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(if he recovers) to the defendant, or plaintiff must accept the value of the land as found by the jury, and defendant should have six months to make such payment after notice from plaintiff that the latter will accept the same and declines to pay for the improvements; unless the said grants shall have been surveyed, and the boundaries plainly and distinctly marked out, and kept so marked that they could at any time, when improvements were being made on the land, be easily seen and certainly known, and unless said grant and plat and field notes of survey shall have been filed in the office of the county recorder before such improvements shall have been made. Held, unconstitutional as to said grants, as imposing obligations upon the owners applicable to a trial, which obligations did not exist under the law at the time the improvements were being made, or prior thereto, and consequently were not known. The act does not discriminate between an innocent and tortuous possession; it applies to past as well as present cases, and takes from a party that which was before rightly his; it divests rights of property vested by laws existing when the property was acquired, 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 acquired, 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 . 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 Cal. 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 certain 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 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 excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.
A witness is competent without any regard 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; nor 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 Criminal Practice act, making bail a matter of discretion in capital cases, unless the proof is evident or the presumption great, is in conflict with the consti
tution; 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 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 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 actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled, in any crimimal case, to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation.
The recovery of judgment for 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. See also, Leonis v. Andrews, 49 Cal. 239; S. P. R. R.