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CONSTITUTION OF THE STATE OF CALIFORNIA.
ADOPTED BY THE CONVENTION, TENTH OCTOBER, EIGHTEEN HUNDRED AND
FORTY-NINE; RATIFIED BY THE PEOPLE, THIRTEENTH NOVEMBER, EIGHTEEN HUNDRED AND FORTY-NINE; PROCLAIMED TWENTIETH DECEMBER, EIGHTEEN HUNDRED AND FORTY-NINE; AMENDED FOURTH NOVEMBER, EIGHTEEN HUNDRED AND FIFTY-SIX, AND THIRD SEPTEMBEK, EIGHTEEN HUNDRED AND SIXTY-TWO.
[Those sections and parts of sections in SMALL CAPITALS, and those foot-note decisions in italics, bear upon railroad corporations and the laws governing them.]
We, the people of California, grateful to Almighty God for our freedom, in order to secure its blessings, do establish this Constitution.
DECLARATION OF RIGHTS. Inalienable rights.
SECTION 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness." Popular government.
SEC. 2. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right to alter or reform the same whenever the public good may require it. Jury trial.
Sec. 3. The right of trial by jury shall be secured to all, and
a. The “Sunday Law" of April 10, 1858, held to be in violation of this section. (Ex parte Newman, 9 Cal. 502.)
The “Sunday Law” of May 20, 1861, held to be not in violation of this section; and the dissenting opinion of Justice Field in Ex parte Newman adopted. (Ex parte Andrews, 18 Cal. 678.)
remain inviolate forever; 'but a jury trial may be waived by the parties, in all civil cases, in the manner to be prescribed by law."
Religious worship, and liberty of conscience.
SEC. 4. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State;" and no person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.
Sec. 5. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require its suspension..
Excessive bail, fines, and punishments.
SEC. 6. Excessive bail shall not be required, nor excessive fines imposed; nor shall cruel or unusual punishments be inflicted; nor shall witnesses be unreasonably detained.
a. The right to a jury trial cannot be waived by implication. (Smith vs. Pollock, 2 Cal. 92.)
A reference to ascertain the damages sustained by reason of an injunction does not violate this section: the party availing himself of the stringent and extraordinary process of injunction is considered as waiving his constitutional right to a jury trial. (Russell vs. Elliott, 2 Cal. 245.)
The words "prescribed by law” look to actual legislation upon the subject, and cannot be extended to a permission of the exercise of the power to others than the Legislature. (Exline vs. Smith, 5 Cal. 112.)
The language of this provision was used with reference to the right as it exists at common law. The right cannot be claimed in equity cases unless an issue of fact be framed. (Koppikus Vs. State Capitol Commissioners, 16 Cal. 248.)
Failure on the part of a party to appear on the trial of a civil cause operates as a waiver of a jury trial under the one hundred and seventy-ninth section of the practice Act; but if a jury is called, it must consist of twelve persons: a less number does not constitute a legal jury without express consent. (Gillespie vs. Benson, 18 Cal. 409.)
A Court has no power to send an ordinary suit at law to a referee for trial against the objection of either party; and this whether the suit involves the examination of a long account or not. Our statute as to referring cases (except in cases of consent) applies solely to equity causes. (Grim vs. Norris, 19 Cal. 140.)
b. The “Sunday Law" of 1858 held to violate this provision on the ground that it involved the enforced observance of a day held sacred by a religious sect, and was a discrimination in favor of that sect and a violation of the religious freedom of others. (Ex parte Newman, 9 Cal. 502.)
The “Sunday Law" of 1861 (substantially similar to that of 1858) held purely a civil regulation, not designed to subserve any religious purpose. Held further, that the Constitution does not make void legislation, the effect of which is to promote religion or even advance the interests of a sect or class of religionists. (Ex parte Andrews, 18 Cal. 678.)
C. A witness is competent without respect to his religious sentiments or conviction—the law leaving his competency to legal sanctions or at least to considerations independent of religious sentiments or convictions. (Fuller vs. Fuller, 17 Cal. 605.)
d. The writ of habeas corpus should not issue to run out of the county, unless for good cause shown, as the absence, disability, or refusal of the local Judge to act. The mere caprice of the prisoner ought not to prevail against the interests of the people and public convenience. (Ex parte Ellis, 11 Cal. 222.)
The issuance of the writ is not obligatory upon the Supreme Court in term time, but rests in the sound legal discretion of the Court, though its allowance may be obligatory upon the Judges in their individual capacities. (Id.)
All offenses bailable—one exception.
SEC. 7. All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.
Personal rights and rights of property.
SEC. 8. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which this State may keep, with the consent of Congress, in time of peace, and in cases of petty larceny, under the regulation of the Legislature), unless on presentment or indictment of a grand jury; and, in any trial, in any Court whatever, the party accused shall be allowed to appear and defend, in person and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense;" nor shall he be compelled, in any criminal case, to be a witness against himself;' nor be deprived
a. Admission to bail in capital cases, where the proof is evident or the presumption grea may be forbidden by legislation ; but in all other cases, admission to bail is a right which no Judge or Court can properly refuse. (People vs. Tinder, 19 Cal. 539.)
The provision that bail is a matter of right contemplates only those cases in which the party has not been already convicted. (Ex parte Voll, 41 Cal. 29.)
b. The two hundred and seventy-third section of the criminal practice Act, directing that where a person is indicted under a wrong name, and he gives his true name, it shall be entered on the minutes and the prisoner tried under his true name (see Penal Code, Section 989), is not a violation of this clause." The meaning of this provision is that the person shall be indicted, not the person by his true name, but the person himself. (People vs. Kelly, 6 Cal. 210.)
The grand jury should be constituted according to law, but the objection that it is not so constituted must be made at the particular time provided by statute. The Legislature may constitutionally prescribe rules of practice, and among these is the provision as to the time and mode of excepting to irregularities of proceeding. (People vs. Arnold, 15 Cal. 476.)
c. Courts have a large discretion over the conduct of proceedings before them, and may limit arguments of counsel to reasonable time; but, in capital cases, this should be done only in very extraordinary and peculiar instances. The opportunity of a full defense is a constitutional right without which a prisoner cannot be lawfully convicted. (People vs. Keenan, 13 Cal. 581.)
d. On a second trial for murder upon the same or a different indictment, defendant can plead a conviction of manslaughter as an acquittal of the crime of murder. A conviction of manslaughter is an acquittal of every offense charged in the indictment higher than the particular one of which the prisoner is found guilty. (People vs. Gilmore, 4 Cal. 376.)
This provision was never intended to apply to cases in which a judgment of conviction was reversed in the appellate Court and a new trial ordered. In such cases, it being apparent from the judgment of reversal that such trial was erroneous, the defendant in fact was not in jeopardy. The order for a new trial places the party in the same position as though no trial had been had. (People vs. March, 6 Cal. 543.)
Where, upon a previous trial, it turned out that there was a misnomer of the party injured, and thereupon the indictment was discharged and the new indictment found: Held, that the accused was not placed twice in jeopardy. It would be a contradiction in terms to say that a person was put in jeopardy by an indictment under which he could not be convicted, and it is obviously immaterial whether the inability to convict arise from a variance between the proof and indictment or from some defect in the indictment. (People vs. McNealy, 17 Cal. 332.5
If a person charged with crime has once been acquitted by the verdict of a jury, he cannot be held to answer again for the same offense, no matter by what mistakes or errors on the part of the Court, jury, or prosecution the acquittal was obtained. (People vs. Webb, 38 Cal. 467.)
When a person is placed on trial upon a valid indictment before a competent Court and jury, he is “in jeopardy" within the meaning of the Constitution. (People vs. Cage, 48 Cal. 323.)
€. A witness is not privileged from answering on the ground that his answer would disgrace him, but solely on the ground that he is not compelled to criminate himself. (Ex parte Rowe, 7 Cal. 184.)
of life, liberty, or property without due process of law," NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION.
Liberty of speech and press, and law of libel.
SEC. 9. Every citizen may freely speak, write, and publish his
a. The provisions of the thirty-first section of the practice Act authorizing judgment against an absent defendant, for whom the Court has appointed an attorney with privilege of coming and opening it in six months, is not in violation of this clause. (Ware vs. Robinson, 9 Cal. 107.)
The right to practice law is not property” within the constitutional meaning of the term. The Act of 25th April, 1863, requiring attorneys and litigants to file affidavits of allegiance to the government, does not contravene this provision. (Cohen vs. Wright, 22 Cal. 293.)
This provision is not applicable to proceedings by the State to obtain from citizens their proper contributions to the expenses of administering the government. (High vs. Shoemaker, 22 Cal. 363.)
b. The destruction of a building to stop the spread of a conflagration cannot be deemed a taking of private property for public use within the meaning of this clause. (Dunbar vs. San Francisco, 1 Cal. 355.)
A lot of land in the Harbor of San Francisco, lying within the line of a street laid down and recognized by the city on its official map, and being in the actual possession of a person claiming to be the owner, cannot be taken and appropriated to public use by the city without payment of just compensation, there being no title to the land in the city. (Gunter vs. Geary, 1 Cal. 462; Surocco vs. Geary, 3 Cal. 69.)
Where private property is appropriated to public use by Supervisors, without making provision for paying for the same, such act is illegal and may be enjoined. (McCann ys. Sierra County, 7 Cal. 121.)
Parties in possession of land claiming title thereto are presumed to be the owners, and are entitled to compensation before it can be taken for public uses. (Sacramento Valley Railroad Company vs. Moffat, 7 Cal. 577.)
A municipal corporation cannot take private property for public use without making compensation in advance, or providing a fund out of which compensation shall be made as soon as the amount to be paid can be determined. (Colton vs. Rossi, 9 Cal. 595.)
The means of compensating the owner must be provided before the property is taken. (McCauley vs. Weller, 12 Cal. 500; Bensley vs. Mountain Lake Water Company, 13 Cal. 306.)
Where compensation for land taken by a county for public use does not precede or accompany the taking, the entire action of the county authorities is void ; and in such case a suit against the county for the compensation does not lie. (Johnson vs. Alameda County, 14 Cal. 106.)
If the use for which the property is taken be to satisfy a great public want or public exigency, it is a public use within the meaning of the Constitution, and the State is not limited to any given mode of applying the property to satisfy the want or meet the exigency. (Gilmer vs. Lime Point, 18 Cal. 229.)
The use of land for railroad purposes is a public use. (Contra Costa Railroad Company vs. Moss, 23 Cal. 323.)
A statute divesting the title of a purchaser of property which had been previously mortgaged by foreclosure proceedings, to which the purchaser was a stranger, would be unconstitutional. (Skinner vs. Buck, 29 Cal. 253.)
A statute validating and confirming a contract previously made in good faith but not in the precise mode prescribed by the existing law (such as a deed by the attorney in fact of a married woman before she was allowed to make a power of attorney) does not operate to divest vested rights, and is not therefore unconstitutional. (Dentzel vs. Waldie, 30 Cal. 138.)
Land is not "taken for public use" until the last act has been performed, which, under the mode of condemnation adopted, is required to transfer the title or subject it to the servitude. (Fox vs. Western Pacific Railroad Company, 31 Cal. 538.)
An Act providing that, in assessing the value of land taken for a railroad, allowance shall be made for any benefit that
will accrue to the person whose land is taken, is not unconstitutional. (San Francisco A. and S. R. R. Company vs. Caldwell, 31 Cal. 367.)
Land may be taken under the power of eminent domain for what is called in the statutes a "private road." (Sherman vs. Buick, 32 Cal. 241.)
This clause has no application to assessments for street work in San Francisco under the Consolidation Act as amended in 1862 or 1863. (Chambers vs. Satterlee, 40 Cal. 497.)
The “public use" mentioned in the Constitution is left in large measure to legislative determination. (Stockton and Visalia R. R. Co. vs. Stockton, 41 Cal. 149.)
An Act requiring persons claiming compensation for land to be taken for alteration of a public road to present their claims within a certain time, or be deemed as waiving all right to damages, does not violate this clause. (Potter vs. Ames, 43 Cal. 75.)
An Act providing that a railroad company may occupy or use land pending proceedings to condemn it, without providing compensation for the use and waste thereof if the proceedings fail, is in violation of the Constitution. (Davis vs: San Lorenzo R. R. Co., 47 Cal. 517.)
sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions on indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
Sec. 10. The people shall have the right freely to assemble together to consult for the common good, to instruct their Representatives, and to petition the Legislature for redress of grievances.
Uniformity of general laws.
Sec. 11. ALL LAWS OF A GENERAL NATURE SHALL HAVE A UNIFORM OPERATION.“
Sec. 12. The military shall be subordinate to the civil power. No standing army shall be kept up by this State in time of peace; and, in time of war, no appropriation for a standing army shall be for a longer time than two years.
a. The Revenue Act of May 18, 1853, does not violate this section. By “uniform operation” it was intended that laws of this character should, as nearly as possible, affect persons and property alike. A perfectly equal tax law is impossible from the very nature of the subject. (People vs. Coleman, 4 Cal. 46.)
An Act regulating fees in office is not an Act of a general nature; hence a fee bill for a separate county is not in violation of this section. (Ryan vs. Johnson, 5 Cal. 86.)
Act to remedy the failure of a Tax Collector to publish names of owners and lists of property is not general but special in its nature. (Moore vs. Patch, 12 Cal. 265.)
The word “uniform” does not mean “universal.” The Constitution is violated only when a privilege extended to one is denied to another on substantially the same facts. (Smith vs. Judge of Twelfth District Court, 17 Cal. 547.)
This provision is not violated by the “Sunday Law” of 1861. (Ex parte Andrews, 18 Cal. 678.)
The Act of May 3, 1852, providing for the appointment of a Gauger at the Port of San Francisco, is constitutional. It is not a general but a special law. (Addison vs. Saulnier, 19 Cal. 82.)
An Act allowing a percentage to be taxed as costs in litigated cases, though made applicable to one county alone, operates equally and uniformly upon all parties in the same category, and is not unconstitutional. (Corwin vs. Ward, 35 Cal. 195.)
This clause means that every law shall have a uniform operation upon all the citizens, or persons, or things of any class upon which it purports to take effect, and that it shall not grant to any citizen or class of citizens privileges which, upon the same terms, shall not equally belong to other citizens. (Brooks vs. Hyde, 37 Cal. 366.)
A city ordinance to prohibit noisy amusements and prevent immorality is not, on account of its local operation, repugnant to the Constitution. (Ex parte Smith and Keating, 38 Cal. 702.)
The Constitution does not require laws to have a uniform operation unless they are of a general nature; and whether a law is of a general or special nature depends, in a measure, upon the legislative purpose discernible in its enactment. (People vs. Central Pacific R. R. Co., 43 Cal. 398.)
The Constitution does not prohibit a special Act because the subject with which it deals might have been the subject of a general law. (People vs. Central Pacific Ř. R. Co., 43 Cal. 398.)
An Act for securing mechanics' liens, which fails to give to laborers other than those working on mining claims a lien, is not for that reason unconstitutional. (Quale vs. Moon, 48 Cal. 478.)