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and denies the owner his rents and profits accruing prior to the issuance of the patent of this government, which patent is but declaratory of a pre-existing valid right to the land. The right to protect and enjoy property, declared inalienable by the constitution, is not merely a right to protect by individual force, but the right to protect it by the law of the land, and an act which divests the rights of property vested by laws existing at the time it was acquireci, is unconstitutional and void. Settlers' Act. Billings v. Hall, 7 Cal, 1.

SECTION 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.

SECTION 3. The right of trial by jury shall be secured to all, and 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.

Proceedings in a justice's court under the act of February 4, 1874, (Stats. p. 50) to protect agriculture and prevent trespass of animals on private property, if regarded as an action at law, are unconstitutional in not providing for a jury trial, and because if in rem, such jurisdiction cannot be vested in justices' courts. Young v. Wright, 52 Cal. 407. Affirmed in Sutherland v. Sweem, 53 Cal. 48.

The action of a police magistrate in committing a minor child to the industrial school does not amount to a criminal proceeding, nor a proceeding according to course of common law, and the minor is not entitled to trial by jury. Ex parte Ah Peen, 51 Cai. 280.

Under the act concerning jurors, (Stats. 1863, p. 630, and 1863–4, p. 462) jurors were required to have sufficient knowledge of the language (English) in which the proceedings were had, except in Monterey, San Luis Obispo and tain southern counties. Held, in a criminal trial in Monterey it was not error for the court on its own motion to excuse six jurors, so long as it does

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appear that the defendant had a fair trial before an impartial and qualified jury. The act means only that a knowledge of the English language in those counties is not an absolute qualification. People v. Arceo, 32 Cal. 42.

A statute authorizing a court to send a cause “at law” to a referee for trial without the consent of all parties to the suit would be unconstitutional. The right to trial by jury in all common law actions is secured by the constitution. Grim v. Norris, 19 Cal. 140.

In the condemnation of land for site of state capital at Sacramento, under act of March 29th, 1860, (Stats. p.128) Held, the act was not unconstitutional in providing commissioners to ascertain and assess value of land and damages, and that trial by jury is not secured by the constitution in such proceedings. That the constitution only has reference to civil and criminal cases in which issues of fact are to be tried ; that condemnation proceedings are special cases, and jury could only be proper when the court should see proper to frame special issues of fact to be submitted to one. Koppikus v. State Capitol Commissioners, 16 Cal. 249. Approved in Heyneman v. Blake, 19 Cal. 596, and Dorsey v. Barry, 24 Cal. 454.

The legislature alone can determine in what cases a jury may be waived. Exline v. Smith, 5 Cal. 112.

SECTION 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 e'x cuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.

A witness is competent without any respect to his religious sentiments or convictions. Fuller v. Fuller, 17 Cal. 612. For decisions on constitutionality of Sunday law, see note to section 1, article I.

SECTION 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.

SECTION 6. Excessive bail shall not be required, nor excessive fines imposed; por shall cruel or unusual punishments be inflicted; nor shall witnesses be unreasonably detained.

SECTION 7. All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.

The constitutional provision with reference to bail contemplates only those cases in which the party has not been already convicted. Ex parte Voll, 41 Cal. 29.

Sections 509, 510 Crim. Prac. Act, making bail a matter of discretion in capital cases, unless the proof is evident or the presumption great, is in conflict with the constitution; bail is a matter of right in all cases, unless the proof is evident, etc. The presentment of an indictment for a capital offense does of itself furnish a presumption of the guilt of the defendant too great to entitle him to bail as matter of right under the constitution, or as matter of discretion, under the statute. It creates a presumption of guilt for all purposes except a trial before a petit jury. People v. Tinder, 19 Cal. 540,

SECTION 8. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachmeut 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 petit 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 actio:s. 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 of life, liberty or properly without due process of law; nor shall private property be taken for public use without just compensation.

The recovery of damages by the owner of land to be taken as a public road does not authorize the removal of his fences and opening the road. The right of way does not vest in the public until the owner has been paid or tendered the damages awarded him. Brady v. Bronson, 45 Cal. 640.

The act of 1868, (Stats. p. 283) concerning roads in San Mateo county, which requires persons claiming damages for land taken in opening public roads, to present their claims within a certain time is not unconstitutional. The legislature, may prescribe the procedure by which compensation shall be recovered for the taking of land for public road purposes, but such procedure must not destroy or substantially impair the right itself. Potter i. Ames, 43 Cal. 75. An adjoining owner, who dedicates land for public street is entitled to damages for the construction of a railroad on such street; and that he has been awarded such damages because of the construction of one railroad is not sufficient reason for denying him other damages if a second railroad is constructed on the same street. S. P, R. R. Co. v. Reed et al, 41 Cal. 256.

The provision that private property shall not be taken for public use without just compensation, is a limitation upon the otherwise unrestrained power of eminent domain, and the subject is not involved in an assessment for street work in San Francisco under the consolidation act of 1863. Chambers v. Satterlee, 40 Cal. 513.

The power to take private property for public use extends to the opening of roads leading from main roads in the country to private residences. The legislative designation of "private" to such roads does not make them less a public necessity than other roads; they are public roads in the sense that any one is privileged to pass over them who has occasion to, All roads are public. Whether a given road will subserve a public purpose is a legislative question. Sherman v. Buick, 32 Cal. 242, cited in Brenham v.Story, 39 Cal, 179.

In proceedings to condemn land for the use of a

water company engaged in supplying the inhabitants of a city with water the court made an ex parte order permitting the plaintiff to take possession and use the land during the pendency of the proceedings, upon executing a bond in the sum of ten thousand dollars. Held, the order was void, as this was the taking of private property without just compensation simultaneously made. San Mateo Water Works v. Sharpstein, 50 Cal. 284. The statute regulating such proceedings must be strictly pursued. Leonis v. Andrews, 49 Oal, 239; S. P. R. R. Co. v. Wilson, Id. 396; Branan 1. Mecklenberg, Id. 672.

If the government, through its agent, enters wrongfully on private property and erects buildings thereon, the owner is entitled to include the value of the buildings in his compensation to be allowed, in proceedings for condemnation thereafter instituted. The U. S. v. Land in Monterey. County, 47 Cal. 515.

In proceedings for condemnation of land for railroad purposes under the act of 1861 (Stats. p. 607) as amended in 1863, (Stats. p. 610) the court has no jurisdiction to make an order authorizing the petitioner to take possession during pendency of proceedings, for said act does not provide any compen. sation to the owner for such taking, and said act is unconstitutional. Oal. P. R. R. Co. v. Cen. P. R. R. Co., Id. 528; Davis v. San Leandro R. R. Co., Id. 517.

The working of mines owned by private individuals for their own private advantage is not a public

It is not competent for the legislature to authorize the taking of private property for the encouragement of a purely private industry, and section 1238, C.C. P., authorizing the condemnation of private property in behalf of tunnels, ditches, flumes, dumping places, etc., for working mines, is unconstitutional, notwithstanding the legislative declaration that the same is a public use. It is a general rule that where there is any doubt whether the use to which the property is proposed to be devoted is of a public or private character, it is a matter to be determined by the legislature, and the courts will not disturb its

use.

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