Peckham v. Fox

SMITH, J.

This is an appeal from a judgment foreclosing a mechanic’s lien. The only objection urged by appellant’s counsel is to the attorney’s fee allowed by the court and made a lien upon the property in question. The points made by the appellant are: First, that section 1195 of the Code of Civil Procedure, providing for such fees, is unconstitutional ; second, that there is no provision in the act making the attorney’s fees a lien upon the property foreclosed. But neither point is tenable.

As to the first, tinder familiar rules of construction, there is nothing in the provisions of section 15 of article XX of the constitution to limit the ordinary powers of the legislature; or to take from it the specific power exercised in section 1195; nor is the constitutional provision to be construed as repealing the existing provisions of the Code of Civil Procedure on the subject of “liens of mechanics and others”; among which is the section in question. (Sedgwick on Statutory and Constitutional Law, pp. 123 et seq.;

Germania etc. Assn.

v.

Wagner,

61 Cal. 349.) On the contrary, the duty is imposed upon the legislature to “provide by law for the speedy and efficient enforcement of such liens”; and this, we think, imposes upon it, if deemed necessary to that end, the duty of providing for the cost of recording the lien and attorney’s fee “as an incident to the judgment”

(Rapp

v.

Spring Valley Gold Co.,

74 Cal. 532, [16 Pac. 325];

McIntyre

v.

Trautner,

78 Cal. 449, [21 Pac. 15];

Schallert etc. Lumber Co.

v.

Neal,

94 Cal. 192, [29 Pac. 622]); or, at least, empowers it to do so.

(San Joaquin Lumber Co.

v.

Welton,

115 Cal. 1, [46 Pac. 735, 1057];