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cial interpretation, it is safe to presume that they were adopted in view of such interpretation.—People vs. Coleman, 4 Cal., p. 46. Constitutions, like statutes, must be construed, if possible, to give some force and effect to each of their provisions.-French vs. Teschemaker, 24 Cal., p. 539. An Act of the Legislature may be constitutional in part and unconstitutional in part.People vs. Hill, 7 Cal., p. 104; People vs. Burbank, 12 Cal., p. 393; Lathrop vs. Mills, 19 Cal., p. 513; Robinson vs. Bidwell, 22 Cal., p. 397. A law which cannot take effect as to one part of its subject matter because it is unconstitutional as to such part, may take effect as to another part of its subject matter not obnoxious to the Constitution.-Mills vs. Sargent, 36 Cal., p. 379. A section of an Act which is unconstitutional but independent, and which does not enter in the general object and
scope of the Act, may be stricken out, and will not vitiate the portions which are constitutional.- French vs. Teschemaker, 24 Cal., p. 545; Robinson vs. Bidwell, 22 Cal., p. 379; Lathrop vs. Mills, 19 Cal., p. 513. A clause in an Act containing an unconstitutional provision, if the clause enter so entirely into the scope and design of the whole Act that it would be impossible to maintain it with the obnoxious provision, will vitiate the whole Act.-Reed vs. Omnibus R. R. Co., 33 Cal., p. 212. When Courts declare retrospective laws void, their action is based upon the ground that such laws are in conflict with some vested right secured by some constitutional guaranty, or protected by principles of universal justice.-Galland vs. Lewis, 26 Cal., p. 47. An Act of the Legislature should not be declared unconstitutional unless there is a clear repugnance between the Act and the Constitution. If there is a reasonable doubt whether the Act is repugnant to the Constitution, the Courts will sustain the validity of the Act.-Bourland vs. Hildreth, 26 Cal., p. 162. An Act of the Legislature must be clearly and manifestly repugnant to some provision of the Constitution, or a Court will not declare it invalid.—People vs. Sassovich, 29 Cal., p. 480.
ARTICLE I. DECLARATION OF Rights.
II. RIGHT OF SUFFRAGE.
V. EXECUTIVE DEPARTMENT.
ARTICLE VII. MILITIA.
VIII. STATE DEBTS.
SECTION 1. Inalienable rights.
2. Popular government.
SECTION 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.
Note.-In Ex Parte Newman, 9 Cal., p. 502, the “Sunday Law" of April 10th, 1858, was held to be in violation of this section, but in Ex Parte Andrews, 18 Cal., p. 678, the “Sunday Law" of May 20th was held constitutional. In May, 1868, the Trustees of the City of Sacramento passed the following ordinance:
“ORDINANCE No.91.–To prohibit noisy amusements and to prevent immorality. Passed May 11, 1868.
“The Board of Trustees of the City of Sacramento ordain as follows:
“SECTION 1. It shall be unlawful within the city, in the night time, after twelve o'clock midnight, for any person to play or make a noise upon any musical instrument in any drinking saloon, or beer cellar, or to permit or allow the same by the proprietor, agent, or manager thereof.
“SEC. 2. It shall be unlawful for any female person, in the night time, after twelve o'clock midnight, to be in any public drinking saloon, beer cellar, or billiard room, within said city, where vinous, malt, or spirituous liquors are sold or given away, to be drank on the premises."
Under this ordinance Nellie Smith and Annie Keating were convicted. They sued out a writ of habeas corpus, returnable before Justice Sanderson of the Supreme Court, and upon the return of the writ it was in their behalf contended that the ordinance was repugnant to the first section of the first Article of the State Constitution. Mr. Justice Sanderson upon this point, Chief Justice Sprague and Justice Sawyer approving, said (38 Cal., p. 704):
“Governments are formed for the purpose of securing and protecting men in the enjoyment of their natural rights, and they would fail of accomplishing that object if the power to regulate or prescribe the mode in which such rights are to be exercised be not lodged in the law making department. In short, there could be no government without such power, for without it all men would be in a state of nature-that is to say, without any restraint upon their conduct except their own wills and the forcible opposition of their fellows. Hence, when men who come together for the purpose of adopting a form of government and establishing a system of laws stipulate that the rights of lite, liberty, property, and the pursuit of safety and happiness are inalienable, or shall remain inviolate forever, they are not to be understood as meaning that those rights shall not be at all interfered with by the law-making power. On the contrary, their language is to be interpreted in view of the object which has called it forth, or as meaning that those rights are not to be interfered with, except so far as the ends and objects of government may require. This section is not to be read by itself, but as a part only of the Constitu
tion; and thus read, the obvious import of the whole is, that in order that these rights may be made secure, and that we may be protected in their enjoyment, we agree that the Government about to be established may pass all needful or reasonable rules and regulations for their security and enjoyment, without any power, however, to destroy or unnecessarily restrict or impair their reasonable exercise. Hence, this provision of the Constitution is not to be understood as putting life or liberty entirely beyond the reach of the Government if, from misconduct, the general welfare of the community demands its sacrifice or restraint; or as allowing every one to acquire, possess, and enjoy property after his own unregulated manner and according to his uncontrolled will, but in such a manner and by such means as the general welfare of the community may require him to observe; or as allowing every one to seek safety and happiness in his own way, or according to his own notion, but by such ways and methods as the general good may demand. In short, while the exercise of these rights cannot be denied to any one, it may be regulated. The Constitution recognizes them as inalienable, and provides that they shall remain inviolate, but, at the same time declares that they must be exercised according to the maxim, sic uteretuo, ut alienum non laedas, which lies at the foundation of the social compact. While every man is free and independent, and may enjoy and defend life and liberty, still he must do so in a way which does not interfere with the same right in other persons; while he may acquire, possess, and protect property, he must do so in a way and by means which will not prevent others from doing the like; while he may pursue and obtain safety and happiness, he cannot be allowed to do so in a manner which may endanger or unreasonably impair the safety and happiness of others; or, generally, while every one is to be secure in the exercise and enjoyment of all these rights, he may be restrained or prohibited from exercising them in any manner which will interfere with a reasonable exercise of the same rights by other persons. Hence it is, that the Legislature is not only allowed, but required, among other things, to pass laws for the protection of life, liberty, property, and the pursuit of safety and happiness. Hence come all our laws against what are called crimes: crimes against the Government and people---as treason; against the persons of individuals - as murder and manslaughter; against property-as larceny, robbery and arson; against public justice-as perjury and bribery; against the
public peace and tranquility—as routs and riots; against public morality, health and police—as bigamy, incest, prostitution, and public nuisances. There cannot be legislation upon these topics, or any of them, without interfering, in a certain sense, and to a certain extent, with the natural rights of persons; but so long us such legislation is reasonable and necessary to accomplish any of the ends of the social compact, it cannot be considered as repugnant to the Constitution. Instead of being repugnant, such legislation is indispensable to the preservation and inviolability of the very rights in question. Every act which may tend to impair their exercise beyond what is needful for the general good may be prohibited. Of these, there are some which, by the common consent of mankind, are bad and mischievous in themselves—the mala in se of the common law-and others which may become so under certain relations and conditions, and which, therefore, the Legislature may prohibit, as necessity or occasion may require—the mala prohibita of statute law. It is not to be supposed that the entire field of public offense has yet been covered by apt legislation. Vice is ingenious, and disguises itself in a variety of forms, for the purpose of evading existing laws. Things once regarded as harmless become vicious when contemplated from the level of a higher civilization, and legislation, if not in advance, must keep even pace with public sentiment, and to that end the requisite power is not denied to the Legislature.
“It not being then, the purpose of the Constitution to inhibit all legislation affecting the natural rights of persons, but only such as may tend to their destruction or unreasonable restraint, the next question is, as to who is to be the judge of the necessity or reasonableness of prohibitory laws. Primarily, it lies with the people, when they adopt their Constitution, or establish their form of government. They may then establish such rules as they think proper; but, this being done, the residue of the power must be lodged in the law-making department of the Government. The power to determine what is necessary and appropriate legislation to accomplish the ends of government must necessarily be lodged in some body or department, and, by the same necessity, that body must be the Legislature, or the law-making power, subject to such restraints as . may be imposed, as in the veto of the Executive, and the power of the Judiciary to annul, by its judgment, such laws as it may deem repugnant to the Constitution. If the Legislature abuses this power—the power