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Ill. 511, 74 Am. Dec. 115, it is held that the legislature has power to impose a burden on foreign insurance companies doing business in the city of Chicago for the benefit and support of the Chicago Benevolent Association, and it is not necessary that the revenue derived from such burden should be paid into the treasury of the state. But in Henderson v. London etc. Ins. Co., 135 Ind. 23, 41 Am. St. Rep. 410, it is held that firemen are not servants of the state, nor of a county, but of the municipality in which they serve, and the taxing power of the state cannot be exerted for their benefit upon only a portion of a class of the citizens of the state. And in San Francisco v. Liverpool etc. Ins. Co., 74 Cal. 113, 5 Am. St. Rep. 425, it is decided if a statute requires every agent of a foreign insurance company doing business in the state to pay into the treasury of the county a sum equal to one per cent of the amount of all premiums paid him for insurance effected by him within such county, the money when paid to constitute a fund to be known as the firemen's relief fund of such county, such exaction is a tax, and forbidden by the constitution of California.

CASES

IN THE

SUPREME COURT

OP

UTAH.

VOLKER-SCOWCROFT LUMBER COMPANY V. VANCE.

[32 Utah, 74, 88 Pac. 896.] HOMESTEAD-Head of a Family, Who is Within the Meaning of the Laws Exempting.–Under the statutes of Washington, a wife, as well as her husband, must be regarded as the head of a family, for the purpose of asserting their rights to the exemption of the homestead, though he has not deserted her, and is not absent nor infirm. (p. 830.)

HOMESTEAD, Plea of, When Sufficient-Failure to Select or File Declaration of.--An answer averring that the defendant who makes it was the head of a family, to wit, the wife of the person designated, and that the real property described in the complaint was at all times specified their homestead, and, with the improve. ments, does not exceed the homestead exemption, is sufficient, though it does not state any declaration or other formal selection of the property as a homestead. (p. 831.)

HOMESTEAD_Unconstitutionality of Statute Attempting to Make Subject to Mechanics' Liens.-Under a constitution declaring that the legislature shall provide by law for the selection by each head of a family an exemption of a homestead, together with the appurtenances and improvements, a statute purporting to make the homestead subject to mechanics' liens is unconstitutional and void. (pp. 833, 834.)

HOMESTEAD_Mechanics' Liens, When not Consented to by a Contract for the Construction of a Dwelling.-A contract for the construction of a dwelling or other improvements on property constituting a homestead is not a waiver of the exemption of such property from mechanics' liens for improvements, unless the contract, in express terms, stipulates to such exemption. (p. 833.)

J. D. Skeen and Geo. Halverson, for the appellant.
C. C. Richards and A. E. Prath, for the respondent.

78 STRAUP, J. 1. This action is brought to foreclose a materialman's lien. It is alleged in the complaint that the defendant Mary Flinders Vance was the owner of certain lots in Ogden City, Utah; that she let a contract to defendant Peterson to construct a dwelling on the premises; that the plaintiff, at the request of both defendants, furnished building material which was used in the construction of the house, and which remained unpaid; and that a notice of intention to claim a lien was filed for record. The defendant Vance answered, admitting her ownership of the lots, the letting of the contract to Peterson for the construction of the house, but denied that the material furnished by plaintiff was furnished at her request. It was further alleged by her that at the time of the filing of her answer, and at all times mentioned in 79 the complaint, she was the head of a family, consisting of herself, two children, and her husband; that prior to and at the time of the letting of the contract the lots were, and still are, her homestead; that she let a contract to Peterson to erect a dwelling on the lots for the use of herself and family, and to hold them as a permanent homestead; that she paid the contractor the full contract price; that the value of the lots, with the improvements, does not exceed the homestead exemption, and thereupon she prayed that the real estate with the improvements be declared her homestead and exempt from plaintiff's lien and from sale on execution. The court sustained plaintiff's general demurrer interposed to that portion of defendant's answer which alleged that the homestead was exempt, “upon the ground that the allegations of said answer respecting such claim of exemption do not constitute a defense to plaintiff's action.” The defendant refused to further plead. A judgment was rendered in favor of plaintiff awarding it a lien on the real estate, and ordering a sale of the premises in satisfaction of plaintiff's claim, from which judgment the defendant Vance has prosecuted this appeal.

2. The homestead statute (Rev. Stats. 1898, sec. 1156) provides: "A homestead is subject to execution in satisfaction of judgments obtained (1) on debts secured by mechanics' or laborers' liens for work or labor done or material furnished exclusively for the improvement of the same. The appellant contends that this statute is in violation of section 1, article 22, of the constitution, which provides that “the leg. islature shall provide by law, for the selection by each head of a family, and exemption of a homestead, which may consist of one or more parcels of lands, together with the appurtenances and improvements thereon of the value of at least fifteen hundred dollars from sale on execution."

Nearly all of appellant's brief is addressed to this question. While the respondent does not concede appellant's proposition, nevertheless it has not offered anything in support of the validity of the statute. It seeks to uphold the ruling of the court upon the ground that the answer does not contain sufficient allegations that the defendant was the 80 head of a family, that the lots were her homestead at the time the contract was let to Peterson, and that a selection of a homestead had been made by her before plaintiff's lien attached. It is argued that, if the wife be the head of a family consisting of children and her husband, the facts and circumstances which make her such must be alleged; otherwise it will be presumed that the husband is the head. This may be true under a statute designating the husband the head, or in the absence of a statute defining who is the head of a family. Subdivision 1, section 1151, Revised Statutes of 1898, provides that the phrase "head of a family,” as used in the homestead statute, includes within its meaning "the husband or wife, when the claimant is a married person; but in no case are both husband and wife entitled each to a homestead under the provisions of this title, except to the extent hereinbefore provided." Subdivision 2 prescribes the conditions and circumstances under which other persons are deemed heads of families. In subdivision 1 the wife, equally with the husband, without conditions or circumstances, is included within the phrase "head of a family.” If the statute had intended to make her the head so as to entitle her to lay claim to the homestead only in the event of the desertion, or absence of the husband, or upon his infirmity or inability to render support, or upon other conditions, or under other circumstances, it seems to us the legislature would have said

So far as the homestead statute is concerned, and so far as giving the one or the other a right to lay claim to a homestead, the husband is no more designated the head of a family than is the wife. This also is manifest from other sections of the same statute, which expressly provide that, “if the homestead claimant is married, the homestead may be selected from the separate property of the husband, or, with the consent of the wife, from her separate property,” and “it shall be the privilege of either the husband or the wife to claim and select a homestead to the full extent prescribed in this title, on the failure of the other, being the judgment debtor, to make such claim and selection." Nor do we think, in view of what has been 81 said by this court in prior decisions (Kimball v. Lewis, 17 Utah, 381, 53 Pac. 1037; Kim

so.

ball v. Salisbury, 19 Utah, 161, 56 Pac. 973), that the answer is wanting in facts because not containing specific averments of a declaration and selection of the real estate as a homestead. This view, too, finds support from the homestead statute itself (section 1149), where it is provided that a failure to make the declaration shall not impair the homestead right. We are of the opinion that the facts alleged, showing the defendant to be the head of the family and that the real estate is and was her homestead, are sufficient to withstand a general demurrer, especially since the demurrer does not challenge the answer for want of facts upon which the claim of exemption is made, but proceeds specifically upon the assumption that no exemption of a homestead can be asserted against plaintiff's demand.

3. This, then, brings us to the question as to whether the homestead was subject to plaintiff's lien. This depends upon the validity of the statute, which, in terms, makes the homestead subject to execution in satisfaction of judgments obtained on debts secured by mechanics and materialmen's liens. Mr. Boisot, in his work on Mechanics' Liens (section 30) says: “Under a constitutional direction to exempt from seizure for debt a reasonable amount of property, the legislature, after exempting homesteads from execution and sale, cannot make them subject to mechanics' liens; and where the constitution creates a homestead right, exempt from execution for debt except for payment of obligations contracted for its purchase, for taxes, for agricultural laborers' liens, and for mechanics’ liens for work done on the premises, an act attempting to give materialmen a lien on homesteads is unconstitutional."

To the same effect is Thompson on Homesteads and Exemptions, where, at section 16, the author, in substance, says that a constitutional provision which provides that the homestead shall be exempt from forced sale prohibits the legislature from subjecting it to sales for labor done or material furnished for its improvement. Where the constitution of a state provided that a reasonable amount of property shall 82 be exempt from seizure and sale for the payment of any debt or liability, it was held that an exemption law excepting from its operation debts or liabilities for laborers or mechanics was void: Tuttle v. Strout, 7 Minn. (Gil. 374) 465, 82 Am. Dec. 108; Cogel v. Mickow, 11 Minn. (Gil. 351) 475; Coleman v. Ballandi, 22 Minn. 144; Cumming v. Bloodworth, 87 N. C. 83. Involving the same principles of law, and to the same effect, are the following cases: Jossman v. Rice,

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