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contract for street improvement, entered into with a "reputed" owner, who is not the "real" owner, is to that extent unconstitutional. Santa Cruz Rock Pav. Co. v. Lyons, 117 Cal. 214.
SECTION 15. No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud, nor in civil actions for torts, except in cases of wilful injury to person or property; and no person shall be imprisoned for a militia fine in time of peace.
Under sections 861, 865 Code of Civil Procedure, it must be proved to the satisfaction of the justice that there is a cause of action. An affidavit showing that an action has been commenced on an "alleged" indebtedness is not sufficient; and fraud in contracting the debt, or other fraud mentioned in said sections, must also be shown in the affidavit by direct averment of facts constituting the fraud. In re Vinich, 86 Cal. 70.
SECTION 16. No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed.
Const. 1849, Art. I, Sec. 16.
A law fixing the punishment for murder, and which by amendment repeals a former law which prescribed a different punishment for the same offense, is ex post facto as to a murder committed while the former law was in force, and a person convicted since the enactment of the latter law, of murder committed while the former was in force, cannot be punished in the manner provided by the latter,
but section 329 of the Political Code is a saving clause in the body of the general law of the state, and is sufficient to authorize the punishment to be inflicted which was prescribed by law at the time the offense was committed, where the amendatory act does not expressly declare the intention of the legislature to bar such punishment. People v. McNulty, 93 Cal. 427.
The city of Sacramento was incorporated, by act of March 26, 1851 [Stats. p. 391], and provision was made that it might sue and be sued under its corporate name. Under provisions of acts of April 26, 1853 [Stats. p. 117], and act April 10, 1854 [Stats. p. 196], it issued bonds payable in 1874. Under subsequent incorporation act, May 1, 1858 [Stats. p. 267], the city and county were consolidated as successor of the city of Sacramento, and this act provided that such corporation should not be subject to suit, nor its property liable for debt. Again under act of April 25, 1863 [Stats. p. 415], the city was incorporated with the same boundaries as under the act of 1851, and provision made that it might be sued on any bond or contract thereafter made. Held, that the holder of bonds issued under acts of 1853 and 1854 might have sued the corporation at any time after the maturity of the bonds prior to such suit being barred by statute of limitations, and that the charter provisions to the effect that said corporation should not be subject to suit was void, so far as it attempted to affect said bonds, as impairing the obligation
of contract. Bates v. Gregory, et al., 89 Cal. 387.
An act of the legislature affecting the change of remedy, or the time within which it must be sought does not impair the obligation of a contract, provided an adequate and available remedy be provided. So held in regard to the amendment of section 1187 Code of Civil Procedure passed March 15, 1887. Mill and Lumber Co v. Olmstead, 85 Cal. 81.
The insolvent act of 1880 discharges debts contracted in 1878, and is not thus unconstitutional as impairing the obligation of contracts. Porter v. Imus, 79 Cal. 183.
Prior to amendment of March, 1885, section 3785 of Political Code did not require notice by purchaser at tax sale, of his intention to apply for a deed. Held, the amendment applied to all applications for deeds after it took effect, and such notice must be given by the holder of a tax sale certificate where the sale was made in February preceding the taking effect of the amendment. Said amendment did not impair the obligation of a contract. Oulahan v. Sweeney, 79 Cal. 537.
The provisions of the act of April 24, 1858 [Stats. p. 267], re-incorporating the city and county of Sacramento, for refunding the debt, issuing bonds and providing a fund to be raised by taxation to pay the bonds became a contract between the corporation and purchasers of the bonds, which could not be in any manner impaired by subsequent legislation. Bates v. Porter, 74 Cal. 224.
The legislature cannot, by amending a city charter, authorize payment of claims of a contractor for street work, to other persons than the contractor, without his consent, and where such payments would not have been authorized by the law in force at the time the contract was entered into. McGee v. City of San Jose, 68 Cal. 91.
The contract for grading Montgomery avenue required that the work should be completed in sixty days. The time expired before the work was completed, and subsequently the board of supervisors extended the time for completion. The act of the legislature of March 19, 1878 [Stats. p. 341], to ratify and confirm certain orders and resolutions of the supervisors, including the order extending time, Held, unconstitutional. The legislature by a subsequent act cannot give force or vitality to a contract that is dead. Fanning v. Schammel, 68 Cal. 428.
The repeal of a city charter does not impair the obligation of a contract made under the provisions of the charter prior to the repeal. Myer v. Porter, 65 Cal. 67.
A mortgage was executed in 1879 to secure payment of a promissory note in three years, and contained no special covenant as to payment of taxes. After the adoption of the present constitution, the mortgagor paid taxes to the amount of three hundred and ninety-five dollars which had been assessed against the mortgage interest, and in 1883 paid the mortgagee the full amount of note and interest,
less the said taxes. In an action to foreclose the mortgage for the three hundred and ninetyfive dollars, Held, plaintiff could not recover. Their was no contract impaired because there was no contract between the parties by which the mortgagor agreed to pay the taxes assessed under the new constitution. [McCoppin v. McCartney, 60 Cal. 371.] Hay v. Hill, 65 Cal. 383.
Section 325 Code of Civil Procedure as amended in 1878, and providing that adverse possession of land for five years is ineffectual to establish title unless it is also shown that the land has been occupied and claimed during that period continuously and that the claimant has paid all taxes, etc., is not retroactive, hence, in an action tried after the amendment, but where adverse possession for five years prior to the amendment was established, it was error to require proof of payment of taxes. Sharp v. Blankenship, 59 Cal. 288.
The act of March 26, 1851 [Stats. p. 307], known as the "Water Lot Act," and defining the line of the water front of San Francisco, did not create a contract between the state and owners of water front lots, in the sense of irrevocably establishing the line of water front. One asserting such contract rights must make out a clear case, free from all reasonable ambiguity, and bring them fairly and fully within that clause of the federal constitution which prohibits a state from passing any law