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states, which provisions had already received judicial construction, it is a safe rule to hold that they have been adopted in view of such construction. People v. Colemen, 4 Cal. 46.

But even if property rights have grown up under an erroneous decision with regard to the construction of a clause of the constitution, it is better that inconvenience should be submitted to, rather than such decision should stand, and a valuable provision of the fundamental law be obliterated. San Francisco v. S. V. W. W., 48 Cal. 493.

The right of transit through each state, with every species of property know to the constitution of the United States, and recognized by that paramount law, is secured by that instrument to each citizen, and does not depend upon the uncertain and changeable ground of mere casuity. So held with reference to slaves brought into this state by one who is a mere visitor. In the Matter of Archy, 9 Cal. 147.

A government with no limit but its discretion, is not a constitutional one in the true sense of the term. The end and object of creating a constitution is to limit, classify and direct the powers of the different departments. A constitution is a solemn compact, deliberately and freely entered into by a free people as between themselves, by which they limit the powers of their agents, the powers of majorities and the powers of themselves; that this compact is made in advance, when men are more free from passion and prejudice, etc. There are certain inherent and inalienable rights of human nature that no government can take away, some of which are enumerated in our state constitution, but “this enumeration of rights shall not be construed to impair or deny others retained by the people.” That the hardships of particular cases, that will and must arise in the progress of human affairs, under any and all systems of government and law, do in fact constitute the true and stern test of the devotion of a free people to fundamental principles; and to sustain these fundamental principles, whereon liberty, protection, and society itself are based, is the most conclusive proof


of the capacity and fitness of a people for self government. Per Burnett, J., in Billings v. Hall, 7 Cal. 16-19.


DECLARATION OF RIGHTS SECTION 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and deiending life and liberty; acquiring, possessing, and protecting property; and pursuing and obtaining safety and happiness.

Against the mechanics' lien law of 1867-8, (Stats. 592) it was urged that the same was in violation of rights secured by sections 1, 8, and 21 of Art. I, because it prevented the owner from contracting with the builder that no lien should be created on the building, and permitted material men to compel the owner to pay more than the contract price. It was urged that the rights of the material men must be controlled by the contract between the owner and the builder. By the court it was held that it did not appear from the record in the case that the asserted liens amounted to the contract price nor that the price had been paid when the action was commenced; that in case of judgment against the owner by a material man the former could deduct the amount of the judgment from the sum due the contractor; that the contractor and owner cannot by their contract deprive the material man of his right of lien by the contractor agreeing to indemnify the owner against such liens, and that there is no constitutional objection to a statute securing the material man a lien where the aggregate liens do not exceed the contract price. Whittier v. Wilbur, 48 Cal. 175.

An ordinance of the city of Sacramento forbidding females being in saloons, billiard rooms, etc., after twelve o'clock, midnight, and forbidding, unusual noises, musical instruments, etc., at such times and places, is not unconstitutional. It is not the purpose of the constitution to inhibit all legislation affecting the natural rights of persons, but only such legislation as will tend to their destruction or unreasonable restraint. A large class of prohibitory legislation,

including houses of ill fame, boards of health, Sunday laws, etc., commented upon and sustained. Ex parte Smith and Keating, 38 Cal. 702.

As to effect in California, of the civil rights bill, see People v. Washington, 36 Cal. 658.

It will be presumed that provisions of our constitution have been adopted with a full knowledge of the judicial interpretation which similar provisions in other previous constitutions had uniformly received, and with intent to adopt such inierpretation as a principle expressed in the organic law of the state. (People v. Coleman, 4 Cal. 50; Taylor v. Palmer, 31 Cal. 254.) People 3. Webb, 38 Cal. 467.

The levy of municipal license taxes upon business and trades is not unconstitutional. City of Sacramento v. Crocker, 16 Cal. 122.

An act of the legislature giving the municipality of San Francisco power to pass an ordinance prohibiting the keeping of cows, swine, etc., within certain limits or in certain numbers, in the city, does not violate the constitutional guarantee of liberty, acquiring property, or pursuit of happiness, but the same is a reasonable exercise of municipal authority. Ex parte Schrader, 33 Cal. 279, citing Ex parte Andrews, 18 Cal. 679.

A legislative enactment of the state to punish the counterfeiting of money is not repugnant to constitution of United States or acts of congress. People v. White, 34 Cal. 183.

With reference to the cession of California to the United States, and the rights of the inhabitants of the territory ceded, it is said, “By the law of nations, independent of treaty stipulations, the cession of territory from one government to another does not impair the rights of the inhabitants to their property. They retain all such rights, and are entitled to protection in them to the same extent as under the former government.

Those rights are sacred and inviolable, and the obligation passed to the new government to protect and maintain them.” The legal and equitable titles arising from grants by the government of Mexico to lands in California, were



property rights which the new government could not violate, but must protect and confirm. Teschamaker v. Thompson, 18 Cal. 20, et seq., and authorities there cited. And see, as to these Mexican grants, Estrada v. Murphy, 19 Cal. 270; Lees v. Clark, 20 Id. 421; Merrill v. Chapman, 34 İd. 253; Seale v. Ford, 29 Id. 105; Emeric v. Penniman, 26 Id. 123; Stevenson v. Bennett, 35 Id. 431; O'Connell 1. Dougherty, 32 Id. 458; Banks v. Moreno, 39 Id. 236.

The Sunday law, of 1861, (Stats. p. 655) prohibiting all persons, with certain exceptions, from keeping their places of business open on Sunday for the transaction of business, is constitutional. Ex parte Andrews, 18 Cal. 679. The reasoning in this case is sustained in In re Linehan, 72 Cal. 116, and the several cases there cited. But the Sunday law of 1858 was held unconstitutional upon exactly contrary reasoning, the court saying that if the legislature could compel the cessation of legitimate business on one day of the week, it could do so on any other day. “When there is no ground or necessity upon which a principle can rest but a religious one, then the constitution steps in and says that it shall not be enforced by authority of law.”. Per Burnett, J., Ex parte Newman, 9 Cal. 502, Field, J., dissenting

Property in slaves brought here by a mere visitor is protected during the sojourn of the visitor. In the matter of Archy, 9 Cal. 147.

By the act of April 26, 1858, (Stats. p. 345) for the better protection of settlers on public lands, it was provided that a person ousted from the possession of land in an action at law, by a person claiming title under a foreign grant, which shall thereafter be rejected, or so located as not to include the land recovered, may have an action against the plaintiff in the former action, and the person in possession of the land, to recover back the possession, together with the rents and profits thereof from the time he was so ousted, and costs and damages by reason of the former action of ejectment. Held, that in so far as the act authorized the recovery of the possession or rents or profits from the claimant under a Mexican


grant of a definite quantity to be located within a larger tract, it is unconstitutional. The claimant under such grant had the right of possession of all within the larger tract as against any mere intruder, and consequently to the rents and profits. Rich ?. Maples, 33 Cal. 103. See also Waterman v. Smith, 13 Cal. 411; Teschemacher v. Thompson, 18 Cal. 12, and Soto v. Kroder, 19 Cal. 87, besides authorities cited at page 108 in Rich v. Maples, as to rights of holders of Mexican grants.

A government with no limits but its own discretion is not a constitutional government in the true sense of the term. Per Burnett, J., in Billings v. Hall, 7 Cal. 16.

By the tenth section of act of March 26, 1856, (Stats. p. 54) it was provided that in actions of ejectment under title derived from Mexican or Spanish grants, against actual settlers thereon, the value of improvements and growing crops shall be paid by plaintiff (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 distincily 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,

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