Shaughnessy v. American Surety Co.

[544]

McFARLAND, J.

The following opinion, prepared by Henshaw, J., was delivered when this case was in Department :—

“This action is against the defendant surety, on an undertaking given in pursuance of section 1203 of the Code of Civil Procedure. It is brought by materialmen who furnished materials to the contractor. The bond, as to its terms and conditions, is not only precisely that contemplated by the above cited section, but it is expressly recited in the instrument that it is given ‘in pursuance of section 1203 of the Code of Civil Procedure. ’ It has been decided by this court in Bank

(Gibbs

v.

Tally,

133 Cal. 373,) that so much of section 1203 of the Code of Civil Procedure as exacts this undertaking is unconstitutional and void. It follows, therefore, that the undertaking itself is void, unless, as contended by respondents, it should be upheld as a voluntary common-law obligation. We cannot perceive how the bond under consideration can be upheld upon this theory. It is not the case where a valid statute requires a bond and the bond given is defective. It is a ease where the statute requiring the bond is itself unconstitutional because of this exaction. In

Coburn

v.

Townsend,

103 Cal. 233, the action was upon a bond given in condemnation proceedings under section 1254 of the Code of Civil Procedure, and this court said: ‘In the first place, the provision of the code, and of the statute which preceded the code, under which the orders for possession were made in the condemnation proceedings, was held to be and was unconstitutional, and the bonds or undertakings here sued on were void.’

(Cassel

v.

Scott,

17 Ind. 514;

Poole

v.

Kermit,