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class should be, and is, justly entitled, under the law, to the value of their material or labor. They are not parties to the contract. They have no voice in its execution or recordation. They furnish material as directed, and labor as ordered, and that is all. It is but right, therefore, that the measure of their recovery should be the value given by them, unhampered by the conditions of a void contract. But the situation of the owner and original contractor is totally different. They advisedly agree upon a building contract. The nature of the structure, the character of material, the time of completion, the times and amounts of payments, are all the subject of deliberate consideration. Their minds finally meet, and an agreement is reached. The contractor promises to com plete such a structure, with prescribed ma terial, for a fixed price. The owner wants just such a structure, with just such material, and none other, and for it he is willing to pay the price fixed. If it were to cost more, he would not build at all, and there would be no contract. But the law imposes a penal ty for nonrecordation of a contract before work is commenced. Thus, in a sense, the duty is imposed upon both contractor and owner to see that this is done. Otherwise, says the law, the contract is wholly void, and no recovery thereon shall be had by either party thereto. But the duty so to record is primarily on the contractor, for the very reason that he can always defeat the law and the owner's interest by commencing work before recordation. The owner is helpless in the matter. But to hold that, notwithstanding his failure in this respect, the contractor, because the contract is void, may build what he pleases, of any material he pleases, in any way that suits him, and recover, where the contract has not been performed, not only the contract price, but 40 times the contract price, is not to punish the contractor for his dereliction, but to put a premium upon a failure to comply with the law, and invite dishonesty and trickery in this matter, and in the matter of the contract itself. What matters it to the contractor if he loses his lien? An attachment will serve his purpose. And why should he care at what figure he agrees to build a house, when he may recover any amount he is capable of proving, whether he has performed the work in whole or in part, whether it be in accordance with the contract or not? While the contractor may thus be reaping an untoward advantage from his failure to comply with the law, the owner, on the other hand, will be compelled to accept a barn where he expected a house, and to pay, for a structure which he never wanted or contracted for, more than he agreed to pay for the desired edifice. Indeed, he may be compelled to pay full value for an uncompleted building. Is such a conclusion necessary under the law? We think not, and we think, further, that the error arose in the Rebman

Case by misapplication to original contractors of language directed solely to the case of subcontractors, material men, artisans, and laborers. Heretofore, as will subsequently be pointed out, the court, by the logic of necessity, if from no other consideration, has felt compelled to modify the force of the Rebman decision; but it is certainly prefer. able that it should at once be overruled, if it be untenable, rather than it should be undermined and eaten away after a long course of vexatious and expensive litigation, filling the books with discriminated cases, all receding further and further from, and growing more and more dissimilar to, the parent case. When the statute declares that the contract shall be wholly void, it means, as the Willamette Case decided, that it is wholly void as to the third class above designated, who thereupon shall be entitled to liens for the full value of their material and service, and shall be deemed to have furnished them to the owner at his special request. By thus allowing full compensation to this class, the owner is sufficiently punished for any remissness on his part, while with like measure the original contractor is penalized by losing his lien. But the law never meant to reward the contractor for his disobedience by conferring upon him for its violation greater rights than would have been his had he obeyed it. Therefore, as between him and the owner, the contract must remain not the basis of his recovery, but the measure and test of his right to recover. He must still show a substantial compliance with its terms, to warrant any recovery at all; and the measure of his recovery, even under implied assumpsit, must be limited as to him by the contract price. Thus only is the law given a just and harmonious operation. In Barker v. Doherty, 97 Cal. 10, 31 Pac. 1117, the cases of Kellogg v. Howes and Willamette Steam Mills Lumbering & Mfg. Co. v. Los Angeles College Co. were the subject of review, and it is said: "Those cases decided that the contract was void as forming the basis of a recovery, and no legal liability could be created by any of its provisions. This would seem to be apparent from a cursory reading of the provision itself. It was never intended to hold in those cases that the writing could not be used as evidence to determine the character of the building to be erected, and thereby to furnish the test by which it could be known when the building was completed. Such is evident from the fact that in those cases the test of com pletion of the buildings was furnished by an inspection of the very contracts, which were held to be 'wholly void.' Any other interpretation of this provision of the statute would lead to inextricable confusion, and practically nullify the entire section." Marchant v. Hayes, 117 Cal. 669, 49 Pac. 840, was an action brought by an original contractor against the owner to recover in assumpsit. The owner pleaded a contract

which had never been performed. Upon the trial it was shown that the contract was void for failure to record. The court further found that the labor bestowed and material furnished by the original contractor were supplied under the terms of the contract, and it awarded the original contractor judgment for the value of such services and material. But in reversing that judgment this court said: "The omission to file the contract in the office of the county recorder deprived the contractor of any lien for the labor and materials (Code Civ. Proc. § 1183), but he did not by such omission acquire any greater right to a recovery for his labor and material than he would have had if he had brought an action therefor irrespective of his right to a lien. Under the finding of the court that Hayes was never employed to construct the building, except by virtue of the contract of June 18th, and that all the labor performed and all the materials furnished by him were performed and furnished under and by virtue of this special contract, he had no right of recovery unless he should show that he had completed the contract on his part, or that its completion had been in some way waived or excused." This declaration of the law we think is eminently just and sound. It is, as was before said, a recession from the earlier views of the court, and a declaration of the true principle. It is applicable to every case where the contract fails for lack of recordation; for in all of them it is still the understanding of the parties that such work, and only such work, as is called for by the terms of the contract shall be performed.

In the case at bar no question arises as to the character of the work done by the contractor. It is not in dispute that the contractor did not wholly refloor the second sto ry. The controversy arises over the interpre tation of the contract. If the contract call. ed for the laying of a new floor of 3 by 6, clear kiln-dried pine flooring, put down in deck style, and filled with boiling-hot bitumen, then, unquestionably, the contractor did not comply with his contract; for, admittedly, in the passageways, comprising an area of at least a fourth of the whole floor, he merely nailed a surface flooring upon the old flooring which was there. The provisions of the contract are as follows: "First, the contractor agrees * * to furnish the necessary labor and materials, including tools, implements, and appliances required, and perform and complete in a workmanlike manner all the work of laying a new floor on the second story of the Nevada Stable." The floor was to be laid in conformity with the specifications. The specifications provided: "The entire stall floor will be laid with 3 by 6 clear kiln-dried pine flooring, put down in deck style, filled with boiling-hot bitumen; floor driven up tight and bored for the spikes, and then filled up with the hot bitumen. The entire stall floors coated with hot bitu

men. Then a two-inch surface floor laid over the entire stalls under the horses a space of x% to be laid 2x4-inch surface open joints %. The 3x6 floor will be laid lengthwise of the building, and furred up, to give the stalls 21⁄2 inch fall in the length of the stalls. Passageway furred up to the level with stall grating." We think no one, in reading this contract, could entertain any doubt that its meaning was that the entire flooring of the second story, designated the "stall floor," should be removed, and a new flooring of 3x6, laid lengthwise of the building, should be put in its place, and made water-proof with bitumen. The contract calls for "all the work of laying a new floor on the second story," not for the laying of a new floor where necessary. In connection with the contract, the opening paragraph of the specifications declares that the entire stall floor shall be so relaid; and in the next paragraph, as noting a recognized distinction between the stall floor and the floors of the stalls, it is provided that the "stall floors," or floors of the stalls, in addition to the 3x6 flooring, shall have this flooring coated with hot bitumen, and an additional two-inch surface floor laid on top. There does not seem in this contract to be enough of ambiguity to call for construction; but, if it be conceded that such ambiguity exists, remembering that the contractor himself drew this contract, and that it is indisputably shown that the owner had discussed with the contractor the necessity for a complete new flooring, and that the contractor had told him that it was necessary, and that the owner certainly understood the contract to mean that the entire second story was to be refloored, the provisions of sections 1649 and 1654 of the Civil Code at once become applicable. section 1649 it is declared: "If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed at the time of making it that the promisee understood it." Section 1654 declares: "In case of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. The promisor is presumed to be such party." In furtherance of this presumption, it is here positively shown that the promisor himself drew the contract. Moreover, it is in evidence that the two contractors who likewise bid upon the work both understood the contract as calling for an entire new floor. The variance between the work called for and the work done was substantial, and plaintiff was not entitled to recover. Perry v. Quackenbush, 105 Cal. 299, 38 Pac. 740; Marchant v. Hayes, supra. The finding of the court in this regard was therefore unsupported, and the order denying a new trial is therefore reversed.

By

We concur: TEMPLE, J.; MCFARLAND, J.

(133 Cal. 196)

BRADLEY v. CLARKE. (Sac. 823.) (Supreme Court of California. June 7, 1901.) PURITY OF ELECTION ACT-VALIDITY-CONSTITUTIONAL LAW-OFFICERS - QUALIFICATION-OATH-CONTEST OF RIGHT TO OFFICE PLEADING CROSS-EXAMINATION -WITNESSES PRIVILEGE FROM TESTIFYING SELF-CRIMINATION-OBJECTION BY WITNESS -SUFFICIENCY-WHO MAY DETERMINE APPEAL-REVIEW-CONCESSION AS TO LAW.

1. So much of Purity of Election Act, § 4, as requires a successful candidate to swear to the statement of his expenses, etc., as a qualification to taking office, is void, as a violation of Const. art. 20, § 3, prescribing the oath which shall be taken, and providing that no other shall be required.

2. Where, in an action to contest a successful candidate's right to an office for illegal and excessive expenditures, and for his failure to file a true statement thereof, as required by the purity of election act, defendant testified as to hís expense account, he could not be cross-examined as to expenditures not referred to in his testimony in chief.

3. As Purity of Election Act, § 32, expressly provides that a person offending against specified sections thereof may testify against other offenders, and thereupon be protected from subsequent prosecution therefor, he cannot claim immunity from testifying as to violations of the sections specified on the ground that his testimony would tend to criminate him.

4. In an action under such act, a witness was asked if he was present between specified dates, when a conversation occurred with defendant with reference to the payment of any money for campaign expenses. Held, that no conceiv able reply thereto which the witness might properly give would or could tend to criminate him or degrade his character, and a refusal to answer on that ground should not have been sustained.

5. In an action under such act, involving a charge as to defendant's violation of section 11, in expending more than the maximum amount allowed by law, a recipient of money from defendant could not claim immunity from testifying as to whether he had received money from defendant, or by his direction, for the purpose of aiding or securing his election, on the ground that it would tend to criminate himself, since there is no violation of the law by the recipients of excessive expenditures, no duty being imposed on them to inquire how much a candidate has expended or purposes to expend.

6. It is for the trial court to pass on the sufficiency of a witness' objection to testifying, and not for him to decline to give relevant and pertinent testimony, which may be harmless to himself, on his mere declaration that his answer may tend to criminate or degrade him.

7. A complaint under such act, charging defendant with a promise of patronage to a person named, "with intent to promote his own [defendant's] election," charges an offense within subdivision 3 of section 19, which expressly makes it unlawful to promise any office, place, or employment to any person "in order to induce such person to procure or endeavor to procure the election of any person."

8. The court, on appeal, is not bound by a concession as to the law made by appellant's attorney. It is its duty to declare the law as it is, and not as either party may assume it to be.

Garoutte and McFarland, JJ., dissenting.

In bank. Appeal from superior court, Sacramento county; Matt F. Johnson, Judge.

Action by William H. Bradley against George H. Clarke, contesting defendant's

right to an office. From a judgment ror defendant, contestant appeals. Reversed.

A. L. Shinn and Wm. Hanley, for appellant. C. T. Jones, Peter J. Shields, and Hiram W. Johnson, for respondent.

HENSHAW, J. This is an action instituted by an elector of the city of Sacramento, under the provisions of the purity of election act (St. 1893, p. 12), contesting the right of the defendant, mayor-elect of the city, to his office. After trial judgment passed for the defendant, and from that judgment contestant appeals, the evidence being brought up for review by bill of exceptions.

It is charged by contestant that, in violation of the purity of election act, the defendant was guilty of certain improper practices, in that (1) he did not file a statement of his election expenses, supported by his affidavit, as required by law; (2) that the statement filed was false in fact; (3) that money was illegally expended by him in aid of his election; (4) that he expended a sum of money, to secure his election, in excess of the maximum amount allowed by law; (5) that, to secure his election, he promised to bestow upon an elector of the city of Sacramento one-ninth of the official patronage of the office of mayor of the city, in the event of his election.

Section 3 of the purity of election act provides that "every candidate who is voted for at any public election held within the state shall, within fifteen days after the day of holding such election, file, as hereinafter provided, an itemized statement, showing in detail all moneys paid, loaned," etc. "There shall be attached to such statement an affidarit, subscribed and sworn to by such candidate, which must be substantially in the following form: 'State of California, County of - . 68. I (name), having been a candidate for the office of at the election

for my

held in the county, city and county, city, or other division, state of California, on the day of 18, do solemnly swear that I have paid the sum of $ expenses at the said election, and no more, and that, except as aforesaid, I have not, nor to the best of my knowledge and belief, has any person, club, society, or association on my behalf, directly or indirectly, made any payment, or given, promised or offered any reward, office, employment, or valuable consideration, or incurred any liability on account of or in respect of the conduct or management of the said election, and except such moneys as may have been paid to or expended by the committee selected as prescribed by the act of the legislature of this state, approved (date of this act). And I further solemnly swear that except as aforesaid, no money, security or equivalent for money, has to my knowledge or belief been paid, advanced, given, or deposited by any one, to or in the hands of myself, or any other person, for the purpose of defraying

any expenses incurred on my behalf, or in aid of my election, or on account of or in respect of the conduct or management of the said election. And I further solemnly swear that I will not at any future time make, or be a party to the making or giving of any payment, reward, office, employment, or valuable consideration for the purpose of defraying any such expenses as last mentioned, or provide or be a party to the providing of any money, security, or equivalent for money, for the purpose of defraying any such expenses.'" By section 4 of the act it is provided: "Any candidate for a public office who shall refuse or neglect to file, or who makes a false statement of moneys received or expended, as prescribed by section 3 of this act, shall, in addition to the punishment for such offense prescribed by the laws of this state, forfeit any office to which he may have been elected at the election with reference to which the statement is required to be made. If a candidate elected to a public office refuses or neglects to file the statement prescribed by section 3 of this act, no certificate of election shall be issued to him, neither shall any official bond presented or offered by him be approved, and the incumbent of the office, unless he is himself a defaulting candidate, must not surrender or deliver up said office, but shall continue to discharge the duties and shall receive the emoluments thereof."

Respondent contends that these provisions, or at least so much of them as requires a successful candidate to support his statement by his oath, as a prerequisite to his right to take office, are violative of the constitution of the state, and therefore void. From this conclusion we think there can be no escape. Article 20, § 3, of our state constitution, declares: "Members of the legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and subscribe the following oath, or affirmation: 'I do solemnly swear (or affirm as the case may be) that I will support the constitution of the United States, and the constitution of the state of California, and that I will faithfully discharge the duties of the office of according to the best of my ability,' and no other oath, declaration or test shall be required as a qualification for any office or public trust." The constitution itself speaks of this prescribed oath as a "qualification" for an office. Equally is the oath required to be taken by the successful candidate a qualification for office, for the very provision of the act is that for his refusal or neglect in this regard, or for the making of a false statement, he shall be deprived of his office, and shall forfeit any office to which he may have been elected. In State v. Bemenderfer, 96 Ind. 376, it is said: "The term 'qualify,' as used in the statute, does not mean possessed of the necessary political, mental, and

**

moral endowments, but means the acts performed after election, as taking the official oath and executing an official bond. * 'Eligible' means capable of being chosen, while 'qualify' means the performance of the acts which the person chosen is required to perform, before he can enter into office. **Abbott, in defining the word 'qualify,' says it means to take the oath and give the bond required by law from an administrator, executor, public officer, or the like, before he may enter into the discharge of his duties." Had our constitution merely declared, as some do, that no other "test" than the one prescribed should be exacted of an officer elect, it might then be argued with some force that it had reference to such tests, in their nature religious, as those required by the act of Charles II., directed against Roman Catholics and dissenters, and which remained a blot upon the English statute books until 1828. But the constitution has designedly said, not alone that no other test should be required, but that no other "oath or declaration" should be exacted. This language leaves, as the only matter for determination, the single question whether this act does impose an oath or test substantially differing from that prescribed by the constitution. Cohen v. Wright, 22 Cal. 294. That it does prescribe a substantially different oath in addition to that made exclusive by the language of the constitution the very reading of the section makes manifest. But, in holding that the legislature may not prescribe this additional oath upon a successful candidate, as a prerequisite to his right to take office, and as an additional qualification to those enunciated by the constitution, we do not mean to be understood as saying that the legislature may not with propriety provide that a candidate shall forfeit his office for the doing of any of the inhibited acts, or for the failure to do any of the required acts set forth in the purity of election law. The legislature would have the undoubted power to require an officer elect to file just such a statement as the law now prescribes, and to provide that for a failure so to do he should forfeit his office or his right to office; but, under the strict mandate of the constitution, it has no right to exact this different and additional oath or affirmation before the taking of office, as a prerequisite thereto. So much, therefore, of the act as requires the candidate to support his statement by the above-quoted oath, as a prerequisite to the right to take office, is void.

The findings of the court negative the contention of appellant that the expenditures made for carriages and for banners by Booth, a friend of defendant, were made by him as the agent of Clarke, and consequently chargeable against Clarke under the law. These findings receive substantial support from the evidence, and need not further be considered. The defendant called upon to testify to an

item of $22.65, designated as "incidentals and sundries," stated: "The way that item happened to be put in the statement was that in filing my account I consulted with Mr. M. J. Desmond, the city clerk, and I had at that time vouchers for every dollar I spent during the campaign, and when we got down to amounts less than $5.00 he advised me to put them in under the head of 'sundries,' which I did, and destroyed the vouchers. They were all for sums less than $5.00. I did not pay any money for hacks on election day, and did not pay any money to Mr. Carragher for signs." Upon cross-examination contestant's attorney questioned the witness about other alleged illegal expenditures, for example: "Q. Did you pay to the Sacramento Publishing Company, for publication and printing work that they did for you in the campaign, the sum of $75.00?" Objection was made to these questions upon the ground that they were not cross-examination, and the objection was properly sustained. The testimony in chief was directed merely to the candidate's failure to segregate the item of $22, and to produce vouchers for the different amounts composing it. This, and his declaration that he had paid for no carriages or banners, makes the sum of his evidence. was not within the scope of cross-examination upon these matters to seek to show what other or different amounts he might have expended. Upon that branch of inquiry the contestant could have called the defendant himself to the stand, when, if the witness was protected in the questions asked by the provisions of the law, he could have been compelled to answer.

*

*

It

Certain rulings upon questions propounded to the witness Cavanaugh, and his claim of privilege thereunder, merit more than passing notice. The complaint charged as follows: "That said purported statement of moneys received and expended, made and filed by defendant, is willfully false in the following particulars: Third. That while defendant was a candidate as aforesaid, and for the purpose of aiding his election to said office of mayor, contestant is informed and believes, and upon such information and belief states the fact to be, that defendant paid to Wm. M. Sims the sum of one thousand nine hundred dollars, and that said Wm. M. Sims, with the knowledge and consent of defendant, and for the purpose of aiding the election of defendant to said office, paid to B. W. Cavanaugh the sum of three hundred dollars of said sum, and to Frank Daroux four hundred dollars of said sum, and to B. W. Cavanaugh, for Frank Farrar, $150, which sum was paid to said Frank Farrar by said B. W. Cavanaugh, and that said Wm. M. Sims paid to divers and sundry persons, unknown to contestants, the balance of said sum of $1,900; that said sums are not set forth in said statement." The complaint also charges "that while defendant was a candidate for election to said

office of mayor, of said city of Sacramento, as aforesaid, defendant committed offenses against the elective franchise defined in title 4, pt. 1, of the Penal Code of the state of California, in the following particulars: * * That the defendant, with intent to promote the election of himself to the office of mayor of said city of Sacramento, as aforesaid, as contestant is informed and believes, and upon such information and belief states the fact to be, did willfully offer a reward to an elector of said city of Sacramento, for the purpose of procuring the election of defendant, in this: That the defendant did, for the purpose of procuring his election as aforesaid, offer to one B. W. Cavanaugh, an elector of said city of Sacramento, one-ninth of the official patronage of said office of mayor of said city,-that is to say, that, in case defendant should be elected to said office, said B. W. Cavanaugh should name the persons who should be appointed by said mayor to fill one-ninth of the appointive offices in said city; that there are many such offices which are filled by appointment by the mayor of said city." The record shows the following proceedings touching the examination of Cavanaugh: "Counsel for contestant then asked the witness the following question: (1) Were you present at any time between the 2d day of October and the 7th day of November, 1899, when a conversation occurred with the defendant with reference to the payment of any money for campaign expenses? The witness replied: 'I decline to answer, on my constitutional rights, that I cannot be made a witness against myself, and I decline to criminate myself or degrade my character, and that to answer said question would tend to convict me of a felony.' Mr. Shinn, counsel for contestant, asked the court to make an order requiring the witness to answer the question. Mr. Shinn: 'We expect to show by this witness that at a certain time the defendant gave to one William M. Sims $1,900.00, to be used for his election purposes, and that William M. Sims gave to this witness $300.00 of that money, to be used on behalf of the defendant for his election purposes, and that he gave to another party another sum of money.' court denied the request, and contestant excepted. Counsel for contestant asked the witness the following question: '(2) Mr. Cavanaugh, between the 2d day of October, 1899, and the 7th day of November, 1899, did you receive any money from defendant, George H. Clarke, or by his direction, for the purpose of aiding or securing his election?' The witness declined to answer, on the ground that his answer would tend to criminate himself, and would have a tendency to subject him to punishment for a felony. Counsel for contestant made an application to the court for an order requiring the witness to answer the question. The application was denied, and contestant excepted. Counsel for contestant asked the witness the

The

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