to make laws, and to judge of their necessity and reasonableness-the remedy lies, under our form of government, with the people, through the ballot box; and, if that proves ineffectual, a further remedy lies in revolution, or the right which the people have to change their form of government whenever it becomes oppressive, or fails to afford that security for the rights of men which it was intended to provide.

"In view of these fundamental principles, Legislatures have enacted a variety of laws which, undoubtedly, in a general sense, affect the right of life, liberty, property, safety, and happiness, by way of restraint. Of such are laws regulating the slaughter of animals, the interment of the dead, the erection of buildings in cities and towns of inflammable materials, the manufacture and keeping of gunpowder and other explosive compounds, the vending of poison and other noxious drugs, the sale of intoxicating beverages to certain classes of persons, as Indians, and even to all classes of persons-as in the case of the prohibitory liquor laws of Maine and Massachusetts. Not of the least importance among such laws are those which are designed to promote the public health, by creating Boards of Health, with extraordinary powers over persons and property; by establishing quarantine and taking other summary measures to prevent the spread of contagious diseases; also, laws designed to promote public peace and good order, and public decency and morality, particularly in cities and incorporated townssuch as laws against nuisances, noisy and barbarous amusements, indecent exposure of the person, and the keeping and frequenting houses of ill fame. Among the most notable of these prohibitory laws, and the one which goes, perhaps, to the extreme of legislative power in the direction under consideration, is that which prohibits the transaction of secular business on the Lord's day. The constitutionality of some of this legislation has been debated and doubted; but I believe the general opinion now is, that none of it is opposed, but, on the contrary, that all of it is not only consistent with, but essential to the most perfect enjoyment, in a constitutional sense, of the natural rights of persons.

"The foregoing principles being elementary, I deem it unnecessary to dwell longer upon their consideration, or to cite cases in their support. I have not referred to them because they are doubtful or debatable, but because the necessity has been forced upon me by the line of argument which has been adopted by counsel.

"So far, then, as these cases turn upon the first point made by counsel, it only remains for me to examine this ordinance, so far as it affects the petitioners, by the light of the foregoing principles, and declare whether it is repugnant to them, or, on the contrary, is a constitutional contribution to their support; and on that head, in view of what has already been said, but little remains to be added."

govern

ment.

SEC. 2. All political power is inherent in the people. Popular 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.

NOTE.-Every law must have a uniform operation upon all citizens, persons, or things of any class upon which it purports to take effect. It must not grant to any citizen or class of citizens privileges which upon the same terms shall not equally belong to all citizens. Brooks vs. Hyde, 37 Cal., p. 366. In commenting upon this section Justice Sanderson, in Ex Parte Smith & Keating (38 Cal., p. 710), says:

"The best commentary upon the construction and meaning of the eleventh section of the first Article of the Constitution of this State, which declares that 'every law of a general nature shall have a uniform operation,' with which I have ever met, is found in the context of the instrument from which it was borrowed, namely, the sixth section of the first Article of the Constitution of Iowa, which reads as follows: All laws of a general nature shall have a uniform operation; the General Assembly shall not grant to any citizen or class of citizens privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.' Here the precise language of our Constitution is used, but it is accompanied by other language, as part of the same sentence and expressive of the same idea, which serves to disperse the cloud which, by reason of the 'glittering generality' of the language employed, hangs about the meaning of our Constitution. The meaning of the Constitution of Iowa, and, therefore, the meaning of ours, is obvious from the latter clause of the former Constitution. Its meaning, as has been repeatedly declared by the highest judicial tribunal in the State, is not that general laws must act alike upon all subjects of legislation, or upon all citizens and persons, but that they shall operate uniformly,

48-VOL. II.-POL.

Jury trial.

Religious worship, and

liberty of

or in the same manner upon all persons who stand in the same category; that is to say, upon all persons who stand in the same relation to the law, in respect to the privileges and immunities conferred by it, or the acts which it prohibits.-Smith vs. Judge Twelfth Judicial District, 17 Cal., p. 554; French vs. Teschemacher, 24 id., p. 544; Bourland vs. Hildreth, 26 id., p. 256; Brooks vs. Hyde, 37 Cal., p. 366. It was not intended by this provision to prevent legislation which is local in its operation or special in its effect. It was not intended to overturn the laws of nature, or disturb the relations of cause and effect, or obliterate distinctions, where, from the very nature and necessity of things, distinctions must exist. It was not intended that all differences founded upon class or sex should be ignored. This must be so from the very nature of things, and from the universal custom and practice of law makers."

SEC. 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.

NOTE.-Smith vs. Pollock, 2 Cal., p. 92; Russel vs. Elliot, 2 Cal., p. 245; Exline vs. Smith, 5 Cal., p. 112; Gillespie vs. Benson, 18 Cal., p. 409; Cahoon vs. Levy, 5 Cal., p. 294; Smith vs. Billet, 15 Cal., p. 23; Doll vs. Feller, 16 Cal., p. 432; Waltham vs. Carson, 10 Cal., p. 178; Doll vs. Anderson, 27 Cal., p. 248; Bodley vs. Furgeson, 30 Cal., p. 511; Brewster vs. Bours, 8 Cal., p. 501; Walker vs. Sedgewick, 5 Cal., p. 192. The right of trial by jury applies only to civil and criminal cases in which issues of fact are joined. It has no application to proceedings for ascertaining the value of private property taken for public use.-Koppikus vs. State Capitol Commissioners, 16 Cal., p. 248. The right of trial by jury in all common law actions is secured by the Constitution, hence a statute authorizing a reference without the consent of the parties is void.-Grim vs. Norris, 19 Cal., p. 140.

SEC. 4. The free exercise and enjoyment of religious profession and worship, without discrimination or prefer. conscience. ence, 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 con

strued as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.

NOTE.-The Constitution does not make void legislation, the effect of which is to promote religion or advance the interest of a particular sect.-Ex Parte Andrews, 18 Cal., p. 678; per contra, Ex Parte Newman, 9 Cal., p. 502. A witness is competent without respect to his religious sentiments.-Fuller vs. Fuller, 17 Cal., p. 605.

corpus.

SEC. 5. The privilege of the writ of habeas corpus Habeas shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension.

bail, fines,

and pun

ishments.

SEC. 6. Excessive bail shall not be required, nor exces- Excessive sive fines imposed; nor shall cruel or unusual punishments be inflicted; nor shall witnesses be unreasonably detained.

SEC. 7. All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.

NOTE.-Admission to bail in capital cases where the proof is evident or the presumption great, may be by law made a matter of discretion, or may be forbidden; but in all other cases admission to bail is a constitutional right.-People vs. Tinder, 19 Cal., p. 539.

SEC. 8. No person shall be held to answer for a capital or otherwise infamous crime (except 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 criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due pro

All offenses one

bailable

exception.

Personal rights of

rights, and

property.

cess of law; nor shall private property be taken for public use without just compensation.

467

NOTE -GRAND JURY.-The provision of law that exceptions to the Grand Jury must be made at a particular time is constitutional.-People vs. Magallones, 15 Cal., p. 426. The 273d Section of the Criminal Code, providing that where the accused is indicted under a wrong name, and he gives his true name when arraigned, it shall be so entered on the minutes, and the accused tried under his true name is not in violation of this section.-People vs. Kelly, 6 Cal., p. 210.

RIGHT OF COUNSEL.-If in a criminal case the Court imposes upon counsel against their consent a limitation of time for argument before the jury, it is done at the risk of a new trial, if it be shown by the uncontradicted affidavits of counsel for the prisoner that the prisoner was deprived by the limitation of the opportunity of a full defense.— People vs. Keenan, 13 Cal., p. 581. Counsel in cases have the right to read from law books in illustration of their argument to the jury. People vs. Anderson, July T., 1872.

TWICE IN JEOPARDY.-Jeopardy attaches when a party is once placed upon his trial before a competent Court and jury upon a valid indictment, and if the party be acquitted by the verdict of the jury he cannot be held to answer again for the same offense, no matter by what mistakes or errors on the part of the Court, jury, or prosecution the acquittal was obtained. So, too, if the jury be discharged without legal necessity or consent from rendering a verdict, the party cannot again be put upon trial.-People vs. Webb, 38 Cal., p. If the defendant is acquitted by reason of such a variance between the indictment and proof that a conviction was legally impossible, he has not been "in jeopardy."-People vs. McNealy, 17 Cal., p. 333..

EMINENT DOMAIN.-The right of eminent domain is inherent in Government; it is one of the attributes of sovereignty.-Gilmer vs. Lime Point, 18 Cal., p. 229. The term "property," as applied to lands, embraces all titles, legal or equitable, perfect or imperfect.— Teschemaker vs. Thompson, 18 Cal., p. 11. Public use-defined to be a use which concerns the whole community, as distinguished from one which concerns only a particular individual or a particular number of individuals.-Gilmer vs. Lime Point, 18 Cal., p. 229. The question of the public character of railroads and of their necessity for public use is a political one, and rests much if not entirely in the sound discretion of