RESPONSE TO PETITION POR REHEARING.
By the Court,
Beatty, C. J.:This case was originally submitted for decision without a very full or satisfactory argument of the main question involved in the last assignment of error discussed in our former opinion. On account of the important interests depending upon a correct solution of that question we felt unwilling to decide it without a fuller argument, and, believing that the appellant was not entitled under its answer to raise the point, we placed our decision upon that ground. But, a rehearing having been granted, the question alluded to has been thoroughly discussed, not only by counsel for the parties, but also by counsel interested in other cases, and we no longer have any motive to refrain from deciding it. We are not satisfied that the ground upon which we based the conclusion reached in our former opinion — the insufficiency of appellant’s answer — is untenable; but since *34it is the earnest desire of all parties that the more important question as to the rights of sub-contractors and material-men should be settled, by an authoritative construction of the lien law, and since our understanding of the statute leads us to the same conclusion to which we came before, there will be no occasion to revert to the question of pleading or practice.
The respondents are sub-contractors and material-men, and the law under which they claim (Stats. 1875, 122), is in all essential respects a copy of the California lien law of 1868. (Cal. Stats. 1867-8, 589.) The supreme court of that state, at the October term, 1874, decided that, under their statute, sub-contractors and material-men have no lien except to the extent that the owner of the building is indebted to the principal contractor at the time he receives notice of their claims. (Renton v. Conley, 49 Cal. 187.) After that decision was made, but before the publication of the volume of reports in which it appears, our legislature adopted the California statute, and upon the authority of Renton v. Conley, and another case in which it was followed (Wells v. Cahn, 51 Cal. 423), counsel for appellant claims that our statute must receive the same construction. He claims this upon the grounds: 1. That the California statute was correctly construed in those cases; and 2. That even if Renton v. Conley was. erroneously decided, there is nevertheless a conclusive presumption that our legislature, in adopting the statute, intended it to mean what, in that case, it had been construed to mean.
If the second of these propositions is true, we shall have no occasion to consider the first; for our duty ends with ascertaining and giving effect to the intention of the legislature, and if there is indeed a conclusive presumption that the construction given to the law in Renton v. Conley was adopted along with the statute, it becomes a mere question of curiosity whether that case was correctly decided. We shall, therefore, inquire in the first place whether we are bound by that decision.
The rule of construction relied on by appellant is afamiliar one, so familiar in fact that scarcely a volume of decisions *35of the younger states of the Union can be found in which it is not either expressly stated in terms more or less exact or tacitly assumed as the basis of decision. From this very frequency of allusion and statement, it has resulted that the rule and the principle upon which it rests have more than once been expressed in somewhat unguarded terms. But generally, if not always, such looseness of expression has been due to the fact that the circumstances of the particular case did not call for greater exactitude. The rule was neither misunderstood nor misapplied; and it was stated with sufficient precision for the ca.se in hand, though in terms too unqualified for universal application.
A.s an example in illustration of this statement, we may cite what was -said by this court in McLane v. Abrams, 2 Nev. 206: “It is a rule of construction, too familiar to require the citation of authorities, that where one state adopts the statute of another it is adopted with the construction placed upon it by the highest court of judicature of the state from which it is taken. The reason upon which this rule rests, gives it an importance and weight which should not be disregarded except upon the most urgent reasons. When the legislature of one state adopts the laws of another, it is presumed to know the construction placed upon those laws in the state from which they are adopted, and therefore that it adopts the construction with the law,” etc.
Giving to this language its full and literal effect, and supposing it to be subject to no sort of qualification, it clearly sustains the position of appellant. It would follow that we should be absolutely bound by the decision of Renton v. Conley, even if it had been rendered but a day before and set aside the day after our statute was approved by the Governor. But nothing is better settled than that the language of every opinion is to be understood in a qualified sense — qualified, that is to say, by the facts of the case. It is a decision only upon those facts, and so far as it transcends them is merely dictum.
Now, in McLane v. Abrams, the court was considering a statute which had been copied from the laws of California verbatim nine years after it had been construed by the su*36preme court of that state and seven years after the decision had been published in their official reports. In view of these facts the decision in that case lends no support to the position of appellant. It was, indeed, decided by implication that after the construction of a statute has been published for seven years the legislature of another state, adopting the statute, will be presumed to have known such construction. But even this was a question not mooted in the case, and it is clear that all the court intended to decide was that when there is reason to presume that a legislature in adopting the statute of another state knows the construction that has been put upon such statute by the highest courts of the state from which it is borrowed, that construction is presumed to have been adopted along with the statute. Stated in these terms there can be no objection to the rule, and undoubtedly it obtains in this state (see 1 Nev. 537; 2 Id. 206; 5 Id. 24; 7 Id. 27; 8 Id. 320), but subject to at least oue important exception, viz: “ When the language of a statute is so plain it will admit of but one construction, we cannot give it another and absurd one because it has been so construed in another state.” (1 Nev. 394.) This exception affords an indication of the limits within which the rule is of any validity. It is resorted to only as a means of discovering the intention of the legislature, and so far only as it conduces to that end is it allowed any force. If the language of a statute leaves no room for construction, its operation is excluded, and so, likewise, it can never be applied where the only reason upon which it rests totally fails.
In this view it becomes important to ascertain the origin and reason of the rule.
As to its origin it is undoubtedly a mere adaptation of the rule of construing statutes that were re-enacted after having been repealed, or after having expired by their own limitations or become obsolete. In such cases there was a natural and just presumption that the legislature was informed of any decision, however recent, of its own highest courts, giving a construction to the law proposed to be reenacted, and there was a further and very cogent presump*37tion that if it had wished to exclude such construction it would have made the necessary alteration in the terms of the law. Accordingly it has long been settled that when a state re-enacts one of its own laws, substantially in its original terms, the courts of that state will continue to construe the law after its re-enactment as they had construed it before. And they will do this not only because there are the best reasons for supposing that they are thereby conforming to the actual intent of the legislature, but because, so far as their former decision has become to any extent a rule of property, they are bound to adhere to it upon the principle of stare decisis.
When, however, a question arises as to the construction of a statute adopted from another state, it is clear that the decisions of that state construing the law derive no additional force from the doctrine of stare decisis. They are binding, if binding at all, only because they afford conclusive evidence of the actual intention of the legislature; and it is manifest that they can afford no such evidence unless there are good reasons for presuming them to have been actually known to the legislature when the law was adopted. This consideration is essential to a just appreciation of the rule, and a reference to the language of the earlier cases in which it was applied will show that at first it was constantly borne in mind. Those were cases in which statutes were to be construed that had been adopted in this country after having been in force in England for hundreds of years and their construction settled by long series of decisions.
Under such cireúmstances, it was eminently just to presume that their construction was known, and therefore adopted along with the statutes themselves.
In Downey v. Hotchkiss, it was held that the legislature of Connecticut, in adopting the English statute of frauds, also adopted its long-settled construction by the English courts. (2 Day, 225.) In Kirkpatrick v. Gibson, Chief Justice Marshall said: “ I am the more inclined to that opinion because it is reasonable to suppose that where a British statute is re-enacted in this country we adopt the settled *38construction it has received, as well as the statute itself.” (2 Brock. 391.) In Pennock v. Dialogue, Judge Story said: “It is doubtless true, as has been suggested at the bar, that where English statutes, such, for instance, as thestatute of frauds and the statute of limitations, have been adopted into our own legislation, the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts, or has been received with all the weight of authority.” (2 Peters, 18.) In Adams v. Field, the supreme court of Vermont said: ‘ ‘ When our statute of wills was enacted the statute of Charles II. had received a long, fixed and well-known construction, and when we adopt an English statute we take it with the construction which it had received, and this upon the ground that such was the implied intention of the legislature.” (21 Vt. 266.) These cases and several others to the same effect are cited in Commonwealth v. Hartnett, 3 Gray, 451, where the principle of the rule is thus stated: “Eorif it were intended to exclude any known construction of a previous statute, the legal presumption is that its terms would be so changed as to effect that intention.”
At a later period the principle established by these decisions was invoked in the construction of statutes borrowed by one state from another, and in the more recent cases a tendency may be observed to give a wider scope to the rule and to ignore the wholesome and necessary limitations under which it was first applied. This, however, is a tendency to be deprecated, and, so far as possible, avoided. It has probably resulted from the fact that the courts have found themselves unable to draw any definite line of distinction between such long-settled constructions as a legislature may reasonably be presumed to know and those more recent constructions to which no such presumption fairly attaches. It being once held that a legislature must be presumed to have known the long-settled construction of a statute adopted from another state, the rule thence deduced was naturally invoked in cases where the construction was more and more recent, and there being no means of fixing a limit of time within which it could be held that such pre*39sumption would not arise, the operation of the rule has been gradually, and perhaps unavoidably, extended to cases in which it is more likely to have been misleading than otherwise.
But so far as we have observed no court has gone to the extent of holding that the decision of another state can be presumed to be known antecedent to its official publication; and we think that here at least a safe and practical and reasonable limit may be set to the operation of a rule already too much extended. We do not say that we should feel bound to conform to the decision of the highest court of another state merely because it was published in an official report before our adoption of a statute construed by it, but w'e do feel safe in holding that before such publication there ought to be no presumption that the decision was known to our legislature, and consequently that no inference of their intention can be drawn from any such presumption.
It is certainly true, as contended by counsel for appellant, that no case has been found in which this distinction has been recognized, but this is accounted for by the fact that no case has been found in which the facts warranted a decision based upon any such distinction. We are, however, sustained to this extent by the cases cited below. In frequent instances the courts have taken pains to show by comparison of dates and otherwise that it was reasonable to presume that the previous construction of borrowed statutes was actually known to the legislature by which they were adopted; and in one case, Campbell v. Quinlin, 3 Scam. 289, some stress was laid upon the fact that the decisions had not only been made but the “ reports published to the world” prior to the adoption of the statute in question.
We think we are entirely justified, in view of all the cases, in qualifying the rule at least to the extent above stated. Nor do we anticipate that we shall thereby bring upon ourselves any of the inconveniences suggested by counsel. We are asked how we are to know when a decision is first published, and if we are not aware that they are frequently, if not always, published in the newspapers and in law magazines in advance of the official reports. Our answer is that *40the whole subject is one of judicial cognizance. Any application of the rule contended for presupposes judicial knowledge of the date when a decision was rendered, and it is as easy to know judicially when a decision was published in official form as to know when it was rendered, or that it was ever made. As to such ephemeral reports of cases as may be found in newspapers and magazines, it is safer to ignore them altogether than to presume that their contents are known to the legislature.
We refer to the following cases as bearing more or less directly upon the point above discussed: (See cases cited at page 52 of Cooley’s Constitutional Limitations; also, McKenzie v. State, 11 Ark. 596: Draper v. Emerson, 22 Wis. 150; Poertner v. Russell, 33 Id. 193; Harrison v. Sager, 27 Mich. 478; Greiner v. Klein, 28 Id. 22; State ex rel. M. and M. Railroad Company v. Macon county, 41 Mo. 464; Snoddy v. Cage, 5 Texas, 108.)
Upon these authorities, and for the reasons above stated, we say as we said before, that there is no reason to presume that our legislature, when it adopted the California lien law, knew of the construction it had received in Renton v. Conley, and consequently it can not be presumed that the law was intended to mean what it was there held to mean, unless such intention is fairly deducible from the terms of the statute itself. We are thus brought back to appellant’s first proposition, viz.: that the California statute of 1868, from which our statute of 1875 was copied, was correctly construed in Renton v. Conley.
We regret to say that after a most careful examination of the statute in question, as well as of the whole course of legislation and judicial construction in California on the subject of mechanics’ liens antecedent to that decision, we are forced to the conviction that sub-contractors and material-men were thereby deprived of the rights which it was the intention of the legislature to give them.
In discussing the relation of owners of buildings to subcontractors and others, Mr. Phillips, in his work on Mechanics’ Liens says‘ ‘ The protection of the sub-contractor and material-man, with a just regard to the rights of the owner *41of the property, lias been a subject of much solicitude with most of tbe legislatures. Two systems seem principally to liave been adopted. Tbe one in Pennsylvania, wbicb was the first, where tbe mechanic who did tbe work and tbe material-man who supplied tbe articles used, were deemed entitled to protection, rather than a mere builder or undertaker of contracts, made provision that tbe sub-contractor and material-man should have a lien for whatever sum might be due them directly on the building and land upon which it stood, and subordinating the lien of the contractor thereto. The other was the plan adopted in New York, which did not secure to any one except the original contractor an absolute lien on the property for the whole sum due, but by a species of equitable subrogation allowed the sub-contractor and material-man to give written notice to the owner of his unpaid claim, requiring the owner thereupon to retain such funds as were in his hands belonging to the contractor, to answer the suit of the sub-contractor and securing the same either by lien on the interest of the owner in the property, or a right of action against him — the payment of this sum to operate as a valid set-off against any demand of the contractor.” (Sec. 57, p. 82.)
A comparison of the statutes and decisions of California on the subject of mechanics’ liens gives us the impression that the legislature and supreme court of that state have most of the time since 1858 been acting at cross purposes. By various amendments to the statute the legislature has evinced an intention to establish the Pennsylvania system, but the law has been construed at every stage of its development into a mere embodiment of the New York system. The strong leaning of the court in favor of the latter system has been the result of what is probably an enlightened view of the true policy of legislation on this subject; for it seems that the plan of conferring on subcontractors and material-men a right of lien for all sums which may be due them, irrespective of payments already made by the owner to the contractor, is passing out of favor, and that the tendency in the later legislation in the various states of the union is to confine their right to what may be *42owing by tbe owners at the time of notice to him of their claims. (Phillips on Mechanics’ Liens, sec. 57.)
Put although it may be true that the supreme court of California has at all times had a more just conception than the legislature of what the law ought to be, we can not help thinking that their lively appreciation of the injustice to which owners of buildings might be subjected under the Pennsylvania system has biased their judgment in the construction of the acts of the legislature.
By the first section of the act of 1856 (Cal. Stats. 1856, p. 203), it was enacted that: “All artisans, builders, mechanics, lumber merchants, and all other persons performing' labor or furnishing materials for the construction of any building, wharf, or superstructure, shall have a lien on such building, wharf or superstructure for the work and labor done or material furnished by each respectively.”
This section by itself would seem to give to sub-contractors, etc., a direct and absolute lien on the building for the amounts due them; but the provisions of section 3 were perhaps sufficient to justify the supreme court in holding that it was not the design of the legislature to make the owner responsible except upon notice, or to a greater extent than the sum due to the contractor at the date of the notice. (See Knowles v. Joost, 13 Cal. 621.) Section 3 of the act of 1856 was as follows: “ On being served with a notice by a subcontractor as provided in the last preceding section, the owner of such building, wharf or superstructure shall withhold from the contractor out of the first money due, or to become due to him under the contract, a sufficient sum to cover the lien claimed by such sub-contractor, journeyman or other persons performing labor or furnishing materials, until the validity thereof shall be ascertained by a proper legal proceeding if the same be contested; and if so established the amount thereof shall be a valid offset,” etc.
But in 1858 this section was amended so as to read as follows: “Everysub-contractor, journeyman, * * * shall, under the provisions of this act, have a valid lien upon the building, wharf or superstructure on wffiich such labor was performed, or for which such materials were furnished, re-*43garclless of the claims of tbe contractor against tbe owner of sucli building, etc.; but if any money be due or is to become due under the contract from said owner to said contractor, on being served with notice by a sub-contractor, as provided in tbe last preceding section, said owner may withhold, out of tbe first money due, or to become due, under the contract, a sufficient sum to cover tbe lien,” etc. (Stats. 1858, p. 225.)
To our minds this amendment to tbe statute clearly indicates tbe intention of tbe legislature to make tbe owner responsible to sub-contractors and material-men for the amount of their claims, notwithstanding previous payment to tbe contractor of tbe entire contract price, provided, of course, they complied with tbe requirements of- section 2, as to claiming, recording and serving notice of their liens. Tbe first part of tbe section is positive to that effect, and tbe latter part does not qualify it — it merely gives to tbe owner a means of protection pro tanto, in case any portion of tbe contract price is still due, or to become due.
But, notwithstanding the pointed and stringent terms of this amendment, it was held in McAlpin v. Duncan, 16 Cal. 126, that it gave no additional rights to sub-contractors and material-men. Tbe effect of tbe decision being that tbe law was left by tbe amendment exactly as it was before; or, in other words, that tbe legislature bad taken tbe pains to amend tbe law without any intention of changing it. Tbe only argument by which it was attempted to support this conclusion was an enumeration of tbe grave inconveniences which it was supposed would ensue if tbe language of tbe statute should be allowed its natural and obvious effect. This sort of argument is never very conclusive, and its force in this instance is greatly impaired by tbe fact that several of tbe states, for the sake of giving more complete protection to mechanics, laborers, etc., have long been contented to endure all tbe mischiefs involved in what Mr. Phillips calls tbe Pennsylvania system.
But it is not with the law of 1858, or tbe case of McAlpin v. Duncan, that we are particularly concerned. In 1862 tbe legislature of California repealed all existing laws on *44the subject of mechanics’ liens, and passed a new act embodying the New York system and containing specific and ample provisions for giving it full effect. Under that law a number of cases arose in which it was held that all liens were subordinate to the original contract; that the owner could never be compelled to pay more than he had expressly contracted to pay; that if he paid the original contractor according to the terms of his original contract before notice of the claims of sub-contractors, etc., he was absolved to the extent of the payment so made. It is upon these decisions that appellant chiefly relies in its petition for a rehearing. They are, however, entirely inapplicable.' No doubt they give a correct construction to the law of 1862 (Stats. 1862, p. 384), but that law bears scarcely a trace of resemblance to the act of 1868 (Stats. 1868, p. 589), by which it was repealed, and under which the case of Renton v. Conley arose. It seems to us scarcely possible to compare the two acts without being convinced that the intention of the latter was to make a radical change in the existing law and to give to sub-contractors, etc., direct liens for the amounts due them, regardless of the terms of the original contract or of the state of the account between the owner and contractor. It may be that such a law is arbitrary, unjust and impolitic, but the intention of the legislature to so frame it is to our minds clear. This is proved by the fact that although it was modeled upon the law of 1858, it was by no means a mere copy of that law. Various additions and alterations were made, all clearly tending to one purpose, and all evincing the desire of the legislature to obviate the construction placed upon the old law in McAlpin v. Duncan, and other cases.
For instance, it was enacted in the first section that every mechanic, artisan, lumber merchant, etc., should have a lien for his labor or materials ‘ ‘ whether furnished at the instance of the owner of the building or other improvement or his agent,” and for the purposes of the act “every contractor, sub-contractor, architect, builder or other person having charge ” of the> work or improvement was declared to bo the agent of the owner.
*45Again, by section 4 it was enacted that land upon which any improvement was made without the consent or authority of the owner, should be subject to liens for the cost of the improvement, unless the owner, within three days after being informed of the commencement of the improvement, should post a written notice on the premises that he would not be responsible. Still more significant are the provisions of section 11, which gives to the owner the right to recover back from the contractor any amount which he may be compelled by lienholders to pay “in excess of the contract price.”
In all these strongly marked features the law of 1868 differed from that of 1858, and it is a significant circumstance that they were all left out of the code, which was prepared by the code commissioners and adopted by the legislature in 1872. Those commissioners undertook to provide (Code of Civil Procedure, sec. 1183), that the aggregate amount of liens should never exceed what “ the owner would be otherwise liable to pay,” and it is evident they thought it necessary to strike out the provisions above referred to in order to make the code consistent with itself. It is to be presumed this portion of the code was unwittingly adopted by the legislature, for at its next session, in 1874, the amendments of the code commissioners were stricken out and the law of 1868 re-enacted. (See 2 Hittell’s Codes and Statutes, secs. 11,183, 11,192, 11,193.)
After all this industrious changing of the law, Renton v. Conley was decided upon the assumption that it remained exactly what it had been before. In this view we are unable to coincide. On the contrary, we think the language of the statute, without reference to the significant circumstances under which it was amended and re-amended in- California, leaves no room for doubt that the legislature intended to give sub-contractors and material-men direct liens upon the premises for the value of their labor and materials, regardless of payments on the principal contract made prior to the time within which the law requires notice of their claims to be recorded. In support of this conclusion, we refer to Colter v. Frese et al., 45 Ind. 97, in which most of the cases *46involving the point under discussion are carefully reviewed. Thus, and upon broader grounds, we again conclude that the judgment and order appealed from should be affirmed. It is so ordered.