Hammond Lumber Co. v. Moore

In this action to foreclose a material-man’s lien the court, in accordance with the admissions and stipulations of the parties, found that respondent Johnson, the owner of the land involved, contracted with defendant Moore for the construction of a building on that land; that appellant sold to defendant Moore building material, which was actually used by him in such construction, but for which payment had never been made; that appellant recorded in the office of the county recorder its claim of lien in the manner, form and time required by section 1187 of the Code of Civil Procedure, but never filed any notice of its lien, as required by section 93 of the “Land Title Law”

At the outset, we feel that respondents’ argument, that, as the “Land Title Law” was adopted, by initiation, it is equal in force and effect and unrestricted by the Constitution, is incorrect. (Wallace v. Zinman, 200 Cal. 585 [ 62 A. L. R. 1341 , 254 Pac. 946 ].) That decision is also authority adverse to their contention that article IV, section 24, requiring the subject of an act to be expressed in .its title, is not here applicable, because the law in question is an initiatory measure. Furthermore, the reasoning of that case satisfies us that the mandate, limitation and restriction, literally imposed upon the legislature by article XX, section 15, is also obligatory upon the people when legislating by the initiatory method.

The relation between the right to a lien and the mandate for legislative provision for its enforcement is well stated in Diamond M. Co. v. Sanitary F. Co., 70 Cal. App. 695 , at page 701 [ 234 Pac. 322 , 325], as follows:

“The right of mechanics, materialmen, etc., to a lien upon property upon which they have bestowed labor, or in the improvement of which materials which they have furnished have been used, for the value of such labor or materials, is guaranteed by the Constitution, the mode and manner of the enforcement of such right being committed to the legislature. (Art. XX, sec. 15, Const.) Manifestly, the legislature is not thus vested with arbitrary power or discretion in attending" to this business. Indeed, rather than power so vested in the legislature, it is a command addressed by the Constitution to the law-making body to establish a reasonably framed system for enforcing the •right which the organic law itself vouchsafes to classes named. Clearly, it is not within the right or province of the legislature, by a cumbersome or ultra-technical scheme designed for the enforcement of the right of lien, to impair .that right or unduly hamper its exercise. Every provision of the law which the legislature may enact for the enforcement of the liens mentioned in section 15 of article XX of the Constitution must be subordinate to and in consonance with that constitutional provision. (Hampton v. Christensen, 148 Cal. 729 , 737 [ 84 Pac. 200 ].)”

Does section 93 of the “Land Title Law” impair the right to lien or unduly hamper its exercise? If so, such section must be held unconstitutional as violative of article XX, section 15. Section 93 reads as follows:

“Notice of liens under the provisions of the mechanics’ lien laws of this state shall be filed in the registrar’s office, and a memorial thereof entered by him upon the register, as in the case of other charges, and such liens may be enforced as now or hereafter allowed by law. Until such notice is so •filed and registered, no lien shall be deemed to have been created. ’ ’

Before such notice can be filed or affect the title of the land, or impart any notice, it “must have noted thereon a statement of the fact that the land sought to be affected is registered land, with the name of the registered owner and with the number ... of the certificate ... of the last registration thereof.” (Sec. 47 of the act.) As to similar matters, section 1187 of the Code of Civil Procedure requires that the claim of lien shall be recorded in the office of the county recorder, and shall give the name of the

Appellant argues that as the subject of mechanics’ liens treated in section 93 is not expressed in the title of the act—“Land Title Law”—such section is void (Const., art. IV, sec. 24). In holding untenable a similar attack, broader, but inclusive of the same point, upon the “Torrens Law,” the Supreme Court in Robinson v. Kerrigan, 151 Cal. 40 , 50 [ 121 Am. St. Rep. 90 , 12 Ann. Cas. 829, 90 Pac. 129 , 133] (approved in Frances Investment C'o. v. Superior Court, 189 Cal. 107 [ 208 Pac. 105 ]), used the following language, here decisive:

“These provisions relate to the subjects of felonies, county officers, county government, principal and surety, attorneys at law, judgments, liens,, procedure, and adverse claims, respectively, and it is claimed that the act is void because none of them are mentioned in the title. And it is intimated that if they were mentioned, the law would be contrary to the mandate of the Constitution that the act shall embrace but one subject. If the first proposition is well taken, it is certain that the second is also established. But the mere statement of the objection is almost sufficient to refute it. While it is true that none of the subjects thus designated is expressed in the title, they are all germane to the general subject there expressed, and, taken together, they compose a part of the general scheme, and are appropriate to effect the main object of the law. Further examination would have disclosed a large number of such ‘sub-

The single subject of the act, expressed in its title, is the establishment of a system for the registration of title to land whereby the official certificate will always show the state of the title and all interests therein (Pioneer etc. Guaranty Co. v. Feraud, 91 Cal. App. 278 [ 267 Pac. 134 ]). The manner of enforcement of mechanics’ liens is a detail in the accomplishment of such purpose and is therefore logically germane to the title of the act and included within its scope (Buelke v. Levenstadt, 190 Cal. 684 [ 214 Pac. 42 ]; Estate of Wellings, 192 Cal. 506 [ 221 Pac. 628 ]).

We are unable to see the pertinency of appellant’s argument that, as a matter of construction, section 93 cannot

Lastly, appellant urges that it should not be deprived of its lien, since the recorder, being the same person who is registrar (sec. 1 of Land Title Law) should have entered a memorial of it in the “register of titles.” But identity of person does not create an identity of office and the duties thereof (More v. Board of Supervisors, 31 Cal. App. 388 [ 160 Pac 702 ]). As above noted, section 47 requires certain information, not contained in the claim of lien to be noted on the notice of lien and prohibits the registrar from filing the notice without such information and further provides that a notice, not having noted thereon

The judgment is affirmed.

Tyler, P. J., and Cashin, J., concurred.