be charged without his own act as a basis. But it has said that if he makes a certain kind of contract it shall include a certain kind of liability as a consequence, whether he so intends or not. Its right to make and enforce such a rule as to future contracts has never hitherto been successfully questioned.
It was held in Schroeder v. Galland, 134 Pa. 277, that the statutory lien being primarily for the benefit and security of the contractor might be waived by him, and if he waived it for himself he necessarily waived it for all who claimed through him. Subsequent cases have established the rule that the waiver to be effective must be clear and unequivocal: Nice v. Walker, 153 Pa. 123; Smith v. Levick, Id. 522. The act of June 8, 1891, P. L. 225, changes the rule only so far that the right of the subcontractor shall not be waived except by himself in writing. That is the whole effect of the act. It gives no new right to any one, but simply provides that the right of lien under existing laws shall only be waived by the possessor of the right himself. I am unable to see that this is anything more than the control over the form and effect of future contracts which has always been within the province of the legislature.