The opinion
CARTER, J.
I dissent. The obvious error in the majority opinion is that it refuses to apply to this case the provisions of section 2911 of the Civil Code to the effect that a lien is extinguished by the lapse of the time within which an action may be brought under the statute of limitation upon the principal obligation. The question is, as admitted by the opinion, whether or not the provision of the city ordinance that the lien endures until the assessment is paid, deals with a municipal affair. It is conceded that if it does not the state law controls. It is clearly not a municipal affair. It does not deal with an issue between the city and a taxpayer. The assessment is made a lien for the benefit of the contractor performing the improvement work, either directly as a method of paying him, or indirectly by securing the payment of a bond given by the property owner to the contractor. The matter of the continuation of the lien and the issue of the statute of limitation which is inseparably tied thereto is between private individuals, and whether it is substantive or procedural law, it is a matter of the general administration of justice which cannot be other than a state wide affair. That proposition is clearly demonstrated by the cases. The issue of the tort liability of a city, a matter of substantive law, is not a municipal affair. (Douglass v. City of Los Angeles, 5 Cal.2d 123 [ 53 P.2d 353 ]; Rafferty v. City of Marysville, 207 Cal. 657 [ 280 P. 118 ].) Matters relating to limitation of actions (the term within which claims must be filed for tort damage) is not a municipal affair. (Kelso v. Board of Education, 42 Cal.App.2d 415 [ 109 P.2d 29 ]; Sandstoe v. Atchison, T. & *783 S. F. Ry. Co., 28 Cal.App.2d 215 [ 82 P.2d 216 ].) Certainly it would not be contended that the statute of limitation is a municipal affair, at least where the action is between two individuals. To so hold would permit the city to regulate the procedure in the courts, the scope of whose jurisdiction is clearly a matter of state concern. It necessarily follows that the effect upon a lien of the statute of limitation on the principal obligation is not a municipal affair. The regulation of garnishment of the salaries of judges of municipal courts is not a municipal affair. (Wilson v. Walters, 19 Cal.2d 111 [ 119 P.2d 340 ].) Even if it be assumed that the development of a city’s improvements and city taxation are municipal affairs, the statute of limitation and life of the lien are statewide affairs and only incidentally affect the development. Such incidental effect does not impair the home rule doctrine. (Wilson v. Walters, supra; Dept. of Water & Power v. Inyo Chem. Co., 16 Cal.2d 744 [ 108 P.2d 410 ].) Hence the provision in the ordinance relating to the duration of the lien is for naught and the case must be viewed as if it did not exist.
This brings us to the question of whether or not, under those circumstances, section 2911 of the Civil Code applies to the lien of assessment of the character here involved. The majority opinion, while not deciding the issue, intimates that it has no application, citing Lantz v. Fishburn, 17 Cal.App. 583 [ 120 P. 1068 ]. Regardless of that case the law is settled by Clark v. City of San Diego, 144 Cal. 361 [ 77 P. 973 ], where it was held that the defense of a lien for delinquent taxes would not lie in an action against the city to quiet title to the property where the right of action for the taxes is barred by the statute of limitation. That right being barred, the lien fell with it by virtue of section 2911 of the Civil Code. (See to the same effect: Chambers v. Gibson, 178 Cal. 416 [ 173 P. 752 ]; Dranga v. Rowe, 127 Cal. 506 [ 59 P. 944 ].)
In my opinion the judgment should be affirmed.
Schauer, J., concurred.
Respondent’s petition for a rehearing was denied April 22, 1946. Carter, J., and Schauer, J., voted for a rehearing.