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private lands for railroad purposes unless it is alleged and shown that the petitioners have endeavored and have been unable to contract for the purchase thereof from the owners. Contra Costa R. R. Co. v. Moss, 23 Cal. 324.
The legislature is the conclusive judge as to what is a public use in any given case. A fort is an object of public use, whether it is for the immediate use of the state or United States government. It is not essential that all persons be equally interested in a particular object to constitute it "public." The only test of its admissibility of the power of the state. to condemn land for a public use is, that the particular object for which the land is condemned tends to promote the general interest in its relation to any legitimate object of government. Query, whether federal government can take land within a state for forts, etc., without the sanction of the state, but it can avail itself of the legislative consent of the state for such purpose. Gilmer v. Lime Point, 18 Cal. 229.
The word "property," when applied to land embraces all titles, legal or equitable, perfect, or imperfect. Teschemacher v. Thompson, 18 Cal. 11.
An act of May 6, 1861 [Stats. p. 293], authorized the guardian of a minor to sell certain real estate of the minor. It did not appoint the person guardian, nor was such person appointed guardian by any court in this state. Said guardian was to convey the property to the purchaser and account for the
proceeds of the sale, "as for any assets in her hands pertaining to said minor and her deed of conveyance was not to be valid unless the sale shall have been confirmed by the probate court, previous to the execution of said deed of conveyance." There was at the time a general law of the state [Stats. 1851, p. 603], providing for the appointment of guardians, requiring bonds, the rendition of accounts, proof of the necessity of sale, and general control by the probate court or judge over the property and proceeds. Held, the sale was void, in the absence of appointment of such person as guardian, and independently of constitutional question, the court will not presume the legislature intended such person should act without appointment, without bond, or without general control by the court or probate judge. Paty v. Smith, 50 Cal. 153.
The act of April 2, 1866 [Stats. p. 824], purported to validate sales of real estate under order of probate courts, to purchasers in good faith and for valuable consideration as to defects of form, or errors existing in any of the proceedings, saving the rights of grantees, vendees and mortgagees, who had acquired interests or liens prior to the passage of the act under heirs or devisees adversely to such probate sales, and excepting fraud. Held, so far as said act attempts to validate judgments or sales of real estate that are void for want of jurisdiction in the court, it is unconstitutional. The legislature can
not exercise judicial functions, nor deprive any one of property without due process of law. Pryor v. Downey, 50 Cal. 388.
A street assessment being invalid by reason of a void resolution of intention of the supervisors of San Francisco cannot be legalized by act of the legislature. The act of March 25, 1874 [Stats. p. 588], to ratify and confirm certain ordinances is void. At best it is an attempt to levy an assessment within a city, which the legislature cannot do. [Taylor Palmer, 31 Cal. 240; People v. Lynch, 51 Cal. 15.] And if the assessments were held otherwise valid, it would result in taking private property without due process of law. Brady v. King, 53 Cal. 44.
A bond given in behalf of a railroad company in condemnation proceedings conditioned that the corporation would pay the compensation awarded, and all damages sustained by the owner of the land if they should not be finally taken by the company, is not just compensation, either for the preliminary taking nor for the final taking of the land. Section 1254, Code of Civil Procedure, providing for such undertaking is unconstitutional. Vilhac v. S. & I. R. R., 53 Cal. 208. Affirming San Mateo W. W. v. Sharpstein, 50 Cal. 284, and Sanborn v. Belden, 51 Cal. 266.
An act of the legislature purporting to validate a street assessment, if valid for any purpose can only be effectual from the time of its enactment and cannot relate back so as to make the assessment valid at the time it was
levied, and an action to enforce the lien, commenced prior to the validating act, cannot be maintained. Reis v. Graff, 51 Cal. 86. People v. Kinsman, Id 92.
Where a person is placed upon trial upon a valid indictment, before a competent court and jury, he is in jeopardy within the meaning of the constitutional provision, and to which he cannot be again subjected, and a discharge of the jury, unless upon consent of the defendant or for some unavoidable reason, is equivalent to an acquittal. People v. Cage, 48 Cal. 323.
When a defendant was placed upon trial for manslaughter, and the court discharged the jury because it thought defendant should be prosecuted for murder, he is entitled to plea of twice in jeopardy, if subsequently indicted and placed upon trial for murder. People v. Hunckeler, 48 Cal. 331. For citation of numerous authorities under the subject of jeopardy, see People . Webb, 38 Cal. 467-478. Approved in People v. Horn, 70 Id. 17.
The statute of this state [Sec. 1548, Pen. Code] does not authorize the arrest or detention here of a person as a fugitive from justice, unless a prosecution is pending against such person in the state from which he has fled. Without expressing an authoritive opinion, it is suggested that no reason appears why it is not competent for the legislature to provide for the arrest and detention of a fugitive from justice until his surrender shall be demanded in accordance with the constitution and law
of the United States. Ex parte White, 49 Cal. 433. Ex parte Cubreth, Id. 436.
It is competent for the legislature to abolish the writ of ne exeat. Such writ is not included in section 57, Code of Civil Procedure, nor in the provisions relating to arrest in civil actions. Such a writ is void. Ex parte Harker, 49 Cal. 465.
An indictment found by a jury summoned as a trial jury, but impanneled as a grand jury, is illegal. People v. Earnest, 45 Cal. 29. Where an acquittal results from a variance between the indictment and the proofs, and the variance is such that a conviction under that indictment is legally impossible, the defendant has not been put in jeopardy, so as to plead his acquittal in bar of a second indictment. People v. McNealy, 17 Cal. 333.
Section 273, Criminal Practice Act, providing that a person indicted for crime under a wrong name, and he gives his true name when arraigned, it shall be so entered on the minutes, and the trial proceed under the true name, is not unconstitutional. People r. Kelly, 6 Cal. 211.
In pursuance of an act of March 26, 1856 [Stats. p. 48], the board of state prison directors entered into a contract with James M. Estill, by which they leased to him the state prison, grounds and property, and labor of the convicts for a period of five years. Estill was to erect certain improvements, and the state was to pay Estill the sum of ten thousand dollars at the end of every month