Slike strani
PDF
ePub

ARTICLE XVII.

LAND, AND HOMESTEAD EXEMPTION.

SECTION 1. The legislature shall protect, by law, from forced sale a certain portion of the homestead and other property of all heads of families.

Const. 1849, Art. XI, Sec. 15.

Mortgage foreclosure is forced sale according to section 1241 C. C., and section 1242 provides that homestead of married person cannot be conveyed or encumbered unless the instrument is executed and acknowledged by both husband and wife. Held, where they execute a deed absolute on its face, but which, by reason of contemporaneous oral agreement, is made, in effect, a mortgage to secure existing indebtedness and for future advances to the husband, the incumbrance for future advances being a mere oral agreement, and not executed and acknowledged by the wife it is not enforcible. (Distinguishing Bull v. Coe, 77 Cal. 54.) Merced Bank v. Rosenthal, 31 Pac. Rep. 849, affirmed 99 Cal. 39.

The exemption of homestead premises from forced sale is the special subject matter and object of section 1260, C. C., for the purpose of carrying into effect the constitutional provisions. The exemption is not an attribute, but an incident of homestead. Homestead premises may exceed the value limit of the exemption, and the excess in value does not invalidate the selection; the excess, though in fact used as a homestead, being not exempt from the claims of creditors. Ham. Santa Rosa Bank, 62 Cal. 125.

Under section 15, article XI, of former constitution, it was held that although it gave a right to have a homestead protected, legislation was required to enforce it and make it available, and the provisions of the code directing what particular things were necessary to be done to protect a homestead must be fully and completely complied with. The clause requiring the declaration to contain an estimate of the actual cash value of the property is not directory merely. Ashley v. Olmstead, 54 Cal. 616.

| 119 374

In the constitution there is no limit to the value of the property thus to be protected. It is left to the legislature to determine what portion, to what limit and by what means it shall be protected. Exemption is a constitutional right, incident to homestead, but the extent and means are left to the legislature. Lubbock v. McMann, 82 Cal. 226.

SECTION 2. The holding of large tracts of land, uncultivated and unimproved, by individuals or corporations, is against the public interest, and should be discouraged by all means not inconsistent with the rights of private property.

The policy of the state is against the holding of large tracts of uncultivated land, and against selling land suitable for cultivation in tracts exceeding 320 acres, or to others than actual settlers. Fulton v. Branan, 88 Cal. 455.

Referred to in cases collected under section 3, this article.

SECTION 3. Lands belonging to this state, which are suitable for cultivation, shall be granted only to actual settlers, and in quantities not exceeding three hundred and twenty acres to each settler, under such conditious as shall be prescribed by law.

Lands granted to the state as swamp lands, but which afterwards become dry and fit for cultivation, can be granted only to actual settlers. Goldberg v. Thompson, 96 Cal. 117. Marsh v. Hendy, 27 Pac. Rep. 647, following Fulton v. Branan, 88 Cal. 455. Approved in McNee v. Lynch, Id. 519, and in McDonald v. Taylor, 89 Cal. 43.

The fact that land is covered heavily in most places with redwood timber and brush, is broken and cut by ravines, etc., if half or more of any legal subdivision was suitable for cultivation, as to such subdivision, it is subject to purchase only by actual settler. Jacobs v. Walker, 90 Cal. 43. Whether land is suitable for cultivation or not, is a question of fact. No narrow construction should be placed upon the words, "suitable for cultivation." Fulton v. Branan, supra. "Suitable for cultivation," includes all lands

ready for occupation, and which by ordinary farming processes are fit for agricultural purposes. All timber lands are unfit for cultivation in their natural condition, but if they may be reclaimed by ordinary farming processes, they are suitable for cultivation. Manley v. Cunningham, 72 Cal. 236. See also Wren v. Mangan, 88 Cal. 275.

Swamp land is not suitable for cultivation, and as the law (Political Code, Sec. 3495) does not require "actual" settlement, such settlement need not be shown. McIntyre v. Sherwood, 82 Cal. 139.

As to the effect of possession, in contest against state certificate for school land, see Trimmer v. Bode, 82 Cal. 647.

Lands suitable for cultivation cannot be sold to a non-resident of the state, even though his application to purchase was made before this constitution took effect. Manley v. Cunningham, 72 Cal. 236. To same effect see Mosely v. Torrence, 71 Cal. 318; Dillon v. Saloude, 68 Cal. 268; Johnson v. Squires, 55 Cal. 103.

The person applying to purchase must be an actual settler. (Sec. 3495, Political Code.) Gavitt v. Mohr, 68 Cal. 506.

Applications to purchase state lands suitable for cultivation by one not an actual settler, and who had made no payment thereon, were made nugatory upon adoption of new constitution. Urton v. Wilson, 65 Cal. 11.

Where the rights of the settler attached prior to this constitution, they are not affected by it. Laugenour v. Shanklin, 57 Cal. 70.

The legislature is not prevented from annexing a similar condition (actual settlement) to lands not suitable for cultivation. The constitution does not affect land not suitable for cultivation. (Dillon v. Saloude, supra. (Sec. 3500, Political Code, amended in 1880 and 1885.) Taylor v. Weston, 77 Cal. 534.

ARTICLE XVIII.

AMENDING AND REVISING THE CONSTITUTION.

SECTION 1. Any amendment or amendments to this constitution may be proposed in the senate or assembly, and if twothirds of all the members elected to each of the two houses shall vote in favor thereof, such proposed amendment or amendments shall be entered in their journals, with the yeas and nays taken thereon; and it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner, and at such time, and after such publication as may be deemed expedient. Should more amendments than one be submitted at the same election they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately. If the people shall approve and ratify such amendment or amendments, or any of them, by a majority of the qualified electors voting thereon, such amendment or amendments shall become a part of this constitution

Const. 1849, Art. X, Sec. 1.

Amendments are to be proposed by a vote of twothirds of the members of both houses of the legislature. This is not the enactment of a bill; but the legislature, and not two-thirds of both houses, must submit such amendment to the vote of the people, and this must be done by a bill in the usual manner of enacting laws. The manner, time and publication are to be provided in the legislative enactment. Hatch v. Stoneman, 66 Cal. 632.

It was held in People v. Strother, 67 Cal. 624, that the amendment of section 19, article XI, was properly adopted without the amendment itself having been copied into the journals. The same subject was discussed in Oakland Pav. Co. v. Hilton, 69 Čal. 479. Justices Thornton and McKee held a contrary view, while the case was decided by the majority of the court upon other grounds. In Oakland Pav. Co. v. Tompkins, 72 Cal. 5, this question is fully presented by Justice Temple, and the court, excepting Thornton, J., held that it is not required that proposed amendments shall be entered at large in the journals; that there is more than one mode of actu

ally complying with the provisions of this section, and that a reference to the amendment by title and number is one mode, and a sufficient one. See also the concurring and dissenting opinions in Thomason v. Ruggles, 69 Cal. 465.

As to the journals, it is held that the court will not presume that acts or things required of the legislature were not done, simply because the journals fail to show that such things were done. People v. Dunn, 80 Cal. 213.

SECTION 2. Whenever two-thirds of the members elected to each branch of the legislature shall deem it necessary to revise this constitution, they shall recommend to the electors to vote at the next general election for or against a convention for that purpose, and if a majority of the electors voting at such election on the proposition of a convention shall vote in favor thereof, the legislature shall, at its next session, provide by law for calling the same. The convention shall consist of a number of delegates not to exceed that of both branches of the legislature, who shall be chosen in the same manner, and have the same qualifications, as members of the legislature. The delegates so elected shall meet within three months after their election at such place as the legislature may direct. At a special election to be provided for by law, the constitution that may be agreed upon by such convention shall be submitted to the people for their ratification or rejection, in such manuer as the convention may determine. The returns of such election shall, in such manner as the convention shall direct, be certified to the executive of the state, who shall call to his assistance the controller, treasurer and secretary of state, and compare the returns so certified to him; and it shall be the duty of the executive to declare, by his proclamation, such constitution, as may have been ratified by a majority of all the votes cast at such special election, to be the constitution of the state of California.

Const. 1849, Art. X, Sec. 2.

ARTICLE XIX.

CHINESE.

SECTION 1. The legislature shall prescribe all necessary regulations for the protection of the state, and the counties,

« PrejšnjaNaprej »