■f'^ lQ-^^V._(J-t-V\jL_6v . ) THE CONSTITUTION OF THE STATE OF CALIFORNIA ADOPTED IN CONVENTION, AT SACRAMENTO, MARCH 3, 1879 RATIFIED BY A VOTE OF THE PEOPLE MAY 1, 1879 EDITED BY EDWARD F. TEEADWELL, LL. B. THIRD EDITION CONTAINING ALL CITATIONS IN CALIFORNIA REPORTS, VOLS. 1 TO 158, CALIFORNIA APPELLATE REPORTS, VOLS. 1 TO 14, AND ALL AMENDMENTS ADOPTED TO AND INCLUDING OCTOBER 10, 1911 SAN FRANCISCO BANCEOFT-WHITNEY COMPANY 1911 c L- Copyright, 1902 BY Bancroft-Whitney Company Copyright, 1907 BY Bancroft-Whitney Company Copyright, 1911 BY Bancroft-Whitney Company TABLE OF CONTENTS. Pages Introduction v-xvii Table of Cases Cited xix-lxxi Table of Contents of Constitution of 1879. Ixxiii-lxxxiii Constitution of California of 1879, Annotated 1-575 Table of Statutes Declared Unconstitutional 577-584 Table of Parallel Sections in Constitutions of 1849 and 1879 585-588 Table of California Citations to Constitution of 1849 589-592 Table of California Citations to Constitution of 1879 593-606 APPENDIX: Constitution of California, 1849 609-657 Constitution of the United States 661-690 Treaty of Guadalupe Hidalgo 691-720 Index 721-798 (iii) INTRODUCTION. PREFATORY NOTE.— It is unnecessary to make any extended explanation in laying before the Bar of California a work upon the constitution of Cali- fornia. The edition published by Mr. Robert Desty in 1879 was excellent in its time, but has long ceased to be of practical aid to the profession. In prepar- ing this volume, the aim has been to present in the most convenient form the decisions of our own courts, only referring to the decisions of other courts on subjects which our own have left untouched. While the main subject is the present constitution of this state, the book also contains the former constitu- tion, the constitution of the United States, and the treaty of Guadalupe Hidalgo, New features. — Some new and important features are the following: (1) A table showing all statutes of this state which have been declared unconstitu- tional in whole or in part. There are over one hun- dred and thirty such statutes scattered through the statute books, and this is the first time any table of them has been made. (2) A table of all California citations to either of the California constitutions. This will permit a hasty examination of all decisions Vi INTRODUCTION. citing any partienlar section of the constitution. (3) A table of parallel sections in the constitutions of 1849 and 1879, which will also prove a useful feature. Annotations. — As to the form of the annotations, the aim has heen to present in the most condensed form the principles of the decisions, rather than any state- ment of the facts of the cases. In other words, we have attempted something more than a mere digest, or a hotch-potch of the syllabi of the decisions. HISTORY OF THE CONSTITUTION.— California was admitted into the Union of states September 9, 1850. The first constitution was adopted in conven- tion October 10, 1849, ratified by the people Novem- ber 13, 1849, proclaimed December 20, 1849. This constitution was amended in 1857 and 1871, and the article on the judicial department was revised in 1862. The present constitution was adopted in convention March 3, 1879, ratified by the people May 7, 1879, and Avent into effect July 4, 1879, so far as it related to election of officers, etc., and January 1, 1880, for all other purposes. Various amendments have been made to it from time to time, but no radical revision of it has been effected. CONSTITUTIONAL CONSTRUCTION.— The con- stitution of this state, unlike the federal constitution, INTRODUCTION. vii is not to be considered as a grant of po;ver, but rather as a limitation upon the powers of the legis- lature. (People V. Coleman, 4 Cal. 46, 60 Am. Dec. 581; People v. Jewett, 6 Cal. 291; People v. Rogers, 13 Cal. 159 ; People v. Twelfth District Court, 17 Cal. 547; Bourland v. Hildreth, 26 Cal. 161; Ex parte McCarthy, 29 Cal. 395.) It is, however, to be considered as a grant of power to the other branches of the government. (People v. Jewett, 6 Cal. 291.) Words and phrases. — Where a word, having a technical, as well as a popular, meaning, is used in the constitution, the courts will accord to it its pop- ular meaning, unless the nature of the subject in- dicates, or the context suggests, that it is used in its technical sense. (Weill v. Kenfield, 54 Cal. Ill; Oakland Pa v. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3; Oakland Pav. Go. v. Tompkins, 72 Cal. 5, 1 Am. St. Rep. 17, 12 Pac. 801; Miller v. Dunn, 72 Cal. 462, 1 Am. St. Rep. 67, 14 Pac. 27; People v. Eddy, 43 Cal. 331, 13 Am. Rep. 143.) Prospective construction. — Provisions of the con- stitution are to be considered prospective and not retrospective unless a contrary intention clearly ap- pears. (Gurnee v. Superior Court, 58 Cal. 88.) Reasonable construction. — A construction should be adopted which tends to certainty, security, and sub- Viii INTRODUCTION. stantial justice, in preference to that which involves uncertainty, insecurity, and inevitable injustice. (San Gabriel Co. v. Witmer Co., 96 Cal. 623, 29 Pac. 500, 31 Pac. 588, 18 L. R. A. 465.) But where a provision is plain and unambiguous, it cannot be changed by the courts to avoid what may seem to be an absurdity or injustice. (Moran v. Ross, 79 Cal. 549, 21 Pac. 958.) All the provisions of the constitution must be read together, and effect given to all of them. They must receive a practical common-sense construction, and be considered with reference to the prior state of the law, and the mischief intended to be remedied. (People V. Stephens, 62 Cal. 209; French v. Teschemaker, 24 Cal. 518.) MEANS OF CONSTRUCTION— Debates of the con- vention. — The debates of the constitutional convention may be referred to for the purpose of construing the provisions of the constitution. (People v. Chapman, 61 Cal. 262; People v. Stephens, 62 Cal. 209; Isola v. Weber, 13 Misc. Rep. 100, 34 N. Y. Supp. 77; Hig- gins v. Prater, 91 Ky. 6, 14 S. W. 910; State v. Doron, 5 Nev. 399; Bank of Woodland v. Pierce, 144 Cal. 434, 77 Pac. 1012.) Judicial decisions. — Where a provision of the former constitution, which has received a judicial construc- tion, is copied into the new constitution, it will be INTRODUCTION. IX presumed that it was adopted in view of that con- struction. (Sharon v. Sharon, 67 Cal. 185, 7 Pac. 456, 8 Pac. 709; Thomason v. Ruggles, 69 Cal. 465, 11 Pac. 20; Lord v. Dunster, 79 Cal. 477, 21 Pac. 865; People V. Freeman, 80 Cal. 233, 13 Am. St. Rep. 122, 22 Pac. 173; People v. O'Brien, 96 Cal. 171, 31 Pac. 45; Morton v. Broderick, 118 Cal. 474, 50 Pac. 644; Ex parte Ahern, 103 Cal. 412, 37 Pac. 390; People v. Edwards, 93 Cal. 153, 28 Pac. 831; Palache v. Hunt, 64 Cal. 473, 2 Pac. 245.) The mere fact that a change is made in the phraseology of such provision by subsequent revision will not be deemed a change in the law, unless such phraseology evidently purports an intention to make a change. (Hyatt v. Allen, 54 Cal. 353.) The same rule applies to provisions of the constitu- tion borrowed from the constitutions of other states, and where such provisions have received judicial con- struction in such states, they are to be deemed to have been adopted in view of such construction. (People V. Coleman, 4 Cal. 46; People v. Webb, 38 Cal. 467; Ex parte Liddell, 93 Cal. 633, 29 Pac. 251.) The exposition of the constitution by the highest court in existence under it, with regard to laws passed while it was in force, should be accepted by all succeeding courts, without regard to their own views as to the correctness of the doctrine. (Staude X INTRODUCTION. V. Election Commrs., 61 Cal. 313; Emery v. Reed, 65 Cal. 351, 4 Pac. 200 ; Davis v. Superior Court, 63 Cal. 581. See, also, Ferris v. Coover, 11 Cal. 175.) Legislative constniction. — Legislative construction of a constitutional provision is a method of interpre- tation. (Moran v. Ross, 79 Cal. 159, 21 Pac. 547; San Luis Obispo Co. v. Darke, 76 Cal. 92, 18 Pac. 118 ; Lord V. Dunster, 79 Cal. 477, 21 Pac. 865 ; Wash- ington V. Page, 4 Cal. 388; Bank of Woodland v. Pierce, 144 Cal. 434, 77 Pac. 1012.) But this does not mean that the hasty and incon- siderate legislation of three winters shall be con- clusive of the constitutionality of siich legislation. (People V. Wells, 2 Cal. 198, 208.) The fact that ever since the adoption of the con- stitution all executive officers other than the governor and lieutenant-governor have been installed in office on the first Monday after the first day of January is entitled to great weight in the construction of the meaning of the constitution. (People v. Nye, 9 Cal. App. 148, 98 Pac. 241.) Universal practice of assessors may be looked to in aid of the construction of provisions of the constitu- tion relating to taxation. (Bank of Woodland v. Pierce, 144 Cal. 434, 77 Pac. 1012.) POWER TO DECLARE STATUTES UNCONSTI- TUTIONAL.— A government with no limits but its INTRODUCTION. XI own discretion is not a constitutional government, in the true sense of the term. (Billings v. Hall, 7 Cal. 1.) The constitution is a law, and must be construed by some one, and the judiciary possesses the power to construe it in all cases not expressly, or by neces- sary implication, reserved to the other departments.. (Nougues V. Douglass, 7 Cal. 65; McCauley v. Brooks, 16 Cal. 11.) But where the right to determine the extent and effect of a restriction in the constitution is expressly or by necessary implication confided to the legislature, the judiciary has no right to interfere with the legis- lative construction. (Nougues v. Douglass, 7 Cal. 65.) In declaring a statute unconstitutional, the court cannot interfere with the exercise of the political power of the legislature. (Nougues v. Douglass, 7 Cal. 65.) The courts can declare a statute unconstitutional only when the question arises as a pure matter of law unmixed with matters of fact. (Stevenson v. Colgan, 91 Cal. 649, 25 Am. St. Rep. 230, 27 Pac. 1089, 14 L. R. A. 459.) Therefore, the constitutionality of la statute can be determined only from the facts appearing upon the face of the law, taken in connection with matters of which the court can take judicial notice. (Bourn v. Hart, 93 Cal. 321, 27 Am. St. Rep. 203, 28 Pac. 951, Xii INTRODUCTION. 15 L. R. A. 431; Stevenson v. Colgan, 91 Cal. 649, 25 Am. St. Rep. 230, 27 Pac. 1089, 14 L. R. A. 459; Conlin v. Supervisors, 99 Cal. 17, 37 Am. St. Rep. 17, 33 Pac. 753, 21 L. R. A. 474; Fowler v. Peirce, 2 Cal. 165.) But, while the courts may declare statutes uncon- stitutional, they have no power to avoid the effects of nonaction on the part of the legislature. (Myers V. English, 9 Cal. 341.) Presumption of constitutionality. — An act of the legislature is presumed to be constitutional. (In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. Rep. 106, 28 Pac. 272, 675, 14 L. R. A. 755 ; People v. Hayne, 83 Cal. Ill, 17 Am. St. Rep. 217, 23 Pac. 1, 7 L. R. A. 348; In re Finley, 1 Cal. App. 198, 81 Pac. 1041; In re Bunkers, 1 Cal. App. 61, 81 Pac. 748; Title etc. Restoration Co. v. Kerrigan, 150 Cal. 289, 119 Am. St. Rep. 199, 88 Pac. 356; In re Spencer, 149 Cal. 396, 117 Am. St. Rep. 137, 86 Pac. 896, 9 Ann. Cas. 1105; Southern Cal. L. Co. v. Peters, 3 Cal. App. 478, 86 Pac. 816.) A statute will not be declared unconstitutional, except when the conflict between it and the constitu- tion is palpable and incapable of reconciliation. (Stockton etc. R. R. Co. v. Stockton, 41 Cal. 147; People v. Sassovich, 29 Cal. 480.) INTRODUCTION. Xlll Where there is a reasonable doubt as to its con- stitutionality, its constitutionality should be affirmed. (University of California v. Bernard, 57 Cal. 612 ; Bourland v. Hildreth, 26 Cal. 161.) An act is to be so construed, if possible, as to make it constitutional. (French v. Teschemaker, 24 Cal. 518.) Conflict with the constitution. — In passing upon the constitutionality of a statute, the court is not re- quired to imagine some possible contingency in which its provisions might conflict with the constitution. (Woodward v. Fruitvale Sanitary Dist., 99 Cal. 554, 34 Pac. 239.) In order to declare a statute unconstitutional, it is not necessary to find in the constitution some specific inhibition which has been disregarded, or some ex- press command which has been disobeyed ; but if the statute is contrary to the first principles of the social compact, it is void. (Britton v. Board of Election Commrs., 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115.) Nor is it necessary to find some specific inhibition which, in precise language, refers to the particular law. (People v. Lynch, 51 Cal. 15, 21 Am. Rep. 677.) But the courts cannot declare a law void upon the ground that it is contrary to the "spirit and policy of the constitution," unless it is at variance with some express or clearly implied provision of that in- xiv INTRODUCTION. strument. (Colien v. Wright, 22 Cal. 293; Pattison V. Yuba Co., 13 Cal. 175.) Conflict with another statute. — The constitutionality of one act cannot be tested by the provisions of an- other. (Reed v. Omnibus R. R. Co., 83 Cal. 212.) Motives. — The motives which induce legislative ac- tion are not a subject of judicial inquiry, and a legis- lative act cannot be declared unconstitutional because, in the opinion of the court, it was or might have been the result of improper considerations. (People V. Glenn Co., 100 Cal. 419, 38 Am. St. Rep. 305, 35 Pac. 302; People v. Bigler, 5 Cal. 23.) The motives of the authors of a statute are equally immaterial. (Stockton etc. R. R. Co. v. Stockton, 41 Cal. 147.) Beneficial character. — In determining the constitu- tionality of a statute, its beneficial character cannot be considered. (Marsh v. Supervisors, 111 Cal. 368, 43 Pac. 975.) On the other hand, in construing the constitution, the courts are bound to suppose that any incon- veniences involved in the application of its provisions were considered in its formation, and accepted as less intolerable than those avoided, or as compensated by countervailing advantages. (People v. Pendegast, 96 Cal. 289, 31 Pac. 103.) INTRODUCTION. XV Impracticable statute. — A statute may also be de- clared void if it is impracticable. Thus an act pro- viding for the appointment of three disinterested freeholders in the city and county of San Francisco to form an assessment district, which might include the entire city and county, and to assess the lands of the district for certain improvements, is void as im- practicable, since it would be impossible to select dis- interested commissioners. (Montgomery Avenue Case, 54 Cal. 579.) EFFECT OF UNCONSTITUTIONALITY— Separa- ble provisions. — The mere fact that certain provisions of a statute are in conflict with the constitution does not necessarily render the entire act void. Where the court can see that an act, after eliminating all un- constitutional features, is still such an act as it may be presumed the legislature would have passed had it known such parts were void, the remainder may stand. (Dwyer v. Parker, 115 Cal. 544, 47 Pac. 372.) If the different parts are severable and independent of each otKer, and the constitutional provisions are capable of being carried into effect after the uncon- stitutional part has been eliminated, and it is clear that it was the intent of the legislature to enact these provisions irrespective of the other, the uncon- stitutional provisions will be disregarded, and the statute read as if such provisions were not there. XVI INTRODUCTION. (Hale V. McGetti^an, 114 Cal. 112, 45 Pac. 1049; Lathrop v. Mills, 19 Cal. 513; French v. Teschemaker, 24 Cal. 518; IMills v. Sargent, 36 Cal. 379; Christy v. Supervisors, 39 Cal. 3; McCabe v. Jefferds, 122 Cal. 302, 54 Pac. 897; Rood v. McCargar, 49 Cal. 117: Johnson v. Tautphaus, 127 Cal. 605, 60 Pac. 172; Peo^ pie V. Whyler, 41 Cal. 351; McGowan v. McDonald, 111 Cal. 57, 52 Am. St. Rep. 149, 43 Pac. 418 ; Caheu V. Wells, 132 Cal. 447, 64 Pac. 699; In re Hallawell, 8 Cal. App. 563, 97 Pac. 320; In re Spencer, 149 Cal. 396, 117 Am. St. Rep. 137, 86 Pac. 896, 9 Ann. Cas. 1105.) Inseparable provisions. — Where the constitutional and unconstitutional provisions of a statute are so in- separably blended together as to make it clear that either clause vv^ould not have been enacted without the other, the whole act is void. (San Francisco v. Spring Valley W. W., 48 Cal. 493; Reed v. Omnibus R. R. Co., 33 Cal. 212; Orange Co. v. Harris, 97 Cal. 600, 32 Pac. 594; Wills v. Austin, 53 Cal. 152; Purdy V. Sinton, 56 Cal. 133; People v. Perry, 79 Cal. 105, 21 Pac. 423; Marsh v. Supervisors, 111 Cal. 368, 43 Pac. 975; Lathrop v. Mills, 19 Cal. 513; Pioche v. Paul, 22 Cal. 105.) If a provision be unconstitutional it cannot be given effect in part, if the result of giving it such partial effect would be to accomplish a purpose which INTRODUCTION. XVll the law-making power never intended, or where the legislative intent is doubtful. (Robert v. Police Court, 148 Cal. 131, 82 Pac. 838.) Contracts and other statutes. — No repeal by implica- tion can result from a provision in a subsequent statute, when that provision is itself devoid of con- stitutional force. (McAllister v. Hamlin, 83 Cal. 361, 23 Pac. 357.) A contract entered into in view of an act later held unconstitutional is not made under a mistake of law. (Cooley V. Calaveras Co., 121 Cal. 482, 53 Pac. 1075.) But a contract entered into by a public board or officer by sole authority of an unconstitutional stat- ute is void, and not subject to ratification. (Phelan V. San Francisco, 6 Cal. 531.) The legislature may refer to an unconstitutional act to indicate its will in respect to a constitutional pur- pose, (People V. Bircham, 12 Cal. 50.) An unconstitutional act cannot have the effect to repeal prior acts on the same subject, though assuming to do so. (In re Clary, 149 Cal. 732, 87 Pac. 580.) TABLE OF CASES CITED. A AbLott T. Jack 417 Abeel v. Clark 22, 142, 143, 144, 154, 156, 380, 529 Abelman v. Booth 7 Aberdeen Bank v. Chehalis County 502, 507 Ackerman, In re 4, 372, 384 Adams v. Town 214 Adams Express Co. v. Ohio 493 Addison v. Saiilnier 19, 450, 455 Addison's Trial 128, 130 Aetna Indemnity Co. v. Altadena 219, 226 Agard v. Shaffer 313 Ah Cue, Ex parte 102, 530 Ah Cheung, Matter of 381 Ah Fook, Ex parte 32, 529, 531 Ah King v. Police Court 143 Ah Pong, Ex parte 389 Ah You, In re 314, 377, 378 Ahern, Ex parte ix, 270 Alameda v. Cohen 40 Alameda County v. Dalton 479 Albion Piiver R. R. Co. v. Hesser 50 Alferitz v. Borgwardt 55 Allen V. Allen 55 Allgier, In re 238 Allison Ranch etc. Co. v. Nevada Co 474 Alvord V. Collins 539 Amador Co. v. Kennedy 156, 385 American Coal Co. v. County Commissioners 5U6 Anderson v. Byrnes 54 Anderson v. De Urioste 315 Anderson, Ex parte 97 Andrews, Ex parte 6, 8, 21 Anglo-California Bank v. Field 146, 157, 430 Angus V. Craven 12 (xix) XX TABLE OP CASES CITED. Areata v. Areata etc. R. R. Co 314 Argenti v. San Francisco 399, 520 Armstrong, Ex parte 256 Arnault v. New Orleans 150 Arnold v. Van Brunt 231 Arroyo Ditch etc. Co. v. Superior Court 241 Arwine v. Board of Medical Examiners.. 98 Astell V. Phillippi 258 Atchison, Topeka etc. Ry. Co. v. Los Angeles 478 Attorney General, Ex parte 213, 224 Auguisola V. Arnaz 238 B Babeock v. Middleton 56 Bacon v. Bacon 234 Baggett V. Dunn 138, 139 Bailey r. Sloan 230, 232 Baird, Matter of 118 B'lird V. Monroe 40, 158 Baker v. Baker 36 Baker v. Fireman's Fund Ins. Co 431 Baker v. O'Riordan 35 Baker v. Portland 530, 531 Baker V. Southern Cal. Ry. Co 219 Bakersfield & Fresno Oil Co. v. Kern County 452 Baldwin v. Ellis 474 Baldwin v. Miller & Lux 427 Baldwin v. Zadig 168, 169 Ball V. KenSeld 534 Ballentine v. Willey 118 Ballerino v. Bigelow 247, 257, 259 Banaz v. Smith 40, 52, 316, 392, 408, 462 Bank v. Pacific Coast S. S. Co 418 Bank of British North America v. Madison 430 Bank of California v. San Francisco 452 Bank of Commerce v. Seattle 502 Bank of Lemoore v. Fulgham 35, 189 Bank of Martinez v. Hemme etc. Land Co 422 Bank of Mendocino v. Chalf ant 453 Bank of Redemption v. Boston 503 Bank of Sonoma v. Fairbanks 386, 422 TABLE OF CASES CITED. XXI Bank of TJldaTi v. Reed 469 Bank of Willows v. County of Glenn 466 Bank of Woodland v. Pierce viii, x, 467 Bank of Yolo v. Sparry Flour Co 431 Barnes v. Daveck 219, 226 Barnes v. Jones 142 Barney v. McCreery 120, 195 Barnitz v. Beverly 58 Barrett-Hicks Co. v. Glas 542 Barry, Ex parte 17 Barton v. Kalloch 304, 549, 561 Bateman v. Superior Court 234 Bates V. Gregory 55 Bates V. Porter 56 Baum V. Raphael 149 Baxter, In re 364 Beach v. Von Detten 150 Beals V. Amador Co 96, 246, 459 Beals V. Supervisors 300 Beaton v. Reid 521 Beatty v, Gillbanks 18 Becker v. Superior Court 231, 234 Beckman v. Skaggs 59, 468 Begerou, In re 24 Belcher v. Chambers 35 Belcher v. Farren 523 Bell V. Crippen 232 Bell V. Superior Court 38 Bell V. Wyman 538 Belser v. Allman 40 Bennett v. Beadly 542 Benninger, Ex parte 385 Bergevin v. Curtz 72 Bevcridge v. Lewis 48 Bickerdike v. State 157, 174, 520 Bickerstaff, In re 3S5 Biddle v. Oaks 458 Bidwell V. Babcock 419 Biencourt v. Parker 123, 132 Bienenfeld v. Fresno etc. Co 218 Bigelow v. Ballerino 44 Bilby V. McKenzie 400 Xxii TABLE OF CASES CITED. BilHnjrg, Estate of .• ^2 Billings V. Hall '"' i^n Billings V. Harvey • ^^^ Bird, Ex parte ' ^aq Bishop V. Oakland • • • • 549 Bishop V. Superior Court 229, 242 Blair v. M. etc. R. R. Co 433 Blakeslee v. Hall • • • • 412 Blanc V. Bowman 202, 204 Blanc V. Eodgers • 275 Blanohard v. Hartwell 355, 358 Blanding v. Burr 97, 173, 459 Bledsoe's Case 1^3 Blood V. McCarthy 391 Bloss V. Lewis 20, 155, 165, 302, 309 Board, v. Nye 102, 139, 166 Board of Directors v. Tregea 41 Board of Education v. Board of Trustees 387 Board of Education v. Fowler 287 Board of Education v. Hyatt 284 Board of Education v. McMahan Ill Board of Railroad Commrs. v. Market St. Ey. Co 443 Board v. Supervisors 99 Board of Supervisors v. Blacker 118, 119 Boca etc. R. R. v. Sierra Valleys R. R 44, 405, 433 Boca Mill Co., The v. Curry 411, 424 Boedefeld v. Reed ^. . 240 Boggs V. Ganeard 54, 157, 523 Eohen, Ex parte 382 Bohn V. Pacific Electric Ry. Co 12 Bolton V. Landers 217 Bonner v. Besterling 573 Boorman v. Santa Barbara 36 Booth V. McGuiness HI Borello v. Superior Court 15 Borland v. Nevada Bank 417 Boston Min. etc. Co., Matter of 142 Boswell. Ex parte 375 Bottle Mining & Milling Co. v. Kern 220 Bourland v. Hildreth vii, xiii, 73, 77 Bourn v. Hart xi, 1 73, 175 Bowen, In re 238, 239 TABLE OF CASES CITED. XXlll Boyd V. Soutliern Cal. IJy. Co 243 Boyer v. Boyer 505, 507 Boys' & Girls' Aid Society v. Eeis 21, 139, 198, 287, 391 Bradford v. San Francisco 400 Bradley v. Clarke 535 Bradley t. Kent 231 Bradley v. People 504 Brady v. King 39, 388 Brady v. Times-jNIirror Co 431 Brandenstein v. Hoke 41 Braun, Ex parte 318 Brazen v. Zeigler Ill Bresee v. Los Angeles Traction Co 2G9 Breslin, In re 236 Brewster v. Ludekins 270 Brickell Co., John, v. Sutro 466 Britton v. Board of Election Comiiirs xiii, 65, 67, 76 Brock V. Bruce 242 Brodie v. Campbell 250, 534 Bronhan v. Story 4, 46, 47 Brooks V. Fischer 95, 355, 357 Brooks V. Hvde 18, 19, 22 Brooks V. Melony 185, 192 Brooks V. Union Trust Co 214 Brown v. Campbell 249 Brown v. Merrill 416, 418 Brown v. Nash 121 Brown v. Rice 241 Brown v. Supervisors 44 Brown v. Visalia 284 Browne v. Dexter 73 Brown's Case 132 Bruch V. Colombet 20, 163, 281 Brumagin v. Tillinghast 455 Brummasrini v. Spencer 259 Buck V. "Eureka 370, 400, 401 Builders' Supply DeiKit v. O'Connor 5, 159 Bulger, In re 535 Bunkers, In re xii, 80, 149, 180, 413 Burbridge v. Lemmert 469 Burgoyne v. Supervisors, 79, 81, 212 Burko V. Badlam 456, 457 XXIV TABLE OP CASES CITED. Burke v. Board of Trustees 319, 353 Burke, Ex parte 8, 21, 153, 154 Burke v. Maze 216 Burleigh, Matter of 130 Burnett v. Sacrameuto 45, 461, 462 Burns v. Superior Court 83, 198 Burr V. Carbondale 372 Burton, Estate of 236, 237 Bush V. Linsey 237 Bush T. Nye 251, 253 Buswell V. Supervisors 475 Butte County v. Merrill 148, 177 Byrne v. Drain 315, 316, 318 Cahen r. Wells xvi, 545 Cahill, Estate of 222 Cahill, Ex parte 27 Caldwell v. Center 267 California etc. Co. v. Mecartney 465 California etc. Co. v. Sui>erior Court 246 California etc. Co. v. Weis 467 California Fruit etc. Co. v. Superior Court 562 California & Northern Ey. v. State 533 California Southern R. R. Co. v. Kimball 50 California State Bank v. Webber 469 California State Tel. Co. v. Alta Tel. Co 64, 412 California S. Co. v. San Francisco 477 Campbell, Estate of 149, 156 Campbell, Ex parte 375, 380 Campbell v. Board of Supervisors 544 Campbell v. Free 540 Campe v. Lassen 229 Camron v. Kenfield 223, 245 Canadian etc. Bank v. Boas 468 Canfield v. County of Los Angeles 451 Carey v. Tice 521 Cariaga v. Dryden 224, 258 Carpenter v. Furrey 147, 155 Carrillo, In re 314 Carson v. Central Pac. R. R. Co 45 Carter, In re 83, 198 TABLE OF CASES CITED. XXV Carter v. Lothian. . .' 229 Carter v. Superior Court 198 Cary v. Blodgett 158, 319 Case Plow Works v. Montgomery 419 Cashman v. Root 169 Cassidy v. Sullivan 11, 223 Castro V. Castro 235 Castro V. Eichard?on 238 Caulfield v. Hudson 212 Caulfield v. Stevens 247, 259 Central etc. R. Co. v. State 148 Central Irr. Dist. v. De Lappe 45 Central Irr. Dist., In re 42 Central Pac. R. R. Co. v. Board of Equalization. . .452, 468, 476 Central Pac. R. R. Co, v. California 492 Central Pac. R. R. Co. v. Placer Co 474 Cerini v. De Long 219, 402 Chambers v. Satterlee 40, 52, 408, 4G1, 4G2 Chapman v. Ames 40 Chapman v. Morris 57 Chapman v. State 174 Chapman v. Stoneman 293 Chapman v. Toy Long 530 Charge to Jury 63 Chase v. Trout 33 Cheney, Ex parte 378 Chicago etc. R. R. Co. v. Haggerty 433 Chico High School Bjaard v. Supervisors 283 Chin Yan, Ex parte 153, 160, 377 Chinn v. Guun 308 Chinn v. Superior Court 242 Chipman v. Bowman 199 Chisholm v. Georgia 105 Chrisman v. Anderson 120 Christensen, Ex parte 375, 379 Christian v. Superior Court 232 Christy v. Sui)ervisors xvi, 305 Church V. Colgan 251 City Nat. Bank v. Paducah 505 City of Los Angeles v. Lelande 149 City Street Imp. Co. v. Kroh 5, (]2 Clancy, Ex parte 19 Xxvi TABLE OF CASES CITED. Clark V. Brown ^l' Clarke, Ex parte 'oor! Jol Clarke v. Perry '^•'o, Z6b Clarke v. Reis 32 Clarke's Case ^^ Clarv, In re ^vu Clement's Case ^20 Clunie v. &iebe 4:58, 474 Clute V. Turner 23, 49, 158 Coates V. Atchison etc. Ry. Co 44 Cody V. Murphcv 18, 154, 164 Coffey V. Superior Court 130, 318, 320 Coggins V. Sacramento 549 Cohen v. Alameda 40, 52, 408, 461 Cohen, Ex parte 31 Cohen V. Wright. xiv, 4, 32, 54, 60, 275, 534 Cohens v. Virginia ' Cohn V. Central Pac. R. 11. Co 431 Colegrove W. Co. v. Hollywood 407 Collins V. Lean 32, 63, 168 Collins V. Superior Court 215 Colton V. Ro?si 43, 49 Colusa County v. Glenn County 300, 545, 474 Colusa Co. V. Welch 180 Commercial Bank v. Chambers 506 Commissioners v. Trustees 390, 552 Common Council v. Harrington HI Commonwealth v. Addison 130 Commonwealth v. Ahl 275 Commonwealth v. Hilchman 275 Commonwealth v. Pyle 132 Commonwealth v. Shaver 539 Conant v. Conant 216, 223 Condict V. Police Court 393 Conference Free Baptists v. Berkey 430 Colegrove W. Co. v. Hollywood 407 Coniff V. Hastings 52 Conlin V. Supervisors xii, 162, 164, 166, 173, 174, 391 Conner, In re 247 Connlff V. San Francisco 48 Consoliflated Channnl Co. v. Central Pac. R. R. Co 46 Contra Costa W. Co. v. Breed 614 TABLE OF CASES CITED. XXVI 1 Contra Costa etc. Co. v. Moss 46 Converse v. United States 132 Cook V. Cockins 58 Cook V. Middlesex 275 Cooley V. Calaveras Co xvii Copertini v. Oppcrmaun 242, 243 Coppinger v. Eice 235 Corcoran v. Benicia 48 Cornett v. Bishop 243 Corralitos etc. Co., In re 252 Costa V. Superior Court 236 Cottle V. Spitzer 451 County of Tehama v. Sisson 402 Courtwright v. Bear Riv^r etc. Co 212, 235 Cox, Ex parte lOfl Coxe V. MeClcnachan 122, 123 Coyne v. Eennie 359 Cozzens v. North Fork Ditch Co 511 Craig V. Boone 394 Craig V. Superior Court 546 Crall V. Poso Irr. Dist 45 Crandall v. Blen 218 Crawford v. Dunbar 131, 132, 545 Creighton v. Manson 52, 460, 462 Creighton v. Pragg 54, 55 Creighton v. San Francisco 173 Crocker v. Conrey 83, 198 Crocker v. Scott 452, 455 Crockett v. Matthews 23, 371 Croly V. Sacramento 83 Crosby v. Lyon 280, 456 Crossinan v. Vivicnda W. Co 38 Crow v. San Joaquin etc. Irr. Co 510 Crowley v. Freud 322, 364 Crutcher v. Kentiicky 495 CuUen V. Glendora etc. Co 160, 248 Cullen V. Langridge 242 Curtis, In re 130, 225 Curtis v. Richards 199 Curtis V. Sacramento 263 XXviii TABLE OP CASES CITED. D Daggett V. Colgan 138 Dailey v. Superior Court 17 Daly, In re 3S1 Danielson v. Yoakum 417 Darcy v. Mayor 131, 312, 313, 370 Dashiell v. Slingerland 217, 230 Dassler, In re 62 Davenport v. Los Angeles 73 Davenport Bank v. Davenport B<1. of Equalization 503 Davey v. Miilroy 219, 227 David V. Portland W. Co 150 Davidson v. Dallas 204 Davidson v. Eankin 418 Davidson v. Yon Detten 155 Davies v. Los Angeles 36. Ill, 154, 314, 391 Davis, Estate of 36, 213 Davis V. Superior Court x Davis V. Whidden 127, 128 Daw V. Niles 469 Day V. Jones 73, 78 De Baker v. Eailway Co 47, 48, 379 Deck V. Gerke 238, 239 De Jarnatt v. Marquez 232, 247, 257, 258 De La Montanya v. De La Montanya 35 Delaney, Ex parte 380 Denman v. Broderick 158, 311, 313 Denninger v. Recorder's Court , 98, 178, 379, 405 Dennis v. Superior Court 418 Denton v, Vann 98, 372 Dentzel v. Waklie 58, 60 De Buy, Ex parte 275 Derby v. Stevens 230, 232, 418 Desanta, In re 375, 376 Desmond v. Dunn 154, 158, 312, 315, 322, 553 Deuprez v. Deuprez 240 Devlin v. Anderson 78 Dewar v. Euiz 523 Dewey v. Lambier 3 ]")e Witt V. Hays 449 ]>e Witt V. San Francisco 143 Deyoe v. Superior Court 22, 148, 156 TABLE OF CASES CITED. XXIX Dickov, Ex parte 5, 6 Dickey v. Hurlburt 82, 99 Diehl, In re 319, 383 Diepenbrock v. Superior Court 66, 230 Dietrich, Ex parte 383 Dinan v. Superior Court 319, 358, 546 Doane v. Weil 147 Dobbins v. Commrs. of Erie Co 7 Dobbins v. Los Angeles 381 Dodge, Matter of 364 Doherty v. Thayer 220, 259 Dolan V. Barnard 150 Dolan, Ex parte 356, 364 Doland v. Clark 401 Doland v. Mooney 467 Donahue, Ex parte 245 Donahue v. Graham 408, 554 Donlon v. Jewett 149 Dorn V. Howe 562 Dorsey v. Barry 242 DoujTherty v. Austin 19, ICO, 307, 369 Dougherty v. Bartlett 237, 239 Dow V. Gould & Curry etc. Min. Co 537 Doyle V. Austin 454, 461 Doyle V. Seawrll 217 Dressier, Ex parte 10 Droxel, Ex parte 6, 100, 101, 168 Drinkhouse v. Merritt 236 Duke V. Huntington 419 Dumphy v. Guindon 217 Dunne v. Mastick 60 Durgin v. Neal 203 Dusy V. Helm 270 Dwyer v. Parter xv, 20, 67, 165, 305, 306 E Eachus V. Los Angeles etc. Ey. Co 44, 47, 48 Earle v. Board of Education 149, 163, 165, 281 Eaton V. Brown 19 Eckei son v. Des Moines 109, 113 Eddy V. Houghton 432 XXX TABLE OF CASES CITED. Ede V. Cogswell 408 Ede V. Knight '55, 408 Edsall V. Short 218 257 Edson V. Southern Pac. Co 435^ 437' 443 Edward's Case 123 Edwards v. Publishing See 17 Elam, Ex parte 4, 23, 33, 34, "cV, 166 Elder v. McDougald 334 El Dorado v. Meiss 309 389 Elizalde v. Murphy ' £40 Ellis, Ex ])arte 9 Eltzroth V. Eyan 257 Emery v. Bradford 40, 52, 408, 462 Emery v. Reed x Emery v. San Francisco etc. Co 40, 45, 52, 408, 450, 461, 462 Escondido v. Escondido 388' 471 Eseondido High School Dist. v. Escondido Seminary .' 166 Erie R. R. Co. v. Pennsylvania 500 Evansville Bank v. Britton ] 505 Exchange Nat. Bank v. Miller [ 507 Exline V. Smith I3 82 P Fair, Estate of 451^ 456, 458, 467 Fairbanks v. Lampkin 221 Fairchild' v. Doten 220 Fanning y. Schammel 388 Fargo V. Michigan 49g Farmer v. Behmer '3i4^ 3*19, 376 Farmers' etc. Bank v. Board of Equalization 474 Farmers' Union v. Thresher .' 223 245 Faruum v. Warner .156 Farrell v. Board of Trustees 164 Farrell v. Police Commrs 545 Farrell v. Portland HI Farrell v. Sacramento 545 Fatjo V. Pfister ' ' ' '.147^ SsV, 451 Faymonville v. McCullough ; 413 Feillett v. Engler 212 Felehlin, Ex parte 379,' VsV, 547 Fellows V. Los Angeles 510 Fenton, Ex parte 26 27 TABLE OF CASES CITED. XXXI Ferguson v. Sherinau 417 Ferris v. Coover x Fife, In re 12 Finley, In re , xii, 6, 34, 154 Fire etc. Comnirs., In re 27f> First Nat. Bank v. Chapman 502 First Nat. Bank v. San Francisco 455, 504 First Nat. Bank of Omaha v. Douglas County 506 First Nat. Bank of Wilmington v. Herbert 502 Fisher v. Police Court 159 Fisk V. His Creditors 220 I^ske, Ex parte 99, 380 Fitch V. Supervisors 270, 513, 514 Fitzgerald v 212 Flaherty, In re 379 FlavelFs Case 275 Fleming v. Hance 199, 304, 320, 3fi3 Fletcher v. Prather ' 149 Flint V. Wilson 241 Iloyd V. Blanding 56, 59 Foley V. Foley 34 Foltz V. Cogswell 180 Ford V. Smith 257 Foster v. Police Commrs 60, 154, 374, 379 Fowler v. Pierce xii, 128 Fox V. Hale & Norcrosj; etc. Min. Co 420 Fox V. Western etc. R. R. Co 49 Fragley v. Phelan 155, 315, 317, 318 Francais v. Somps 145 Frank v. Supervisors 322 Frankel v. Deidesheimer 202 Franklin v. State Board 519 Fraser v. Alexander 552 Frazer, Ex parte 413 Freeman v. I3arnum 161, 302 Freeman v. Marshall 23 Freeman v. Seitz 231 French v. Daviiison 22, 144, 156 French v. Senate 33, 61, 115, 121, 122, 180 French v. Teschemaker viii, xiii, xvi, 20, 325, 415, 416 Fresno v. MrKenzie 401 Fresno Canal etc. Co. v. Park 514 XXXll TABLE OF CASES CITED, Fresno Nat. Bank v. Superior Court 66, 243, 43() Freud, Estate of 4^ 239 Frick V. Los Angeles 316,' 355 Fritts V. Camp 244 Fritz V. San Francisco 318 Fuller V. Fuller 8 Fulton V. Brannan 522 523 O Gaff ney v. Gough 52 Gafford v. Bush 245 Galena R. R. Co. v. Appleby 433 Galena R. R. Co. v. Loomis 433 Galindo v. Walter 98 Gallagher, Estate of 523 Galland v, Lewis 58 60 Garms v, Jensen • 469 Garnett v. Brooks 364 Garniss v. Superior Court 232 Garretson v. Santa Barbara 475 Gates V. Green 214 Gavin v. Pacific Coast M. F, Union 429 Gavitt V. Mohr 524 Gay, Estate of 538 Gee V. More 521 522 George v. Ransom 537 Gerino, Ex parte 22,' 65, 536 Germania Bldg. etc. Assn. v. Wagner 541, 552 Gerniania etc. Co. v. San Francisco 456, 458, 467 German Sav. etc. Soc. v. Ramish 36, 40, 52^ 316 Geyer v. Irwin 123 Giambonini, Ex parte 199, 256, 261, 313 Gibbs V. Bartlett 357 Gibbs V. Tally 4 Gieseke v. San Joaquin I45 Gillan v. Hutchinson 43 47 Gillis V. Barnett '56I Gilman v. Contra Costa Co 297 Gilman v. McClatchy 16 Gilmer v. Lime Point 45, '46,' 49J 50, 83 Goldberg v. Thompson 523 TABLE OF CASES CITED. XXXI 11 Goldsmith v. San Francisco 399 Goldtree v. San Diego 536, 541 Good V. Common Council of San Diego 572 Goodman v. Superior Court ^ 12 Gordon v. Eoss 217 Gorman v. Pacific E. E. Co 433 Gorton v. Ferdinando 243 Goss V. Steiger Terra Cotta etc. Works 268' Gow, In re 9 Graciosa Oil Co. v. Santa Barbara 454 Graham v. Fresno 257, 363, 365 Graham v. Eoberts Ill, 572 Grand Grove v. Garibaldi Grove 37 Grangers^ Bank v. San Francisco 203 Grannis v. Superior Court 240 Green, Ex parte 377, 378 Green v. Fresno Co 306, 307 Green v. State 192, 276 Green v. Superior- Court 245 Green v. Swift 48, 102 Greenbaum v. Martinez 230, 231 Greenberg v. Western Turf Assn 6, 381 Greencastle etc. Co. v. State 150 Greenwood v. Morrison 40 Gregg V. Bostwick 521, 522 Gregory v. Diggs 232 Griffin etc. Co. v. Magnolia etc. Co 431 Griggs V. Clark 237 Grimes v. Norris 235, 236 Grimm v. O'Connell 474 Griswold v. Pieratt 231 Grocers' etc. Union v. Kern etc. Co 243, 432 Grogan v. Eueckle 204 Grogan v. San Francisco 54 Grosbois, In re 14 Gross V. Kenfield 369, 553 Gross V. Superior Court 246 Grumbach v. Lelande 23, 65, 382 Guerrero, In re 310, 385, 389 Gunter v. Geary 43 Gurnee v. Maloney 238 XXXIV TABLE OP CASES CITED. Giirnee v. Superior Court vii, 230, 556 Gutierrez, Ex parte 61 G uy V. Hermance 80 Guy V. Washburn 475 H Haas, In re 238 Hadley v. Dague 40, 52, 408, 461 Hagar v. Supervisors 96, 461 Haight V. Gay 212, 213 Haiues v. Forest Grove Ill Hale V. McGettigan xvi, 115, 124, 304, 309 Hall V. Eice 234 Hallawell, In re xvi, 10, 144, 146, 381 Halsted, Ex parte 18, 155, 308, 313, 314 Hampton v. Christensen 542 Hancock v. Board 318 Hancock v. Burton , 245 Hang Kie, In re 21, 64, 380 Hannah v. Canty 244 Harbor Commrs. v. Eedwood Co 100 Hardenburg v. Kidd 81, 82 Harker, Ex parte 214 Harmon v. Page 417, 420 Harney v. Benson 40 Harpending v. Haight 183 Harper v. Freelon 241, 242 Harper v. Ko we 40, 474 Harralson v. Barrett 469 Harrelson v. Tomich 469 Harrier v. Bassford 37 Harris v. Supervisors 142 Harrison v. Colgan 214, 265, 266 Harrison v. Horton 399 Harrison v. Roberts 359 Harrold v. Barnum 371 Harron v. Harron 221 Hart V. Carnall-Hopkins Co 243, 247, 257, 259 Hart v. Gaven 462 Harter v. Barkley 382 Hartman, Ex parte 26 TABLE OP CASES CITED. XXXV Kaskell, Ex parte 142, 384 Hastings v. San Francisco 297 Hatch V. Stoneman 526 Hatzfield v. Gulden 275 Havemeyer v. Superior Court 37 Haverstick v. Trudel 237 Hay V. Hill 59, 466 Hayden, Ex parte 6, 100, 101, 529 Hayes, Ex parte 379, 548 Haynes v. Treadway 58 Heekman v. Swett 101 Heilbron, Ex parte 380 Heilbron v. Superior Court 49 Heinlen v. Phillips 218 Heinlen v. Sullivan 562 Heller v. People 149 Hellman v. Los Angeles 100 Hellman v. Shoulteis IS, 143, 144, 149, 161 Helm, Ex parte 315, 317 Henigan v. Ervin 217, 221 Henry v. Garden City Bank 468 Hepburn v. School Directors 506 Hercules Oil Co. v. Hocknell 420 Hercules Water Co. v. Fernandez 42 Herd v. Tuohy 244 Herrlich v. McDonald 204 Hevren v. Reed 54 Hewitt V. Board 98 Hewitt V. Dean 469 Heydenfeldt, In re 238 Heydenfeldt v. Superior Court 236, 238 Heylman, Ex parte 383 Hey Sing Teck v. Anderson 37 Hibernia S. & L. Soc. v. San Francisco 452 Hickman v. O'Neal 199 Hicks V. Bell 212 Hicks V. Murray 39 Higgins V. Cole 544 Higgins V. Prater viii Higgins V. San Diego 399, 400, 401 Higgins V. San Diego Water Co 83, 174 XXXVl TABLE OF CASES CITED. High V. Bank of Commerce 36 High V. Shoemaker 34, 450, 454 Hildreth v. Montccito C. W. Co 514 Hill V. Finigan 269 Hill V. Newman 259 Hillginger v. Gillman Ill, 572 Hills V. Exchange Bank 505 Hinckley, Estate of 538 Hiner v. Hiner 219, 226 Ho Ah Kow V. Nunan 531 Hoban v. Eyan 259 Hobart v. Supervisors 1, 96, 99 Hobart v. Tillson 223 Hodges, Ex parte 372, 383 Hoffman v. Superior Court 39, 82 Hohn V. Pauly 67, 521 Holdf orth. In re 53 Holley V. Orange Co 79, 99, 460 Holman v. Taylor 242, 243 Hong Shen, Ex parte 28, 376 Hopkins v. Cheeseman 217 Hopkins v. Duluth 110 Hornef , Ex parte 147 Hornung v. McCarthy 48 Houghton, Appeal of 241 Houghton V. Austin 40, 100, 458, 474 Houston V. Williams 203 Howland v. Supervisors 401, 402 Hudson, Estate of ', 237 Huffman v. Hall 150 Hughes V. Ewing 386, 459 Hull V. Superior Court 308 Humbert v. Dunn 138, 139 Humboldt v. Stern ; ,' 369 Humiston v. Shaffer 370 Hung Sin, Ex parte 10 Hunsaker v. Borden 57 Hunt V. Ward 418 Huntington v. Curry 478 Hurl, Ex parte 460 Uutson V. Protection Dist 41 TABLE OF CASES CITED. XXXVH Hyatt V. Allen ix, 223, 458, 553 Hyde v. Redding 12 Hyman v. Colemau 232, 418 I Indiana Railroad Cases 493 Indianapolis R. R. Co. v. Kercheval 433 Ingraham v. Weidler 12 Ingram v. Colgan 101, 139, 174 Initiative Petition, In re Ill Initiative State Question, In re Ill Iron Mountain Co. v. Ilaigbt 127 Isola V. Weber viii Ivory V. Brovpn 259 J Jackson v. Baehr 147, 156, 318 Jackson v. Wliartenby 230, 231 Jackson, Ex parte 65, 156, 387 Jacobs V. Supervisors 512, 513 Jacobs V. Walker 524 Jenks V. Oakland 549 Jennings v. Le Breton 40, 52, 408, 462 Jennings v. Le Roy 4S, 147, 149 Jentzsch, Ex parte 6, 63, 101, 160, 166 Jessup, In re 203, 213 Johnson v. Bank of Lake 417 Johnson v. Goodyear Min. Co 413 Johnson v. Gunn 308 Johnson v. Harrison 149 Johnson v. Langdon 429 Johnson v. San Diego 314 Johnson v. Sinionton 380 Johnson v. Squires 523 Johnson v. Tautjjhaus xvi Johnson v. Taylor 35 Johnson v. Williams 402 Johnson, Ex parte 380. 413 Johnson, In re 257, 364 Johnston, In re 408 Jones V. Falvella 145 XXXVni TABLE OF CASES CITED. .Tones V. G. etc. R. R. Co 433 Jones V. Goldtree Bros. Co 418 Jones V. Justice's Court 257 Jones V. Morgan 177 Jordan, Ex parte 159, 160, 161, 164, 165 Junqua, In re 373, 381 E Kadderly v. Portland 104, 113 Kahn v.'Sutro 18, 159, 199, 256, 279, 297, 322, 556, 561, 562 Kaiser Land & Fruit Co. v. Curry 19, 82, 146, 430 Kalloch V. Superior Court 14, 32, 33 Kansas P. R. R. Co. v. Mower 433 Katz V. Fitzgerald 76 Kaufif man v. Foster 538 Kavanagh v. Board 32 Keech v. Joplin 220, 225, 226 Keeney, Ex parte 322, 374 Keller v. Franklin 240 Kellogg V. Howes 541 Kelly V. Luning 388 Kendriek v. Diamond etc. Min. Co 431 Kennedy v. Board of Education 314 Kennedy v. California Sav. Bank 418 Kennedy v. Miller 281, 315, 356 Kenneke, Ex parte 4, 22 Kent V. Williams 244 Kerckhoff Cuzner Mill etc. Co. v. Olmstead 59 Kern Co. v. Fay 307 Kern Valley Land Co. v. Kern Co 477 Kerrigan v. Market St. Ry. Co 268 Keybers v. McComber 257 Kiernan v. Portland 105 Kiernan v. Swan 307 Kimbcrly, Estate of 237 King V. Kutner-Goldstein Co 258 King, Ex parte 23 Kingsbury v. Nye 195, 526 Kings County v. Johnson 145, 162, 245 Kings Co. V. Tulare Co 300 Kirkwood v. Soto 369 TABLE OF CASES CITED. XXXIX Kitts V, Sup erior Court 15, 16 Knapp, Ex parte 382, 383 Knight V. Martin 67, 305, 308 Knowles, Ex parte 225 Knowles v. Sandercock 416, 419, 420, 425 Knox V. Los Angeles 175 Knutte V. Superior Court 53 Kohler, Ex parte 33, 142, 144 Koppikus V. State Capitol Commrs 11, 52, 520 Koser, Ex parte 154, 160 Kowalsky, In re 17 Krause v. Durbrow 166 Krogh V. Pacific Gateway etc. Co 432 Kubaek, Ex parte 383 Kumbler v. Supervisors 165, 307 L La Societa etc. v. San Francisco 376 La Societe Francaise v. District Court 234 La Societe Francaise, etc.. Matter of 81, 161, 412 Laeey, Ex parte 33, 373, 379 Lacy V. Gunn 157 Laf orge v. Magee 57 Laguna Drainage Dist. v. Charles Main Co 46 Lambert v. Davis 39 Lambert, In re 35 Lampe v. San Francisco 48 Lander, Estate of 175 Lane, Ex parte 380 Langan v. Langan 221 Larew v. Newman 369 Larrabee v. Baldwin 415, 417 Larrabee v. Cloverdale 48 Larue v. Davies 222 Lassen Co. v. Cone 64, 384 Lataillade v. Orena 233 Lathrop V. Brittain 305, 471 Lathrop v. Mills xvi Laurel Hill Cemetery v. City & County of San Francisco. . . 374, 378, 382 Law V. San Francisco 142, 318, 402 xl TABLE OF CASES CITED. Lawrence, In re 389 Lavvson v. Lawson 23, 158 Leaeh v. Aitken 197 Leake v. Colgan 147 Learned v. Castle 556 Leavitt v. Lassen Irr. Co 510 Le Breton v. Superior Court 244 Lee V. Southern Pac. E. R. Co 426 Leese v. Clark 204 Lehigh Valley R. R. Co. v. Pennsylvania 501 Lemon, Ex parte 317, 356, 387 Lent V. Tillson 41, 52, 391, 408, 462 Leonard v. January 147 Leoup V. Mobile 494 LeTourneux v. Gilliss 180 Levee Dist. No. 9 v. Farmer 44 Levinson, In re 204 Levinson v. Boas 102 Levy V. Superior Court 30, 63, 238 Lewis V. Colgan 171, 177 Lewis V. County Clerk 240 Lewis V. Dunne 144, 148, 150 Lewis V. Johns 537 Lewis V. Southern Pac. R. R. Co 430 Lewis V. Widber 399 Lichtenstein, Ex parte 163 Lick V. Austin 453, 457 Liddell, Ex parte ix, 142, 143, 144, 145 Linck V. Meikeljohn 542 Linehan, Ex parte 380 Lin Sing v. Washburn 372, 529, 531 Lionberger v. Rouse 502 Litch V. O'Connor 219, 226 Livermore v. Waite 526, 533 Lloyd v. Davis 467 Lloyd, Ex parte 261 Longan v. Solano 143, 145, 164, 251. 302, 307 Lord v. Dunster ix, x, 225 Lord v. Goldberg 217 Lorenzen, Ex parte 4 Los Angeles v. Eikenberry 374, 385, 386 Los Angeles v. Gager 51 TABLE OF CASES CITED. xli Los Angeles v. Hance 147 Los Angeles v. Hollywood Cem. Assn 373, 378, 382 Los Angeles v. Kirk 284 Los Angeles v. Lamb 553 Los Angeles v. Los Angeles etc. Co 460 Los Angeles v. Teed 155, 314, 391, 394, 400, 402 Los Angeles Co. v. Lopez 309 Los Angeles Co. v. Orange Co 299 Los Angeles Co. v. Spencer 84, 146, 529 Los Angeles P. B. Co. v. Higgins 541 Los Angeles S. Dist. v. Longden 315, 319 Lougher v. Soto 158 Love V. Baehr 192 Low V. Marysville 311 Lowe V. Yolo Co. etc. Co 510 Lowenberg v. Levine 59 Lower Kings River Rec. Dist. No. 531 v. McCulIah 155 Lower Kings River Rec. Dis. No. 531 v. Phillips 37 Lubliner v. Alpers 359 Luco V. De Toro 202 Luco V. Superior Court 246 Lukens v. 'Nye 128 Lundy v. Delnias 289 Luther v. Borden 103, 108, 113 Lux V. Haggin 44 Lyons v. California 62 M Mack V. Jastro 391 Mackay v. San Francisco 451, 456 Maddux v. Brown 524 Madera County v. Raymond G. Co 47 Madera Irr. Dist., In re. . . .xii, 41, 96, 311, 400, 433, 450, 462, 463 Madera R. Co. v. Raymond Granite Co 46 Madison etc. R. R. Co. v. Whiteneck 433 Maguire, Matter of 66, 379, 383, 547, 554 Mahoney v. American Land etc. Co 511 Maier, Ex parte 101 Maine v. Grand Trunk Ry. Co 500, 501 Malone v. Roy 58 Malson v. Vaughn 217, 258 xlii TABLE OF CASES CITED. Manchester, In re 82 Manley v. Cunningham 523 Manning v. App Con. Gold M. Co 269 Mansfield, Ex parte 374, 376, 389, 390 Market Street, In re 459, 461, 462 Market St. Ry. Co. v. Ilellman 414 Marks, Matter of 130, 241 Marsh v. Supervisors xiv, xvi, 20, 75, 162, 166, 309 Marston v. Humes 149 Marston v. Kuhland 219, 226 Martin v. Election Commrs 322, 363, 525 Martin v. Wagner 204 Martin, In re 66, 147, 154, 158, 176 Martinovdch v. Marsicano 236 Marysville v. Yuba 314, 319 Mateer v. Brown 204 Mathis V. State 149 Matthews v. Ormerd 467, 469 Mauch, Ex parte 199 Maurer v. King 168 Maurer v. Mitchell 223 Maxfield v. Johnson 217, 218, 230, 258 Mayrhof er v. Board of Education 541 McAllister v. Hamlin xvii, 81 McAulay v. Tahoe Ice Co 219, 226 McBean v. Fresno 379, 400 McCabe v. Carpenter 83, 84, 387, 388 McCabe v. JefJerds xvi McCall V. California 495 McCann v. Sierra County 43 McCapes, In re 5 McCarthy, Ex parte vii, 14, 96, 97, 260 McCarthy v. Gaston Ridge Mill etc. Co 12 McCaughey v. Lyall 39 McCauley v. Brooks xi, 45, 60, 79, 138, 192, 520 McCauley v. Culbert 307, 370 McCauley v. Fulton 199 McCauley v. Weller 44, 49 McClain, Ex parte 102, 381 McCoppin V. McCartney 59, 466 McCord V. Slavin 175, 194, 281, 284 TABLE OF CASES CITED. xliii McCulloch V, Maryland 7 McCracken v. San Francisco 399 McCrary v. Beaiulry 511 McDaniel v. Pattison 239 McDermot v. Barton 309 McDonald v. Patterson G7, 408, 553, 554 McDonald v. Taylor 378, 523 McFadden v. Los Angeles 509 McFarland v. Martin 244 McGee v. San Jose 56 McGowan v. McDonald xvi, 414, 415, 41(i McGrew v. Mayor etc. of San Jose 256, 561 McHenry v. Downer 449, 455 McKenna, Ex parte 377, 384 McManus, Ex parte 22, 65, 80 McNally, Ex parte 385 McNee v. Lynch 523 McNiel V. Borland 242 McNulty, Ex parte 100, 102, 413 McPhee, Estate of 35, 146 McPherson v. Bartlett 116 Meacham v. Bear Valley Irr. Co 34 Meacham v. McKay 259 Meade v. Watson 153 Melone, Estate of 148 Melone v. State 192 Melvin v. State 139, 278 Menzies v. Board of Equalization 224 Mercantile Bank v. New York 507 Mercantile Mat. Bank v. New York 502 Mercantile Nat. Bank of Cleveland v, Hubbard 503 Merced Bank v. Rosenthal 250, 549 Merced Co. v. Flemming 377, 385 Merced Co. v. Helm 373, 389, 390 Merced Falls Gas etc. Co. v. Turner 381, 407 Merced River Electric Co. v. Curry 427 Mercer's Case 123 Merchants' & Mfrs' Bank v. Penn 504, 507 Merchants' Bank v. Escondido Irr. Dist 41, 57, 392, 411 Merchants' Bank v. Penn 506 Merkley v. Williams 305 xliv TABLE OF CASES CITED. Merrill v. Southside Irr. Co 510 Meyer v, Bryan 56 Meyer v. Kalkraan 199 Meyer v. Town of Boonville Ill Middleton v. Low 183 Migliavacca v. Napa 359, 360 Miles V. Woodward 429 Miliken v. Huber 224 Miller v. Byrd 523 Miller v. Dunn vii, 176 Miller v. Heilbron 455 Miller v. Kern County 156, 157, 244, 456, 465, 480 Miller v. Kister 18, 164 Miller v. Supervisors 224 Miller, Ex parte 13 Miller & Lux v. Kern Co. L. Co 431 Mills V. Sargent xvi, 471 Milner v. Eeibenstein 256, 261 Miltimore v. Wof ziger Bros. L. Co 541 Miner v. Justice's Court 159, 198, 199, 358 Minor v. Happersett 103, 113 Minturn v. Havs 453, 456 Mintzer v. Schilling 165, 312 Mirande, Ex parte 64, 384 Mitchell V. Beckman 417, 418 Mitchell V. Winnek 95, 287 Mitchell, In re 155, 199 Mock, In re 216 Mohle V. Tschirch 156 Molineux v. California 173, 174 Montague v. English 399 Montague v. Furness 4 Montgomery Avenue Case xv Mooney v. Supervisors 449, 450 Moore v. Boyd 418 Moore v. Martin 247 Moore v. Patch 21, 159 Moore, Estate of 222 Moran v. Ross viii, x, 51, 443 More V. More 238 Morgan v. Menzies 322 TABLE OF CASES CITED. xlv Morgenson, Ex parte 381 Morrow v. Superior Court 416, 418, 420 Morse v. De Ardo 541 Morton v. Broderick ix, 225, 318 Mosely v. Torrance 523 Moulton V. Parks 41 Mount, Ex parte 383 Moynier, Ex parte 5, 21, 156, 380 Murphey v. Menard 149 Murphy, Ex parte 158, 381 Murphy, In re 370, 377 Murphy v. Bondshu 143 Murphy v. Curry 20, 65 Murphy v. Pacific Bank 18, 154 Murphy v. Superior Court 244 Murray v. Colgan 178, 179 Mutual Electric etc. Co. v. Ashworth 406 Myers v. English xii, 57, 265 Myers v. Kenfield 273 Myers v. Sierra Valley etc. Co 420 N Napa Valley E. E. Co. v. Napa Co 46, 173 Napa State Hospital v. Dasso 66, 411 Napa State Hospital v. Yuba Co 22, 156 National Bank v. Commonwealth 506 National Bank v. Kimball 507 National Bank v. Los Angeles 216 National Bank of Baltimore v. Baltimore 507 National Bank of Commerce v. New Bedford 506 National Bank of Garnett v. Ayers 502 National Bank of Wilmington v. Chapman 507 Navajo Mining Co. v. Curry 67, 426, 427 Nelson, Estate of 213 Neuman v. Lester 371 Neustddt, Ex parte 245 Nevada Nat. Bank v. Supervisors 388, 477 Nevada School Dist. v. Shoecraft 153 New Albany etc. Co. v. Tilton 433 New .Jersey v. Wilson 7 Newark Banking Co. v. Newark 507 Xlvi TABLE OP CASES CITED. Newman, Ex parte 3, 5, 8 Newton, Ex parte 460 Niecolls V. Eice 421 Nicholas, Ex parte 14 Nicholl V. Koster 82, 317, 319, 363 Nichols V. Somerset etc. R. R. Co 433 Nickey v. Stearns Ranehos Co 46, 47 Niles V. Edwards 202, 203 Noble, Ex parte 375 Noble V. Hook 521 Noel V. Smith 215, 226 Nones v. Edsall 122, 123 Norblett v. Farwell 259 Norfolk & Webster E. Co. v. Penn 495 Norris v. Cross Ill Norris v. Hoyt 62 North V. McMahan Ill North Beach etc. R. E. Co., Appeal of 45 Norwood V. Baker 40, 52 Nougues V. Douglass xi, 387, 519 Nugent's Case 121 O Oakland v. Oakland Water Front Co 96 Oakland v. Southern Pac. E. E. Co 475 Oakland v. Thompson 157 Oakland etc. Co. v. Eier 461 Oakland Pav. Co. v. Barstow 408 Oakland Pav. Co. v. Hilton vii, 122, 409, 526, 554 Oakland Pav. Co. v. Tompkias vii, 409, 526 O'Callaghan v. Booth 241 Odd Fellows' Cem. Assn. v. San Francisco 381 O'Ferrall v. Colby 120 Ohio etc. R. R. Co. v. McClelland 433 Ohm, Estate of 222, 223 Older V. Superior Court 17, 225, 553 Olender v. Crystalline M. Co 38 Oliverez, In re 556 Olson V. San Francisco 452, 456 Omnibus R. R. Co. v. Baldwin 19 Opinion of Judges 128 TABLE OP CASES CITED. xlvii Opinion of Justices 118, 119, 128 Orange Co. v. ITairis xvi Orange Co. v. Los Angeles Co 300 Orena v. Sherman 471 Osborne v. Florida 495 Osborne v. Mobile 494 O'Shea, In re 10, 11, 82 Otis V. Haseltine 60 Otto V. Long 37 Ovvensboro Nat. Bank v. Owensboro 504 P Pacific Bank v. De Eo 412 Pacific Bridge Co. v. Kirkham 3S7 Pacific Coast Ey. Co. v. Porter 51 Pacific Coast Sav. Soc. v. San Francisco 457, 477 Pacific etc. Ins. Co. v. San Diego 394 Pacific Nat. Bank of Tacoma v. Pierce Co 5C6 Pacific Paving Co. v. Verso 226, 227 Pacific Postal etc. Co. v. Dalton 162, 459 Pacific Ey. Co. v. Wade 12 Pacific Underwriters v. Widbur 400 Packer, Estate of 4, 58 Page V. Ellis 231 Palache v. Hunt ix, 224 Palmer v. McMahon 506 Parker v. Otis 168, 169 Parker v. State 118, 119 Parrott, In re 530, 531 Parson v. Tuolumne Water Co 212, 242 Parsons v. San Francisco 4, 48 Partridge v. Butler 417 Pasadena v. Stimson 19, 155, 165, 312 Pasadena v. Superior Court 234 Pattison v. Yuba Co xiv, 98, 520 Patton V. Board of Health 545 Patty V. Colgan 175 Paty V. Smith 81 Peachy v. Supervisors 553 Pearsons, In re 250 Pcckham v. Fox 542 xlvlii TABLE OP CASES CITED. Pelton V. National Bank ^^-^ Peninsular etc. Co. v. Pacific etc. Co 233 Pennie v. Reis 32, 147, 119, 175, 177, 391 Pennie v. Koach 233 Pennsj'lvania v. Riblct 433 Penuvbecker v. McDougal "31 People V. Abbott 142 People V. Addison 1°' People V. Ah Chung 202 People V. Ah Lee Doon 1"^ People V. Ah Sing 267 People V. Alameda Co 300 People V. Apgar 29, 223 People V. Applegate 212, 221 People V. Arnett 28 People V. Ashburner 545 People V. Ashbury •• • 453 People V. Babcoek 279, 314 People V. Bagley 314, 355 People V. Baine 1°' People V. Baird 30 People V. Baldwin 268 People V. Bank of San Luis Obispo 146, 553 People V. Barbour 202 People V. Barker 268 People V. Bartlett 387 People V. Berkeley 313 People V. Bigler xiv, 533 People V. Bingham 96, 120, 218 People V. Bircham xvii People V. Bird 25 People V. Black Diamond etc. Min. Co 453, 456 People V. Blake 52 People V. Blanding 188 People V. Board of Aldermen 118, 119 People V. Board of Education 79, 81, 286, 287, 554 People V. Bond 56 People V. Booker & People V. Bossert 25 People V. Botkin 267 People V. Bowen ; 275 Peop" Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop' Peop Peoj Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peof) Peop I'eop Peop Peop Peop TABLE OP CASES CITED. xlix e V. Boxer 268 6 V. Bray 101,155 e V. Broome 118 V, Brown 31, 304 e V. Budd 18j, 187 e V. Bunkers 27 e V. Burbank 250, 544 e V. Burns 131 e V. Burt 125 e V. Bush 26 e V. Cady 42 e V. Cage 26, 27, 28 e V. Campbell 14, 60, 250, 370, 544 e V. Carrique 123, 132 e V. Carson 23 6 V. Casev 267 6 V. Caulfield 223 e V. Cazeneau 185, 186 e V. Central Pac. R. R. Co 19 . . .22, 64, 154, 155, 100, 101, 162, 163, 305, 412, 454, 455, 478 e V. Chapman viii, 294 e V. Chaves 13, 256 e V. Chen Lan Ong 12 e V. Chew Sing Wing 268 e V. Christensen 266 e V. City of Long Beach 320 e V. Citv of Los Angeles 320 e V. Clark 30, 42, 128 e V. Cline 267 e V. Cobb 146, 199, 256, 556, 562 e V. Cohen 453 V. Cogswell 538 e V. Colby 556 e V. Coleman vii, ix, 21, 33, 450, 455, 460 e V. Common Council 159, 312 e V. Coronado 315, 359 e V. Counts 179 e V. Cunimings ". 29 e V. Curry 147, 188, 526 e V. Curtis 28 e V. Dashaway Assn 245 I TABLE OP CASES CITED. People V. Davie 360 People V. Davis 214, 215 People V. Day 212, 242 People V. Defoor 29 People V. De la Guerra 71 People V. Dcsperati 2S People V. Devlin 29 People V. Dick 267 People V. Dobbins 144 People V. Doe G. 1,034 454 People V. Dorsey 305 People V. Dunn 124, 179, 453, 474 People V. Durrant 18, 561 People V. Eastman 466 People V. Ebey 253 People V. Eddy vii, 453, 456 People V. Edwards ix, 186, 187, 544, 546 People V. Election Commrs 356 People V. Elk River etc. Co 53, 101, 510 People V. Eppinger 30 People V. Ferguson 309 People V. Finley 22 People V. Pong Chung 25 People V. Fowler .212, 257 People V. Freeman ix, 83, 535 People V. Frisbie 80 People V. Fitch 186, 187 People V. Gallagher 556, 563 People V. Garnett 26 People V. Gerke 449 People V. Gillespie 261 People V. Glenn Co xiv, 125, 162 People V. Goldtree 39, 40, 475 People V. Gordon 29, 266 People V. Greene 28 People V. Gunn 355, 356, 357, 358 People V. Gunst 546 People V. Gutierrez 267 People V. Hamberg 27 Peoi)le V. Hamilton 562 People V. Hammond 186, 315, 546 TABLE OF CASES CITED. 11 People V. Hanf ord High School 402 People V. Hannon 269 People V. Hardisson 29 People V. Harlan 122, 125 People V. Harrington 26 People V. Hartman 25 People V. Harvey 225 People V. Hastings 80, 459, 470 People V. Hayne xii, 197, 198 People V. Heacoek 203, 230 People V. Hecht 356, 357 People V. Helbing 29 Peojjle V. Henry 561 People V. Henshaw 18, 21, 147, 311, 314 People V. Hibernia Bank 453 People V. Higgins 28 People V. Hill 118, 315, 322, 544, 545 People V. Hoc^e 278, 322, 355, 356 People V. Holden 77 People V. Holladay 58 People V. Home Ins. Co 454 People V. Horn 26, 27 People V. Horsley 220 People V. Houston 388 People V. Howard 314 People V. Hunckeler 28 People V. James 28 People V. Jewett vii, 545 People V. Johnson 100, 217, 220, 221, 307, 369, 519 People V. Jordan 272, 213, 221 People V. Joselyn 245 People V. Kalloch 222 People V. Keefer 29 People V. Kelly 14 People V. Kelsoy 458 People V. Kerber 516 People V. Kern Co 242 People V. Kerrick 27, 29 People V. Kerrigan 25 People V. Kewen 289 People V. King 147, 155, 269 lii TABLE OP CASES CITED. People V. Kuches 221 People V. Lake Co 304, 309 People V, Langdon 80, 83, 187, 535 People V. Lapique 22G People V. Larson 27 People V. Latham 456, 458 People V. Lawrence 245 People V. Lee 267 People V. Lee Yune Chong 26, 30 People V. Leonard 131, 132 People V. Lennox 13 People V. Levee Dist. No. 6 310, 411 People V. Lewis 15 People V. Linda Vista Irr. Dist 144, 147 People V. Lodi High School Dist 84, 155, 283 People V. Logan 221 People V. Los Angeles E. Ry. Co 424 People V. Los Angeles etc. Gas Co 407 People V. Love 1 People V. Lynch xiii, 39, 63, 386, 388, 461 People V. Mariposa Co 80 People V. Markham 116, 250 People V. Martin 389, 554 People V. Matezuski 270 People V. Maughs 32 People V. McCauley 253 People V. McCreery 449, 450, 454, 456, 458, 459, 471, 475 People V. McCiine 40 People V. McFadden 99, 1G2, 165, 308, 310 People V. McGee 269 People V. McGuire 297, 299 People V. McNealy 27 People V. Meiggs Wharf Co 222 People V. Mellon 253 People V. Meyers 222 People V. Middleton 545 People V. Mier 232, 260 People V. Mitchell 267 People V. Mizner 185, 186 People V. Mooney 30 People V. Moore 235 Peop' Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peop Peo]) Peop Peop Peop Peop Peop TABT.E OF CASES CITED. liil e V. ^foran 24 6 V. Mori no 24 e V. Morse 57 e V. Mortimer 60 e V. Most 18 e V. Mott 185, 187 e V. Muhlner 29 e T. Mullenfler 146, 164, 165 e V. Mullins 322 e V. Murray 268 e V. Myers 297 e V. Naglee 460 6 V. Nally 100 e V. Nevada 82,242 e V. Newman 374, 553 e V. Nolan 7, 33 e V. Nye x, 67, 98, 185, 192, 549 e V. Nyland 198, 247 e V. Ny Sam Chung 26, 29 e V. Oakland 317, 357, 358. 359 e V. Gates 148,150 e V. O'Brien ix, 32, 267, 268, 269 e V. Oiler 42 6 V. Olvera 232 e V. Ontario 98, 320, 392 e V. Oppenheimer 11 e V. Oreileus 27 e V. Pacheco 138, 172, 428, 519, 520 V. Palermo L. & W. Co 155, 246, 260 6 V. Parker 145, 187 e V. Parks 99, 142, 143, 147, 188, 387 e V. Parvin 142, 144 o V. Paulsell 267 o V. Pendegast xiv, 118 e V. Poralta 212 e V. Pcrini 10 e V. Perry xvi, 218, 224, 269, 544, 545 e V. Phoenix 187 e V. Piner 269 e V. Pingree 222 e V. Pittsburg R. R. Co 474 liv TABLE OP CASES CITED. People V. Pond 315 People V. Potter 275 People V. Powell 13 People V. Provincs ...79, 83, 198, 310 People V. Ransom 549, 561 People V. Raymond 455 People V. Reclamation Dist. No. 551 41, 63, 68 People V. Redinger 26 People T. Reid 187, 544 People V. Rice 118, 119 People V. Richards 562 People V. Roberts 26 People V. Rogers vii, 62 People V. Rosboroiigh 186, 240, 250 People V. Ross 28,269 People V. Ruef 215, 216 People V. Russ 515 People V. Sacramento County 476 People V. Sacramento Drainage District. .22, 68, 146, 166, 199, 311 People V. Samonset 268 People V. Sanderson 83, 186 People V. Sands 256, 261 People V. San Joaquin Valley Agr. Assn 102, 139, 278, 411 People V. Sassovich xii People V. Schmidt 30 People V. Seeley 17 People V. Selma Irr. Dist 311 People T. Senter 235 People V. Seymour 60, 96 People V. Shear 221, 545 People V. Sierp 42 People V. Smalling 26, 27, 28 People V. Smallman 221 People V. Smith 30 People V. Soto 230 People V. Stanford 412 People V. Stephens viii, 29, 405, 509, 511, 514 People V. Stockton etc. Co 425, 458 People V. Stokes 24, 246 People V. Stratton 186, 545 People v. Strother 409 TABLE OP CASES CITED. Iv People V. Superior Court 144, 145, 160, 163, 166, 240, 434 People V. Supervisors 80, 302, 390, 475 People V. Sutton 31 People V. Swafford 24, 25 People V. Tarbox 25 People T. Tenipleton 299 People v. Terrill 26 People V. Thompson 118, 119 People V. Tinder 9, 10 People V. Tisdale 61 People V. Titherington 267 People V. Toal 198, 256, 261, 357 People T, Todd 536 People V. Travers 30 People V. Tucker 30 People V. Turner 9, 224 People V. Twelfth District Court vii, 18, 19, 64, 79, 80, 153 People Y. Vereneseneckockoelihoff 267 People V. Vick 221 People V. Wardrip 268 People V. Waterman 250 People V, "Weaver 504, 505 People V. Webb ix, 26 People V. Weiler 250 People V. Wolls x, 186, 202, 205 People V. Whartonliy 457 People V. Wheeler 304, 544 People V. Whitman 131, 132, 183, 186 People V. Whyler xvi, 456, 459, 461, 462 People V. Wickham 30 People V. Williams 10, 221 People V. Williamson 317 People V. Wilmington 319 People V. Wong Ah Ngovi^ 267 People V. Wong Bin 249 People V. Wong Wang 308 People V. Woods 27, 56 People V. Worswick 317 People's Nat. Rank v. Marye 505 Pereria v. Wallace 67, 317, 408 Perkins, Ex parte 9 Perkins v. Ralls 241 Ivi TABLE OF CASES CITED. Perry v. Amos 235 Perry v. Washburn 450 Pf abler, In re 98, 104, 143, 319, 356, 359, 360, 372, 392, 402 Pfirrman, Ex parte 147, 374, 390 Phelan v. San Francisco xvii, 81 Phelps V. Winehomb 545 Philadelphia S. S. Co. v. Pennsylvania 497, 500 Philbrook, In re 203 Philbrook v. Newman 202 Pierpont v. Crouch 142 Pignaz V. Burnett 57 Pioche V. Paul xvi Piper, Appeal of 52 Pittman v. Carstenbrook 432 Pittsburg etc. R. R. Co. v. Southwest etc. Ry. Co 433 Piatt V. City & County 356, 407 Plumas Co. v. Wheeler 384 Polack V. Gurnee 13 Poland V. Carrigan 223 Pollitz V. Wickersham 169 Pollock V. Cummings .243, 260 Pollok V. San Diego 83 Pond V. Pond 239 Pool V. Superior Court 218 Popper V. Broderick 317, 318 Porter, Estate of 4 Porter v. Imus 59 Porter v. Thomson 148 Porter's Trial 128, 130 Portland v. Stock 150 Portland R. R. Co. v. Railway Co 443 Postal Telegraph Co. v. Adams 495 Potter V. Ames 50 Powell V. Phelan 175 Powell V. Wilson 123 Powelson v. Lockwood 213 Power V. May 139, 377 Prader, Ex parte 53 Pratt V. Browne 148, 229, 307 Pratt V. Welcome 231 Price V. Whitman 127 TABLE OF CASES CITED. Ivii Prigg V. Commonwealth 7 Prince V. Fresno . 261 Prince v. Lynch 419 Pritchett v. Stanislaus Co 312 Proll V. Dunn ] 40 Proulx V. Graves 256 Prouty V. Stover 1]8 Provident etc. Assn. v. Davis 148 Pryor v. Downey 39, 80 Purdy V. Sinton xvi Q Quale V. Moon 22 Quan Wo Chung v. Laumeister 234 Quarg, Ex parte 5, 373, 383 Quigg V. Evans 358, 388 B Eailroad Co. v. Peniston 492 Ramish v. Sausalito etc. Co 220, 258 Eamish v. Hartwell 34 Ramsey v. Haeger 428 Randall v. Freed 219, 226 Rankin v. Colgan 164, 173 Rauer v. Williams 154, 166, 306, 312, 313, 323 Ray v. Colby & Tenney Ill Ream v. Siskiyou Co 45, 139, 145 Reardon v. San Fi-ancisco 47 Rebstock v. Superior Court 31, 65, 67, 76, 78 Reclamation Dist. v. Hagar 41 Reclamation District No. 70 v. Sherman 214, 311, 411 Reclamation Dist. No. 108 v. Evans 41 Reclamation Dist. No. 124 v. Gray 411 Eedamation Dist. No. 551 v. Sacramento 454 Rcdlands v. Brook 40, 163 Redlands etc. Co. v, Redlands 406 Reed V. Borna 1 232 Reed v. Collins 384 Reed v. McCnrmick 239 Reed v. Omnibus R. R. Co xiv, xvi, 260 Reed v. Schon 132 Iviii TABLE OP CASES CITED, Reenc t. Colusa Gas etc. Ca 204 Rpgina V. Neale 18 Rcid V. Clay 40 Reid V. Groezinger 306 Reilly, Ex parte 256, 261 Reis, Ex pa rte 562 Reis V. State 519 Rex V. Birt 18 Rice V. National City 370 Richard's Casf. 120 Richards v. Wetmore 239 Rickey Land etc. Co. v. Glader 213, 219, 226 Ricks V. Reed 242 Rider v. Regan 34, 37 Risdon v. Prewett 220, 226 Ritchie y. Borland 235 Riverside Co. v. Butcher 529 Riverside Co. v. San Bernardino Co 299 Roach, Ex parte 374 Robert v. Police Court xvii, 246, 320, 364 Robertson v. Library Trustees 399 Robinson v. Dunn 173, 177 Robinson v. Eberhart 523 Robinson v. Kerrigan 38, 82, 143, 166 Robinson v. Magee 55, 57 Robinson v. Southern Pac. R. R. Co 443 Robinson, In re 13 Rode V. Siebe 154, 162, 459 Rodley v. Currv 230 Roebling's Sons Co. v. Butler 419 Rogers, In re 31 Rollins V. Wright 58, 153, 536 Romaine, Ex parte 7 Rood V. McCargar xvi Rosaseo v. Tuolumne 476 Rose V. Estudillo 57 Rosenberg v. Frank 233, 235 Rosenblatt v. Johnston 504 Ross V. Whitman 96 Rothschild v. Bantel 395 Rowe, Ex parte 31 Koyer, Estate of 289 TABLE OP CASES CITED. lix Eudel V. Los Angeles 48 Buef , Ex parte 10, 14, 15 Ruperich v. Baebr 18, 22, 154, 156 Knssell, In re 215 Kutledge v. Crawford 73 Eyan v. Johnson 12, 21 Ryan v. Oakland Gas etc. Co 269 Ryder v. Cohn 197, 235 Ryder, Estate of 236 S Sacramento v. Crocker. 389, 460 Sacramento v. Dillman 389 Sacramento Bank v. Pacific Bank 419 Sacramento P. Co. v. Anderson 409 6ah Qiiah, In re 62 Sam Chung, In re 382 San Benito Co. v. Southern Pac. R. K. Co 455 San Bernardino v. Southern Pac. Co 453, 478 San Bernardino etc. Ey. Co. v. Haven 51 Sanborn v. Belden 49 Sanborn v. Superior Court 259 Sanders v. Sehorn 308 Sanchez v. Fordyce 307 San Diego v. Dauer 281 San Diego v. Higgins 463 San Diego v. Linda Vista Irr. Dist 461 San Diego v. Riverside County 301, 478 San Diego v. Schwartz 306 San Diego Water Co. v. San Diego 50, 512 Sanford v. Head • 233 Sanf ord v. Maxwell 524 San Francisco v. Anderson 451, 457 San Francisco v. Bank 504 San Francisco v. Eeideman 56 San Francisco v. Broderick 164, 306, 392 San Francisco v. Canavan 311 San Francisco v. Central Pac. R. E. Co 477 San Francisco v. Collins 50 San Francisco v. Dunn ]3S San Francisco v. Flood 451 Ix' TABLE OF CASES CITED. San Francisco v. Fry 451, 457 San Francisco v. Insurance Co 374, 386, 388 San Francisco v. Kiernan 44, 145, 160, 408 San Francisco v. La Societe, etc 453 San Franc'sco v. Lux 477 San Francisco v. Spring Valley W. W xvi, 20, 64, 142, 143, 154, 411, 412, 413, 453, 457 San Francisco v. Talbot *. 452 San Francisco v. Western Union Tel. Co 455 San Francisco & S. J. V. Ry. Co. v. Stockton 478, 479 San Francisco etc. Agency v. Miller 420 San Francisco etc. Co. v. Bates 40, 52, 462 San Francisco etc. Factory v. Briekwedel 513 San Francisco etc. R. R. Co. v. Caldwell 44, 46, 51 San Francisco etc. R. R. Co. v. State Board 144, 162, 457, 475, 476, 477 San Francisco etc. R. R. Co. v. Taylor 50 San Francisco etc. Ry. Co. v. Scott 478 San Francisco Gas Co. v. Briekwedel 399 San Francisco Gas Co. v. Dunn 405, 406 San Francisco L. Co. v. Bibb 4 San Francisco Nat. Bank v. Dodge 507 San Francisco P. Co. v. Bates 40, 408 San Francisco Sav. Union v. Abbott 556 San Gabriel Co. v. Witmer Co viii, 467 San Joaquin etc. Co. v. Merced County 452, 477, 514 San Jose v. San Jose etc. R. R. Co 460 San Jose R. Co. v. San Jose etc. Co 213 San Jose Ranch Co. v. San Jose etc. Co 32, 34, 170 San Jose Sav. Bank v. Pilaris 419 San Luis Obispo v. Darke. x, 307 San Luis Obispo v. Farnum 394 San Luis Obispo v. Graves 19, 161, 302, 305, 374, 375 San Luis Obispo v. Greenberg 384 San Luis Obispo v. Simas 230 San Luis Obispo County v. Felts 283, 479 San Luis Water Co. v. Estrada 413 San Mateo v. Coburn 51 San Mateo W. W. v. Sharpstein 49 Santa Ana v. Brunner 51 Santa Ana v. Gildmacher 268 TABLE OF CASES CITED. Ixi Santa Barbara v. Eldred 206, 243 Santa Barbara v. Sherman 270 Santa Barbara v. Stearns 241, 459 Santa Cruz v. Enright 156, 315 Santa Cruz etc. Co. v. Santa Clara ^ 224 Santa Cruz Eock etc. Co. v. Lyons 39 Santa Eosa v. Bower 357 Santa Eosa v. Coulter 34 Santa Eosa City E. E. Co. v. Eailway Co 202 Santa Eosa Nat. Bank v. Barnett 413, 416, 417 Sauer, Ex parte 226 Saunders v. Haynes 242 Savings etc. Soc. v. Austin 100, 305, 453, 457, 467, 473, 474 Savings etc. Soc. v. San Francisco 467 Schaezlein v. Cabaniss 99 Sehamblin v. Means 689 Schostag V. Cator 76, 77, 158 Schroeder v. Grady 474 Schumaker v. Toberman 40, 388 Schwartz v. Wilson 399 Scollay V. Butte Co 99 Seale v. Ford 556 Seale v. Mitchell 199, 212 Searcy v. Grow 132 Seattle Coal etc. Co. v. Thomas 240 Second Nat. Bank of Titusville v. Caldwell 504 Security Sav. Bank v. San Francisco 453 Security Sav. etc. Co. v. Hinton 315, 356, 387 Selma v. Brewer 381 Seube, Ex parte 390 Sharon v. Sharon ix, 223 Sharp v. Blankenship 32 Sharpe v. Contra Costa Co 57, 297 Bhaughnessy v. Am. Surety Co 159, 542 Shaw v. Statler 400 Shealor v. Superior Court 258 Sheehan v. Scott 95, 355, 364, 534 Sherer v. Superior Court 246, 247 Sherman v. Buick 46, 47 Sheward v. Citizens' "Water Co 511, 512 Shrader, Ex parte 5, 53, 79, 80, 374, 381 Ixii TABLE OF CASES CITED. Sic, In re 375 Siddall V. Harrison 235 Siemessen v. Bofer 62 Sierra L. Co. v. Wolff 221 Sievers v. San Francisco 48 Simmons v. Brainard 218 Simons v. Bedell 233, 238 Sing Lee, Ex parte 373, 383 Sinton v. Ashbury 318, 386 Sixth District Agr. Assn. v. Wright. 175 Skillman v. Lackman 217 Skinner v. Buck 34 Slocum V. Bear Valley Irr. Co 158 Sniails v. White 150 Small V. Gwinn 257 Smilie v. Fresno 400 Smith, Ex parte 53, 54 Smith, In re 377,378,407 Smith, Matter of 230 Smith V. Andrews 236 Smith V. Broderick 399 Smith V. Brown 545 Smith V, Dunn 164, 177 Smith V. Farrelly 461 Smith V. Kenfield 164, 271 Smith V. McDermott 153, 154, 160, 552 Smith V. Morse 55, 56, 59 Smith V. Oakland 224 Smith V. Omnibus R. R. Co 260 Smith V. Roberts 524 Smith V. St. Lawrence Co 119 Smith V. Strother 79, 81 Smith V. Westerfield 236 Smith & Keating, Ex parte 5, 18, 22, 381 Smith's Case 121 Socialist Party v. Uhl 68, 76, 77, 143, 535 Sohler v. Sohler 206 Sohncke, Ex parte 20, 65, 159 Solano Co. v. McCudden 18 Solomon, Ex parte 376 TABLE OF CASES CITED. Ixiii Solomon r. Reese 217, 231 Somers v. State 544, 545 Sonoma Valley Bank v. Hill 418 Sonora v. Cm tin 384 Soto, Ex parte 261 Southern Cal. L. Co. v. Peters xii, 542 Southern Cal. M. T. Co. v. Lincoln University 237 Southern Cal. Ry. Co. v. Superior Court 221 Southern Pacific Co. v. Pomona 146 Southern Pac. R. R. Co. v. Pixley 243 Southern Pac. R. R. Co. v. Reed 45 South Pasadena v. Pasadena La'nd Co 407, 426 South Pasadena v. Terminal Ry. Co 377, 382 Southwestern Tel. & Tel. Co. v. Dallas Ill, 112 Southwick V. Davis 522 Sparks, Ex parte 198, 358, 363 Spaulding v. Mead 120 Spear v. Reeves 184, 520 Speegle v. Joy 554 Spencer, In re xii, xvi, 22, 157, 382 Spier V. Baker 75, 144, 1.58, 539 Spencer Creek Water Co. v. Vallejo 198, 241, 242 Spinney v. Griffith 541 Sponogle V. Curnow 545 Spreckels v. Hawaiian Com. etc. Co 233 Spring Valley W. W. v. Barber 451 Spring Valley W. W. v. Bartlett 513 Spring Valley "W. W. v. Bryant 412 Spring Valley W. W. v.Drinkhousp 48 Spring Valley W. W. v. San Francisco 54, 99, 234, 405, 413, 509, 512, 513, 554 Spring Valley W. W. v. Schottlcr 405, 452, 459, 514 Stafford v. Lick 60 Stanford, Estate of 139, 163, 174 Stanford v. San Francisco 48 Stanislaus Water Co. v. Bachman 509, 510 Stanley v. Supervisors of Albany 507 State V. Boyd l?.l State V. Brandt 545 State y. Brassfield 148 Ixiv TABLE OF CASES CITED. State V. ChnrcTi 407 State V. Collier 539 State V. Cunningham 118, 119 State V. Dorcn viii State V. Dudley 118 State V. Dustin 539 State V. Langworthy Ill State V. McCauley 10, 519, 520 State V. Pacific Tel. & Tel. Co Ill, 113 State V. Portland Ey. L. & P. Co Ill State V. Purdy 539 State V. Eoaeh Ill State V. Eu-ssoll Ill State V. Sehluer 110 State V. Sloan 179 State V. Smith 62, 280 State V. Steamship Constitution 529, 531 State Census, In re 118 State Freight Tax Cases -195 State Eailroad Tax Cases 493 Staude v. Election Commrs ix, 79, 81, 315 Steamship Co. v. Pennsylvania 496 Stein V. Howard 426 Steinhart v. Superior Court 49 Stephen, Ex parte 375, 385 Stevens, In re 198 Stevens v. Truman 81 Stevenson v. Colgan xi, xii, 173 Stewart v. Kvser 77 Stewart v. Torrance 223, 225 Stillwell V. Cutler 169 Stilphen v. Ware 419 Stimson M. Co. v. Braun 3, 541 Stimson Mill Co. v. Nolan 5, 35, 542 Stockton v. Insurance Co 316, 471 Stockton etc. Co. v. Galgiana .50,220 Stockton etc. R. R. Co. v. Stockton xii, xiv, 46, 428, 459 Stockton Gas etc. Co. v. San Joaquin 405, 477 Stockton L. Co. v. Sehuler 219, 226 Stockton School Dist. v. Wright 283 TABLE OF CASES CITED. IxV Stone V. Elkins 80 Stoppelkamp v. Mangeot 259 Storke v. Goiix 370 Stratman, Ex parte 198 Stuart, In re 385, 549, 552 Sullivan v. Gage 179 Sullivan v. Market St. Ky. Co 268 Summerfield v. Dow 308 Snmmerland v. Bicknell 21, 307, 309 Supervisors v. Stanley 505 Sutherland v. Sweem 260 Sutro, Estate of 538 Suydam v. Moore 433 Swamp Land Dist. No. 150 v. Silver 311 Sweet V. Tice 217 Sweetman, Ex parte 316, 317, 376 T Talbott V. Silver Bow County 502, 506 Tay V. Ilawley 37 Taylor v. Beckham 113 Taylor v. Hill 36 Taylor v. Mott 174, 177 Taylor v. Palmer 40, 45, 52, 388, 408, 450, 460, 462 Taylor v. Keynolds 13 Taylor v. Taintor 7 Taylor, Ex parte 316, 375 Tehama Co. v. Bryan 50 Telegraph Co. v. Texas 495 Teralta Land etc. Co. v. Shaffer 58 Terrett v. Taylor 7 The Boca Mill Co. v. Curry 411, 424 Thistleton, Ex parte 214 Thorn V. Los Angeles 309 Thomas v. Anderson 232 Thomas v. Justice's Court 241, 260 Thomas, Ex parte 149 Thomason v. Ashworth 315, 409, 526 Thomason v. Ruggles ix, 315, 409, 526, 554 Thompson v. Pacific Railroad 492 Ixvi TABLE OF CASES CITED. Thompson v. Williams 212, 247 Thorn v. San Francisco 55, 58 Thornton v. Hooper 55, 56 Thresher v, Atchison 58 Thurston v. Clark 30 Tinglcy v. Times-Mirror 430, 431 Title etc. Eestoration Co. v. Kerrigan xii, 38, 146, 157, 158, 198 Toland v. Earl 235, 238 Toland, Ex parte 556 Tolman v. Smith 245 Tomlinson, Matter of 239 Tomsky v. Superior Court 37,237 Tonawanda v. Lyon 40, 52 Tout V. Blair 305 Town etc. v. Frieze 150 Townsend v. Brooks 247 Tracy v. Muir 38 Traf ton v. Quinn 360 Trahern v. San Joaquin Co 49 Treadwell v. Yolo Co 371 Tregea v. Owens 461, 466 Trezevant v. Strong Co 431 Tribune Co. v. Barnes 149 Trinity County v. Mendocino County 81, 302 Trippet V. State 38, 176 Trumbull's Case 120, 195 Trumpler v. Trumpler • 204 Tucker v. Aiken 539 Tucker v. Barnum 306, 307 Tulare v. Hevren 160, 229, 230 Tulare Co. v. Jefferds 370 Tulare Co. v. Kings Co 300 Tulare Co. v. May 21, 161, 163, 164, 165, 166, 302, 309, 392 Tuolumne Redemption Co. v. Sedgwick 58 Turlock Irr. Dist. v. Williams 45, 450 Turner, In re 62 Turner v. Fidelity Loan Concern 427 Turner v. Siskiyou Co 20, 161, 306 Turney v. Marshall 120, 195 Tuskaloosa B. Co. v. Olmsted 150 TABLE OF CASES CITED. Ixvii Tuttle ▼, Block 58 Tuttle, Ex parte 373, 379 Tyler v. Houghton 9, 224 Tyler v. Tehama Co 48 U tlnderhill v. Santa Barbara etc. Imp. Co 426 Union etc. Co. v. Superior Court 234 Union Ice Co. v. Rose 159, 312 United States v. Ballin 120 United States v. Cooper 122 United States v. Greatliouse 63 United States v. Hanway 63 United States v. Hartwell 545 United States v. Rhodes 7 University of California v. Bernard xiii, 149, 150 Upham V. Superv-isors 97, 297 Uridias v. Morrill 83, 199 Urton V. Wilson 523 Urton V. Woolsey 244 V Vail V. San Diego Co IS, 154, 165, 307 Valle V. Shaf er 381 Vance Redwood L. Co. v. Durphy 470 Vanderhurst v. Tholcke 379 Van Allen v. Commissioners 502 Van Alstine v. Frear Ill Van Harlingen v. Doyle 20, 65 Van Hoffman v. Quincy 7 Van Valkenburg v. Brown 72 Varney & Green v. Williams 53, 383 Vassault v. Austin 199 Vaughn v. English 185, 545 Ventura Co. v. Clay 232, 390 Vernon v. Supervisors 318 Vernon School Dist. v. Board of Education 147, 155, 313, 314 Vilhac V. Stockton etc. R. R. Co 49 Ixviii TABLE OF CASES CITED. Voll, Ex parte 10 Votan V. Eeese 217 Vulieevich v. Skinner 268 W Wagner, Ex parte Ill Walchter v. Atchison etc. Ey. Co 432 Waldron v. Railroad Co 433 Walkerly, Estate of 222 Wall, Ex parte 97, 98, 302 Wallingf ord, Ex parte 245 Walser v. Austin 21, 52, 162, 302, 309 Walsh V. Mathews 460, 461, 462 Walther v. Rabolt 7, 62 Ward V. Flood 281, 282 Ware v. Eobinson 36 Warner v. Hall 214 Warner v. Kelly 214 Warren v. San Francisco 454 Washington v. Black 239 Washington v. Page x, 142 Waterloo etc. Eoad Co. v. Cole 412 Watt V. Wright 230 Weaver v. Reddy , 317 Weaver v. San Francisco 399, 402 Webb V. Hanson 226 Weber v. Santa Clara Co 49 Weber, In re 157 Webster v. Bell 495 Weiderkind v. Tuolumne Co. Water Co 268 Weill V. Kenfield vii, 124, 547 Welch V. Cross 54, 59 Welch V. Strother 400 Weldon v. Rogers 35 Weldon v. Superior Court 223 Wells V. Black 416, 417 Wells V. Torrance 246 Wells, Ex parte 275 Wells, Fargo & Co. v. Board of Equalization 475 Wells, Fargo & Co. v. Enright 419 Welsh V. Bramlet. . .21, 162, 104, 301, 302, 304, 306, 308, 309, 370 TABLE OP CASES CITED. Ixix Werner, In re 147, 374 West Phil. Pass E. R. Co. v. Union Pass R. Co 124 Westerfield, Ex parte 159 Western etc. Co. v. Knickerbocker 101, 156 Western Meat Co. v. Superior Court 15 Western Union Tel. Co. v. Taggert 493, 501 Western Union Tel. Co. v. Visalia 455 Wheeler v. Donnell 225 Wheeler v. Herbert C6, 73, 166, 301, 392 Whitbeck v. Mercantile Bank 505 White. Ex parte 380 White V. Light'hall 214 Whitehurst v. Stuart 419 Whiteman v. Wilmington etc. R. R. Co 188 Whiting V. Haggard 553 Whiting V. Quackenbush 40, 52, 408, 462 Whiting V. Townsend 40, 52, 81, 408, 462 Whitley, Ex parte 64, 82, 157 Whitney, Matter of 118, 119 Whitwell, Ex parte 382 Wickersham v. Brittan 242, 552, 562 Wigmore v. Buell 18, 21, 153 Wilcox V. Oakland 245 Wilson V. Roach 237 Will V. Sinkwitz 247 Willard v. Superior Court 25, 42 Williams v. Board of Trustees 320 Williams v. Corcoran 458, 461 Williams v. Williams 234 Williams, Ex parte 160, 161, 556 Willis V. Farley 223 Willow Land Co. v. Goldschmidt 219 Wills V. Austin xvi, 40, 474 Wilmerding, In re 451 Wilson V. Roach 212 Wilson V. Supervisors 456 Winchester, Estate of 148 Winchester v. Howard 420, 421 Winchester v. Mabury 420 Winona etc. R. R. Co. v. Waldron 433 Winona Wagon Co. v. Bull 417 IXX TABLE OF CASES CITED. Winrod v. Wolters 231 Winslow, Estate of . ." 222 Winter v. Fitzpatrick 224 Wisconsin & Michigan Ry. Co. v. Powers 501 Wittman v. Police Court 13, 14 Wittmeier, Estate of 222 Wolters, Ex parte 385 Wong Hane, Ex parte 376 Wong You Ting, Ex parte 12,13 Wood V. Election Commrs 141, 322 Woodruff V. Baldwin 14S Woods V. Potter 370, 371 Woods V. Varnum 11, 130 Woodward v. Fruitvale Sanitary Dist xiii, 102, 388, 391 Wooley V. Butler 122 Wratten v. Wilson 258 Wright V Central etc. Water Co 428 Wright V. Del Norte Co 233 Wright V. Laugenour 545 Wright V. Sonoma 219, 226 Wright V. Superior Court 230 Wulzen V. Supervisors 32, 36, 79 Wyatt V. Arnott 273 Wyckoff V. Southern Pac. Co 268 Wysinger v. Crookshank 281 T Yale, Ex parte 534 Yarnell v. Los Angeles 390, 394 Yick Wo, In re 380 Yolo Co. V. Colgan 122, 125 Yolo Co. V. Dunn 138 Yolo Co. V. Sacramento 235 Yorke Co. v. Dalhousie 275 Yosemite Stage etc. Co. v. Dunn 173, 174 Youd V. German Sav. & Loan Soc , . . 425 Youle V. Thomas 524 Young, Ex parte 33, 53, 382 Young V. Eosenbaum 419 Young V. Wright 260 TABLE OF CASES CITED. Ixxi Yturbiirru, Estate of 156 Yule V. Bishop 418 Z Zabriskie v. Torrey 217 Zander v. Coe 212, 257 Zhizhuzza, In re 18, 19, 100, 381 CONTENTS OF CONSTITUTION OF 1879. ARTICLE I. DECLAKATION OF EIGHTS. § 1. Inalienable rights. § 2. Political power. § 3. Relation to the American Union. § 4. Eeligious freedom. § 5. Habeas corpus. § 6. Right to bail — Rights of witnesses. § 7, Trial by jury. § 8. Offenses, how prosecuted. § 9. Liberty of speech and freedom of the press — Trials for libel. § 10. Popular assemblies. § 11. Uniformity of laws. § 12. Military power. § 13. Personal and property rights. § 14. Eminent domain. § 15. Imprisonment in civil cases. § 16. Laws prohibited — Bills of attainder, ex post facto, etc. § 17. Rights of foreign residents. § 18. Slavery prohibited. § 19. Searches and seizures, restriction on. § 20. Treason defined. § 21. Privileges and immunities of citizens. (Ixxiii) Ixxiv CONSTITUTION OF 1879. § 22. Provisions of constitution construed. § 23. Rights retained by the people. § 24. Property qualification not required. § 25. Eight to fish upon public lands. ARTICLE II. RIGHT OF SUFFRAGE. § 1. Who are and who are not electors. § 2. Privileges of electors. § 2^. Primary elections. § 3. Militia duty, privilege of electors. § 4. Residence of voters, gained or lost. § 5. Election by ballot. § 6. Voting machinea. ARTICLE III. DISTRIBUTION OF POWERS. ARTICLE IV. LEGISLATIVE DEPARTMENT. § 1. Senate and assembly, and enacting clause — Initiative and referendum. § 2. Sessions of legislature. § 3. Election and term of assemblymen. § 4. Election and term of senators. § 5. Number and classes of senators. § 6. Senatorial and legislative districts. § 7. Organization of legislature. § 8. What number constitutes a quorum. § 9. Rules for their government — Expulsions. CONSTITUTION OF 1879. IxXV Each house to keep a journal. Privilege of members. "Vacancies, how filled. Open doors and secret sessions. Adjournment, how long and where to. Origin and passage of bills. Approval and return of bills — Passage over veto. Impeachments, presentment and trial of. What officers liable to impeachment — Judgment on. Member ineligible to office created during the term. Who ineligible to office under state government — Proviso. Embezzlement or defalcation — Penalty for. Public moneys and accounts — Statement of receipts and expenditures — Panama-Pacific International Exposi- tion. Compensation not to be increased during term. Officers, employees and attaches. Title of laws — Eevision and amendment — Publication of. Local and special laws prohibited. § 25^. Fish and game districts. Lotteries prohibited — Purchase and sale of shares of stock to be regulated. Congressional and senatorial districts. Elections by legislature to be viva voce. General appropriation bill, what to contain. Eestriction on appropriations and grants of aid. Credit of state or municipalities not to be loaned. Extra compensation to officers forbidden. Charges of gas and telegraph corporations to be regu- lated. Special appropriation bill, restriction as to. Lobbying defined — Punishment for. State highways. § 10. § 11. § 12. § 13. § 14. § 15. § 16. § 17. § 18. § 19. § 20. § 21. § 22. § 23. § 23a § 24. § 25. § 25i § 26. § 27. § 28. § 29. § 30. § 31. § 32. § 33. § 34. § 35. S 36. IxXVi CONSTITUTION OP 1879. ARTICLE V. EXECUTIVE DEPARTMENT. Executive power vested in governor. Election of governor and term of office. Eligibility and qualifications. Returns of election — Counting votes. Governor to be commander-in-chief of militia. Executive business of. To see that laws are executed. To fill vacancies in oflice. When to convene special sessions. Messages to legislature. When to adjourn legislature. Disability to hold other offices. Keeper of seal of state. To sign and seal grants and commissiong. Lieutenant-governor — Election of, etc. When powers of governor devolve on. State officers — Election and terms of office. Secretary of state — Duties of. Compensation of state officers. Governor — Ineligible to United States senate. 'ARTICLE VL JUDICIAL DEPARTMENT. § 1. Judicial powers. § 2. Supreme court, how constituted. § 3. Election of supreme justices. § 4. Jurisdiction of supreme court and courts of appeaL § 4i. Harmless errors to be disregarded. § 5. Superior court, jurisdiction. § 1. § 2. § 3. § 4. § 5. § 6. § 7. § 8. § 9. § 10. § 11. § 12. § 13. § 14. § 15. § 16. § 17. § 18. § 19. § 20. CONSTITUTION OP 1879. Ixxvii Superior court, how constituted. Superior judges, apportionment of business. Judge may hold court in other county — Judge pro tem- pore. Leave of absence — Limitation of time. Justices and judges, how removed. Justices of the peace, provision for. Courts of record. Jurisdiction of inferior courts to be fixed by legislature. Clerks of courts and court commissioners. Judicial officers not to receive fees and perquisites. Supreme court opinions to be published. Compensation of justices and judges. Justices and judges ineligible to other offices. Charges to juries. Style of process. Eeporter of supreme court decisions. Judges not to practice law. Eligibility of justices and judges. Condition precedent to draft of salary. § 25. Supreme court commission. ARTICLE VII. PARDONING POWER. ARTICLE VIIL MILITIA. § 1. Organization and calling forth of. § 2. Device, banner, or flag to be used. § G, § 7. § 8, § 9, § 10, § 11. § 12, § 13, § 14, § 15. § 16. § 17. § 18. § 19. § 20. § 21. § 22. § 23. § 24. Ixxviii CONSTITUTION OF 1879. ARTICLE IX. EDUCATION. § 1. Promotion of intellectual improvement. § 2. Superintendent of public instruction. § 3. County superintendents of schools. § 4. School funds, source and origin, and how appropriated. § 5. System of common schools to be provided. § 6. School system, what to include. § 7. Text-books, who to adopt — Local boards of education. § 8. Sectarianism prohibited. § 9. University fund, creation, management, and application of. § 10. Leland Stanford Junior University. § 11. The California School of Mechanical Arts. § 12. The California Academy of Sciences. § 13. Cogswell Polytechnical College. ARTICLE X. STATE INSTITUTIONS AND PUBLIC BUILDINGS. § 1. State prison directors, appointment and term of of&ce. § 2. Authority and duties of. § 3. Power of appointment of employees. § 4. Allowance for expenses. § 5. Powers and duties to be regulated by law. § 6. Convict labor to be regulated. ARTICLE XI. CITIES, COUNTIES, AND TOWNS. § 1. Counties as subdivisions of the state. i 2. Removal of county seats. CONSTITUTION OF 1879. Ixxix § 3. New counties, establishment of. § 4. County governments to be uniform, under general laws. § 5. Boards of supervisors, election and appointment of. § 6. Municipal corporations to be controlled by general laws. § 7. City and county governments may be consolidated. § 71. Freeholders' charters for counties. § 8. City charters, how framed and ratified. § 8^. City and county charters, to contain what. § 8a. Panama-Pacific International Exposition. § 9. Compensation of ofiicers. § 10. State taxes, no release or discharge from. § 11. Local police, sanitary, and other regulations may be enforced. § 12. Assessment and collection of taxes. § 13. Powers not to be delegated to special commission, etc. § 13^. Payment of bonds. § 14. Inspection officers, appointment of. § 15. Private property not liable for corporate debt of munici- pality. § 16. Moneys, etc., to be deposited with treasurer. § 16J. Deposit of public moneys. § 17. Making profit out of public funds a felony. § 18. Kestriction on power to incur indebtedness. § 19. Municipal ownership of public utilities. ARTICLE XII. CORPORATIONS. § 1. Corporations to be formed under general laws. § 2. Dues to be secured by individual liability, etc. § 3. Stockholders to be individually liable. § 4. Corporations construed. § 5. Banking prohibited. IXXX CONSTITUTION OF 1879. § 6. Existing charters, when invalid. § 7. Charters not to be extended, nor forfeiture remitted. § 8. All franchises subject to the right of eminent domain. § 9. Restrictions on powers of corporations. § 10. Liabilities of franchise under lease or grant. § 11. Corporation stock, restriction on issue of. § 12. Election of directors — Cumulative or distributive votes. § 13. State not to loan its credit nor subscribe to stock of corporations. § 14. Corporations to have oflS.ce for transaction of business in stocks. § 15. Foreign corporations, conditions. § 16. Corporations, where to be sued. § 17. Transportation companies, rights and liabilities of. § 18. Officers of corporations, restriction as to interests. § 19. Free passes on railroads prohibited to state officials. § 20. Fares and freights to be regulated by government. § 21. Discrimination in charges by carriers forbidden. § 22. Eailroad commission, organization of. § 23. Railroad commission, regulation of public utilities. § 24. Legislature to pass laws to enforce this article. ARTICLE XIII. REVENUE AND TAXATION. § 1, Taxation to be in proportion to value. § IJ. United States army, navy, marine and revenue service. § 1^. Churches exempt from taxation. § If. Bonds of state and municipalities exempt from taxation. § 2. Land and improvements to be separately assessed. § 3. Seetionized and unsectionized land, how assessed. § 4. Securities, taxable. § 5. Contract of borrower to pay tax on loan void. § 6. § 7. § 8. § 9. § 10. § 104 § 11. § 12. CONSTITUTION OF 1879. IxXXl Power of taxation cannot be surrendered. Payment of taxes by installments. Annual statement of property to be given. State board of equalization. Property, where assessed. Personal property to extent of $100 exempt. Income taxes. Poll tax. § 12J. Young trees and vines exempt from taxation. § 13. Laws to be passed by legislature. § 14. Taxation for state purposes. AKTICLE XIV. WATER AND WATER RIGHTS. ARTICLE XV. HARBOR FRONTAGES, ETC. ARTICLE XVL STATE INDEBTEDNESS. ARTICLE XVII. LAND AND HOMESTEAD EXEMPTION. § 1. Homesteads. § 2. Land monopoly. § 3. Lands granted only to actual settlers. Ixxxii CONSTITUTION OP 1879. ARTICLE XVIII. AMENDING AND EEVISING THE CONSTITUTION. § 1. Proposal of amendments — Submission to vote. § 2. Revision — Convention for. ARTICLE XIX. CHINESE. § 1. Protection from alien paupers, etc. § 2. Corporations prohibited from hiring Chinese. § 3. Public works, Chinese not to be employed on. § 4. Coolieism prohibited — Removal of Chinese. ARTICLE XX. MISCELLANEOUS SUBJECTS. § 1. Seat of government. § 2. Dueling, disabilities arising from. § 3. Oath of office. § 4. Election and appointment of officers and commissioners. § 5. Fiscal year. § 6. Suits against state. § 7. Marriage contracts, validity of. § 8. Separate property of husband and wife, § 9. Perpetuities not allowed. § 10. Disqualification for office by giving or taking bribe. § 11. Exclusion from office, jury, and right of suffrage of cer- tain persons — Protection of right of suffrage. § 12. Residence, when absence not to affect. § 13. Plurality vote to elect. § 14. State board of health. CONSTITUTION OF 1879. Ixxxiii § 15. Mechanic's lien. § 16. Term of office, duration of. § 17. Eight hours a legal day's labor. § 18. Sex not a disqualification for business. § 19. Payment of expenses of convention. § 20. Election of officers — Term, when commences. ARTICLE XXI. BOUNDARY. ARTICLE XXIL SCHEDULE. Laws to remain in force. Recognizances, obligations, etc., unaffected. Courts, save justices' and police courts, abolished — Trans- fer of records, boolis, etc. State printing. Ballots to be printed. Registers, poll-books, etc., to be furnished. Who entitled to vote for constitution. Canvass of returns of vote. Computing returns of vote. Terms of officers first elected. Laws applicable to judicial system. Constitution, when to take effect. ARTICLE XXIIL • EECALL OF OEEIGERS. § 1. § 2. § 3. § 4. § 5. § 6. § 7. § 8. § 9. § 10. § 11. i 12. CONSTITUTION OF THE STATE OF CALIFORNIA. Adopted in Convention, at Sacramento, IMarch 3, A. D. 1879 ; Ratified by a Vote of the People ON Wednesday, :Ma.y 7, 1879. PREAMBLE AND DECLARATION OF RIGHTS. PEEAMBLE. We, the people of the state of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this constitu- tion. STATE OF CALIFORNIA.— The names "The State of Califor- nia" and "The People of tlie State of California" describe the same party, and a statute which requires a bond to be given in one name is satisfied by a bond given in the other. (People v. Love, 19 Cal. 676.) FORM OF GOVERNMENT.— Our system is not a pure dem- ocracy, but a representative republican government. (Hobart V. Supervisors, 17 Cal. 23.) Constitution — 1 HJ § 1 § 2 § 3 § 4 § 5, § 6, § 7. § 8. § 9, § 10, § 11, § 12, § 13, § 14, § 15. § 16, § 17. § 18. § 19. § 20. § 21. § 22. § 23. § 24. 9 25. CONSTITUTION OF 1879. ? [ARTICLE I. DECLARATION OF EIGHTS. Inalienable rights. Political power. Relation to the American Union. Religious freedom. Habeas corpus. Eight to bail — Eights of witnesses. Trial by jury. Offenses, how prosecuted. Liberty of speech and freedom of the press — Trials for libel. Popular assemblies. Uniformity of laws. Military power. Personal and property rights. Eminent domain. Imprisonment in civil cases. Laws prohibited — Bills of attainder, ex post facto, etc. Eights of foreign residents. Slavery prohibited. Searches and seizures, restriction on. Treason defined. Privileges and immunities of citizens. Provisions of constitution construed. Eights retained by the people. Property qualification not required. Right to fish upon public lands. b CONSTITUTION OF 1879. Art. I, § 1 Inalienable rights. Section 1. All men are by nature free and independ- ent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty ; ac- quiring, possessing, and protecting property ; and pursu- ing and obtaining safety and happiness. PROPERTY. — The right of acquiring, possessing, and protect- ing property is one of the primary objects of government, is guaranteed by the constitution, and cannot be impaired by the legislature. (Billings v. Hall, 7 Cal. 1.) The right of protecting property is not the mere right to pro- tect it by individual force, but the right to protect it by the law of the land, and the force of the body politic. (Billings v. Hall, 7 Cal. 1.) The right of property antedates all constitutions. This right is invaded if the owner is not at liberty to contract with others respecting the use to which lie may subject his property, or the manner in which he may enjoy it. (Stimson M. Co. v. Braun, 136 Cal. 122, 89 Am. St. Eep. 116, 68 Pac. 481, 57 L. R. A. 726.) A statute declaring that all contracts for the construction of buildings, with certain exceptions, must provide for the pay- ment of the contract price in money, is in violation of this section. (Stimson M. Co. v. Braun, 136 Cal. 122, 89 Am. St. Rep. 116, 6S Pac. 481, 57 L. R. A. 728.) The right to acquire property is the right to use the proper means to attain the end; and the use of such means cannot be prohibited by the legislature, unless the peace and safety of the state require it. (Ex parte Newman, 9 Cal. 502.) An act requiring a party to pay for improvements put upon his land by a trespasser, against his will, is void. (Billings v. Hall, 7 Cal. 1.) So an act altering or destroying the nature or tenure of estates is vo'd. (Dewey v. Laml^ier, 7 Cal. 347.) The provision of section 1203 of the Code of Civil Procedure that a failure to comply with the section by filing a good and BuflHcient bond with the building contract in an amount equal to at least twenty-five per cent of the contract price shall render "the owner and contractor jointly and severally liable iu dain- Art. I, § 1 CONSTITUTION OF 1879. 4 ages to any and all materialmen, and subcontractors entitled to lions upon property affected by said contract," is an unreason- able restraint upon the owner of the property in the use thereof, and is an unreasonable restriction upon the power to make con- tracts, and is, therefore, unconstitutional. (Gibbs v. Tally, 133 Cal. 373. 65 Pac. 970, 60 L. E. A. 815; San Francisco L. Co. v. Bibb, 139 Cal. 193, 72 Pac. 964: Montague v. Furness, 145 Cal. 205, 78 Pac. 640.) An act authorizing the probate court to order a sale of the property of a decedent, when it is for the best interest of the estate, is valid. (Estate of Porter, 129 Cal. 86, 79 Am. St. Eep. 78, 61 Pac. 659.) But such an act cannot affect estates of decedents who died before the passage of the act. (Brenham v. Story, 39 Cal. 179; Estate of Packer, 125 Cal. 395, 73 Am. St. Eep. 58, 58 Pac. 59; Estate of Freud, 131 Cal. 667, 82 Am. St. Eep. 407, 63 Pac. 1080.) An ordinance requiring street-car transfers to be issued and delivered within the street-cars from which the transfer is made, and received only within the car to which it is made, and for- bidding any person to whom a transfer is issued to give away, transfer, or sell the same, is not in violation of this section. (Ex parte Lorenzen, 128 Cal. 431, 79 Am. St. Eep. 47, 61 Pac. 68, 50 L. E. A. 55.) An act requiring litigants to take the oath of allegiance is not in violation of this section. (Cohen v. Wright, 22 Cal. 293.) An act making it unlawful to i)uy or sell quail is not in vio- lation of this section. (Ex parte Kenneke, 136 Cal. 527, 89 Am. St. Eep. 177, 69 Pac. 261.) A statute exempting a municipal corporation from liability for damages for injuries sustained by any person on its graded streets, but making the ofHcers of the city liable therefor, is valid. (Parsons v. San Francisco, 23 Cal. 462.) The act of 1907, page 122, prohibiting waste from artesian wells does not unconstitutionally interfere with private prop- erty. (Ex parte Elam, 6 Cal. App. 233, 91 Pac. 811.) An ordinance providing for the destruction of dogs not li- censed is not an unconstitutional interference with property. (In re Ackerman, 6 Colo. App. 5, 91 Pac. 429.) A provision in the specifications for public street work that no unnaturalized alien should be employed in the work, except 5 CONSTITUTION OF 1879. Art. I, § 1 with the permission of the highway commission, is invalid. (City Street Imp. Co. v. Kroh, 158 Cal. 308, 110 Pac. 933.) Section 384 of the Penal Code, subdivision 3, dcrdaring it a misdemeanor to willfully and negligently build a fire on one's own land for the purposes of burning brush, etc., is violative of the federal and state constitutions as an unreasonable and oppressive interference with the right to use and enjoy property. (In re McCapes, 157 Cal. 27, 106 Pac. 229.) The provision of the mechanic's lien law allowing an attor- ney's fee to plaintiff but not to defendant is in violation of this provision. (Builders' Supply Depot v. O'Connor, 150 Cal. 265, 119 Am. St. Eep. 193, 88 Pac. 982, 11 Ann. Cas. 712.) The right of property includes the right to dispose of such property in such manner as the owner pleases, and to sell it for such price as he can obtain in fair barter. (Ex parte Quarg, 149 Cal. 79, 117 Am. St. Eep. 115, 84 Pac. 766, 5 L. R. A., N. S., 183, 9 Ann. Cas. 747.) The mechanic's lien law is not unconstitutional because it abridges the right of contract in respect to one's property. (Stimson Mill Co. v. Nolan, 5 Cal. App. 754, 91 Pac. 262.) Business. — The legislature cannot forbid the lawful pursuit of a lawful occupation on one day of the week any more than it can forbid it altogether. (Ex parte Newman, 9 Cal. 502. But see Ex parte Andrews, 18 Cal. 678.) But this provision does not prevent the legislature from pro- hibiting the conducting of offensive trades within the limits of a city. (Ex parte Shrader, 33 Cal. 279.) So an ordinance making it unlawful for any person to con- duct a laundry within certain limits without a certificate from the health officer as to its sanitary condition, and a certificate from the fire wardens as to the condition of the heating appli- ances, and forbidding the operation of any laundry between 10 P. M. and 6 A. M., or on Sunday, is valid. (Ex parte Moynier, 65 Cal. 33, 2 Pac. 728.) An ordinance making it unlawful to play any instrument, etc., in any saloon, etc., after midnight, and for any female to be in any saloon, etc., after midnight, does not violate this pro- vision. (Ex parte Smith & Keating, 38 Cal. 702.) A statute limiting the compensation of employment agencies is invalid. (Ex parte Dickey, 144 Cal. 234, 103 Am. St. Kep. 82, 77 Pac. 924, 6G L. R. A. 928, 1 Ann. Cas. 428.) Art. I, § 2 CONSTITUTION OF 1879. 6 When a lawful business is of a beneficial character, and not dangerous to the public, it cannot be subjected to police regu- lation. (Ex parte Dickey, 144 Cal. 234, 103 Am. St. Rep. 82, 77 Pac. 924, 66 L. R. A. 928, 1 Ann. Cas. 42S.) It is always a judicial question whether any particular regu- lation of the constitutional right of the citizen to engage in an innocent and useful business is a valid exercise of the legisla- tive power. (Ex parte Hay den, 147 Cal. 649, 109 Am. St. Rep. 183, 82 Pac. 315.) An act making it unlawful to issue trading stamps and coupons is unconstitutional. (Ex parte Drexel, 147 Cal. 763, 82 Pac. 429, 2 L. R. A., N. S., 588, 3 Ann. Cas. 878.) The legislature has the constitutional right to modify the common law by taking away the revocable nature of the license granted by a ticket to a place of public amusement. (Greenberg V. Western Turf Assn., 148 Cal. 126, 113 Am. St. Rep. 216, 82 Pac. 6S4.) Sunday laws. — In Ex parte Newman, 9 Cal. 502, it was held that an act making it unlawful to transact any business upon the Sabbath, except certain designated ones, was in violation of this provision, on the ground that the legislature can no more forbid the lawful pursuit of a lawful occupation on one day of the week than it can forbid it altogether. This decision was overruled in Ex parte Andrews, 18 Cal. 678, and Ex parte Bird, 19 Cal. 130. An act making it a misdemeanor to keep open a barber-shop on Sundays or other holidays is in violation of this section. (Ex parte Jentzsch, 112 Cal. 468, 44 Pac. 803, 32 L. R. A. 664.) Life, liberty, etc. — A law imposing the death penalty upon a person undergoing a life sentence, who, with malice afore- thought, commits an assault upon another with a deadly weapon, or by any means likely to produce bodily injury, is valid. (In re Finley, 1 Cal. App. 198, 81 Pac. 1041.) Political power. See. 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. 7 CONSTITUTION OF 1879. Art. I, §§ 3, 4 TIIE PEOPLE. — The people are such as are born upon the soil, and such foreigners as may elect to assume the obligations of citizens by naturalization. Those who are not of the people have no share in political power; and, therefore, an alien is not eligible to an office in this state. (Walther v. Eabolt, 30 Cal. 185.) Relation to the American Union. Sec. 3. The state of California is an inseparable part of the American Union, and the constitution of the United States is the supreme law of the land. AMERICAN UNION,— The United States constitution is the supreme law of the land. (U. S. Const., art. 6, sec. 2; Prigg v. Commonwealth, 16 Pet. 628, 10 L. Ed. 1094; New Jersey v. Wilson, 7 Cranch, 164, 3 L. Ed. 303; Terrett v. Taylor, 9 Cranch, 43, 3 L. Ed. 650; Von Hoffman v. Quincy, 4 Wall. 535, 18 L. Ed. 403; Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287; Ex parte Eomaine, 23 Cal. 585.) The object of the United States constitution was to establish a government which, to the extent of its powers, should be supreme within its sphere of action. (Dobbins v. Commrs. of Erie Co., 16 Pet. 435, 10 L. Ed. 1022; Ableman v. Booth, 21 How. 520, 16 L. Ed. 175; Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257; United States v. Rhodes, 1 Abb. U. S. 44, Fed. Cas. No. 16,151; McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579.) The constitution of the United States is a part of the organic law of each state. (Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287; Ex j)arte Eomaine, "23 Cal. 585.) This section does not have the effect to make the various provisions of the constitution of the United States a part of our state constitution. (People v. Nolan, 144 Cal. 75, 77 Pac. 774.) Religious freedom. Sec. 4. The free exercise and enjoyment of relictions profession and worship, without discrimination or pref- Art, I, § 4 CONSTITUTION OF 1879. 8 erence, shall be forever guaranteed in this state; and no person shall be rendered incompetent to be a witness or juror on account of his opinions on matters of reli- gious belief; but the liberty of conscience hereby se- cured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state. SUNDAY LAWS.— In Ex parte Newman, 9 Cal. 502, it was held that an act making it unlawful to transact any business upon the Sabbath, except certain designated ones, was in vio- lation of this provision. In reaching this conclusion, the fol- lowing principles were laid down: Our constitutional theory regards all religions, as such, as equally entitled to protection and equally unentitled to prefer- ence. Where 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. When the citizen is compelled by the legislature to do any aflSrmative act, or to refrain from doing anything, merely be- cause it violates a religious principle or observance, the act is unconstitutional. This provision does not mean to guarantee merely toleration, but religious liberty in its largest sense, and a perfect equality, without distinction, between religious sects. An enforced ob- servance of a day held sacred by one of these sects is a dis- crimination in favor of that sect, and a violation of the re- ligious freedom of the others. This decision, however, has been overruled by later cases: Ex parte Andrews, 18 Cal. 678; Ex parte Bird, 19 Cal. 130; Ex parte Burke, 59 Cal. 6, 43 Am. Kep. 231. WITNESSES. — This section means that a witness is com- petent without respect to his religious sentiments or convic- tions — the law leaving his competency to legal sanctions, or, at least, to considerations independent of religious sentiments and convictions. (Fuller v. Fuller, 17 Cal, 605.) 9 CONSTITUTION OF 1879. Art. I, §§ 5, 6 Habeas corpus. See. 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. HABEAS CORPUS. — This right is to be exercised in a reasonable manner. The writ should not issue to run out of the county, unless for good cause shown — as the absence, disability, or refusal to act of the local judge — or other reason showing that the object and reason of the law requires its issuance. Nor should it issue from the supreme court in any case, except under the same circumstances. (Ex parte Ellis, 11 Cal. 222.) The writ of habeas corpus will not issue when the restraint is not real, but merely nominal and permissive. (In re Gow, 139 Cal. 242, 73 Pac. 145.) As to what courts may issue writs of habeas corpus, see article 6, sections 4, 5; People v. Turner, 1 Cal. 143, 52 Am. Dec. 295; Ex parte Perkins, 2 Cal. 424; People v. Booker, 51 Cal. 317; Tyler t. Houghton, 25 Cal. 26. Right to bail — Rights of witnesses. Sec. 6. All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed ; nor shall cruel or unusual punishments be inflicted. Witnesses shall not be unreasonably detained, nor confined in any room where criminals are actually imprisoned. BAIL. — Admission to bail in capital cases, where the proof is evident or the presumption great, may be made, under our con- stitution, matter of discretion, and may be forbidden by the legislature. In all other cases the admission to bail is a right of the accused, which no judge or court can properly refuse. (People V, Tinder, 19 Cal. 539, 81 Am. Dec. 77.) Art. I, § 6 CONSTITUTION OP 1879. 10 An act making admission to bail matter of discretion in all cases where the punishment is death, unless the proof is evident or the presumption great, is in conflict with this section. (People V. Tinder, 19 Cal. 539, 81 Am. Dec. 77.) This section does not prevent the court from ordering the defendant into custody as soon as the trial is commenced. (Peo- ple V. Williams, 59 Cal. 674.) This provision applies only to cases in which the party has not been already convicted. (Ex parte Voll, 41 Cal. 29.) A person arrested for felony must, in order to procure bail, be taken before the magistrate who issued the warrant, or some other magistrate in the same county. (Ex parte Hung Sin, 54 Cal. 102.) The court should not refuse to accept on bail a surety who is a nonresident of the county unless there is some circumstance that would reasonably excite suspicion as to such surety, or unless it would be difficult to investigate his financial standing. (Ex parte Euef, 8 Cal. App. 468, 97 Pac. 89.) Sureties on a bail bond may qualify with property real or personal in the county or elsewhere. (Ex parte Euef, 8 Cal. App. 468, 97 Pac. 89.) A court has no power to refuse friends and relatives of the accused as bail for the sole reason that they are such. (Ex parte Ruef, 8 Cal. App. 468, 97 Pac. 89.) WITNESSES. — A person detained as a witness ninety days, and after several continuances not satisfactorily accounted for, is entitled to his discharge under this section. (Ex parte Dressier, 67 Cal. 257, 7 Pac. 645.) PUNISHMENT. — "Cruel and unusual punishments" are pun- ishments of a barbarous character and unknown to the common law. (State v. MeCauley, 15 Cal. 429.) A statute authorizing the leasing out of convicts is not in violation of this provision. (State v. McCaule}^, 15 Cal. 429.) A law making an offense punishable "by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding six months, or both," is valid. (People v. Perini, 94 Cal. 573, 29 Pac. 1027.) An act imposing merely a minimum penalty is not unconstitu- tional. (In re Hallawell, 8 Cal. App. 563, 97 Pac. 320.) Imprisonment in the county jail or state prison is not unusual nor cruel. (In re O'Shea, 11 Cal. App. 568, 105 Pac. 776.) 11 CONSTITUTION OP 1879. Art. I, § 7 Cruel and unusual punishments are punishments of a barbarous nature unknown to the common law, being such as disgraced the civilization of former ages and made one shudder with horror to read of them. (In re O'Shea, 11 Cal. App. 568, 105 Pac. 776.) The death penalty, imposed by section 246 of the Penal Code, upon a person undergoing a life sentence who commits an assault with a deadly weapon, is not a cruel or unusual punishment for- bidden by the constitution. (People v. Oppenheimer, 156 Cal. 733, 106 Pac. 74.) Trial by jury. Sec. 7. The right of trial by jury shall be secured to all, and remain inviolate ;' but in civil actions three- fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, not amount- ing to felony, by the consent of both parties, expressed in open court, and in civil actions by the consent of the parties, signified in such manner as may be pre- scribed by law. In civil actions, and cases of mis- demeanor, the jury may consist of twelve, or of any number less than twelve upon which the parties may agree in open court. TRIAL BY JURY.— This section only gives a right to a trial by jury in cases where the right existed at common law. (Cas- sidy V. Sullivan, 64 Cal. 266, 28 Pac. 234; Koppikus v. State Capitol Commrs., 16 Cal. 248; Woods v. Varnum, 85 Cal. 6.30, 24 Pac. 843.) It cannot be demanded as of right in an equity case, but only in criminal and civil cases in which an issue of fact is joined. (Koppikus V. State Capitol Commrs., 16 Cal. 248.) The right does not exist in actions for divorce (Cassidy v. Sullivan, 64 Cal. 266, 28 Pac. 234); condemnation proceedings (Koppikus V. State Cajiitol Commrs., 16 Cal. 24S); proceedings for the removal of public officers (Woods v. Varnum, 85 Cal. Art. I, § 7 CONSTITUTION OF 1879. 12 639, 24 Pac. 843); or in cases of equity jurisdiction. (Pacific Ey. Co. V. Wade, 91 Cal. 449, 25 Am. St. Rep. 201, 27 Pac. 768, 13 L. R. A. 754.) A party is not entitled to a jury trial in an action brought to aljate a nuisance, and for an injunction to prevent it, although damages are also prayed for. (McCarthy v. Gaston Ridge Mill etc. Co., 144 Cal. 542, 78 Pac. 7.) As to the right to a jury trial in an action to quiet title, where the defendant is in possession, see Hyde v. Redding, 74 Cal. 493, 16 Pac. 380; Angus v. Craven, 132 Cal. 691, 64 Pac. 1091, and cases there cited. An act providing for the removal of ofRcers for extortion, and providing generally that the practice governing other civil actions shall apply thereto, does not deprive the defendant of a jury trial. (Ryan v. Johnson, 5 Cal. 86.) The refusal to allow a jury is mere error and cannot be reviewed by writ of review. (Goodman v. Superior Court, 8 Cal. App. 232, 96 Pac. 395.) Both in criminal cases not amounting to felony, and in civil actions, the right of trial by jury may be waived. (Goodman v. Superior Court, 8 Cal. App. 232, 96 Pac. 395.) The granting of a nonsuit is not violation of the constitu- tional right to a jury trial where it already appears that plaintiff is guilty of contributory negligence. (Bohn v. Pacific Electric Ey. Co., 5 Cal. App. 622, 91 Pac. 115.) Section 1192 of the Penal Code, conferring upon the court the power to determine the degree of a crime upon a plea of guilty, is not unconstitutional as infringing upon the right of trial by jury. (People v. Chew Lan Ong, 141 Cal. 550, 99 Am. St. Rep. 88,''75 Pac. 186.) The power of the court to grant a new trial for insufficiency of the evidence, or for excessive damages, does not violate the right of trial by jury. (Ingraham v. Weidler, 139 Cal. 588, 73 Pac. 415.) Petty offenses. — This provision does not prohibit the legis- lature from providing for summary proceedings without a jury in cases of such petty offenses as were enumerated in the English statutes at the time'of the separation of the American colonies from England, or in cases where the offenses are intrinsically of the same nature and degree. (Ex parte Wong You Ting, 106 Cal. 296, 39 Pac. 627; In re Fife, 110 Cal. 8, 42 Pac. 299.) 13 CONSTITUTION OF 1879. Art. I, § 7 But where the offense falls witliin the legal or common-law notion of crime or misdemeanor, and is embraced in the criminal code of the state, the constitutional right of trial by jury cannot be evaded. (Taylor v. Eeynolds, 92 Cal. 573, 28 Pac. "688; Ex parte Wong You Ting, 106 Cal. 296, 39 Pac. 627.) A jury is not a necessary constituent part of a court for the trial of a misdemeanor. (Wittman v. Police Court, 145 Cal. 474, 78 Pac. 1052.) Vicinage. — By the common law, the trial of all crimes is re- quired to be by a jury selected from the vicinage or county where the crime is alleged to have been committed; and the same right is secured by this section. Therefore, section 1033 of the Penal Code, allowing a criminal action to be removed to another county without the consent of the defendant, is uncon- stitutional. (People V. Powell, 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75.) Jurors. — A law taking away the challenge to a juror for im- plied bias, on the ground that the juror has formed or expressed an unqualified opinion as to the guilt of the accused, is constitu- tional. (People V. Ah Lee Boon, 97 Cal. 171, 31 Pac. 933.) The court may, in its discretion, permit a separation of the jurors during the impaneling of the jury and the subsequent progress of the trial. (People v. Chaves, 122 Cal. 134, 54 Pac. 596.) Waiver of jury trial. — The legislature alone, and not the court, can determine what shall constitute a waiver of a jury trial. (Exline v. Smith, 5 Cal. 112.) The right to a jury trial is not waived by going to trial after it has been denied, and the denial of it may be reviewed upon an appeal from the judgment. (In re Robinson, 106 Cal. 493, 39 Pac. 862.) A plea of guilty is a waiver of a jury trial. (People v. Len- nox, 67 Cal. 113, 7 Pac. 260.) Also a failure to demand it in a civil case before the trial begins. (Polack v. Gurnee, 66 Cal. 266, 5 Pac. 229, 610.) Refusal of, how reviewed. — The denial of a jury trial may be reviewed upon an appeal from a judgment (In re Robinson, 106 Cal. 493, 39 Pac. 862), but cannot be reached by a writ of habeas corpus. (Ex parte Miller, 82 Cal, 454, 22 Pac. 1113.) Art. I, § 8 CONSTITUTION OF 1879. 14 Refusal of a court to allow a jury trial eamiot he reviewed bv certiorari. (Wittman v. Police Court, 145 Cal. 474, 78 Pac. 1052.) Oflfenses, how prosecuted. See. 8. Offenses heretofore required to be prose- cuted by indictment shall be prosecuted by informa- tion, after examination and commitment by a magis- trate, or by indictment, with or without such ex- amination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county. INDICTMENT AND INFORMATION.— A crime committed before the adoption of the new constitution may, after such adoption, be prosecuted by information. (People v. Campbell, 59 Cal. 243, 43 Am. Rep. 257.) As to the distinction between an indictment and a present- ment, see In re Grosbois, 109 Cal. 445, 42 Pac. 444. Under this provision a presentment by the grand jury for a misdemeanor is unauthorized. (In re Grosbois, 109 Cal. 445, 42 Pac. 444.) This section does not prohibit a prosecution by indictment of any criminal offense, including a misdemeanor. (Ex parte McCarthy, 53 Cal. 412.) A defendant cannot be put upon trial under an information until after examination and commitment by a magistrate. (Ex parte Nicholas, 91 Cal. 640, 28 Pac. 47.) The constitution has left the form of the indictment to the legislature. (People v. Kelly, 6 Cal. 210.) The provision of this section for proceeding in criminal cases by information is not in conflict with the constitution of the United States, as not being "due process of law." (Kalloch v. Superior Court, 56 Cal. 229.) A person indicted several times for the same offense is entitled to his release on nominal bail on the duplicate indictments. (Ex parte Ruef, 7 Cal. App. 750, 96 Pac. 24.) 15 CONSTITUTION OF 1879. Art. 1, § 8 Bail must not be exacted for the purpose of punishing the defendant. (Ex parte Euef, 7 Cal. App. 750, 96 Pac. 24.) The discretion of the trial court in fixing bail will not be interfered with, unless it clearly appears that the court has abused its discretion, and that the bail demanded is per se unreasonably great and clearly disproportionate to the offense involved. (Ex parte Euef, 7 Cal. App. 750, 96 Pac. 24.) It is within the power of the state to abolish the grand jury and authorize the procedure to punish crimes by information. (People V. Lewis, 9 Cal. App. 279, 98 Pac. 107&.) When a defendant before the impaneling of a grand jury has been given an opportunity to examine the prospective grand jur- ors touching their qualifications, the court may refuse to permit him to go over the same ground on a motion to set aside the indictment. (Borello v. Superior Court, 8 Cal. App. 215, 96 Pac. 404.) A person who has not been held to answer, but who may be accused of a public offense and who may be indicted by the grand jury, is not entitled to examine the individual grand jurors before they are impaneled and sworn touching their quali- fications to inquire into and act upon his case. (Borello v. Superior Court, 8 Cal. App. 215, 96 Pac. 404.) When an information has been filed, prohibition will not lie on the ground that the defendant has not had a preliminary examination. (Western Meat Co. v. Superior Court, 9 Cal. App. 538, 99 Pac. 976.) Upon the filing of an information the presumption arises that the accused has been given the preliminary hearing by a magis- trate. (Western Meat Co. v. Superior Court, 9 Cal. App. 538, 99 Pac. 976.) An information may be filed by the district attorney, although the grand jury is in session. (People v. Lewis, 9 Cal. App. 279, 98 Pac. 1078.) A grand jury does not lack jurisdiction to find an indictment mcrelv because some of its members are disqualified. (Kitts v. Superior Court, 5 Cal. App. 462, 90 Pac. 977.) A mem))er of the grand jury who lacks the qualifications pro- vided by law, is a de facto officer and the acts of the jury are not invalidated. (Kitts v. Superior Court, 5 Cal. App. 462, 90 Pac. 977.) Art. I, § 9 CONSTITUTION OP 1879. 16 An indictment can be set aside by reason of the disqualifica- tion of jurors only for the reasons specified by the Penal Code. (Kitts V. Superior Court, 5 Cal. App. 462, 90 Pac. 977.) When a person is indicted by a grand jury he has no oppor- tunity to question the qualifications of the jurors, except by motion to set aside the indictment. (Kitts v. Superior Court, 5 Cal. App. 462, 90 Pac. 977.) Liberty of speech and freedom of the press — Trials for libel. Sec. 9. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsi- ble for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to deter- mine the law and the fact. Indictments found, or information laid, for publication in newspapers shall be tried in the county where such newspapers have their publication office, or in the county where the party alleged to be libeled resided at the time of the alleged publication, unless the place of trial shall be changed for good cause. LIBERTY OF THE PRESS.— This provision does not make all publications in a newspaper privileged. (Gilman v. McClatchy, 111 Cal. 606, 44 Pac. 241.) 17 CONSTITUTION OF 1879. Art. I, § 10 The liberty of the press is not more under the protection of the constitution than the liberty of speech, and the publishers of a newspaper can defend an action for libel only upon precisely the same grounds upon which any other individual could defend an action for slander. (Edwards v. Publishing Soc, 9& Cal. 431, 37 Am. St. Eep. 70, 34 Pac. 128.) A court has power to punish as a contempt a publication charging a judge with "deliberate lying about the law," etc., in a case before him. (Ex parte Barry, 85 Cal. 603, 20 Am. St. Rep. 248, 25 Pac. 256.) Under this section a court has no power to forbid the repre- sentation upon the theatrical stage of the facts of a criminal case, pending the trial of such case. (Dailey v. Superior Court, 112 Cal. 94, 53 Am. St. Rep. IGO, 44 Pac. 458, 32 L. R. A. 273.) It is proper for the court to inform the jury as to the rules of evidence, and the law applicable to the case, and to tell them that they should go contrarj' to the instructions of the court only when they have a deep and confident conviction that the court is wrong, and that they are right. (People v. Seeley, 139 Cal. 118, 72 Pac. 834.) The last sentence of this section applies to the case of a person who causes a libel to be published in a newspaper, as well as to a publication by the publishers and proprietors alone. (In re Kowalsky, 73 Cal. 120, 14 Pac. 399.) "Good cause," within the meaning of the last sentence of this section, is that set forth in section 1033 of the Penal Code. The provision is not self-executing and confers no enlarged discre- tion upon the court. (Older v. Superior Court, 157 Cal. 770, 109 Pac. 478.) Popular assemblies. Sec. 10. The people s.hall have the right to freely assemble together to consult for the common good, to instruct their representatives, and to petition the legis- lature for redress of grievances. RIGHT TO FREELY ASSEMBLE.— This section does not prevent the legislature from forbidding unlawful assemblies. As Constitution — 2 Art. I, § 11 CONSTITUTION OF 1879. 18 to what are such assemblies, see People v. Most, 128 N. Y. 108, 26 Am. St. Rep. 458, 27 N. E. 970; Rex v. Biit, 5 Car. & P. 154; Regina v. Neale, 9 Car, & P. 431; Beatty v. Gillbanks, 9 Q. B. Div. 308. Uniformity of laws. Sec. 11. All laws of a general nature shall have a uniform operation. UNIFORMITY OF LAWS.— This provision does not affect laws in force at the adoption of the constitution; and, therefore, while section 204 of the Code of Civil Procedure, relating to the impaneling of grand jurors, might have been void under this provision, a mere amendment to that section, making it applica- ble to the present judicial system, does not make it unconstitu- tional. (People v. Durrant, 116 Cal. 179, 48 Pac. 75.) General principles. — The word "uniform" does not mean "uni- versal." (People v. Twelfth District Court, 17 Cal. 547; Hellman v. Shoalters, 114 Cal. 136, 44 Pac. 915, 45 Pac. 1057; In re Zhiz- huzza, 147 Cal. 328, 81 Pac. 955.) All that is necessary to constitute uniformity is that the law shall operate uniformly upon all persons in the same category, and upon rights and things in the same relation. (People v. Henshaw, 76 Cal. 436, 18 Pac. 413; People r. Twelfth District Court, 17 Cal. 547; Ex parte Halsted, 89 Cal. 471, 26 Pac. 961; Wigmore v. Buell, 122 Cal. 144, 54 Pac. 600.) A statute is uniform in its operation if it applies alike to all persons or objects within a class founded upon some natural, intrinsic, or constitutional distinction. (Vail v. San Diego Co., 126 Cal. 35, 58 Pac. 392; Solano Co. v. McCudden, 120 Cal. 648, 53 Pac. 213; Cody v. Murphey, 89 Cal. 522, 26 Pac. 1081; Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620; Murphv V. Pacific Bank, 119 Cal. 334, 51 Pac. 317; Ruperich v. Baehr, l42 Cal. 190, 75 Pac. 782.) The meaning of this provision is that the legislature shall not grant to any citizen or class of citizens privileges or immunities which upon the same term shall not equally belong to all citi- zens. (Ex parte Smith & Keating, 38 Cal. 702; Miller v. Kister, 68 Cal. 142, 8 Pac. 813; People v. Henshaw, 76 Cal. 436, 18 Pac. 413; Brooks v. Hyde, 37 Cal. 366.) 19 CONSTITUTION OF 1879. Art. I, § 11 The operation of a law is none the less uniform because it operates differently upon different classes, provided there is a reasonable basis for the lack of uniformity, and the corpoi'atiou license tax act is not invalid because failure of payment by a California corporation results in a forfeiture of its charter, while nonpayment by a foreign corporation results in a forfeiture of its right to do business within the state. (Kaiser Land & Fruit Co. V. Curry, 155 Cal. 63S, 103 Pae. 341.) This provision has no application to municipal ordinances. (In re Zhizbuzza, 147 Cal. 328, 81 Pac. 955.) Special laws. — It is only laws of a general nature that are re- quired to have a uniform operation, and this section does not forbid special laws. (People v. Central Pac. R. R. Co., 43 Cal. 393; Brooks v. Hyde, 37 Cal. 366; Addison v. Saulnier, 19 Cal. 82; People v. Twelfth District Court, 17 Cal. 547.) Particular acts held not to be uniform. — In conformity with these principles, the following statutes have been held void as not uniform in their operation: A provision of the County Government Act that, in counties of a certain designated population, county licenses collected in cities shall be paid into the treasuries of such cities for street improvements (San Luis Obispo Co. v. Graves, 84 Cal. 71, 23 Pac. 1032); an act authorizing a named street railway company to operate a street railway on designated streets (Omnibus R. R. Co. v. Baldwin, 57 Cal. IGO); a provision of the Insolvency Act, giving a right of appeal in cases of contempt — a right not given in other cases of contempt (Ex parte Clancy, 90 Cal. 553, 37 Pac. 411); a law requiring cities of two designated classes to make an effort to agree with the owners of land sought to be con- demned, before instituting condemi:ation proceedings (Pasadena V. Stimson, 91 Cal. 238, 27 Pac. 604); a provision of the County Government Act of 1883, that the boards of supervisors of coun- ties of certain designated classes may allow county officers a deputy whenever in the opinion of such board the salaries of such oflicers are insufficient (Dougherty v. Austin, 94 Cal. 601, 28 Pac. 834, 20 Pac. 1092, 16 L. R. A. 161); the provision of the Australian ballot law for the voting of straight tickets by stamp- ing the ticket opposite the name of the political party to be printed at the head of the ticket (Eaton v. Brown, 96 Cal. 371, 31 Am. St. Rep. 225, 31 Pac. 250, 17 L. R. A. 697); an act pro- viding that in cities having boards of education, the city treas- Art. I, § 11 CONSTITUTION OF 1879. 20 urers are to have the custody of the state and county school money appropriated to the city (Bruch v. Colombet, 104 Cal, 3-17, 38 Pac. 45); a provision in the County Government Act that, in counties of one particular class only, witnesses in criminal cases shall be paid the same fees as jurors, in the discretion of the judge (Turner v. Siskiyou Co., 109 Cal. 332, 42 Pac. 434); a provision of the County Government Act that, in all counties of one particular class, certain additional fees shall be collected for filing the inventory in estates of deceased persons (Bloss v Lewis, 109 Cal. 493, 41 Pac. 1081); the Primary Election Law of 1895, being confined in its operation to counties of the first and second class (Marsh v. Supervisors, 111 Cal. 368, 43 Pac. 975); a law giving the district attorney supervisory control over fees of justices of the peace and constables in criminal cases (Dwyer V. Parlver, 115 Cal. 544, 47 Pac. 372) ; an act fixing different rates of liability upon stockholders in different corporations (French V. Teschemaker, 24 Cal. 518); the provision of the County Gov- ernment Act that no supplies, etc., shall be purchased for the county from any person who has not had a business in the county for a year prior to the purchase (Van Harlingen v. Doyle, 134 Cal. 53, 66 Pac. 44, 54 L. E. A. 771); the provision of section 1197 of the Political Code forbidding the name of a nominee to be placed upon the ballot more than once (Murphy v. Curry 137 Cal. 479, 70 Pac. 461, 59 L. E. A. 97) ; a statute providing that all covinty printing must be let to persons who have been established in business in the county for more than one year (Van Harlingen V. Doyle, 134 Cal. 53, 66 Pac. 44, 54 L. E. A. 771) ; the act ot March 21, 1905, regarding rates of interest on chattel mortgages, and fixing a different penalty for its violation when committed by corporations than when committed by individuals (Ex parte Sohncke, 148 Cal. 262, 113 Am. St. Eep. 236, 82 Pac. 956, 2 L. E. A., K S., 813, 7 Ann. Cas. 475); a law regulating the rate of interest on chattel mortgages on certain classes of property (Ex parte Sohncke, 148 Cal. 262, 113 Am. St. Eep. 236, 82 Pac. 956 2 L. E. A., N. S., 813, 7 Ann. Cas. 475). ' Particular acts held valid.— On the other hand, the following acts have been held not to be obnoxious to the provision of this section, and valid: An act whose object it is to legalize the assessment of taxes in San Francisco, since it is not a general, but a special, law (San Francisco v. Spring Valley W. W., 54 Cal. 571); an act 21 CONSTITUTION OF 1879. Art. I, § 11 establishing different fee bills for separate counties, not being of a general nature (Ryan v. Johnson, 5 Cal. 86); an act to remedy the failure of the tax collector to publish the names of the owners, etc., it being not a general, but a special, law (Moore V. Patch, 12 Cal. 265); the provision of the County Government Act of 1893, empowering certain of the county officers in counties of one class to appoint a certain number of deputies, whose salaries are fixed by the act and made payable out of the county treasury, although in other counties the principal must pay the salaries of his deputies (Tulare Co. v. May, 118 Cal. 303, 50 Pac, 427, overruling Welsh v. Bramlet, 98 Cal. 219, 33 Pac. 66, and Walser v. Austin, 104 Cal. 128, 37 Pac. 869); an act subjecting trespassing animals to attachment without the affidavit required in other cases of attachment (Wigmore v. Buell, 122 Cal. 144, 54 Pac. 600); a law providing that assessors in counties of one par- ticular class shall pay all percentage for the collection of poll taxes into the county treasury (Summerland v. Bicknell, 111 Cal. 567, 44 Pac. 232); an act providing for police courts in all cities of a designated population, and providing that it shall go into effect upon the expiration of the term of office of the present police judges of such cities (People v. Henshaw, 76 Cal. 436, 18 Pac. 413); an act providing for the commitment of minor crimi- nals to nonseetarian charitable corporations at the expense of the county (Boys' and Girls' Aid Society v. Reis, 71 Cal. 627, 12 Pac. 796); an ordinance prohibiting public laundries in desig- nated parts of a city (In re Hang Kie, 69 Cal. 149, 10 Pac. 327); an ordinance making it unlawful for any person to conduct a laundry within certain limits without a certificate from the fire wardens as to the condition of the heating appliances, and for- bidding the operation of any laundry between 10 P. M. and 6 A. M., or on Sunday (Ex parte Moynier, 65 Cal. 33, 2 Pac. 728); an act making it unlawful to keep open any place of business on Sundays, except barber-shops, bath-houses and hairdressing saloons (Ex parte Burke, 59 Cal. 6, 43 Am. Rep. 231); the Reve- nue Act of 1853, since the legislature may discriminate in the imposition of taxes on certain classes of persons, occupations or species of property, taxing some and exempting others (People V. Coleman, 4 Cal. 46, 60 Am. Dec. 581) ; an act prohibiting all persons, except innkeepers and tlie like, from keeping ojicii their places of business on Sundays for the transaction of business (Ex parte Andrews, 18 Cal. 678); a statute establishing a Art. I, § 11 CONSTITUTION OP 1879. 22 limitation upon actions for the recovery of lands in San Fran- cisco under the Van Ness Ordinance (Brooks v. Hyde, 37 Cal. 366) ; an ordinance making it unlawful to play upon any musical instrument in any saloon, etc., after midnight, and for any female to be in any saloon, etc., after midnight (Ex parte Smith & Keating, 38 Cal. 702); an act giving to laborers working upon mines only a lien for their wages (Quale v. Moon, 4 Cal. 478); a state revenue law making different provisions in the different counties with regard to the enforcement of the payment of de- linquent taxes (People v. Central Pac. E. E. Co., 43 Cal. 398); the provisions of section 1373 of the Political Code, making the county in which the indictment was found chargeable with the support of insane criminals (Napa State Hospital v. Yuba County, 138 Cal. 378, 71 Pac. 450); an act providing that in divorce suits the final decree shall not be entered until the ex- piration of one year from the filing of the decision (Deyoe v. Superior Court, 140 Cal. 476, 98 Am. St. Eep. 73, 74 Pac. 28); the act regulating the practice of medicine and surgery (Ex parte Gerino, 143 Cal. 412, 77 Pac. 166, 66 L. E. A. 249); the case of Abeel v. Clark, 84 Cal. 226, 24 Pac. 383, approved as to the constitutionality of an "act to encourage and provide for general vaccination in the state of California" (French v. Davidson, 143 Cal. 659, 77 Pac. 663); an act making it unlawful to buy or sell quail (Ex parte Kenncke, 136 Cal. 527, 89 Am. St. Eep. 177, 69 Pac. 261); the act providing for the application of the salaries of public officers to the payment of their debts (Euperich v. Baehr, 142 Cal. 190, 75 Pac. 782); the act in regard to the practice of architecture (Ex parte McManus, 151 Cal. 33, 90 Pac. 702); the provision of the child labor law permitting the employment of children in certain cases where they can "read English at sight and write simple English sentences" (In re Spencer, 149 Cal. 396, 117 Am. St. Eep. 137, 86 Pac. 896); section 246 of the Penal Code, providing the death penalty for any person undergoing a life sentence who commits an as- sault with a deadly weapon (People v. Finley, 153 Cal. 59, 94 Pac. 248; People v. Carson, 155 Cnl. 164, 99 Pac. 970); the act of 1905, creating the "Sacramento Drainage District," as the sub- ject matter of the act required a special law (People v. Sacra- mento Drainage District, 155 Cal. 373, 103 Pac. 207); "an act to prohibit the sale of intoxicating liquors within a certain distance of any camp or assembly of men, numbering twenty- 23 CONSTITUTION OF 1879, Art. I, §§ 12, 13 five or more, engaged upon the construction, repair or operation of any public work, improvement, or utility" (Stats. 1909, p. 722) (Ex parte King, 157 Cal. 161, 106 Pac. 578); "an act to amend section 4243 of the Political Code of the state of Calilornia, relating to the compensation and expenses of officers in counties of the fourteenth class" (Stats. 1900, p. 322) (Crockett v. Matthews, 157 Cal. 153, 106 Pac. 575); an act to provide for laying out, opening, extending, widening, etc., any street, etc. (Stats. 1889, p. 70) (Clute v. Turner, 157 Cal. 73, 106 Pac. 240); section 710 of the Code of Civil Procedure, pro- viding for the garrxishment of the salaries of certain public officers at the instance of their judgment creditors (Lawson v. Lawson, 158 Cal. 446, 111 Pac. 354) ; a law prohibiting waste of water from artesian wells (Ex parte Elam, 6 Cal. App. 233, 91 Pac. 811); an ordinance prohibiting the wholesale liquor business within a designated area in a municipality (Grumbach v. Lelande, 154 Cal. 679, 98 Pac. 1059). As to the uniform operation of the County Government Act, which goes into effect at different times as to different coun- ties, see Freman v. Marshall, 137 Cal. 159, 69 Pac. 986. Military power. Sec. 12. The military shall be subordinate to the civil power. No standing army shall be kept up by this state in time of peace, and no soldier shall, in time of peace, be quartered in any house without the con- sent of the owner; nor in time of war, except in the manner prescribed by law. Personal and property rights. Sec. 13. In criminal prosecutions, in any court whatever, the party accused shall have the right to a speedy and public trial ; to have the process of the court to compel the attendance of witnesses in his behalf, Art. I, § 13 CONSTITUTION OF 1879. 24 and to appear and defend, in person and with counsel. No person shall be twice put in jeopardy for the same offense ; nor be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law. The legis- lature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses in criminal cases, other than eases of homicide, when there is reason to believe that the witness, from inability or other cause, will not at- tend at the trial. SPEEDY TRIAL.— Section 1382 of the Penal Code ia manda- tory, and the court has no discretion to deny the defendant a speedy trial as provided by that section. (People v. Morino, 85 Cal. 515, 24 Pac. 892.) An accused person held in custody an unreasonable length of time without trial will be discharged upon habeas corpus. (In re Begerow, 133 Cal. 349, 85 Am. St. Eep. 178, 65 Pac. 828, 56 L. R. A. 614; People v. Moran, 144 Cal. 48, 77 Pac. 777.) When good cause is shown for the delay, a dismissal will not be ordered when the trial has been delayed more than sixty days. (People v. Moran, 144 Cal. 48, 77 Pac. 777.) Pronouncing judgment is no part of the trial, and the con- stitutional right to a speedy trial is not violated by a delay of thirty-five days in pronouncing judgment. (People v. Stokes, 5 Cal. App. 205, 89 Pac. 997.) PUBLIC TRIAL. — The word "public" is used in this section in opposition to the word "secret." (People v. Swafford, 65 Cal. 223, 3 Pac. 809.) The trial should be public in the ordinary, common-sense ac- ceptation of the term, the doors should be open, the public admitted with due regard to the size of the courtroom, the conveniences of the court, the right to exclude objectionable characters and youths of tender years, and to do other things 25 CONSTITUTION OF 1879. Art. I, § 13 which may facilitate the proper conduct of the trial. (People V. Hartman, 103 Cal. 242, 42 Am. St. Rep. 108, 37 Pac. 153.) An order excluding from the courtroom all persons except the officers of the court and the defendant is in violation of this provision and is presumed to be prejudicial. (People v. Hart- man, 103 Cal. 242, 42 Am. St. Rep. 108, 37 Pae. 153. But see People V. Swafford, 65 Cal. 223, 3 Pac. 809.) Where a defendant during a trial becomes excited and in- dulges in profane and abusive lanj^iage, thus creating commo- tion among the spectators and interrupting the trial, an order excluding from the courtroom everyone except the officers of the court, reporters of the press, friends of the defendant, and pel sons necessary for him to have on his trial, is proper. (People v. Kerrigan, 73 Cal. 222, 14 Pac. 849.) The defendant may waive the right to a public trial. (Peo- ple v. Tarbox, 115 Cal. 57, 46 Pac. 896.) WITNESSES. — The legislature has power to limit the com- pulsory attendance of prisoners confined in the state prison to cases of necessity, the existence of which is to be determined by the court. (Willard v. Superior Court, 82 Cal. 456, 22 Pac. 1120.) The defendant may waive his right to be confronted with the Witnesses. (People v. Bird, 132 Cal. 261, 64 Pac. 259.) A court cannot refuse to compel the attendance of witnesses from an adjoining county merely because the district attorney offers to allow their testimony on a former trial to be read. (People V. Bossert, 14 Cal. App. Ill, 111 Pac. 15.) A defendant is entitled to a reasonable time within which to procure the attendance of witnesses. (People v. Bossert, 14 Cal. App. Ill, 111 Pac. 15.) It is the duty of the court, when due diligence has been used, and it appears that the application is made in good faith, and the evidence is material, to continue the case for a reasonable time to obtain an absent witness. (People v. Fong Chung, 5 Cal. App. 585, 91 Pac. 105.) RIGHT TO APPEAR AND DEFEND. — This provision only gives the defendant the right to appear and defend in person and with counsel, and docs not give him the right to appear by counsel when be is himself absent. Therefore, when a de- fendant in a criminal case escapes after conviction, and pending Art. I, § 13 CONSTITUTION OF 1879. 26 an appeal, the appeal will not be heard in his absence, but will be dismissed. (People v. Redinger, 55 Cal. 290, 36 Am. Rep. 32.) When a person, with the consent and acquiescence of the de- fendant, appears as attorney for the defendant, j»lthough another attorney has theretofore appeared, and there is no formal sub- stitution, the defendant cannot be heard to complain that he has been deprived of the right to defendant's counsel. (People v. Garnett, 9 Cal. App. 195, 98 Pac. 247.) To require a prisoner during the progress of his trial to appear and remain with chains upon his limbs, without evident necessity as a means of securing his presence for judgment, is in violation of this section. (People v. Harrington, 42 Cal. 165.) A view of the premises without the presence of the defendant is in violation of this section. (People v. Bush, 68 Cal. 623, 10 Pac. 169.) JEOPARDY. — When a person is placed on trial upon a valid indictment, before a competent court and jury, he is in jeopardy. (People V. Cage, 48 Cal. 323, 'l7 Am. Rep. 436; Ex parte Hart- man, 44 Cal. 32; People v. Webb, 38 Cal. 467; Ex parte Fenton, 77 Cal. 183, 19 Pac. 267; People v. Smalling, 94 Cal. 112, 29 Pac. 421.) After he has thus been put in jeopardy, he cannot be again tried for the same offense unless the jury is discharged from rendering a verdict by a legal necessity, or by his consent; or, in case a verdict is rendered, it be set aside at his instance. (People V. Webb, 38 Cal. 467; People v. Smalling, 94 Cal. 112, 29 Pac. 421.) This is true although the judgment is arrested by the court (Ex parte Hartman, 44 Cal. 32); or an acquittal is obtained by reason of an erroneous instruction (People v. Webb, 38 Cal. 467; People v. Roberts, 114 Cal. 67, 45 Pac. 1016; People v. Horn, 70 Cal. 17, 11 Pac. 470); or the action is dismissed by the court on the ground that he is, in the opinion of the court, guilty of a more serious offense (People v. Ny Sam Chung, 94 Cal. 304, 28 Am. St. Rep. 129, 29 Pac. 642). Where the court is prohibited from pronouncing judgment upon the defendant because the indictment is invalid, jeopardy does not attach. (People v. Terrill, 133 Cal. 120, 65 Pac. 303.) 27 CONSTITUTION OP 1879. Art. I, § 13 To hold a poison guilty of the crime of offering a bribe, and by the same act guilty of the crime of being an accomplice to the crime of receiving a bribe, would not be allowable. (People V. Bunkers, 2 Cal. App. 197, 84 Pac. 364, 370.) A dismissal of a charge on motion of the district attorney is not a bar to another prosecution. (People v. Kerrick, >144 Cal. 46, 77 Pac. 711.) When a defendant is acquitted because of a variance be- tween the proof and the indictment, and the variance is such that a conviction is legally impossible, he has not been in jeopardy. (People v. McNealy, 17 Cal. 332; People v. Oreileus, 79 Cal. 178, 21 Pac. 724.) ' A judgment rendered upon a plea of which the court has no jurisdiction does not place the defendant in jeopardy so far as that plea is concerned. (People v. Woods, 84 Cal. 441, 23 Pac. 1119; People v. Hamberg, 84 Cal. 468, 24 Pac. 298.) Subdivision 6 of section 1238 of the Penal Code, allowing the people to appeal from an order of the court directing the jury to find for the defendant, is void, since the defendant has been in jeopardy. (People v. Horn, 70 Cal. 17, 11 Pac. 470.) The fact that the defendant has been held to answer by a justice of the peace and discharged does not prevent him from again being held to answer. (Ex parte Cahill, 52 Cal. 463.) If a demurrer is sustained to fl.n information, without leave to amend, it is a bar to another prosecution. (People v. Jordan, 63 Cal. 219.) Where an information is dismissed because it charges the commission of an offense subsequent to the date of its filing, a plea of once in jeopardy will not prevail. (People v. Larson, 68 Cal. 18, 8 Pac. 517.) A discharge upon preliminary examination does not place the defendant in jeopardy. (Ex parte Fenton, 77 Cal. 183, 19 Pac. 267.) Discharge of jury. — If the jury ia discharged without the consent of the defendant, except in case of unavoidable acci- dent or necessity, the defendant cannot be again prosecuted. (People V. Cage, 48 Cal. 323, 17 Am. Rep. 436.) Inability of the jury to agree after a reasonable time for de- liberation is an unavoidable necessity. (People v. Cage, 48 Cal. 323, 17 Am. Rep. 436; People v. Snialling, 94 Cal. 112, 29 Pac. Art. I, § 13 CONSTITUTION OF 1879. 28 421; People v. James, 97 Cal. 400, 32 Pac. 317; People v. Dis- puati, 11 Cal. App. 469, 105 Pac. 617.) The fact of such necessity cannot be impeached by extrinsic evidence, and such discharge may be made in the absence of the defendant, if his presence is waived by his counsel. (People V. Smalliug, 94 Cal. 112, 29 Pac. 421.) Even if the court instructed the jury to acquit, a plea of once in jeopardy will not prevail if the jury is discharged for failure to agree. (People v. James, 97 Cal. 400, 32 Pac. 317.) The court cannot discharge the jury merely upon a report of the sheriff that the jury cannot agree. (People v. Cage, 48 Cal. 323, 17 Am. Eep. 436.) Where the jury is discharged for failure to agree, it is not necessary that J;he record should show that it satisfactorily appeared to the judge that there was no reasonable probability that the jury could agree. (People v. Greene, 100 Cal. 140, 34 Pac. 630.) Where the defendant flees during the trial and the jury is discharged, a plea of once in jeopardy has no merit. (People V. Higgins, 59 Cal. 357.) Where the jury is discharged with the consent of the defend- ant, a plea of once in jeopardy will not prevail. (People v. Curtis, 76 Cal. 57, 17 Pac. 941.) The same is true if the jury is discharged on account of the sickness of one of the jurors. (People v. Koss, 85 Cal. 383, 24 Pac. 789.) But if a defendant is indicted for manslaughter, the court cannot lawfully discharge the jury because it is of the opinion that he is guilty of murder. (People v. Hunckeler, 48 Cal. 331.) Nor can the jury be lawfully discharged because it has found a verdict convicting the defendant of a crime not included in the charge. (People v. Arnett, 129 Cal. 306, 61 Pac. 930.) Different offenses. — Where the legislature has forbidden the sale of opium, unless a record of the sale is kept, and a city ordinance forbids the sale without a prescription of a physician, a prosecution under each of these provisions is no violation of this provision. (Ex parte Hong Shen, 98 Cal. 681, 33 Pac. 799.) A prosecution for fraudulently procuring a note of one of the joint makers is not a bar to a prosecution for fraudulently pro- 29 CONSTITUTION OF 1879. Art. I, § 13 curing the joint note of the two makers. (People v. Cummings, 123 Cal. 269, 55 Pac. 898.) An acquittal upon a charge of libel in the publication of a charge in a newspaper is a bar to a prosecution for the publica- tion of another charge in the same issue and against the same individual, although the charges are not the same. (People v. Stephens, 79 Cal. 42S, 21 Pae. 856, 4 L. E. A. 845.) A charge of altering the brands of cattle is not included in a charge of grand larceny of the same cattle, in which evidence was given of the same alteration of brands. (People v. Ker- rlck, 144 Cal. 46, 77 Pac. 711.) Lesser offense. — A conviction of a lesser offense than that charged is an acquittal of the higher. (People v. Apgar, 35 Cal. 389; People v. Ny Sam Chung, 94 Cal. 30i, 28 Am. St. Eep. 129, 29 Pac. 642; People v. Gordon, 99 Cal. 227, 33 Pac. 901.) Where a defendant is charged with assault with a deadly weapon, and is convicted of battery, and the judgment is re- versed, a plea of once in jeopardy will not lie, as assault does not include battery. (People v. Helbing, 61 Cal. 620.) A defendant tried for murder, and convicted of murder in the second degree, who has the judgment vacated and a new trial granted, may be subsequently convicted of murder in the first degree. (People v. Kecfer, 65 Cal. 232, 3 Pac. 818.) A conviction of an assault, under an information charging an assault with intent to murder, is a bar to a prosecution for mayhem committed during the assault. (People v. Defoor, 100 Cal. 150, 34 Pac. 642.) A verdict of manslaughter is the equivalent of a verdict of not guilty of murder, and the defendant, after such verdict, cannot be again tried upon the charge of murder. (People v. Muhlner, 115 Cal. 303, 47 Pac. 128.) A conviction for petit larceny committed in connection with a burglary is not a bar to a prosecution for burglary. (People V. Devlin, 143 Cal. 128, 76 Pac. 900.) New trials and appeals. — Where a new trial is ordered for in- sufficiency of the evidence, a ])lca of once in jeopardy has no merit. (Peo])]e v. Hardisson, 61 Cal. 378.) Where a judgment of conviction is reversed because of a defective information, and the action is dismissed and a new information filed for the same offense, the defendant cannot Art. I, § 13 CONSTITUTION OF 1879. 30 plead once in jeopardy. (People v. Schmidt, 64 Cal. 260, ^0 Pac. 814; People v. Eppinger, 109 Cal. 294, 41 Pac. 1037; People V. Clark, 67 Cal. 99, 7 Pac. 178; People v. Mooney, 132 Cal. 13, 63 Pac. 1O70.) The same is true where the judgment is reversed because the verdict fails to find the degree of the crime. (People v. Travers, 73 Cal. 580, 15 Pac. 293; People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776.) Also where the judgment is reversed for failure to file the information within the time prescribed by the statute. (People V. Wickham, 116 Cal. 384, 48 Pac. 329.) Also where the judgment is reversed for failure to find upon a plea of once in jeopardy. (People v. Tucker, 117 Cal. 229, 49 Pac. 134.) Where the defendant has not asked for a new trial, the su- preme court in reversing the judgment may nevertheless grant it. (People V. Travers, 77 Cal. 176, 19 Pac. 268; People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776.) Practice. — The question of jeopardy can only arise after an issue has been made of once in jeopardy. (People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776.) The defendant is entitled to a special verdict upon a plea of once in jeopardy. (People v. Tucker, 115 Cal. 337, 47 Pac. 111.) Where the jury on the first trial found for the people on the plea of once in jeopardy, but failed to agree as to the plea of not guilty, the former plea need not be again submitted to the jury on a second trial. (People v. Smith, 121 Cal. 355, 53 Pac. 802.) WITNESS AGAINST SELF. — A proceeding to remove a pub- lic officer for misconduct in office, no matter in what form the statutes may clothe it, is in its nature a criminal case. (Thurs- ton V. Clark, 107 Cal. 285, 40 Pac. 435.) Sections 1458 to 1461 of the Code of Civil Procedure are not penal in their nature. (Levy v. Superior Court, 105 Cal. 600, 38 Pac. 965, 29 L. R. A. 811.) Where the examination of the defendant is confined entirely to the instrument which he is charged with forging, he cannot be cross-examined in reference to the forgery of another in- strument. (People V. Baird, 104 Cal. 462, 38 Pac. 810.) 31 CONSTITUTION OF 1879. Art. I, § 13 Where a defendant testifies tliat he drew the pistol merely to scare the deceased and had had no quarrel with him on that day, it is proper on cross-examination to ask him whether or not he had a quarrel with the deceased a few moments before the shooting, and as to what kind of a pistol he had, and why he cocked it. (People v. Brown, 76 Cal. 573, 18 Pac. 678.) Where a defendant in his cross-examination voluntarily makes a statement concerning matters not embraced in his examina- tion in chief, he may be cross-examined for the purpose of making such statements more clear. (People v. Sutton, 73 Cal. 243, 15 Pac. 86.) The fact that the defendant has been compelled to testify concerning the offense is merely a defense to the Indictment, and does not affect the jurisdiction of the court. (Rebstoek v. Superior Court, 146 Cal. 308, 80 Pac. 65.) It is sufficient, to bring a person within the immunity of this provision, that there is a law creating the offense under which the witness may be prosecuted, and which does not secure him against use, in a criminal prosecution, of the evidence that he may give; and in such ease he cannot be compelled to answer in any collataral proceeding as to acts constituting such offense. (Ex parte Clarke, 103 Cal. 352, 37 Pac. 230.) Where the statute gives the witness complete immunity from prosecution for the offense with reference to which his testi- mony is given, he cannot refuse to answer. (Ex parte Cohen, 104 Cal. 524, 43 Am. St. Rep. 127, 38 Pac. 364, 26 L. R. A. 423.) A law can absolutely secure a party against use in a criminal prosecution of the evidence he may give, only by a provision that, if he submits to the examination and answers the ques- tions, he shall be exempt from any criminal prosecution for the offense to which the inquiry relates. (Ex parte Clarke, 103 Cal. 352, 37 Pac. 230.) The mere fact that an answer might disgrace the witness is not ground for refusal to answer; and where an act provides that the testimony shall not be used against him in any criminal prosecution, he cannot refuse to answer under this provision. (Ex parte Rowe, 7 Cal. 184.) It is for the court and not for the witness to determine whether or not the answer will incriminate the witness. (In r© Rogers, 129 Cal. 468, 62 Pac. 47.) Art. I, § 13 CONSTITUTION OF 1879. 32 A defendant in a criminal prosecution, who has become a witness in his own behalf, cannot be cross-examined as to any facts or matters not testified to by him on his examination, in chief. (People v. O'Brien, 66 Cal. 602, 6 Pac. 695.) When a- defendant offers himself as a witness he is subject to the same rules of cross-examination as any other witness. (People V. Maughs, 8 Cal. App. 707, 96 Pac. 407.) DUE PROCESS OF LAW — Property. — The right to practice law is not "property" within the meaning of this section. (Cohen v. Wright, 22 Cal. 293.) The right to a salary attached to a public office is not prop- erty. (Pennie v. Reis, 80 Cal. 266, 22 Pac. 176; Clarke v. Keis, 87 Cal. 543, 25 Pac. 759.) Title by prescription is property which is protected by this provision. (Sharp v. Blankenship, 59 Cal. 288.) A vested right in a pension fund is property within the mean- ing of this provision. (Kavanagh v. Board of Police P. F. Commrs., 134 Cal. 50, 66 Pac. 36.) What is "due process." — "Due process of law" means such an exertion of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. (Ex parte Ah Fook, 49 Cal. 402; Wulzen v. Supervisors, 101 Cal. 15, 40 Am. St. Rep. 17, 35 Pac. 353.) The words "due process of law" were intended to convey the same meaning as the words "the law of the land" in Magna Charta, and mean public laws binding all the members of the community under similar circumstances, and not partial or pri- vate laws affecting the rights of individuals. (Kalloch v. Su- perior Court, 56 Cal. 229.) Due process of law requires a trial governed by the estab- lished rules of evidence, and a procedure suitable and proper to the nature of the case, and sanctioned by the established usage and customs of the courts. (San Jose Ranch Co. v. San Jose etc. Co., 126 Cal. 322, 58 Pac. 824,.) Police power. — In the exercise of the police power certain kinds of property, when held or used so as to be injurious to the general public, may be seized and destroyed. (Collins v. Lean, 68 Cal. 284, 9 Pac. 173.) 33 CONSTITUTION OF 1879. Art. I, § 13 An act defining pure wine, prohibiting the use of deleterious substitutes, and forbidding the sale of impure wine, does not deprive one of property without due process of law. (Ex parte Kohler, 74 Cal. 38, 15 Pac. 436.) Where the exercise of the police power is permissible, the pro- vision of the constitution declaring that private property shall not be taken without due process of law is inapplicable. (Ex parte Elam, 6 Cal. App. 233, 91 Pac. 811.) An ordinance prohibiting the sale of liquors is not unconsti- tutional because it deprives one of the right to dispose of large quantities of liquor which he had on hand at the time the ordi- nance was passed. (Ex parte Young, 154 Cal. 317, 97 Pac. 822, 22 L. R. A., N. S., 330.) Where an ordinance, fixing the limits within which a disagree- able business may be exercised, has in fact some relation to public health and is approjDriate and adapted to that end, it cannot be urged that the ordinance deprives the owner of his property without due process of law. (Ex parte Lacey, 108 Cal. 326, 49 Am. St. Rep. 93, 41 Pac. 411, 38 L. R. A. 640.) Particular statutes. — The provision of the constitution allow- ing prosecutions by information affords due process of law. (Kalloch V. Superior Court, 56 Cal. 229.) The provision of section 971 of the Penal Code as to charging an accessory before the fact as a principal does not deprive him of life, liberty or property without due process of law. (People V. Nolan, 144 Cal. 75, 77 Pac. 774.) The expulsion of a member of the legislature without a hear- ing does not deprive him of property without due process of law. (French v. Senate, 146 Cal. 604, 80 Pac. 1031, 69 L. R. A, 556, 2 Ann. Cas. 756.) The legislature has power to provide that a deed in a street assessment matter shall be conclusive evidence of the regularity of all required steps other than those necessary to constitute due process of law or to comply with the constitution. (Chase V. Trout, 146 Cal. 350, 79 Pac. 81.) The statute prescribing an increased punishment for a second ofifense does not de[)rive a defendant of liberty without due process of law. (People V. Coleman, 145 Cal. 609, 79 Pac. 283.) Constitution— ^3 Art. I, § 13 CONSTITUTION OF 1879. 34 A law imposing the death penalty upon a person undergoing a life sentence, who, with malice aforethought, commits an as- sault upon another with a deadly weapon, or by any means likely to produce bodily injury, is valid. (In re Finley, 1 Cal. App. 198, 81 Pac. 1041.) An act making the Issuance of bonds conclusive evidence of the validity of the lien is void; but an act making the issuance conclusive evidence of the regularity of the proceedings not essential to the jurisdiction of the officers to create the lien is valid. (Ramish v. Hartwell, 126 Cal. 443, 58 Pac. 920.) This provision does not prohibit a summary proceeding by the state to collect taxes, without the intervention of a court. (High v. Shoemaker, 22 Cal. 363.) The act of 1875, providing for a judicial proceeding to au- thorize the sale of the homestead upon the insanity of either spouse, by the sane spouse alone, is valid, in so far as it relates to a homestead upon the community property acquired subse- quent to the passage of the act. (Rider v. Regan, 114 Cal. 667, 46 Pac. 820.) A law authorizing the court to strike out the pleading of a defendant for failure to sign a deposition or as a punishment for a contempt of court is invalid. (Foley v. Foley, 120 Cal. 33, 65 Am. St. Rep. 147, 52 Pac. 122.) To enter judgment against a defendant for failure to deposit his share of the per diem of the reporter is taking property without due process of law. (Meacham v. Bear Valley Irr. Co., 145 Cal. 6Q6, 79 Pac. 281, 68 L. R. A. 600.) A statute providing that no case shall be reversed for error, unless it appears that a different result would have been prob- able if the error had not occurred, is void as depriving parties of due process of law. (San Jose Ranch Co. v. San Jose etc. Co., 126 Cal. 322, 58 Pac. 824.) An act devesting the title of the purchaser of property from a mortgagor by a foreclosure suit in which the mortgagor alone is defendant is void. (Skinner v. Buck, 29 Cal. 253.) An act extending the corporate limits of a town so as to in- clude lands used solely for agricultural purposes was upheld in Santa Rosa v. Coulter, 58 Cal. 537. The act of 1907, page 122, prohibiting waste from artesian wells does not unconstitutionally interfere with private prop- erty. (Ex parte Elam, 6 Cal. App. 233, 91 Pac. 811.) 35 CONSTITUTION OP 1879. Art. I, § 13 The mechanic's lien law is not unconstitutional because it takes property without due process of law. (Stimson Mill Co. V. Nolan, 5 Cal. App. 754, 91 Pac. 262.) The amendments to the Code of Civil Procedure providing for a new and alternative method of appeal do not violate the "due process of law" clauses of the state and federal constitu- tions in failing to require service of notices of ajipeal upon re- spondents. (Estate of McPhee, 154 Cal. 385, 97 Pac. 878.) The amendment to the Code of Civil Procedure relative to the method of preparing the record to be used on appeal is not un- constitutional in not providing for service of the notice filed with the clerk that the appellant intends to appeal and requir- ing that a transcript be made up. (Estate of McPhee, 154 Cal. 385, 97 Pac. 878.) The legislature has power to permit execution to issue on a judgment after the expiration of the five years' limitation in effect when the judgment was rendered, provided the judg- ment had not become barred at the time of the amendment. (Weklon v. Rogers, 151 Cal. 4.-?2, 90 Pac. 1062.) The legislature may extend the time within which an action may be brought at any time before the action is barred. (Weldon v. Rogers, 151 Cal. 432, 90 Pac. 1062.) The legislature has power to make a tax deed conclusive evidence that after a sale to the gtate the tax collector stamped all subsequent bills "sold for taxes," and the date of the sale. (Bank of Lemoore v. Fulgham, 151 Cal. 234, 90 Pac. 936.) It is not within the power of the legislature to take away the right of redemption from a tax sale which existed at the time of the sale. (Johnson v. Taylor, 150 Cal. 201, 119 Am. St. Rep. 181, 88 Pac. 903.) Notice. — A judgment obtained without service of summons on, or voluntary appearance by, the defendant does not consti- tute due process of law. (Baker v. O'Riordan, 65 Cal. 368, 4 Pac. 232; Belcher v. Chambers, 53 Cal. 635; De La Montanya V. De La Montanya, 112 Cal. 101, 53 Am. St. Rep. 165, 44 Pac. 345, 32 L. R. A. 82.) A law authorizing the commitment of a person to an insane asylum without notice is void. (Matter of Lambert, 134 Cal. 6^6, 86 Am. St. Rep. 296, 66 Pac. 851. 55 L. R. A. 856.) The shortness of the period of constructive notice to non- resident heirs of the probate of a will docs not deprive them Art. I, § 13 CONSTITUTION OF 1879. 36 of due process of law, since they are allowed to contest the will within a year after probate. (Estate of Davis, 136 Cal. 590, 69 Pac. 412.) An ex parte order for alimony is void. (Baker v. Baker, 136 Cal. 302, 68 Pac. 971.) The fact that the street bond act does not in terms give a lienholder an opportunity to object does not render it uncon- stitutional. (German Sav. etc. Soc. v. Eamish, 138 Cal. 120, 69 Pac. 89, 70 Pac. 1067.) An act authorizing a personal judgment against a defendant concealing himself within the state, for whom the court has appointed an attorney with privilege to the defendant to come in witliin six months, is valid. (Ware v. Robinson, 9 Cal. 107.) 'Sections 1206 and 1207 of the Penal Code must be construed as requiring that both debtor and creditor are to have notice of claims for wages, otherwise they would deprive the debtor of his property without due process of law. (Taylor v. Hill, 115 Cal. 143, 44 Pac. 336, 46 Pac. 922.) Whether a notice of not more than ten days is valid, query? (Eoorman v. Santa Barbara, 65 Cal. 313, 4 Pac. 31.) A general notice of an intended improvement, before it has been determined either finally or conditionally what land will be affected does not constitute due process of law. (Boorman V. Santa Barbara, 65 Cal. 313, 4 Pac. 31.) An act authorizing an assessment for street improvements without notice to the parties to be assessed is void. (Boor- man V. Santa Barbara, 65 Cal. 313, 4 Pac. 31.) Notice 'by posting constitutes due process of law. (Davies V. Los Angeles, 86 Cal. 37, 24 Pac. 771.) Section 720 of "the Code of Civil Procedure, allowing the judgment creditor to institute an action against an alleged debtor of the judgment debtor, is not unconstitutional on the ground that no notice is given to the judgment debtor. (High v. Bank of Commerce, 95 Cal, 386, 29 Am. St. Rep. 121, 30 Pac. 556.) In matters of taxation and assessment, the state is not bound to accord personal service of process upon the citizen. (Wul- zen v. Supervisors, 101 Cal. 15, 40 Am. St. Rep. 17, 35 Pac. 353.) An assessment without giving an opportunity to the tax- payer to show that the assessment is not proportionate to the 37 CONSTITUTION OP 1879, Art. I, § 13 benefits is unconstitutional. (Lower Kings River Rec. Dist. No. 531 V. Phillips, 108 Cal. .306, 3fl Pac. 630. 41 Pac. 335.) In a proceeding for the sale of the homestead of an insane person, publication for tliree weeks in a newspaper, and per- sonal service upon the nearest male relative of the insane spouse to be found in the state, or, if none, then upon the public administrator, whose duty it is to appear for such insane spouse, constitutes due process of law. (Rider v. Regan, 114 Cal. 667, 46 Pac. 820.) Heirs and devisees are not deprived of their property with- out due process of law by an order setting aside a homestead in probate without notice to them. (Otto v. Long, 144 Gal. 144, 77 Pac. 885.) A statute allowing an execution to issue against the "joint property" of persons sued, when only one of the defendants has been served, is unconstitutional. (Tay v. Hawley, 39 Cal. 93.) An act allowing a peace officer to seize all nets, etc., used in catching fish in violation of the game laws, and to destroy them without notice, or to sell them upon notice posted any- where in the county for five days, is in violation of this provi- sion. (Hey Sing leck v. Anderson, 57 Cal. 251, 40 Am. Rep. 115.) To take property from the possession of a person without a hearing, and compel him to prove title to regain it, is taking property without due process of law. (Havemeyer v. Superior Court, 84 Cal. 327, 18 Am. St. Rep. 192, 24 Pac. 121, 10 L. R. A. 627.) A forfeiture of the charter and property of a subordinate grove by the grand grove, without sufficient charges to show jurisdiction over the subject matter, and without sufficient notice, is in violation of this provision. (Grand Grove etc. v. Garibaldi Grove, 130 Cal. 116, 80 Am. St. Rep. 80, 62 Pac. 486.) An order of tlie probate court made without notice, compel- ling an attorney of an executrix to repay a fee paid to him by her, is in violation of this provision. (Tomsky v. Superior Court, 131 Cal. 620, 63 Pac. lt)20.) Due process of law does not require that the defendant should have notice of a motion for the issuance of execution. (Har- rier V. Bassford, 145 Cal. 529, 78 Pac. 1038.) Art. I, § 13 CONSTITUTION OF 1879. 38 The inheritance tax act does not deprive the heir of his prop- erty without due process of law, since he is given an oppor- tunity to be heard. (Trippet v. State, 149 Cal. 521, 86 Pac. 1084, 8 L. E. A., N. S., 1210.) An act providing that when a foreign corporation doing busi- ness in this state fails to appoint an agent upon whom process may be served process may be served on the secretary of state is valid. (Olender v. Crystalline M. Co., 149 Cal. 482, 86 Pac. 1082.) A statute allowing the filing of a memorandum of costs on appeal without opportunity to the adverse party to have the same taxed would be unconstitutional. (Bell v. Superior Court, 150 Cal. 31, 87 Pac. 1031.) The act for the establishment of titles in San Francisco in cases where the records were destroyed by fire does not deprive anyone of property without due process of law. (Title etc. Restoration Co. v. Kerrigan, 150 Cal. 289, 119 Am. St. Eep. 199, 88 Pac. 356.) The legislature may prescribe moral and unprecedented methods of procedure, provided they afford the parties affected substantial securities against arbitrary and unjust spoliation. (Title etc. Eestoration Co. v. Kerrigan, 150 Cal. 289, 119 Am. St. Eep. 199, 88 Pac. 356.) The provisions of the Code of Civil Procedure providing for the dissolution of corporations without personal notice to cred- itors is not invalid. (Crossman v. A'^ivienda Water Co., 150 Cal. 575, 89 Pac. 335.) The "Torrens Law" does not deprive unknown owners of property without due process of law. (Eobinson v. Kerrigan, 151 Cal. 40, 121 Am. St. Rep. 90, 90 Pac. 129, 12 Ann. Cas. 829.) The provisions for the probate of wills is not unconstitutional because the notice of ten days is insufficient to reach nonresi- dent heirs, since they are allowed one year after probate within which to contest the probate. (Tracy v. Muir, 151 Cal. 363, 121 Am. St. Eep. 117, 90 Pac. 832.) The probate act does not deprive the nonresident of his prop- erty without due process of law because it provides a different notice to residents than to nonresidents. (Tracy v. Muir, 151 Cal. 363, 121 Am. St. Rep. 117, 90 Pac. 832.) The legislature is, primarily, the judge of the necessity which will warrant a substituted instead of a personal service of 39 CONSTITUTION OF 1879. Art. I, § 13 process. (Hoffman v. Superior Court, 151 Cal. 386, 90 Pac. 939.) The "McEnerney Act," for the establishment of titles where the records have been destroyed, is not unconstitutional because it does not require the plaintiff to show the efforts made by him to discover possible claimants to the property. (Hoffman v. Superior Court, 151 Cal. 3S6, 90 Pac. 939.) Section 1582 of the Code of Civil Procedure, authorizing an action to foreclose a mortgage against the estate of a deceased person to be brought against the personal representative alone, is not unconstitutional in depriving the heirs of property with- out due process of law. (McCaughey v. Lyall, 152 Cal. 615, 93 Pac. 681.) Liens. — The mechanics' lien law of 1868 is not unconstitu- tional on the ground that it attempts to appoint agents for private persons; nor that it confiscates property; nor as to the notice required of owners as to responsibility for improvements; nor that it attempts to take away vested rights, or to clothe private persons with power to devest citizens of their property. (Hicks V. Murray, 43 Cal. 515.) Giving a laborer a lien upon a threshing machine in the law- ful possession of a person holding under the owner does not deprive the latter of property without due process of law. (Lambert v. Davis, 116 Cal. 292, 48 Pac. 123.) An act authorizing the creation of a lien upon land by virtue of a contract for the improvement of the street adjacent thereto, entered into with one who is only the reputed owner of the land, is void. (Santa Cruz Rock etc. Co. v. Lyons, 117 Cal. 212, 59 Am. St. Kep. 174, 48 Pac. 1097.) Curative acts. — The legislature has power to pass curative acts by which the various acts and proceedings of the officers and boards charged with the levying and assessing of taxes are rendered valid, notwithstanding that errors and irregularities have intervened. But where the officer or tribunal has no juris- diction, the act is void, and cannot be cured. (People v. Gold- tree, 44 Cal. 323.) An act to validate a judgment of a court void for want of jurisdiction is void. (Pryor v. Downey, 50 Cal. 388, 19 Am. Rep. 656.) An act attempting to validate a void assessment is in viola- tion of this provision. (Brady v. King, 53 Cal. 44; People V. Art. I, § 13 CONSTITUTION OF 1879. 40 L\Ticli, 51 CaL 15, 21 Am. Eep. 677; People v. Goldtree, 44 Cal. 323; Schiiniaker v. Tobernian, 56 Cal. 508; Taylor v. Palmer, 31 Cal. 240; People v. McCune, 57 Cal. 153.) An act attempting to legalize a sale of property for a void tax is unconstitutional. (Harper v. Eowe, 53 Cal. 233; Wills V. Austin, 53 Cal. 152; Houghton v. Austin, 47 Cal. 646.) An act curing tax deeds not containing a recital of the time allowed for redemption is valid. (Baird v. Monroe, 150 Cal. 560, 89 Pac. 352.) The legislature may validate past transactions wherein no vested rights are affected. (Kedlands v. Brook, 151 Cal. 474, 91 Pac. 150.) Assessments.— The so-called "front-foot" method of assess- ment for street improvements has been many times upheld in this state. (Hadley v. Dague, 130 Cal. 207, 62 Pac. 500; Cohen V. Alameda, 124 Cal. 504, 57 Pac. 377; Chambers v. Satterlee, 40 Cal. 497; Emery v. San Francisco etc. Co., 28 Cal. 345; Emery v. Bradford, 29 Cal. 75; Taylor v. Palmer, 31 Cal. 240; Whiting v. Quackenbush, 54 Cal. 306; Whiting v. Townsend, 57 Cal. 515; Lent v. Tillson, 72 Cal. 404, 14 Pac. 71; Jennings v. Le Breton, 80 Cal. 8, 21 Pac. 1127; San Francisco etc. Co. v. Bates, 134 Cal. 39, 66 Pac. 2; Banaz v. Smith, 133 Cal. 102, 65 Pac. 309; San Francisco Pav. Co. v. Bates, 34 Cal. 39, 66 Pac. 2; Chapman v. Ames, 135 Cal. 246, 67 Pac. 1125; Belser v. All- man, 134 Cal. 399, 66 Pac. 492; Eeid v. Clay, 134 Cal. 207, 66 Pac. 262; Alameda v. Cohen, 133 Cal. 5, 65 Pac. 127; German Sav. etc. Soc. v. Ramish, 138 Cal. 120, 69 Pac. 89, 70 Pac. 1067.) Considerable doubt was cast upon the correctness of these decisions by the decision of the United States supreme court in Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443; but the doctrine of these cases has been since sustained by the decision of that court in Tonawanda v. Lyon, 181 U. S. 389, 21 Sup. Ct. 609, 45 L. Ed. 908. An act authorizing the street superintendent to assess benefits, without prescribing the precise mode of assessment, is valid. (Harney v. Benson, 113 Cal. 314, 45 Pac. 687; Greenwood v. Morrison, 128 Cal. 350, 60 Pac. 971.) An assessment is not invalid because the owner of the land is not given an opportunity to be heard before the assessment is made, if he is given that opportunity in an action to enforce 41 CONSTITUTION OF 1879. Art. I, § 13 the assessment. (Keclamation Dist. No. lOS v. Evans, 61 Cal. 104.) An act permitting the owners of one-half of the land of a district to form an assessment district, without making any pro- vision for a determination as to whether the other owners will be benefited by the improvement, is unconstitutional. (Moulton V. Parks, 64 Cal. 166, 30 Pac. 613; Brandenstein v. Hoke, 101 Oal. 131, 35 Pac. 562; People v. Keclamation Dist. No. 551, 117 Cal. 114, 48 Pac. 1016.) The mode of assessment is a matter for the legislature, and the courts will not interfere on the ground of an improper ap- portionment or inequality of burden or benefit, unless there is a palpable violation of private rights. (Reclamation Dist. v. Hagar, 66 Cal. 54, 4 Pac. 945.) It is sufficient if the parties interested are given an oppor- tunity to be heard before the lien becomes final upon their property, and they are not entitled to be heard upon the ques- tion whether or not the improvement should be made. (Lent V. Tillson, 72 Cal. 404, 14 Pac. 71; Board of Directors v. Tregea, 88 Cal. 334, 26 Pac. 237.) Where the limits of an assessment district are defined in the statute, notice need not be addressed to the persons affected by name. (Lent v. Tillson, 72 Cal. 404, 14 Pac. 71.) An act for the protection of swamp lands, which provides for making assessments therefor a charge upon the lands benefited, and for a sale of such lands for such assessments, without any opportunity for a hearing of the land owner in regard to the assessment, and without any suit or opportunity of defense, is invalid. (Hutson v. Protection Dist., 79 Cal. 90, 16 Pac, 549, 21 Pac. 435.) The property of a land owner within an irrigation district is not taken from him without due process of law, if he is allowed a hearing at any time before the lien of an assessment for taxes levied thereon becomes final. (In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. Rep. 106, 28 Pac. 272, 675, 14 L. R. A. 755.) When the legal title of the property of irrigation districts is vested in the district only in trust for the land owners, the rights of such land owners are private property which cannot be taken without due process of law. (Merchants' Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937.) Art. I, § 14 CONSTITUTION OP 1879. 42 The "Wright Act" providing for irrigation districts is consti- tutional. (In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354, and cases there cited.) DEPOSITIONS.— This section does not prevent the legislature from providing that depositions taken on the preliminary exam- ination may be used on the trial. (People v. Oiler, 66 Cal. 101, 4 Pac. 1066.) As to the power of the legislature to authorize the conditional examination of witnesses, see Willard v. Superior Court, 82 Cal. 456, 22 Pac. 1120. The provision of the Penal Code allowing depositions taken at the preliminary examination of a defendant charged with murder to be read in evidence for the prosecution upcn the trial is not in conflict with this section. (People v. Sierp, 116 Cal. 249, 48 Pac. 88; People v. Cady, 117 Cal. 10, 48 Pac. 908; People V. Clark, 151 Cal. 200, 90 Pac. 549.) Eminent domain. Sec. 14. Private property shall not be taken or dam- aged for public use without just compensation having first been made to, or paid into court for, the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compen- sation therefor be first made in money or ascertained and paid into court for the owner, irrespective of any benefits from any improvement proposed by such cor- poration, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil eases in a court of record, as shall be prescribed by law. The taking of private property for a railroad run by steam or electric power for logging or lumbering purposes shall be deemed a taking for a public use, and any per- son, firm, company or corporation taking private prop- 43 CONSTITUTION OF 1879. Art. I, §14 erty under the law of eminent domain for such pur- poses shall thereupon and thereby become a common carrier. (Amendment approved October 10, 1911.) [ORIGINAL SECTION.] Sec. 14. Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court, for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money or ascertained and paid into court for the owner, irre- spective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in a court of record, as shall be prescribed by law. PRIVATE PROPERTY FOR PUBLIC USE.— A municipal cor- poration has no power to take a lot to which it has no title, which is in the actual possession of another, who claims to be the owner, although he in fact is not, and appropriate it to the use of the public, without paying compensation. (Gunter v, Geary, 1 Cal. 4G2.) The property of a citizen cannot be taken from him for public use, unless ample means of remuneration are provided. (Mc- Cann v. Sierra County, 7 Cal. 121.) The only constitutional limitation to the taking of private property for j)ublic use is that compensation shall first be made. (Hercules Water Co. v. Fernandez, 5 Cal. App. 726, 91 Pac. 40].) A municipal corporation cannot take private property for public use, without making compensation in advance or provid- ing a fund out of which compensation shall be made as soon as the amount to be paid can be determined. (Colton v. llossi, 9 Cal. 595.) The legislature has no power to take the property of one person and give it to another; nor can it be taken for public use, unless compensation to the owner precede or accompany the taking. (Gillan v. Hutchinson, 16 Cal. 153.) Art. I, § 14 CONSTITUTION OF 1879. 44 An act directing the governor to take possession of the state prison in the possession of a lessee, without making any pro- vision for compensation, is void. (McCauley v. Weller, 12 Cal. 500.) The act of 1863, providing for the widening of streets in San Francisco by agreement with the owners, does not deprive the owners of any right or privilege guaranteed by this section. (San Francisco v. Kiernan, 98 Cal. 614, 33 Pac. 720.) Property. — The right of a riparian owner cannot be taken away, except for public use on due compensation. (Lux v. Haggin, 69 Cal. 255, 372, 10 Pac. 674.) This section does not apply to any mere diminution in value of abutting lands by the closing of a street in whole or in part, nor to any mere inconvenience to abutting owners thereby occa- sioned, if access to their land is not prevented. (Brown v. Supervisors, 124 Cal. 274, 57 Pae. 82.) Although the supervisors have authority to close a public street, the owner of adjoining property has an easement therein, of which he cannot be deprived without compensation. (Bige- low v. Ballerino, 111 Cal. 559, 44 Pac. 307.) The right of the owner of a city lot to the use of the street adjacent thereto is property, and any act by which this right is impaired is to that extent a damage. (Eachus v. Los An- geles etc, Ey. Co., 103 Cal. 614, 42 Am. St. Eep. 149, 37 Pac. 750.) The right of the owner of land abutting on a city street to access over it to and from his premises is a right of property of which he cannot be deprived without compensation. (Coats V. Atchison etc. Ey. Co., 1 Cal. App. 441, 82 Pac. 640.) No compensation need be made for the vacation of a public street which has not been dedicated by the owners of the land. (Levee Dist. No. 9 v. Farmer, 101 Cal. 178; 35 Pac. 569, 23 L. E. A. 388.) Section 17 of article 12 of the constitution, permitting one railroad to cross the tracks of another, is subject to the pro- vision of this section that compensation must first be made. (Boca etc. E. E. v. Sierra Valleys E. E., 2 Cal. App. 546, 84 Pac. 298.) Property appropriated to public use is private property. (Boca etc. E. E. v. Sierra Valleys E. E., 2 Cal. App. 546.) 45 CONSTITUTION OF 1879. Art. I, §14 Money is not that species of property which the sovereign authority can authorize to be taken in the exercise of the right of eminent domain. (Burnett v. Sacramento, 12 Cal. 76; Emery V. San Francisco, 28 Cal. 345.) The leasehold interest in convicts leased by the state is as much property as are lands held in fee. (McCauley v. Brooks, 16 Cal. 11.) A franchise for a street railroad is property capable of being benefited by the widening of the street. (Appeal of North Beach etc. E. R. Co., 32 Cal. 499.) The legislature may grant the right to construct a railroad upon a public street without providing for compensation for the damage done to the owners of the adjacent property, pro- vided the owners of the property are not the owners usque ad filum viae. (Carson v. Central Pac. R. R. Co., 35 Cal. 325.) A person who owns lots fronting on a street dedicated by himself to the public use is entitled to damages if a railroad company lays its track along the street, and thereby obstructs it for the use of teams and vehicles, and if the value of the lot is diminished thereby. (Southern Pac. R. R. Co. v. Reed, 41 Cal. 256.) An act providing that a tax collector shall receive the fees allowed by law, and pay a part of such fees into the treasury for the benefit of the county, does not take private property for public use. (Ream v. Siskiyou County, 36 Cal. 620.) Public use. — The formation of an irrigation district for the purpose of reclaiming arid land is a public purpose for which private property may be taken. (Turlock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379; Central Irr. Dist. v. De Lappe, 79 Cal. 351, 21 Pac. 825; Crall v. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797.) The legislature is the sole judge of the public necessity or advantage of a proposed improvement as a public use. (Gilmer V, Lime Point, 18 Cal. 229.) The words "public use" mean a use which concerns the whole community, as distinguished from a particular individual or a particular number of individuals. But it is not necessary that each and every individual member of society should have the same degree of interest in this use, or be personally or directly affected by it, in order to make it public. (Gilmer v. Lime Point, 18 Cal. 229.) Art. I, § 14 CONSTITUTION OF 1879. 46 "When the legislature specially designates a particular thing as a public use, or delegates that function to a local board, the courts will not interfere with this legislative discretion, but when the legislature simply designates a general use as public, the courts must determine whether the particular use is public. (Madera E. Co. v, Eaymond Granite Co., 3 Cal. App. 668, 87 Pac. 27.) ^ _^ To condemn land within the state for a United States fort or other military or naval purpose is to condemn land for a public use. (Gilmer v. Lime Point, IS Cal. 229.) The only test of the admissibility of the power of the state to condemn land for "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. (Gilmer v. Lime Point, 18 Cal. 229.) The "public use" is left in large measure to legislative deter- mination; and the legislative resolve, by which a tax is im- posed or private property taken, is such legislative determina- tion. (Stockton etc. R. R. Co. v. Stockton, 41 Cal. 147; Contra Costa etc. Co. v. Moss, 23 Cal. 323.) But the legislative determination that a certain business is a public use is not conclusive of its character. (Consolidated Channel Co. v. Central Pac. R. E. Co., 51 Cal. 269.) A railroad for the transportation of passengers and freight is a public use. (San Francisco etc. R. R. Co. v. Caldwell, 31 Cal. 367; Contra Costa etc. Co. v. Moss, 23 Cal. 323; Stockton etc. R. R. Co. v. Stockton, 41 Cal. 147; Napa Valley R. E. Co. v. Napa, 30 Cal. 435.) The taking of land by a drainage district for its ditch is a public use. (Laguna Drainage District v. Charles Main Co., 144 Cal. 209, 77 Pac. 933.) Private use. — The legislature cannot take private property for a private use, and it must declare the purpose to be one of public necessity or convenience. (Nickey v. Stearns Eanchos Co 126 Cal. 15t), 58 'Pac. 459; Consolidated Channel Co. v. Central Pac. E. E. Co., 51 Cal. 269; Brenham v. Story, 39 Cal. 179; Sherman v. Buick, 32 Cal. 241, 91 Am. Dec. 577.) Thus an act permitting a person to build a flume on the land of another to carry off the tailings from his mine is void. (Consolidated Channel Co. v. Central Pac. E. E. Co., 51 Cal. 269.) 47 CONSTITUTION OP 1879. Art. 1, §14 Also an act giving a right to miners to enter upon private property, where no sneh right existed anterior to its passage. (Gillan v. Hutchinson, 16 Cal. 153.) Also an act authorizing an administrator to sell real property belonging to the estate of his decedent, who died before the passage of the act, except in satisfaction of the liens of cred- itors, for the support of the family, or to pay the expenses of administration. (Brenham v. Story, 39 Cal. 179.) The legislature has power to open so-called "private roads," from main roads to the residences or farms of individuals. The fact that they are called "private" is immaterial, since all roads are public. (Sherman v. Buick, 32 Cal. 241, 91 Am. Dec. 577; County of Madera v. Eaymond G. Co., 139 Cal. 128, 72 Pac. 915.) Damaged. — The provision of this section against property being damaged for public use is not found in the constitution of 1849. As to the meaning of the word "damaged" as used in this section, see Eeardon v. San Francisco, 66 Cal. 492, 501- 506, 56 Am. Eep. 109, 6 Pac. 317. A mere infringement of the owner's personal pleasure or enjoyment, or merely rendering the property less desirable for certain purposes, or even causing personal annoyance and dis- comfort, does not constitute a damage within the meaning of this section. (Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, 42 Am. St. Eep. 149, 37 Pac. 750.) Digging and maintaining ditches and drains across private lands is a taking of property. (Nickey v. Stearns Eanchos Co., 126 Cah 150, 58 Pac. 459.) Where the damage is not the natural, certain and immediate consequences of an improvement, compensation need not be made in advance. (De Baker v. Eailway Co., 106 Cal. 257, 46 Am. St. Rep. 268, 39 Pac. 610.) Streets. — A city is liable for damages caused the owner of an abutting lot by excavating the street in front thereof, in pursuance of a contract let by the city for that purpose. (Eachus v. Los Angeles, 130 Cal. 492, 80 Am. St. Eep. 147, 62 Pac. 829; Eeardon v. San Erancisco, 66 Cal. 492, 56 Am. Eep. 109, 6 Pac. 317.) Damages caused by the raising of a street to the official grade cannot be pleaded as a dtfeuse to an action brought to foreclosa Art. I, § 14 CONSTITUTION OP 1879. 48 the lien for improving the street. (Ilornung v, McCarthy, 12(5 Cal. 17, 58 Pac. 303.) An owner of land abutting upon a street is entitled to com- pensation for any injury to bis property, which he sustains over and above that sustained in common with other abutting owners, resulting from a change in the grade of the street. (Eachus V. Los Angeles Ey. Co., 103 Cal. 614, 42 Am. St. Eep. 149, 37 Pac. 750; Jennings v. Le Eoy, 63 Cal. 397.) But a city is not responsible for the unauthorized act of its officers in raising the gxade of a street and thus damaging ad- joining property. (Sievers v. San Francisco, 115 Cal. 648, 56 Am. St. Eep. 153, 47 Pac. 687.) To change the channel of a natural watercourse so as to in- crease the flow of water in another watercourse, to the injury of adjoining lands, is a violation of this section. (Eudel v. Los Angeies, 118 Cal. 281, 50 Pac. 400; Conniff v. San Francisco, 67 Cal. 45, 7 Pac. 41; Tyler v. Tehama Co., 109 Cal. 618, 42 Pac. 240. But see Green v. Swift, 47 Cal. 536; Larrabee v. Clover- dale, 131 Cal. 96, 63 Pac. 143.) A municipal corporation is liable for damages caused by the construction of sewers, etc., in such a manner that the surface water of a large territory, which did not naturally flow in that direction, is gathered into a body and precipitated upon private property. (Stanford v. San Francisco, 111 Cal. 198, 43 Pac. 605.) But a municipal corporation is not liable for damages caused by the prevention of the flow of surface water from the lot of a private owner, by reason of the raising of a street to the grade established by law, where such surface water does not run in a natural channel across the lot. (Corcoran v. Benicia, 96 Cal. 1, 31 Am. St. Eep. 171, 30 Pac. 798; Lampe v. San Francisco, 124 Cal. 546, 57 Pac. 461.) A statute exempting a municipal corporation from liability for damages for injuries sustained by any person on its graded streets, but making the oflicers of the city liable therefor, is valid. (Parsons v. San Francisco, 23 Cal. 462.) A contractor of the city is not liable under this provision for damage to private property caused by a public improvement. (De Baker v. Eailway Co., 106 Cal, 257, 46 Am, St, Eep, 237, 39 Pac. 610.) 49 CONSTITUTION OF 1879. Art. I, § 14 The street opening act (Stats. 1SS9, p. 70) is not violative of this section. The provisions of the law, so far as tliey pertain to the assessment of its lands in the district for special benefits, are referable to the sovereign power of taxation. (Clute v. Turner, 157 Cal. 73, 106 Pac. 240.) Procedure. — Section 1254 of the Code of Civil Procedure, pro- viding that the plaintiff in an action of eminent domain may enter into possession without first making compensation, is in violation of this section. (Steinhart v. Superior Court, 137 Cal. 575, 92 Am. St. Eep. 183, 70 Pac. 629, 59 L. K. A. 404; Beveridge v. Lewis, 137 Cal. 619, 92 Am. St. Eep. 188, 67 Pac. 1040, 70 Pac. 1083, 59 L. E. A. 581. But see Spring Valley W. W. V. Drinkhouse, 95 Cal. 220, 30 Pac. 218.) A statute allowing the plaintiff to take possession upon the filing of a bond is void. (Vilhac v. Stockton etc. E. E. Co., 53 Cal. 208; San Mateo W. W. v. Sharpstein, 50 Cal. 284; Sanborn V. Belden, 51 Cal 266. But see Fox v. Western etc. E. E. Co., 31 Cal. 538.) Section 1254 of the Code of Civil Procedure authorizing the plaintiff in eminent domain to be put into possession upon making a proper deposit in court is constitutional. (Heilbron V. Superior Court, 151 Cal. 271, 90 Pac. 706.) This provision contemplates and provides for a proceeding in court in all cases where private property is taken for a public use, and prohibits any other proceeding to that end; and the owner is entitled to a jury trial for the purpose of ascertaining the damages. (Weber v. Santa Clara Co., 59 Cal. 265; Trahern V. San Joaquin Co., 59 Cal. 320.) The means of compensation must be provided before the prop- erty is taken. (McCauley v. Weller, 12 Cal. 500.) If failure be made in paying or providing such compensation, the party may retake possession of the property. (Colton v. Eossi, 9 Cal. 595.) The state may select its own agents and agencies in exercis- ing the power of eminent domain, and may select foreign cor- porations or governments. (Gilmer v. Lime Point, 18 Cal. 229.) The provision for just compensation only requires that a cer- tain and adequate remedy be provided by which the owner can obtain his compensation without unreasonable delay; and a law providing for a jury to determine the value, that the money be Constitution — 4 Art. I, § 14 CONSTITUTION OF 1879. 50 paid into the county treasury for the owner, to be paid to him when his ownership is ascertained, is valid. (Gilmer v. Lime Point, 18 Cal. 229.) An act providing for a proposed alteration of a public road, and requiring persons claiming compensation for land to De taken to present their claims within a certain time, or be deemed as waiving all right to damages, is valid. (Potter v. Ames, 43 Cal. 75.) It is competent for the legislature to prescribe the several steps to be pursued in the assertion of the right to compensa- tion for land appropriated for public use, but the prescribed procedure must not destroy or substantially impair the right itself. (Potter v. Ames, 43 Cal. 75.) The fact to be ascertained is the value of the land at the time it is taken, and testimony to prove the annual net profits is not admissible. (Stockton etc. Co. v. Galgiana, 49 Cal. 139.) Compensation. — An ordinance fixing water rates must allow a just and reasonable compensation to the water company for the property used and the services furnished by it. (San Diego Water Co. v. San Diego, 118 Cal. 556, 62 Am. St. Eep. 261, 50 Pac. 633, 38 L. E. A. 460. In a condemnation proceeding the land owner is not liable for costs, but is entitled to recover his own costs from the plaintiff, (San Francisco v. Collins, 98 Cal. 259, 33 Pac. 56.) "Where a railroad company, prior to the commencement of proceedings to condemn a right of way, but with a bona fide intent to commence such proceedings, erects structures thereon, it is not required to pay for the structures so erected in the condemnation proceeding. (Albion River R. R. Co. v. Hesser, 84 Cal. 435, 24 Pac. 288; San Francisco etc. R. R. Co. v. Taylor, 86 Cal. 246, 24 Pac. 1027.) The provision of section 1249 of the Code of Civil Procedure that, for the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons, is not in conflict with this provision. (Cali- fornia Southern R. R. Co. v. Kimball, 61 Cal. 90; Tehama Co. v. Bryan, 68 Cal. 57, 8 Pac. 673.) Under the former constitution, where the land taken is a part only of a tract, the difference between the value of the tract without the improvement and with it is the compensation 51 CONSTITUTION OP 1879. Art. 1, 5 14 to be made. (San Francisco etc. E. E. Co. v. Caldwell, 31 Cal. 367.) Both the injury to the land and the benefit to it should be considered. (Sau Francisco etc. E. E. Co. v. Caldwell, 31 Cal. 367.) Section 1249 of the Code of Civil Procedure, fixing the dam- ages at the date of the summons, is constitutional. (Los An- geles V. Gager, 10 Cal. App. 378, 102 Pac. 17.) The defendant is entitled to receive for a strip of land taken for an alley an amount equal to that for which it could have been sold in the open market, on the day of the summons, for cash, after reasonable time taken by the owner to make the sale. (Santa Ana v. Brunner, 132 Cal. 234, 64 Pac. 287.) The provision of this section, providing for compensation, "irrespective of any benefit from any imj^rovement proposed," is not limited to the land taken, but also to the land not taken, and the damages to the property not taken must be fixed, irre- spective of any benefit which may result from the proposed im- provement. (San Bernardino etc. Ey. Co. v. Haven, 94 Cal. 489, 29 Pac. 875.) The provision of this section, prohibiting any deduction from the damages to land not taken of the amount of benefits accru- ing from the improvement to such land, only applies to "cor- porations other than municipal," and does not apply to indi- viduals. (Moran v. Eoss, 79 Cal. 549, 21 Pac. 958.) In a proceeding by a railroad corporation to condemn land for its road, the compensation to be awarded the owner must be ascertained irrespective of any benefit that will accrue to the remainder of his land from the building of the road. (Pa- cific Coast Ey. Co. v. Porter, 74 Cal. 261, 15 Pac. 774.) An act requiring commissioners, in assessing the value of lands sought to be taken by a railroad company, to make allow- ance for any benefit that will accrue to the person whose lands are taken, is valid. (San Francisco etc. E. R. Co. v. Caldwell, 31 Cal. 367.) The increased cost of irrigation which would be caused by the building of a railroad is a legitimate subject of inquiry for the purpose of ascertaining the damage sustained by the owner. (San Bernardino etc. Ey. Co. v. Haven, 94 Cal. 489, 29 Pac. 875.) A county is not a mu'nicipal corporation witliin the moaning of this section. (San Mateo v. Coburn, 130 Cal. 631, 63 Pac. 78.) Art. I, § 14 CONSTITUTION OF 1879. 52 Assessments. — An assessment upon a lot adjacent to a street to pay for improvements made on the street cannot be main- tained when the lot has received only an injury by the work on the street; and therefore in no case can the owner be made personally liable for any deficiency after the lot has been ex- hausted. (Creighton v. Manson, 27 Cal. 613; Taylor v. Palmer, 31 Cal. 240; Gaffney v. Gough, 36 Cal. 104; Conifif v. Hastings, 36 Cal. 292. But see Walsh v. Mathews, 29 Cal. 124.) Benefits for street improvements accrue to the land and not to the buildings. (Appeal of Piper, 32 Cal. 530.) The so-called "front-foot" method of assessment for street improvements has been many times upheld in this state. (Chambers v. Satterlee, 40 Cal. 497; Hadley v. Dague, 130 Cal. 207, 62 Pac. 500; Cohen v, Alameda, 124 Cal. 504, 57 Pac. 377; Emery v. San Francisco etc. Co., 28 Cal. 345; Emery v. Brad- ford, 29 Cal. 75; Taylor v. Palmer, 31 Cal. 240; Whiting v. Quackenbush, 54 Cal. 306; Whiting v. Townsend, 57 Cal. 515; Lent v. Tillson, 72 Cal. 404, 14 Pac. 71; Jennings v. Le Breton, 80 Cal. 8, 21 Pac. 1127; San Francisco etc. Co. v. Bates, 134 Cal. 39, 66 Pac. 2; Banaz v. Smith, 133 Cal. 102, 65 Pac. 309.) Considerable doubt was cast upon the correctness of these decisions by the decision of the United States supreme court in Norwood v. Baker, 172 U. 'S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, but the doctrine of these cases has been since sustained by the decision of that court in Tonawanda v. Lyon. 181 U. S. 389, 21 Sup. Ct. 609, 45 L. Ed. 908. An assessment for a street improvement upon the front-foot system is an exercise of the power of taxation, and not of eminent domain. (Emery v. San Francisco etc. Co., 28 Cal. 345.) Benefits may be assessed in the ratio of their value. (Appeal of Piper, 32 Cal. 530.) An assessment upon an assessment district is valid. (Appeal of Piper, 32 Cal. 530.) The street bond act, authorizing the imposition of a charge upon property for ten years is not invalid, as taking private property for public use. (German Sav. etc. Soc. v. Eamish, 138 Cal. 120, 69 Pac. 89, 70 Pac. 1067.) Jury. — The right of trial by jury in_ cases of eminent domain did not exist prior to the new constitution. (Koppikus v. State Capitol Commrs., 16 Cal. 248; People v. Blake, 19 Cal. 579.) 53 CONSTITUTION OF 1879. Art. I, § 15 Police power. — The police power will not authorize the state to take private property for public use without compensation, when such property can be condemned and paid for. (People V. Elk etc. Co., 107 Cal. 221, 48 Am. St. Eep. 125, 40 Pac. 531.) This provision does not prevent the legislature from prohibit- ing the conducting of offensive trades within the limits of a city. (Ex parte Shrader, 33 Cal. 279.) A person having on hand large quantities of wine at the time of its enactment is not deprived of his property without just compensation by a county ordinance which prohibits the sale of liquors within the county. (Ex parte Young, 154 Cal. 317, 97 Pac. 822, 22 L. E. A., N. S., 330.) The restriction of a municipal ordinance which undertakes to •ibsolutely forbid the erection and maintenance of billboards for advertising purposes is, if not a taking pro tanto of the property, a damaging thereof, for which the owner is entitled to compensation. (Varney & Green v. Williams, 155 Cal. 318, 132 Am. St. Eep. 88, 100 Pac. 867, 21 L. E. A., N. S., 741.) Imprisonment in civil cases. Sec. 15. No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud, nor in civil actions for torts, except in cases of willful injury to person or property; and no person shall be imprisoned for a militia fine in time of peace. IMPRISONMENT FOR DEBT.— An assault and battery is not a case of fraud within the meaning of this provision. (Ex parte Prader, 6 Cal. 239.) In a suit to recover money received by a person as agent, such agent cannot be arrested without showing some fraudulent conduct on his part, or a demand on him by the principal and a refusal to pay. (In re Holdforth, 1 Cal. 438.) The proceedings for the settlement of an estate are not a civil action within the meaning of this section, (Ex parte Smith, 53 Cal. 204.) Art. I, § 16 CONSTITUTION OF 1879. 54 Nor is money in the hands of an executor a "debt" within the meaning of this section. (Ex parte Smith, 53 Cal. 204.) To punish a person by imprisonment for failure to pay a debt to a receiver is in violation of this provision. (Knutte v. Superior Court, 134 Cal. 660, 66 Pac. 875.) Laws prohibited — Bills of attainder, ex post facto, etc. Sec. 16. No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed. IMPAIRING OBLIGATION OF CONTRACTS— Contract.— A liquor license is not a contract within the meaning of this sec- tion, and may be revoked at any time. (Hevren v. Reed, 12'6 Cal. 219, 58 Pac. 536.) No person has a vested right to an unenforced penalty; and if such a penalty is reduced to judgment, the judgment will be reversed upon appeal, if, pending the appeal, the statute impos- ing the penalty is repealed. (Anderson v. Byrnes, 122 Cal. 272, 54 Pac. 821.) As to whether or not the charter of a corporation is a con- tract within the meaning of this provision, see Spring Valley W. W. v. San Francisco, 61 Cal. 3. A legislative grant of property to a municipal corporation is an executed contract, and as such within this clause. (Grogan v. San Francisco, 18 Cal. 590.) The right to practice law is not a contract. (Cohen v. Wright, 22 Cal. 293.) An act authorizing the contractor to sue for a street assess- ment is a contract. (Creighton v. Pragg, 21 Cal. 115.) The remedy, so far as it affects substantial rights, is included in the term "obligation of contracts." (Welsh v. Cross, 146 Cal. 621, 106 Am. St. Rep. 63, 81 Pac. 229, 2 Ann. Cas. 796.) A law giving a new remedy to determine whether land is suitable for cultivation does not impair the obligation of the contract of purchase. (Boggs v, Ganeard, 148 Cal. 711, 84 Pac. 195.) Judicial decisions. — The decisions of state courts in regard to general rules of law, although they may affect contract rights. 55 CONSTITUTION OP 1879. Art. I, § 16 are not subject to the rule laid down by the federal courts that a judicial construction of a statute, so far as contract rights acquired under it are concerned, becomes a part of the statute, and that a change in such construction has the same effect on contracts as a legislative amendment. (Alferitz v. Borgwardt, 126 Cal. 201, 58 Pac. 460.) The decision holding that a chattel mortgage vests the title in the mortgagee was not a judicial construction of section 1888 of the Civil Code, which was overlooked by the court, and does not fall within the rule of the federal courts that contract rights acquired under a judicial construction of a statute by a state court will be governed thereby, and cannot be affected by a subsequent change in such construction. (Alferitz v. Borg- wardt, 126 Cal. 201, 58 Pac. 460.) Decisions declaring that a conveyance absolute in form, but intended as security, did not pass the legal title, cannot be con- sidered as forming part of a conveyance executed after such decisions and before they were overruled. (Allen v. Allen, 95 Cal. 184, 30 Pac. 213, 16 L. E. A. 646.) Impairing the obligation. — Impairing the obligation of other things than contracts is not prohibited. (Robinson v. Magee, 9 Cal. 81, 70 Am. Dec. 638.) A valid contract cannot be abrogated by the adoption of a new constitution, any more than it can be by the enactment of a law by the legislature. (Ede v. Knight, 93 Cal. 159, 28 Pac. 860.) An act destroying the legal remedy upon a contract impairs the obligation of the contract. (Bates v. Gregory, 89 Cal. 387, 26 Pac. 891; Robinson v. Magee, 9 Cal. 81, 70 Am. Dec. 638; Creighton v. Pragg, 21 Cal. 115; Thorne v. San Francisco, 4 Cal. 127.) The legislature may alter or change the remedy, provided the right is not materially affected; but whenever the remedy is so far altered as to impair, destroy, change, or render the right scarcely worth pursuing, the obligation of the contract upon which the right is founded is impaired. (Smith v. Morse, 2 Cal. 524.) The constitution does not inhibit all legislation in respect to contracts, but only forbids the impairing of their obligation. (Thornton v. Hooper, 14 Cal. 9.) Art. I, § 16 CONSTITUTION OP 1879. 56 The legislature cannot, after the contract is made, change its terms, or authorize a performance different from that prescribed in the contract. (McGee v. San Jose, 68 Cal. 91, 8 Pac. 641.) Contracts with state, counties and cities. — A state can no more impair the obligation of a contract made by it with an indi- vidual than a contract between two citizens. (Floyd v. Bland- ing, 54 Cal. 41.) An act extinguishing the debts of a city is void. (Smith v. Morse, 2 Cal. 524.) An act ratifying an ordinance of the city and county of San Francisco transferring all of the property of the city to the "Commi'Ssioners of the Sinking Fund," and thus placing it be- yond the reach of the city's creditors, is void. (Smith v. Morse, 2 Cal. 524.) When bonds of a city are issued and accepted by the cred- itors of the city under a statute requiring an annual levy of taxes in payment thereof, the contract is made as solemn and binding and as much beyond subsequent legislation as it would have been if made between private persons. (Meyer v. Brown, 65 Cal. 583, 26 Pac. 281; Bates v. Porter, 74 Cal. 224, 15 Pac. 732.) Where creditors of a city, under the act of 1851, creating the board of fund commissioners of San Francisco, surrendered the old indebtedness and took a new security, bearing a different rate of interest, the act entered into the contract, and cannot be amended so as to impair or destroy the rights of the parties under the contract. (People v. Woods, 7 Cal. 579; People v. Bond, 10 Cal. 563.) The act to authorize the funding of the floating debt of San Francisco is a contract, and its obligations cannot be impaired by amendments, but new provisions may be added, provided the rights of creditors are not injuriously affected. (Thornton V. Hooper, 14 Cal. 9; Babcock v. Middleton, 20' Cal. 643.) As a general rule, a provision, whether made by a state or a corporation, to meet its debts or engagements, may be regarded as only a means of executing its own policy or transacting its own business, and may be altered or repealed at pleasure. (San Francisco v. Beideman, 17 Cal. 443.) An act providing for the payment of the debts of a county by refunding is not void, as the creditor had no remedy against 57 CONSTITUTION OF 1879. Art. I, § 16 the county which could be impaired. (Hunsaker v. Borden, 5 Cal. 288, 63 Am. Dec. 130.) The legislature cannot devest the right of a party to have a county warrant paid when that right is complete, vested and determined. (Laforge v. Magee, 6 Cal. 650.) A statute requiring all persons holding certain county war- rants to present them for registry before a certain date or be forever barred from enforcing the payment thereof adds a new condition to the contract, and therefore impairs its obligation. (Robinson v. Magee, 9 Cal. 81, 70 Am. Dec. 638.) This provision relates solely to contracts between individuals and not to contracts between individuals and the state, because the state cannot be sued. (Myers v. English, 9 Cal. 341. But see 23 Am. & Eng. Ency. of Law, 1st ed., 79.) The provisions of the act for the organization of irrigation districts as to the extent of the liability of the land created a contract between the land owners and the state, which could not be impaired by future legislation. (Merchants' Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937.) An act authorizing a county to fund its outstanding warrants, which were not to draw interest, and to make the bonds given in exchange therefor bear interest, is not unconstitutional. (Chapman v. Morris, 28 Cal. 393.) A law for the funding of the debts of a county is valid, for the county cannot be sued except by consent of the state, and that consent can be granted upon any terms the state sees fit to impose. (Sharp v. Contra Costa Co., 34 Cal. 284.) But while the state and its legal subdivisions cannot be com- pelled to perform their contracts, the state cannot annul them. Therefore, an act creating funding commissioners and providing that no claim against the county shall be valid unless presented to and allowed by the commissioners is void. (Rose v. Estu- dillo, 3-9 Cal. 270.) The legislature cannot require the creditors of a county to surrender their evidences of indebtedness, and accept new ones in different terms, but it may refuse to provide funds to pay any portion of the old indebtedness, unless the creditor will accept such new indebtedness. (People v. Morse, 43 Cal. 534.) Retrospective statutes. — It is to be presumed that no statute is to operate retrospectively, unless the contrary clearly appears. (Pignaz v. Burnett, 119 Cal. 157, 51 Pac. 48.) Art. I, § 16 CONSTITUTION OF 1879. 58 A retrospective statute is void only when it deprives a person of some vested right, secured either by some constitutional guaranty, or protected by the principles of natural justice. (Galland v. Lewis, 26 Cal. 46.) A law making certain transfers presumptively fraudulent can- not be given a retrospective effect. (Cook v. Cockins, 117 Cal. 140, 48 Pac. 1025.) Remedial statutes. — Eemedial statutes, which are retrospec- tive, but do not impair contracts or disturb absolute vested rights, and only go to confirm rights already existing, are valid. (Dentzel v. Waldie, 30 Cal. 138.) The legislature may legalize defective and invalid assessments of taxes, (People v. Holladay, 25 Cal. 300.) Particular statutes. — Where, upon the death of the ancestor, the heirs become at once vested with the full title to his real estate, subject only to certain liens or burdens, the legislature cannot, by a subsequent enactment, interfere with such vested right by authorizing a sale of the property by an executor or administrator solely for the benefit of the heirs. (Estate of Packer, 125 Cal. 396, 73 Am. St. Eep. 58, 58 Pac. 59.) A law reducing the percentage payable upon redemption, passed after the sale, is void. (Thresher v. Atchison, 117 Cal. 73, 59 Am. St. Rep. 159, 48 Pac. 1020.) A law imposing more onerous conditions upon the right to redeem from a tax sale than those which existed when the sale was made is void. (Teralta Land etc. Co. v. Shaffer, 116 Cal. 518, 58 Am. St. Rep. 194, 48 Pac. 613.) The legislature may reduce the time within which a deed must be made by a tax collector, provided a reasonable time is allowed in which to obtain the deed. (Tuttle v. Block, 104 Cal. 443, 38 Pac. 109.) To extend the time for redemption is to alter the substance of the contract. (Rollins v. Wright, 93 Cal. 395, 29 Pac. 58; Barnitz v. Beverly, 163 U. S. 118, 16 Sup. Ct. 1042, 41 L. Ed. 93; Haynes v. Treadway, 133 Cal. 400, 65 Pac. 892; Malone v. Roy, 134 Cal. 344, 66 Pac. 313.) A statute passed after the making of a contract, giving a right of redemption from an execution sale, is unconstitutional. (Thorne v. San Francisco, 4 Cal. 127.) A law extending the time of redemption passed after judg- ment, but before levy or sale, cannot apply to a redemption 59 CONSTITUTION OF 1879. Art. I, § 16 from sucli sale. (Welsh v. Cross, 146 Cal. 621, 106 Am. St. Eep. 63, 81 Pac. 229, 2 Ann. Cas. 796, overruling Tuolumne Redemp- tion Co. V. Sedgwick, 15 Cal. 515.) A state cannot enact an insolvent law discharging the obliga- tions of contracts made out of the state. (Lowenberg v. Levine, 93 Cal. 215, 28 Pac. 941, 16 L. E. A. 159.) A law which shortens the time within which to file a notice of a mechanic's lien may constitutionally be made to apply to pending cases of uncompleted buildings; provided, an ade- quate and availing remedy be left to enforce the lien. (Kerck- hoff-Cuzner Mill etc. Co. v. Olmstead, 85 Cal. 80, 24 Pac. 648.) A law providing for the discharge of a debt contracted before its adoption is valid. (Porter v. Imus, 79 Cal. 183, 21 Pac. 729. But see 16 Am. & Eng. Ency. of Law, 2d ed., 640.) The construction of section 4, article 13, of the constitution, so that it makes the mortgagee of a mortgage executed prior to the adoption of the constitution primarily liable for the taxes, where the mortgage makes no provision on the subject, does not impair the obligation of the contract. (Hay v. Hill, 65 Cal. 383, 4 Pac. 378; McCoppen v. McCartney, 60 Cal. 367.) To give section 5, article 13, of the constitution a retro- spective operation, would be impairing the obligation of con- tracts. (Beckman v. Skaggs, 59 Cal. 541.) The act, commonly known as the Water Lot Act, providing for the disposition of submerged lands and fixing a line which is to "remain a permanent waterfront," does not amount to a contract with the grantees of the land that the waterfront so fixed shall not be extended or otherwise changed. (Floyd v. Blanding, 54 Cal. 41.) An act exempting property from execution after a debt is contracted is void. (Smith v. Morse, 2 Cal. 524.) A law changing the time within which an action must be brought does not impair any vested right, for it only affects the remedy, and not the right. (Billings v. Hall, 7 Cal. 1.) An act requiring a person to pay for improvements put upon his land by a trespasser against his will does not impair the obligation of any contract, as the individuals forming a gov- ernment are not contractors with such government, within the meaning of tils section. (Billings v. Hall, 7 Cal. 1.) Art. I, § 16 CONSTITUTION OF 1879. 60 An act making void prior deeds, unless recorded in accordance tlierewith, does not impair vested rights. (Stafford v. Liclc, 7 Cal. 479.) After having made an appropriation in view of a contemplated contract to be based thereon, and such contract is made, and funds to meet the appropriation are received into the treasury, the legislature cannot deprive the party with whom the con- tract is made of such funds by repealing the appropriation. (McCauley v. Brooks, 16 Cal. IL) An act making the assessment prima facie proof of the tax, and prohibiting the defendant from setting up any iuformality in the levy or assessment of the tax is valid, since it goes merely to the remedy. (People v. Seymour, 16 Cal. 332, 76 Am. Dec. 521.) An act requiring litigants to take tke oath of allegiance is valid. (Cohen v. Wright, 22 Cal. 293.) The "Specific Contract Act" is not in violation of this section. (Galland v. Lewis, 26 Cal. 46; Otis v. Haseltine, 27 Cal. 80.) An act validating powers of attorney theretofore made by married women for the sale of their separate property, and con- veyances made by attorneys in fact thereunder, is valid. (Dent- zel V. Waldie, 30 Cal. 138.) The legislature may impose on debtors the obligation to pay interest after the passage of the act on debts already due. (Dunne v. Mastick, 50 Cal. 244.) An ordinance providing that no liquor license shall be granted to any person who has conducted the business of selling liquors in any place where females are employed is valid. (Foster v. Police Commrs., 102 Cal. 483, 41 Am. St. Rep. 194, 37 Pac. 763.) EX POST FACTO I*AWS. — A law changing the forms of pro- cedure by which persons accused of crime are to be tried for offenses committed before the law was passed is not an ex post facto law. (People v. Mortimer, 46 Cal. 114.) A crime committed before the adoption of the constitution of 1879 may, after such adoption, be prosecuted by information. (People V. Campbell, 59 Cal. 243, 43 Am. Rep. 257.) The section of the Penal Code which provides that one who has been convicted of petit larceny, who shall again commit the same offense, is to be deemed guilty of a felony, is not ex post facto, when applied to one who committed the first offense 61 CONSTITUTION OF 1879. Art. I, § 17 prior to the taking effect of the provision. (Ex parte Gutierrez, 45 Cal. 429.) Where, after the commission of a crime, the crime is reduced by statute from a felony to a misdemeanor, such statute works a repeal of the former law, and such crime cannot be punished under either law. (People v. Tisdale, 57 Cal. 104.) BILLS OF ATTAINDER.— A resolution expelling a member of the legislature is not a bill of attainder. (French v. Senate, 146 Cal. 604, SO Pac. 1031, 2 Ann. Cas. 756.) Rights of foreign residents. Sec. 17. Foreigners of the white race, or of African descent, eligible to become citizens of the United States under the naturalization laws thereof, while bona tide residents of this state, shall have the same rights in respect to the acquisition, possession, enjoyment, trans- mission, and inheritance of all property, other than real estate, as native-born citizens; provided, that such aliens owning real estate at the time of the adoption of this amendment may remain such owners; and pro- vided further, that the legislature may, by statute, pro- vide for the disposition of real estate which shall here- after be acquired by such aliens by descent or devise. (Amendment adopted November 6, 1894.) [ORIGINAL SECTION.] Sec. 17. Foreigners of the white race or of African descent, eligible to become citizens of the United States under the natu- ralization laws thereof, while bona fide residents of this state, shall have the same rights in respect to the acquisit.on, posses- sion, enjoyment, transmission, and inheritance of property as native-born citizena. Art. I, § 18 CONSTITUTION OF 1879. 62 ALIENS. — An alien is not eligible to an ofBce in this state. (Walthcr v. Eabolt, 30 Cal. 185.) By the common law, aliens could not acquire property by- descent or other operation of law; and this section only removes this disability from those who are bona fide residents within the state. (Norris v. Hoyt, 18 Cal. 217.) A nonresident alien may take and hold property acquired by purchase until office found. (Norris v. Hoyt, 18 Cal. 217.) An act permitting nonresident aliens to inherit real and per- sonal estate is valid. (People v. Eogers, 13 Cal. 159; Estate of Billings, 65 Cal. 593, 4 Pac. 639; Lyons v. California, 67 Cal. 380, 7 Pac. 763.) This provision by implication excludes nonresident aliens from the rights mentioned in this section. (Siemssen v. Bofer, 6 Cal. 250.) This section prohibits the legislature from depriving resident foreigners of any of the rights enjoyed by native-bom citizens with respect to the acquisition, possession, enjoyment, transmis- sion, or inheritance of property. (State v. Smith, 70 Cal. 153, 12 Pac. 121.) A provision in the specifications for public street work that no unnaturalized alien should be employed in the work, except with the permission of the highway commission, is invalid. (City Street Imp. Co. v. Kroh, 158 Cal. 308, 110 Pac. 933.) Slavery prohibited. Sec. 18. Neither slavery nor involuntary servitude, unless for the punishment of crime, shall ever be tol- erated in this state. SLAVERY. — Performance of work upon an assessment for repair of roads is not such involuntary servitude as is contem- plated by this provision. (In re Dassler, 35 Kan. 678, 12 Pac. 130.) On this subject, generally, see In re Turner, 1 Abb. U. S. 84, Fed. Cas. No. 14,247; Clark's Case, 1 Blackf. 122, 12 Am. Dec. 213; In re Sah Quah, 31 Fed. 327; U. S. Const., art. 13. 63 CONSTITUTION OF 1879. Art. I, §§ 19, 20 Searches and seizures, restriction on. Sec. 19. The right of the people to be secure in their persons, houses, papers, and effects, against unreason- able seizures and searches, shall not be violated ; and no warrant shall issue, but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized. SEARCH WARRANTS. — The legislature has power to author- ize the issuance of a warrant to search the person of an indi- vidual in a proper case. (Collins v. Lean, 68 Cal. 284, 9 Pac. 173.) Sections 1458 to 1461 of the Code of Civil Procedure do not violate this section. (Levy v. Superior Court, 105 Cal. 600, 38 Pac. 965, 29 L. R. A. 811.) Treason defined. Sec. 20. Treason against the state shall consist only in levying war against it, adhering to its enemies, or giving them aid and comfort. No person shall be con- victed of treason unless on the evidence of two wit- nesses to the same overt act, or confession in open court. TREASON. — The constitutional definition of treason in the United States constitution cannot be restricted or extended by Congress. (United States v. Greathouse, 2 Abb. U. S. 364, Fed. Cas. No. 15,254; United States v. Hanway, 2 Wall. Jr. 139, Fed. Cas. No. 15,299.) As to treason against a state, see People v. Lynch, 11 .Johns. 549; Charge to Jury, 1 Story, 614, Fed. Cas. No. 18,275. The constitutional requirement of two witnesses, etc., does not apply to the preliminary examination by magistrate or grand jury. (United States v. Hanway, 2 Wall. Jr. 139, Fed. Cas. No. 15,299.) Art, I, § 21 CONSTITUTION OF 1879. 64 Privileges and immunities of citizens. Sec. 21. No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the legislature ; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens. EXCLUSIVE PRIVILEGES.— Under the former constitution, it was held that exclusive privileges and franchises might be conferred by the legislature upon persons or corporations. (Cal- ifornia State Tel. Co. v. Alta Tel. Co., 22 Cal. 398.) But this decision was overruled in San Francisco v. Spring Valley W. W., 48 Cal. 493, 517. The legislature may deny to one man a privilege extended to another. The constitution is violated only when a privilege ex- tended to one is denied to another on substantially the same facts; and whether the facts of a particular case constitute a proper exception to the general law is for the legislature to de- termine. (People V. Twelfth District Court, 17 Cal. 547.) The provision of the state dental law exempting from its operation persons practicing before its passage is not violative of this provision. (Ex parte Whitley, 144 Cal. 167, 77 Pac. 879.) An ordinance prohibiting public laundries in designated parts of a city is not in violation of this section. (In re Hang Kie, 69 Cal. 149, 10 Pac. 327.) An ordinance levying a license tax upon all sheep which are pastured in the county, except sheep listed as taxable property in the county, and upon which taxes are paid, is in violation of this section. (Lassen Co. v. Cone, 72 Cal. 387, 14 Pac. 100.) But an ordinance requiring all persons engaged in the business of raising, grazing, herding, or pasturing sheep in the county to pay an annual license of fifty dollars for every thousand sheep is not in violation of this provision. (Ex parte Mirande, 73 Cal. 365, 14 Pac. 888.) A law providing a special method of assessment and collection of taxes against railroads situated in more than one county ia not in violation of this section. (People v. Central Pac. R. R. 65 CONSTITUTION OP 1879. Art. I, § 21 Co., 105 Cal. 576, 38 Pac. 905. Overruling People v. Central Pac. R. E. Co., 83 Cal. 393, 23 Pac. 303.) An act making it a misdemeanor to keep open a barber-shop on Sundays or other holidays is in violation of this section. (Ex parte Jentzsch, 112 Cal. 468, 44 Pac. 803, 32 L. K. A. 664.) The Primary Election Law of 1899, which prohibits the elec- tion of delegates to a convention of any political party not representing three per cent of the votes cast at the previous election, is void. (Britton v. Board of Election Commrs., 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115. Per Henshaw, J., Van Dyke, J., and McFarland, J.) The provision of the County Government Act that no sup- plies, etc., shall be purchased for the county from any person who has not had a business in the county for a year prior to the purchase is in violation of this section. (Van Harlingen v. Doyle, 134 Cal. 53, 66 Pac. 44, 54 L. R. A. 771.) The act regulating the practice of medicine and surgery does not violate this section. (Ex parte Gerino, 143 Cal. 412, 77 Pac. IGG, 66 L. R. A. 249.) An act applying uniformly to all cities of a particular class is not in violation of this section. (Ex parte Jackson, 143 Cal. 564, 77 Pac. 457.) The provision of section 1197 of the Political Code, forbidding the name of a nominee to be placed upon the ballot more than once, is in violation of this section. (Murphy v. Curry, 137 Cal. 479, 70 Pac. 461, 59 L. R. A. 97.) A law regulating the rate of interest on chattel mortgages on certain classes of property is in violation of this provision. (Ex parte Sohncke, 148 Cal. 262, 113 Am. St. Rep. 236, 82 Pac. 956, 2 L. R. A., N. S., 813, 7 Ann. Cas. 475. The act in regard to the practice of architecture is not uncon- stitutional because it discriminates between certified architects and uncertified architects. (Ex parte McManus, 151 Cal. 331, 90 Pac. 702.) An ordinance prohibiting the wholesale liquor business within a designated area in a municipality is not unreasonably or unjustly discriminatory, merely because saloons and restaurants where liquor is sold are permitted within such prohibited zone. (Grumbach v. Lelando, 154 Cal. 679, 98 Pac, 1059.) Constitution — 5 Art. I, § 22 CONSTITUTION OF 1879. GQ An act regulating the hours of emplojrment in underground mines and in smelting and reduction works does not violate this section. (In re Martin, 157 Cal. 51, 106 Pac. 235.) A law prohibiting waste of water from artesian wells is not unconstitutional because not made applicable to surface water and pumps. (Ex parte Elam, 6 Cal. App. 233, 91 Pac. 811.) The right or privilege granted by the act of 1907, providing for the change of the boundary line between Fresno and Kings county, to electors who have resided for ninety days preceding the election in the territory to be transferred to Kings county, which is not granted to other electors of that territory or to other electors of Fresno county, is not such a privilege as is forbidden by this section of the constitution. (Wheeler v. Her- bert, 152 Cal. 224, 92 Pac. 353.) Under this section the amendment of November 23, 1907, to section 135 of the Code of Civil Procedure providing for the transaction of judicial business, except in certain cases, on special holidays, is unconstitutional in that it creates a class of litigants, without any rational or constitutional distinction to justify the classification. (Diepenbrock v. Superior Court, 153 Cal. 597, 95 Pac. 1121.) The Insanity Act of 1897, providing for the recovery from the estates of insane persons the cost of their care and main- tenance, is valid. (Napa State Hospital v. Dasso, 153 Cal. 698, 96 Pac. 355, 18 L. R. A., N. S., 643, 15 Ann, Cas. 910.) Provisions of constitution construed. Sec. 22, The provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise. MANDATORY AND PROHIBITORY.— As to the meaning of this provision, see Matter of Maguire, 57 Cal. 604, 40 Am. Kep. 125. Notwithstanding this section, where a provision of the con- stitution is expressly made permissive, as by the use of the word "may," it will not be deemed mandatory. (Fresno Nat. Bank v. Superior Court, 83 Cal. 491, 24 Pac. 157.) 67 CONSTITUTION OP 1879. Art. I, §§ 23, 24 Section 5, article 11, of the constitution, is mandatory. (Knight V. Martin, 128 Cal. 245, 60 Pac. 849; Dwyer v. Parker, 115 Cal. 544, 47 Pac. 372.) Section 19, article 11, of the constitution is mandatory. (Mc- Donald V. Patterson, 54 Cal. 245; Pereria v. Wallace, 129 Cal. 397, 62 Pac. 61.) Under this provision it is held that the provision of section 11, article 12, requiring sixty days' notice of a meeting of stockholders to increase capital stock, is mandatory. (Navajo Mining Co. v. Curry, 147 Cal. 581, 109 Am. St. Kep. 176, 82 Pac. 247.) The constitution provides simply a limitation upon the power of the legislature, which, otherwise, is supreme. (People v. Nye, 9 Cal. App. 148, 98 Pac. 241.) The provision of section 1 of article 17 does not restrict the power of the legislature to give homesteads to the heads of families only. (Hohn v. Pauly, 11 Cal. App. 724, 106 Pac. 266.) Where the constitution makes no provision as to what shall constitute a vacancy in an office, the legislature may specify what constitutes a vacancy and provide for filling the same. (People V. Nye, 9 Cal. App. 148, 98 Pac. 241.) Rights retained by the people. Sec, 23, This enumeration of rig'hts shall not be construed to impair or deny others retained by the people. IMPLIED RIGHTS.— The Primary Election Law of 1899, which allows members of one political party to vote for dele- gates to the party convention of another party, is void. (Brit- ton V. Board of Election Commrs., 129 Cal. 337, 61 Pac. 1115, 51 L. R. A. 115.) Property qualification not required. Sec. 24. No property qualification shall ever be re- quired for any person to vote or hold office. Art. I, § 25 CONSTITUTION OF 1879. 68 PROPERTY QUALIFICATION.— This section does not apply to a voter in a reclamation district. (People v. Reclamation Dist. No. 551, 117 Cal. 114, 48 Pac. 1016.) The provision of the act creating the Sacramento Drainage District restricting the right to vote for drainage commissioners to the owners of real property within the district, does no vio- lence to the constitutional inhibition against requiring a prop- erty qualification for voters. (People v. Sacramento Drainage District, 155 Cal. 373, 103 Pac. 207.) The provisions of the Primary Election Law of 1909 requiring the payment of fees by candidates on filing their nomination papers is not the exaction of a property qualification to vote or hold office. The exaction of such fees is a valid exercise of the power of the legislature, under section 2% of article 2, to provide reasonable conditions for the exercise of the rights granted by the act. (Socialist Party v. Uhl, 153 Cal. 776, 103 Pac. 181.) Right to fish upon public lands. Sec. 25. The people shall have the right to fish upon and from the public lands of the state and in the waters thereof, excepting upon lands set aside for fish hatcheries, and no land owned by the state shall ever be sold or transferred without reserving in the people the absolute right to fish thereupon ; and no law shall ever be passed making it a crime for the people to enter upon the public lands within this state for the purpose of fishing in any water containing fish that have been planted therein by the state ; provided, that the legislature may by statute, provide for the season when and the conditions under which the different species of fish may be taken. (New section added by amendment adopted November 8, 1910.) 69 CONSTITUTION OF 1879. Art. II. § 1 ARTICLE II. EIGHT OF SUFFEAGE. § 1. Who are and who are not electors. § 2. Privileges of electors, § 2^. Primary elections. § 3. Militia duty, privilege of electors. § 4. Residence of voters, gained or lost. § 5. Election by ballot. § 6. Voting machines. Who are and who are not electors. Section 1. Every native citizen of the United States, every person who shall have acquired the rights of cit- izenship under or by virtue of the treaty of Queretaro, and every naturalized citizen thereof, who shall have become such ninety days prior to any election, of the age of twenty-one years, who shall have been resident of the state one year next preceding the election, and \ \ of the county in which he or she claims his or her vote ninety days, and in the election precinct thirty days, shall be entitled to vote at all elections which are now or may hereafter be authorized by law; provided, no native of China, no idiot, no insane person, no person convicted of any infamous crime, no person hereafter convicted of the embezzlement or misappropriation of public money, and no person who shall not be able to read the constitution in the English language and write Art. II, § 1 CONSTITUTION OF 1879. 70 his or her name, shall ever exercise the privileges of an elector in this state ; provided, that the provisions of this amendment relative to an educational qualification shall not apply to any person prevented by a physical disa- bility from complying with its requisitions, nor to any person who now has the right to vote, nor to any per- son who shall be sixty years of age and upwards at the time this amendment shall take effect. (Amendment approved October 10, 1911.) [AMENDMENT OF 1894.] Section 1. Every native male citizen of the United States, every male person who shall have acquired the right of citizen- ship under or by virtue of the treaty of Queretaro, and every male naturalized citizen thereof, who shall have become such ninety days prior to any election, of the age of twenty-one years, who shall have been resident of the state one year next preceding the election, and of the county in which he claims his vote ninety days, and in the election precinct thirty days, shall be entitled to vote at all elections which are now or may hereafter be authorized by law; provided, no native of China, no idiot, no insane person, no person convicted of any infamous crime, no person hereafter convicted of the embezzlement or misappropriation of public money, and no person who shall not be able to read the constitution in the English language and write his name, shall ever exercise the privileges of an elector in this state; provided, that the provisions of this amendment relative to an educational qualification shall not apply to any person prevented by a physical disability from complying with its requisitions, nor to any person who has the right to vote, nor to any person who shall be sixty years of age and upwards 71 CONSTITUTION OF 1879. Art. II, § 1 at the time this amendment shall take effect. (Amendment adopted November 6, 1894.) [ORIGINAL SECTION.] Section 1. Every native male citizen of the United States, every male person who shall have acquired the rights of citizen- ship under or by virtue of the treaty of Queretaro, and every male naturalized citizen thereof, who shall have become such ninety days prior to any election, of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county in which he claims his vote ninety days, and in the election precinct thirty days, shall be entitled to vote at all elections which are now or may hereafter be authorized by law; provided, no native of China, no idiot, insane person, or person convicted of any infamous crime, and no person hereafter convicted of the embezzlement or mis- appropriation of public money, shall ever exercise the privileges of an elector in this state. RIGHT OF SUFFRAGE.— When Congress admitted California as a state, the constituent members of the state, in their aggre- gate capacity, became vested with the sovereign powers of gov- ernment "according to the principles of the constitution," and had the right to prescribe the qualifications of electors. (People V. De la Guerra, 40 Cal. 311.) It was no violation of the ninth article of the treaty of Guadalupe Hidalgo that the qualifications of electors, as pre- scribed in the constitution of California, were such as to exclude some of the inhabitants from certain political rights. (Peojjle V. De la Guerra, 40 Cal. 311.) The elective franchise is not one of the privileges of citizens secured by the fourteenth amendment, nor is the power of the state to determine the class of inhabitants who may vote within her limits curtailed by that amendment; and the only limitation contained in the fifteenth amendment is that the state cannot discriminate on account of race, color, or previous condition of servitude; but the power of exclusion upon all other grounds, Art. II, § 1 CONSTITUTION OF 1879. 72 including that of sex, remains intact. (Van Valkenburg v. Brown, 43 Cal. 43, 13 Am. Eep. 136.) The legislature cannot add any essential to the constitutional definition of an elector. (Bergevin v. Curtz, 127 Cal. 86, 59 Pac. 312.) The courts of equity have power to see that the constitutional rights of suffrage are enjoyed. (Cerini v. De Long, 7 Cal. App. 398, 94 Pac. 582.) A person may be an elector, although not a registered voter. (Bergevin v. Curtz, 127 Cal. 86, 59 Pac. 312.) Registration is not a qualification of an elector, and cannot add to the qualifications fixed by the constitution; but it is to be regarded as a reasonable regulation by the legislature for the purpose of ascertaining who are qualified electors in order to prevent illegal voting. (Bergevin v. Curtz, 127 Cal. 86, 59 Pac. 312.) A primary election is an election "authorized by law," within the meaning of this section, and the provisions thereof, defining the qualifications of electors, are controlling in determining the right to vote at such elections, and such right can neither be enlarged nor curtailed by the legislature. (Spier v. Baker, 120 Cal. 370, 52 Pac. 659, 41 L. E. A. 196.) A provision of the Primary Election Law that all native-born citizens, who since the last general election have become of legal age, and who have been legal residents of the county thirty days prior to the election, as well as all citizens who have become such by naturalization since the last general election, and who have been residents as aforesaid, shall be entitled to vote, is an enlargement of the constitutional right of suffrage and void. (Spier v. Baker, 120 Cal. 370, 52 Pac. 659, 41 L. E. A. 196.) A provision of the Primary Election Law, that no person shall vote at primary elections whose name does not appear upon the last great register, or supiJlements thereto, curtails the right of suffrage, and is void. (Spier v. Baker, 12'0 Cal. 370, 52 Pac. 659, 41 L. E. A. 196.) This section does not apply to a voter in a reclamation dis- trict. (People v. Eeclamation Dist. No. 551, 117 Cal. 114, 48 Pac. 1016.) The act to change the boundary line between Fresno and Kings county is not unconstitutional oecause it prescribes dif- 73 CONSTITUTION OP 1879. Art. II, §§ 2, 21/2 ferent qualifications for the electors who shall be entitled to vote at the election therein provided for than are prescribed by this section. (Wheeler v. Herbert, 152 Cal. 224, 92 Pac. 353.) The provision of the Political Code that, when a voter erases the name of a candidate without substituting another, the vote must be counted for the candidate whose name is erased, unless the words "no vote" are written after the name erased, is not unconstitutional, as prescribing an educational qualification for the voter, or destroying the secrecy of the ballot. (Eutledge v. Crawford, 91 Cal. 526, 25 Am. St. Eep. 212, 27 Pac. 779, 13 L. E. A. 761.) A person born in a foreign state, whose father was once a citizen of the United States, but renounced his allegiance before the birth of such person, is not a citizen of the United States. (Browne v. Dexter, 66 Cal. 39, 4 Pac. 913.) The legislature has no power to authorize electors to give their votes at any place outside of the county or district in which they have had a legal residence for thirty days previous to the election. (Bourland v. Hildreth, 26 Cal. 161.) An act providing for taking the votes of the electors of the state, who are in the military service of the United States, out- side of the county of their legal residence, to be returned to the secretary of state, and counted in the counties of the legal residence of the electors, is void. (Bourland v. Hildreth, 26 Cal. 161; Day v. Jones, 31 Cal. 261.) The constitution does not vest in any person the right to sign a petition for the recall of an officer. (Davenport v. Los An- geles, 146 Cal. 508, 80 Pac. 684.) Privileges of electors. Sec. 2. Electors shall in all oases, except treason, felony, or breach of the peace, be privileged from arrest on the days of election, during their attendance at such election, going to and returning therefrom. Primary election. See. 21/^. The legislature shall have the power to enact laws relative to the election of delegates to con- Art. II, § 21/^ CONSTITUTION OP 1879. 74 ventions of political parties; and the legislature shall enact laws providing for the direct nomination of can- didates for public office, by electors, political parties, or organizations of electors without conventions, at elec- tions to be known and designated as primary elections; also to determine the tests and conditions upon which electors, political parties, or organizations of electors may participate in any such primary election. It shall also be lawful for the legislature to prescribe that any such primary election shall be mandatory and obligatory. The legislature shall also have the power to establish the rates of compensation for primary election officers serv- ing at such primary elections in any city, or city and county, or county, or other subdivision of a designated population, without making such compensation uniform, and for such purpose such law may declare the popula- tion of any city, city and county, county or political subdivision. Provided, however, that until the legis- lature shall enact a direct primary election law under the provisions of this section, the present primary elec- tion law shall remain in force and effect. (Amendment adopted November 3, 1908.) [AMENDMENT OF 1900.] Sec. 2^. The legislature shall have the power to enact laws relative to the election of delegates to conventions of political parties at elections known and designated as primary elections. Also to determine the tests and conditions upon which electors, political parties, or organizations of voters, may participate in 75 CONSTITUTION OF 1879. Art. II, § 2% any such primary election, which tests or conditions may be different from the tests and conditions required and permitted at other elections authorized by law; or the legislature may dele- gate the power to determine such tests or conditions, at primary elections, to the various political parties participating therein. It shall also be lawful for the legislature to prescribe that any such primary election law shall be obligatory and mandatory in any city, or any city and county, or in any county, or in any political subdivision, of a designated population, and that such law shall be optional in any city, city and county, county, or political subdivision of a lesser population, and for such purpose Buch law may declare the population of any city, city and county, county, or political subdivision, and may also provide what, if any, compensation primary election oflScers in defined places or political subdivisions may receive, without making compensation either general or uniform. (Amendment adopted November 6, 1900.) PRIMARY ELECTIONS.— Prior to the adoption of this amendment, three acts regulating primary elections were passed by the legislature, each of which was held invalid by the supreme court. 1. Act of 1895. — The first act on the subject was held in- valid because it only applied to counties of the first and second class, and was therefore local and special. (Marsh v. Supervisors, 111 Cal. 368, 43 Pac. 975.) 2. Act of 1897. — The second act on the subject was held invalid on the following grounds: (a) because it enlarged the right of suffrage; (b) because it restricted the right of suffrage; (c) because certain portions of it were not expressed in the title of the act; (d) because it was special, in that it discriminated in favor of and against certain classes and in- dividuals. (Spier v. Baker, 120 Cal. 370, 52 Pac. 659, 41 L. R. A. 190.) 3. Act of 1899. — The third act on the subject was held in- valid because it permitted members of one political party or of no party to vote for delegates to the party convention of Art. II, § 21/^ CONSTITUTION OF 1879. 76 another party, and thus took away the rights of self-control and self-preservation from political parties. Three of the jus- tices (Henshaw, J., Van Dyke, J., and McFarland, J.) also held it invalid because it prohibited the election of delegates to a convention of any political party not representing three per cent of the votes cast at the last election. (Britton v. Board of Election Commrs., 129 Cal. 337, 61 Pac. 1115, 51 L. E. A. 115.) 4. Act of 1901. — This section authorizes the provision of the primary election law of 1901, requiring each person to take an oath that he has a bona fide present intention of supporting the nominees of the party. (Rebstock v. Superior Court, 140 Cal. 308, 80 Pac. 65.) The Primary Election Law of 1909 is not violative of the constitution by providing for an expression of a choice as to a candidate for United States senator at a primary. (Socialist Party v. Uhl, 155 Cal. 776, 103 Pac. 181.) The Primary Election Law of 1909 is not invalid because it does not give to classes other than political organizations the right to participate in the first primary held under the act. (Socialist Party v. Uhl, 155 Cal. 776, 103 Pac. 181.) The constitution only requires that a primary election law should apply to general elections, and the primary election law of 1909 does not violate the constitution by providing that its provisions as to primary elections shall not apply to the nomination of officers of municipalities whose charters pro- vide a system of nominating candidates for such offices. (So- cialist Party v. Uhl, 155 Cal. 776, 103 Pac. 181.) The constitution is not violated by the primary election law because the latter does not preserve secrecy in voting, because it arbitrarily classifies voters, because it impairs the right of citizens to assemble together and instruct their representatives, or because it invests state officers with judicial functions. (Katz V. Fitzgerald, 152 Cal. 433, 93 Pac. 112.) The legislature may compel electors when registering to de- clare their party affiliations as a prerequisite to the right to vote at primary elections. (Schostag v. Cator, 151 Cal. 60t), 91 Pac. 502.) The legislature may partly prescribe the tests of the rights of electors to vote at primary elections, and may partly dele- 77 CONSTITUTION OF 1879. Art. II, § § 3, 4 gate such power to political parties. (Schostag v. Cater, 151 Cal. 600, 91 Pac. 502.) The legislature had power to determine the tests and con- ditions upon wnich "electors," "political parties," or "organiza- tions of electors" should participate in a primary election, and the tests and conditions provided in the primary election law of 1909 being reasonable and not arbitrary, those provisions of the act are not unconstitutional. (Socialist Party v. Uhl, 155 Cal. 776, 103 Pac. 181.) Militia duty, privilege of electors. See. 3. No eleetor shall be obliged to perform militia duty on the day of election, except in time of war or public danger. Residence of voters, gained or lost. Sec. 4. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the naviga- tion of the waters of this state or of the United Stales, or of the high seas ; nor while a student at any seminary of learning; nor while kept at any almshouse or other asylum, at public expense; nor while confined in any public prison. BESIDENCE. — This provision does not preclude the gaining of a residence for the purpose of voting by soldiers, college students, or inhabitants of a veterans' home, upon proof of their intention to acquire a domicile in the county of which they are inhabitants. (Stewart v. Kyser, 105 Cal. 459, 39 Pac. 19; People v. Holden, 28 Cal. 123.) Presence in the state more than six months and in the county more than thirty days, under orders as a soldier in the Art. II, §§ 5, 6 CONSTITUTION OP 1879. 78 military service of the United States, does not of itself en- title a person to vote. (Devlin v. Anderson, 38 Cal. 92.) This section does not authorize an act providing for the taking of the votes of electors of this state, in the military service of the United States, outside of the counties of their legal residences. (Bourland v. Hildreth, 26 Cal. 161: Day v. Jones, 31 Cal. 261.) Election by ballot. Sec. 5. All elections by tlie people sball be by ballot * or by such other method as may be prescribed by law; provided, that secrecy in voting be preserved. (All after * added by amendment adopted November 3, 1896.) SECRECY OF THE BALLOT.— The provision of the primary election law of 1901, requiring the person voting to take an oath that he has a bona fide present intention of supporting the nominees of the party, does not violate the provision of this section securing the secrecy of the ballot. (Rebstock v. Superior Court, 146 Cal. 308, 80 Pac. 65.) Voting machines. Sec. 6. The inhibitions of this constitution to the contrary notwithstanding, the legislature shall have power to provide that in different parts of the state dif- ferent methods may be employed for receiving and reg- istering the will of the people as expressed at elections, and may provide that mechanical devices may be used within designated subdivisions of the state at the option of the local authority indicated by the legislature for that purpose. (Amendment adopted November 4, 1902.) 79. CONSTITUTION OP 1879. Art. Ill, § 1 ARTICLE III. DISTRIBUTION OF POWERS. Section 1. The powers of the government of the state of California shall be divided into three separate de- partments — the legislative, executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except as in this constitution expressly directed or permitted. DEPARTMENTS OF GOVERNMENT.— The departments mentioned in this section are the departments of the state government, and not the local governments thereafter to be created by the legislature. (People v. Provines, 34 Cal. 5S0; Staude v. Election Commrs., 61 Cal. 313; Holley v. Orange Co., 106 Cal. 420, 39 Pac. 790. Burgoyne v. Supervisors, 5 Cal. 9, and cases following it, overruled.) This provision does not place either department above the law, nor make either independent of the other. (MeCauley V. Brooks, 16 Cal. 11.) As to how far the several departments are independent of each other, see People v. Twelfth District Court, 17 Cal. 547. Legislative department. — The distinction between a judicial and a legislative act is, that the former determines what the law is and what the rights of the parties are, with reference to transactions already had, and the latter prescribes what the law shall be in future cases arising under it. (People v. Board of Education, 54 Cal. 375.) Legislative power prescribes rules of conduct for the govern- ment of the citizen or subject, while judicial power punishes and redresses wrongs growing out of rules previously estab- lished. The distinction lies between a rule and a sentence. (Ex parte Shradcr, 33 Cal. 279; Smith v. Strother, 68 Cal. 194, 8 Pac. 852; Wulzcn v. Supervisors, 101 Cal. 15, 40 Am. St. Eep. 17, 35 Pac. 353.) Art. Ill, § 1 CONSTITUTION OF 1879. 80 The legislature cannot exercise judicial functions. (Guy v. Hermance, 5 Cal. 73, 63 Am. Dec. 85.) An act providing that no injunction sliall issue against com- missioners created by the act is an exercise of judicial func- tions, and void. (Guy v, Hermance, 5 Cal. 73, 63 Am. Dec. 85.) The election of officers is political, and may be exercised by both the legislative and executive branches of the government. (People V. Langdon, 8 Cal. 1.) To audit and allow the claim of a judgment creditor against a city is not the exercise of a judicial function. (People v. Supervisors, 11 Cal. 207.) The legislature may pass a special law directing a court to transfer an indictment for murder pending therein to another court for trial. (People v. Twelfth District Court, 17 Cal. 547.) An act conferring upon boards of supervisors power to try a contest in relation to the office of county judge is void. (Stone V. Elkins, 24 Cal. 125.) An act of the legislature granting a new trial, or reopening a judgment in an action between individuals, would be an as- sumption of judicial power; but an act allowing a judgment in favor of the state to be reopened would not be invalid. (People v. Frisbie, 26 Cal. 135.) The legislature cannot by law fix the assessed value of prop- erty. (People v, Hastings, 29 Cal. 449.) The legislature has no power to legalize existing pleadings substantially defective, without first requiring them to be amended. (People v. Mariposa Co., 31 Cal. 196.) An act determining that certain trades are offensive is not an exercise of judicial power. (Ex parte Shrader, 33 Cal. 279.) An act to validate a judgment of a court void for want of jurisdiction is void. (Pryor v. Downey, 50 Cal. 388, 19 Am. Eep. 656.) The exercise by the legislature of visitorial or supervisorial power over corporations does not violate this section. (In re Bunkers, 1 Cal. App. 61, 81 Pac. 748.) The provisions of the act regulating the practice of archi- tecture that the board may adopt rules and regulations is not a delegation of legislative function. (Ex parte McManus, 151 Cal. 331, 90 Pac. 702.) 81 CONSTITUTION OF 1879. Art. Ill, § 1 The legislative approval of a survey of a county line before the line was actually run is not a delegation of legislative power to the surveyor. (Trinity County v. Mendocino County, 151 Cal. 279, 90 Pac. 685.) As to whether the sale of the property of a minor is a matter of judicial cognizance exclusively, see Paty v. Smith, 50 Cal. 153. An act prescribing the contents of a complaint to foreclose a street assessment is not a usurpation of judicial functions. (Whiting V. Townsend, 57 Cal. 515.) The action of a board of education, in adopting a series of readers for the public schools, in lieu of a series previously in use, is an exercise of legislative and not judicial power. (People V. Board of Education, 54 Cal. 375.) Judicial department. — The legislature has no power to confer other than judicial functions upon the courts. (Burgoyne v. Supervisors, 5 Cal. 9; Hardenburgh v. Kidd, 10 Cal. 402.) An act authorizing the judges of the superior court to fix the salaries of the official reporters of the courts is void as imposing legislative functions upon the judiciary. (Smith v. Strother, 68 Cal. 194, 8 Pac. 852.) But an act permitting the judge to fix the compensation of a shorthand reporter after the services are rendered does not con- fer legislative power upon the judiciary. (McAllister v. Ham- lin, 83 Cal. 361, 23 Pac. 357; Stevens v. Truman, 127 Cal. 155, 59 Pac. 397.) An act conferring upon district judges the power to appoint police commissioners is not in conflict with this section. (Staude v. Election Commrs., 61 Cal. 313.) A law providing for the change of names of corporations upon petition to the superior court is not unconstitutional as delegating legislative power to the judiciary. (Matter of La Societe Francaise etc., 123 Cal. 525, 56 Pac. 458.) The legislature cannot confer nonjudicial power upon the judges of a court as commissioners any more than upon the court itself. (Burgoyne v. Supervisors, 5 Cal. 9.) An act conferring upon the courts of sessions the entire management of the financial business of the counties is void. (Burgoyne v. Supervisors, 5 Cal. 9; Phelan v. San Francisco, 6 Cal. 531; Phelan v. San Francisco, 20 Cal. 39.) Constitution — 6 Art. Ill, § 1 CONSTITUTION OF 1879. 82 An act antliorizing the trial judge to make the crime a felony or a misdemeanor is not an attempt to delegate legislativs power. (In re O'Shea, 11 Gal. App. 5G8, ItDo Pac. 776.) The proceedings provided by the "Torrens Land Law" are judicial and not administrative. (Robinson v. Kerrigan, 151 Cal. 40, 121 Am. St. Rep. 90, 90 Pac. 129, 12 Ann. Gas. 829.) The duties conferred on the county recorder by the "Torrens Land Law" are not judicial. (Robinson v, Kerrigan, 151 Gal. 40, 121 Am. St. Rep. 90, 90 Pac. 129, 12 Ann. Gas. 829.) The "McEnerney Act" for the establishment of titles pro- vides for a judicial proceeding and not an administrative pro- ceeding. (Hoffman v. Superior Gourt, 151 Cal. 386, 90 Pac. 939.) The corporation license tax act of March 29, 1905, is not unconstitutional as conferring judicial power upon the secre- tary of state. His determination of the class to which a cor- poration belongs, as provided in section 7 of the act, is a mere incident to the exercise of a purely ministerial function and is not binding on any corporation. (Kaiser Land & Fruit Go. V. Gurry, 155 Gal. 638, 103 Pac. 341.) The power of appointment of probation officers vested by the Juvenile Gourt Law (Stats. 1909, p. 213) in the superior court in the exercise of its jurisdiction as a juvenile court is not unconstitutional as vesting an executive function in judi- cial officers. (Nicholl v. Koster, 157 Gal. 416, 108 Pac. 302.) The state dental law does not confer upon the board of dental examiners judicial functions by giving it authority to indorse reputable dental colleges. (Ex parte Whitley, 144 Gal. 167, 77 Pac. 879.) An act providing that the court may prescribe by rule what shall be deemed a waiver of a jury trial is in violation of this section. (Exline v. Smith, 5 Gal. 112.) The judiciary has power to examine into the action of the executive in surrendering a fugitive from justice. (In re Man- chester, 5 Gal. 237.) The legislature cannot confer upon the county judge power to call an election. (Dickey v. Hurlburt, 5 Cal. 343.) An act conferring upon the county court power of incorporat- ing towns is void. (People v. Nevada, 6 Gal. 143.) The assessment of taxes is not a judicial, but a legislative, function. (Hardenburgh v. Kidd, 10 Gal. 402.) 83 CONSTITUTION OF 1879. Art. Ill, § 1 The duties of a judge in a proceeding to condemn land are judicial. (Gilmer v. Lime Point, 18 Cal. 229.) The legislature may declare the mayor of a city to be ex oflBcio a justice of the peace. (Uridas v. Morrill, 22 Cal. 473.) The chief justice of the supreme court is prohibited by this section from exercising the functions and duties of trustee of the state library. (People v. Sanderson, 30 Cal. 160. But see People V. Provines, 34 Cal. 520.) This section does not prohibit a police judge of a city from performing the duties of a. police commissioner. (People v. Provines, 34 Cal. 520.) The legislature may invest judicial officers with power to punish for contempt. (Crocker v. Conrey, 140 Cal. 213, 73 Pac. 10t)6. The legislature cannot invest ministerial officers with the power to punish individuals by fine and imprisonment. (Burns V. Superior Court, 140 Cal. 1, 73 Pac. 597.) The power to remove a public officer for cause is not judi- cial in its character. (Matter of Carter, 141 Cal. 316, 74 Pac. &97.) Executive department. — The power of appointment to office is not essentially an executive function, within the meaning of this section; and such power may be exercised by the mem- bers of the legislature. (People v. Freeman, 80 Cal. 233, 13 Am. St. Eep. 122, 22 Pac. 173; Peojile v. Langdon, 8 Cal. 1.) The power to levy a tax is purely legislative, and cannot be delegated to the county superintendent of schools, who is an executive officer. (McCabe v. Carpenter, 102 Cal. 469, 36 Pac. 836.) A law requiring the auditor's certificate that there is suffi- cient money in the treasury before an appropriation is- made is valid, and does not vest judicial functions in a ministerial officer. (Higgins v. San Diego Water Co., 118 Cal. 524, 45 Pac. 824, 50 Pac. 670; Pollok v, San Diego, 118 Cal. 593, 50 Pac. 769.) A law conferring power upon city trustees to remove a munic- ipal officer is valid. (Croly v. Sacramento, 119 Cal. 229, 51 Pac. 323.) An act giving to horticultural commissioners power to deter- mine whether any particular j)lace is a nuisance, because in- fected with insect pests, does not confer judicial power on such Art. Ill, § 1 CONSTITUTION OF 1879. 84 commissioners. (Los Angeles v. Spencer, 126 Cal. 670, 77 Am. St. Rep. 217, 59 Pac. 202.) A law authorizing the high school board to furnish the super- visors with an estimate of the amount of the tax required, but leaving it to the supervisors to fix the tax, is not invalid as delegating legislative power to* an executive officer. (People V. Lodi High School Dist., 124 Cal. 694, 67 Pac. 660. McCabe V. Carpenter, 102 Cal. 469, 36 Pac. 83G, distinguished.) 85 CONSTITUTION OF 1879. ARTICLE IV. LEGISLATIVE DEPARTMENT. § 1. Senate and assembly, and enacting clause — Initiative and referendum. § 2. Sessions of legislature. § 3. Election and term of assemblymen. § 4. Election and term of senators. § 5. Number and classes of senators. § 6. Senatorial and legislative districts. § 7. Organization of legislature. § 8. What number constitutes a quorum. § 9. Rules for their government — Expulsions. § 10. Each house to keep a journal. § 11. Privilege of members. § 12. Vacancies, how filled. § 13. Open doors and secret sessions. § 14. Adjournment, how long and where to. § 15. Origin and passage of bills. § 16. Approval and return of bills — Passage over veto. § 17. Impeachments, presentment and trial of. § 18. What officers liable to impeachment — Judgment on. § 19. Member ineligible to office created during the term. § 20. Who ineligible to office under state government — Proviso. § 21. Embezzlement or defalcation — Penalty for. § 22. Public moneys and accounts — Statement of receipts and expenditures — Panama-Pacific International Exposi- tion. I 23. Compensation not to be increased during term. § 23a. Officers, employees and attaches. § 24. Title of laws — Revision and amendment — Publication of. § 25. Local and special laws prohibited. § 25}. Fish and game districts. Art. IV, § 1 CONSTITUTION OF 1879. 86 § 26. Lotteries prohibited — Purchase and sale of shares of stock to be regulated. § 27. Congressional and senatorial districts. § 28. Elections by legislature to be viva voce. § 29. General appropriation bill, what to contain. § 30. Eestriction on appropriations and grants of aid. § 31. Credit of state or municipalities not to be loaned. § 32. Extra compensation to officers forbidden. § 33. Charges of gas and telegraph corporations to be regu- lated. § 34. Special appropriation bill, restriction as to. § 35. Lobbying defined — Punishment for. § 36. State highways. Senate and assembly, and enacting clause — Initiative and referendum. Section 1. The legislative power of this state shall be vested in a senate and assembly which shall be des- ignated "The legislature of the State of California," but the people reserve to themselves the power to pro- pose laws and amendments to the constitution, and to adopt or reject the same, at the polls independent of the legislature, and also reserve the power, at their own option, to so adopt or reject any act, or section or part of any act, passed by the legislature. The enacting clause of every law shall be "The people of the State of California do enact as follows:". The first power reserved to the people shall be known as the initiative. Upon the presentation to the secre- tary of state of a petition certified as herein provided to 87 CONSTITUTION OF 1879. Art. IV, § 1 have been signed by qualified electors, equal in number to eight per cent of all the votes cast for all candidates for governor at the last preceding general election, at which a governor was elected, proposing a law or amend- ment to the constitution, set forth in full in said peti- tion, the secretary of state shall submit the said pro- posed law or amendment to the constitution to the elec- tors at the next succeeding general election occurring subsequent to ninety days after the presentation afore- said of said petition, or at any special election called by the governor in his discretion prior to such general elec- tion. All such initiative petitions shall have printed across the top thereof in twelve point black-face type the following: "Initiative measure to be submitted di- rectly to the electors." Upon the presentation to the secretary of state, at any time not less than ten days before the commence- ment of any regular session of the legislature, of a peti- tion certified as herein provided to have been signed by qualified electors of the state equal in number to five per cent of all the votes cast for all candidates for governor at the last preceding general election, at which a governor was elected, proposing a law set forth in full in said petition, the secretary of state shall transmit the same to the legislature as soon as it convenes and organ- izes. The law proposed by such petition shall be either enacted or rejected without change or amendment by the legislature, within forty days from the tir/ie it is Art. IV, § 1 CONSTITUTION OF 1879. 83 received by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subject to referendum, as hereinafter provided. If any law so petitioned for be rejected, or if no action is taken upon it by the legislature within said forty days, the secretary of state shall submit it to the people for approval or rejection at the next ensuing general elec- tion. The legislature may reject any measure so pro- posed by initiative petition and propose a different one on the same subject by a yea and nay vote upon sepa- rate roll-call, and in such event both measures shall be submitted by the secretary of state to the electors for approval or rejection at the next ensuing general elec- tion or at a prior special election called by the gov- ernor, in his discretion, for such purpose. All said ini- tiative petitions last above described shall have printed in twelve point black-face type the following: "Initia- tive measure to be presented to the legislature." The second power reserved to the people shall be known as the referendum. No act passed by the legis- lature shall go into effect until ninety days after the final adjournment of the session of the legislature which passed such act, except acts calling elections, acts pro- viding for tax levies or appropriations for the usual current expenses of the state, and urgency meas ures necessary for the immediate preservation of the public peace, health or safety, passed by a two-thirds vote of_ all the members elected to each house. Whenever it is 89 CONSTITUTION OF 1879. Art. IV, § 1 deemed necessary for the immediate preservation of the public peace, health or safety that a law shall go into immediate effect, a statement of the facts constituting such necessity shall be set forth in one section of the act, which section shall be passed only upon a yea and nay vote, upon a separate roll-call thereon ; provided, how- ever, that no measure creating or abolishing any office or changing the salary, term or duties of any officer, or granting any franchise or special privilege, or creating any vested right or interest, shall be construed to be an urgency measure. Any law so passed by the legis- lature and declared to be an urgency measure shall go into immediate effect. Upon the presentation to the secretary of state within ninety days after the final adjournment of the legisla- ture of a petition certified as herein provided, to have been signed by qualified electors equal in number to five per cent of all the votes cast for all candidates for gov- ernor at the last preceding general election at which a governor was elected, asking that any act or section or part of any act of the legislature, be submitted to the electors for their approval or rejection, the secretary of state shall submit to the electors for their approval or rejection, such act, or section or part of such act, at the next succeeding general election occurring at any time subsequent to thirty days after the filing of said peti- tion or at any special election which may be called by the governor, in his discretion, prior to such regular Art. IV, § 1 CONSTITUTION OF 1879. 90 election, and no such act or section or part of such act shall go into effect until and unless approved by a majority of the qualified electors voting thereon ; but if a referendum petition is filed against any section or part of any act the remainder of such act shall not be delayed from going into effect. Any act, law or amendment to the constitution sub- mitted to the people by either initiative or referendum petition and approved by a majority of the votes cast thereon, at any election, shall take effect five days after the date of the official declaration of the vote by the sec- retary of state. No act, law or amendment to the con- stitution, initiated or adopted by the people, shall be subject to the veto power of the governor, and no act, law or amendment to the constitution, adopted by the people at the polls under the initiative provisions of this section, shall be amended or repealed except by a vote of the electors, unless otherwise provided in said initia- tive measure; but acts and laws adopted by the people under the referendum provisions of this section may be amended by the legislature at any subsequent session thereof. If any provision or provisions of two or more measures, approved by the electors at the same election, conflict, the provision or provisions of the measure re- ceiving the highest affirmative vote shall prevail. Until otherwise provided by law, all measures submitted to a vote of the electors, under the provisions of this section, shall be printed, and together with arguments for and 91 CONSTITUTION OP 1879. Art. IV, § 1 against each such measure by the proponents and oppo- nents thereof, shall be mailed to each elector in the same manner as now provided by law as to amendments to the constitution, proposed by the legislature; and the persons to prepare and present such arguments shall, until otherwise provided by law, be selected by the pre- siding officer of the senate. If for any reason any initiative or referendum meas- ure, proposed by petition as herein provided, be not sub- mitted at the election specified in this section, such failure shall not prevent its submission at a succeeding general election, and no law or amendment to the con- stitution, proposed by the legislature, shall be submitted at any election unless at the same election there shall be submitted all measures proposed by petition of the elec- tors, if any be so proposed, as herein provided. Any initiative or referendum petition may be pre- sented in sections, but each section shall contain a full and correct copy of the title and text of the proposed measure. Each signer shall add to his signature his place of residence, giving the street and number if such exist. Ilis election precinct shall also appear on the paper after his name. The number of signatures at- tached to each section shall be at the pleasure of the person soliciting signatures to the same. Any qualified elector of the state shall be competent to solicit said signatures within the county or city and county of which he is an elector. Each section of the petition shall bear Art. IV, § 1 CONSTITUTION OF 1870. 92 the name of the county or city and county in which it is circulated, and only qualified electors of such county or city and county shall be competent to sign such section. Each section shall have attached thereto the affidavit of the person soliciting signatures to the same, stating his own qualifications and that all the signatures to the attached section were made in his presence and that to the best of his knowledge and belief each signa- ture to the section is the genuine signature of the per- son whose name it purports to be, and no other affidavit thereto shall be required. The affidavit of any person soliciting signatures hereunder shall be verified free of charge by any officer authorized to administer oaths. Such petitions so verified shall be prima facie evidence that the signatures thereon are genuine and that the persons signing the same are qualified electors. Unless and until it be otherwise proven upon official investi- gation, it shall be presumed that the petition presented contains the signatures of the requisite number of qualified electors. Each section of the petition shall be filed with the clerk or registrar of voters of the county or city and county in which it was circulated, but all said sections circulated in any eounty or city and county shall be filed at the same time. Within twenty days after the filing of such petition in his office the said clerk, or registrar of voters, shall determine from the rec- ords of registration what number of qualified electors 93 CONSTITUTION OP 1879. Art. IV, § 1 have signed the same, and if necessary the board of supervisors shall allow said clerk or registrar addi- tional assistants for the purpose of examining such petition and provide for their compensation. The said clerk or registrar, upon the completion of such exami- nation, shall forthwith attach to said petition, except the signatures thereto appended, his certificate, prop- erly dated, showing the result of said examination and shall forthwith transmit said petition, together with his said certificate, to the secretary of state and also file a copy of said certificate in his office. Within forty days from the transmission of the said petition and certificate by the clerk or registrar to the secre- tary of state, a supplemental petition identical with the original as to the body of the petition but con- taining supplemental names, may be filed with the clerk or registrar of voters, as aforesaid. The clerk or reg- istrar of voters shall within ten days after the filing of such supplemental petition make the examination thereof, as of the original petition, and upon the com- pletion of such examination shall forthwith attach to said petition his certificate, properly dated, showing the result of said examination, and shall forthwith transmit a copy of said supplemental petition, except the signatures thereto appended, together with his cer- tificate, to the secretary of state. When the secretary of state shall have received from one or more county clerks or registrars of voters Art. IV, § 1 CONSTITUTION OF 1879. 94 a petition certified as herein provided to have been signed by the requisite number of qualified electors, he shall forthwith transmit to the county clerk or reg- istrar of voters of every county or city and county in the state his certificate showing such fact. A pe- tition shall be deemed to be filed with the secretary of state upon the date of the receipt by him of a cer- tificate or certificates showing said petition to be signed by the requisite number of electors of the state. Any county clerk or registrar of voters shall, upon receipt of such copy, file the same for record in his office, The duties herein imposed upon the clerk or registrar of voters shall be performed by such registrar of voters in all cases where the office of registrar of voters exists. The initiative and referendum powers of the people are hereby further reserved to the electors of each county, city and county, city and town of the state, to be exercised under such procedure as may be pro- vided by law. Until otherwise provided by law, the legislative body of any such county, city and county, city or town may provide for the manner of exercising the initiative and referendum powers herein reserved to such counties, cities and counties, cities and towns, but shall not require more than fifteen per cent of the electors thereof to propose any initiative measure nor more than ten per cent of the electors thereof to order the referendum. Nothing contained in this sec- tion shall be construed as affecting or limiting the 95 CONSTITUTION OF 1879. Art. IV, § 1 present or future powers of cities or cities and counties having charters adopted under the provisions of sec- tion eight of article eleven of this constitution. In the submission to the electors of any measure under this section, all officers shall be guided by the general laws of this state, except as is herein otherwise pro- vided. This section is self-executing, but legislation may be enacted to facilitate its operation, but in no way limiting or restricting either the provisions of this section or the powers herein reserved. (Amend- ment approved October 10, 1911.) [ORIGINAL SECTION.] Section 1. The legislative power of this state shall be vested in a senate and assembly, which shall be designated "The Legis- lature of the State of California," and the enacting clause of every law shall be as follows: "The People of the State of California, represented in Senate and Assembly, do enact as follows." LEGISLATIVE POWER.— The legislature has the same un- limited power of legislation which resides in the British parlia- ment, except when restrained and limited either by express words of the constitution or by necessary implication; and its power cannot be restrained by any unnecessary implications. (Mitchell V. Winnek, 117 Cal. 520, 49 Pac. 579.) The legislature is not synonymous with the law-making power and does not include the governor except as applied to the en- actment of laws. (Brooks v. Fischer, 79 Cal. 173, 21 Pac. 652, 4 L. E. A. 429.) The constitution is not a grant of power, but a restriction upon the power of the legislature, and the legislature has the entire legislative power of the state not prohibited to the legis- lature 01 conferred upon some other body. (Sheehan v. Scott, 145 Cal. 684, 79 Pac. 350.) Art. IV, § 1 CONSTITUTION OP 1879. 96 All powers of any of the departments of the government, not disposed of or distributed by the constitution, are left at the disposal of the legislature. (Ross v. Whitman, 6 Cal. 361.) The legislature is not controlled as to its powers or the mode of their exercise otherwise than by the restrictions of the con- stitution. (Hobart v. Supervisors, 17 Cal. 23; People v. Sey- mour, 16 Cal. 332, 76 Am. Dec. 521.) The legislature represents the independent sovereignty of the people of the state, and is supreme and unlimited in all legit- imate subject matters of legislation, and is controlled only by such restrictions as are imposed by the organic law of the state. (Beals V. Amador Co., .35 Cal. 624.) The legislature may accept a private bounty for the benefit of the state, although such bounty influences legislative action. (People v. Bigler, 5 Cal. 23.) The legislature has full power to alienate the tide lands of the state, subject only to the right of the public to use them for the purposes of navigation and fishing. (Oakland v. Oak- land Water Front Co., 118 Cal. 160, 50 Pac. 277.) The legislature may determine whether or not a certain im- provement is of a public nature, and the courts will not inter- fere with this determination, unless it is palpably and entirely for private benefit. (In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. Rep. 106, 28 Pac. 272, 14 L. R. A. 755; liagar v. Super- visors, 47 Cal. 222.) As to the validity of acts contrary to natural justice, see People V. Bigler, 5 Cal. 23. Exercise of power. — A legislative assembly has all the powers and privileges which are necessary to the proper exercise, in all respects, of its appropriate functions. (Ex parte McCarthy, 29 Cal. 395.) The senate has power to summon witnesses to testify con- cerning a charge of bribery brought against its members. (Ex parte McCarthy, 29 Cal. 395.) The legislature may compel the attendance of all persons within the limits of their constituency, as witnesses, in regard to subjects on which they have power to act and into which they institute an investigation. (Ex parte McCarthy, 29 Cal. 395'.) 97 CONSTITUTION OF 1879. Art. IV, § 1 Witnesses before either branch of the legislature may be compelled to testify by process of contempt. (Ex parte Mc- Carthy, 29 Cal. 395.) Delegation of power. — The power to make laws cannot be delegated by the legislature to the people of the state, or to any portion of the people. (Ex parte Wall, 48 Cal. 279, 17 Am. Eep. 425.) The legislature has no power to refer a statute to the people to decide by a popular vote whether it shall go into effect. (Ex parte Wall, 48 Cal. 279, 17 Am. Eep. 425.) As to whether the legislature may confer upon the voters of a county directly the power to enact laws, questioned but not decided. (Ex parte Anderson, 134 Cal. 69, 86 Am. St. Eep. 236, 66 Pac. 194.) There cannot be two equal, co-ordinate law-making powers within the same territory, each existing without any restric- tions the one upon the other; and, therefore, a law empower- ing the voters of a county and also the board of supervisors of the county to enact and repeal laws on the same subjects is invalid. (Ex parte Anderson, 134 Cal. 69, 86 Am. St. Rep. 236, 66 Pac. 194.) The legislature cannot delegate its general legislative func- tions, but it can authorize others to do those things which it cannot understandingly or advantageously do itself. Thus, it can delegate to the voters of a county power to select a county seat, (Upham v. Supervisors, 8 Cal. 378.) Laws may be either absolute, dependent upon no contingency, or subject to conditions. They may take effect only upon the ha]ipcning of events which are future and uncertain, and among others, the voluntary act of the parties upon whom they are designed to operate. (Blanding v. Burr, 13 Cal. 343.) Thus, a provision of an act that the question of the issuance of bonds shall be submitted to the people is valid. (Blanding v. Burr, 13 Cal. 343.) But while a statute may be conditional, so that its taking effect may dejiend upon a subsequent event which may be named in it, yet this event must be one which shall produce such a change of circumstances that the law-makers, in their own judgment, can declare it wise that the law shall take effect Constitution — 7 Art. IV, § 1 CONSTITUTION OF 1879. 98 when the event shall occur. (Ex parte Wall, 48 Cal. 279, 17 Am. Eep. 425.) A county ordinance prohibiting the granting of a Uquor license in any precinct in which a majority of the electors voted against the granting of liquor licenses therein, is not a delega- tion of legislative functions. (Denton v. Vann, 8 Cal. App. 677, 97 Pac. 675.) The grant of power comprehends the exercise of all the sov- ereign authority of the state in matters which are properly the subject of legislation. (People v. Nye, 9 Cal. App. 148, 98 Pac. 241.) A common council has no power to delegate its functions and in the absence of special authority has no i50wer to submit a question to the electors for the purpose of ascertaining their desires. (Galindo v. Walter, 8 Cal. App. 234, 96 Pac. 505.) The act regulating the practice of medicine and surgery does not delegate legislative functions. (Arwine v. Board of Medical Examiners, 151 Cal. 499, 91 Pac. 319.) A freeholders' charter may incorporate the procedure known as the initiative and referendum so as to authorize the majority of the electors to participate directly in the enactment of local laws. (In re Pfahler, 150 Cal. 71, 88 Pac. 270, 11 Ann. Cas. 911.) An act authorizing the submission to the people of the ques- tion of a tax for an improvement is valid. (Pattison v. Yuba Co., 13 Cal. 175.) The act providing for the annexation of territory to incor- porated towns does not, in its provision for a vote by the people, comprise any unwarranted delegation of legislative power. (People v. Town of Ontario, 148 Cal. 625, 84 Pac. 205.) The provision of the act creating the board of medical ex- aminers permitting the board to revoke a license for "adver- tising of medical business in which grossly improbable state- ments are made" is void. (Hewitt v. Board, 148 Cal. 590, 113 Am. St. Eep. 315, 84 Pac. 39, 3 L. R. A., N. S., 896.) The legislature may delegate to the legislative authorities power to determine what shall constitute a public offense. (Denninger v. Recorder's Court, 145 Cal. 629, 79 Pac. 360.) The legislature may make a local law depend for effect upon the will of all the voters of a locality, or of a majority, or upon the assent of a few, as in the case of removal of capitols, court- 99 CONSTITUTION OP 1879. Art. IV, § 1 houses, etc., upon donations or other advantages received. (Hobart v. Supervisors, 17 Cal. 23. But see Dickey v. Hurl- burt, 5 Cal. 343, by Heydenfeldt, J.) The legislature cannot delegate its power to fix water rates. (Spring Valley W. W. v. San Francisco, 61 Cal. 3.) An act which leaves it permissive with a board whether or not the work shall be done, and when and where taxes shall be levied for the same, is an unlawful delegation of legislative functions. (Per McKee, J., in People v. Parks, 58 Cal. 624, 641.) An act authorizing a commissioner to require factories and workshops to provide mechanical contrivances to prevent the inhaling of dust, filaments and gases, when it appears to him that it can be to a great extent prevented by such contrivances, is an unlawful delegation of legislative functions. (Schaezlein V, Cabaniss, 135 Cal. 466, 87 Am. St. Eep. 122, 67 Pae. 755, 56 L. E. A. 733.) An ordinance prohibiting the alteration or repair of any wooden building within certain designated fire limits, without permission of the fire wardens and approval of a majority of the committee on fire department and the mayor, is not an un- lawful delegation of legislative functions. (Ex parte Piske, 72 Cal. 125, 13 Pac. 310.) An act providing for forming the county of Orange out of part of the county of Los Angeles, upon the assent of two- thirds of the qualified electors of the proposed new county, is not a delegation of legislative power. (People v. McFadden, 81 Cal. 489, 15 Am. St. Eep. 66, 22 Pac. 851.) Municipal boards can delegate only duties ministerial in char- acter, and not calling for the exercise of discretion. (HoUey V. Orange Co., 106 Cal. 420, 39 Pac. 790.) Powers conferred upon a municipal corporation, involving the exercise of judgment and discretion, are in the nature of public trusts, and cannot be delegated. (Scollay v. Butte Co., 67 Cal. 249, 7 Pac. 661.) The legislature had power to enact the act of 1891, to estab- lish law libraries, and to provide that counties might come within the provisions of the act, as the boards of supervisor?* of the respective counties might determine. (Board v. Super- visors, 99 Cal. 571, 34 Pac. 244.) Art. IV, § 1 CONSTITUTION OP 1879. 100 A provision of tlie County Government Act of 1883, that the boards of supervisors of counties of certain designated classes may allow county officers a deputy whenever in the opinion of such board the salary of such officers is insufficient, is an unlaw- ful delegation of legislative power. (Dougherty v. Austin, 94 Cal. 601, 28 Pac. 834, 29 Pac. 1092, 16 L. E. A. 161; People v. Johnson, 95 Cal. 471, 31 Pac. 611.) An act providing that a boai'd of harbor commissioners may impose penalties not exceeding five hundred dollars for the vio- lation of the rules made by them is a delegation of legislative functions. (Harbor Commrs. v. Eedwood Co., 88 Cal. 491, 22 Am. St. Eep. 321, 26 Pac. 375.) The legislature cannot delegate to a board of medical exam- iners the power of declaring what acts shall constitute a mis- demeanor. (Per Paterson, J., in Ex parte McNulty, 77 Cal. 164, 11 Am. St. Eep. 257, 19 Pac. 237.) An act authorizing a commission to make certain quarantine regnlations, and declaring that a violation of them shall be a misdemeanor, is an unlawful delegation of legislative power. (Ex parte Cox, 63 Cal. 21.) An act creating a state board of equalization and providing that such board shall determine the rate of taxation, is not an unlawful delegation of legislative power. (Savings etc. Soc. v. Austin, 46 Cal. 415. But see Houghton v. Austin, 47 Cal. 646.) An act which submits to a popular vote of the electors of a county the question whether certain territory shall be annexed thereto is valid. (People v. Nally, 49 Cal. 478.) Police power. — The legislature cannot, under the guise of police regulations, enact laws not pertaining to the public wel- fare, health or morals, and which impose onerous and unneces- sary burdens upon business and property. (Ex parte Hayden, 147 Cal. 649, 109 Am. St. Eep. 183, 82 Pac. 315; Ex parte Drexel, 147 Cal. 763, 82 Pac. 429, 3 Ann. Cas. 878.) An act designed to obtain for people of a certain locality an advantage cannot be upheld as a police regulation. (Hellman V. Los Angeles, 147 Cal. 653, 82 Pac. 313.) Police regulations are not unconstitutional because they may incidentally operate to deprive individuals of their property without compensation, nor because they may create a monopoly. (In re Zhizhuzza, 147 Cal. 328, 81 Pac. 955.) 101 CONSTITUTION OP 1879. Art. IV, § 1 An act forbidding the issuance of trading stamps and coupons redeemable in "anything unidentified by or unsclected by the purchaser at the time of the sale," is unconstitutional. (Ex parte Drexel, 147 Cal. 763, 82 Pac. 429, 3 Ann. Cas. 878.) An act requiring all fruit shipped to be stamped with a state- ment truly designating the county and immediate locality in which such fruit is grown is not a reasonable exercise of the police power. (Ex parte Haj'den, 147 Cal. 649, 109 Am. St. Kep. 183, 82 Pac. 315.) The police power will not authorize the state to take private property for public use without compensation when such prop- erty can be condemned and paid for. (People v. Elk Kiver etc. Co., 107 Cal. 221, 48 Am. St. Eep. 125, 40 Pac. 531.) An act making it a misdemeanor to keep open a barber-shop on Sundays or other holidays is unreasonable. (Ex parte Jentzsch, 112 Cal. 468, 44 Pac. 803, 32 L. E. A. 664.) The state has authority to regulate fisheries within its borders, and may provide the places as well as the times in which fish may be taken, and may make exclusive grants of fisheries in designated waters. (Heckman v. Swett, 107 Cal. 276, 40 Pac. 420.) An act providing for a bounty on coyote scalps comes within the purview of the police power. (Ingram v. Colgan, 106 Cal. 113, 46 Am. St. Rep. 221, 38 Pac. 315, 39 Pac. 437, 28 L. R. A. 187.) A law making it a felony to sell intoxicating liquor to an Indian is valid. (People v. Bray, 105 Cal. 344, 38 Pac. 731, 27 L. R. A. 158.) It is within the police power of the state in the protection of the wild game of the state to prohibit th6 sale of the meat of any wild game within the state. (Ex parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402.) It is not competent for the legislature to vest in an adjoining proprietor the power to prevent his neighbor from building such structure on his own land as he pleases, provided it is not a nuisance; and it is not a nuisance merely because it obstructs the passage of light and air. But the legislature may regulate the erection of division walls on the division line. (Western etc. Co. v. Knickerbocker, 103 Cal. Ill, 37 Pac. 192.) An act to prohibit Chinese persons from coming into the state, and prescribing terms and conditions ui)on. which those residing Art. IV, § 1 CONSTITUTION OF 1879. 102 in the state shall be permitted to remain and travel therein, is void. (Ex parte Ah Cue, 101 Cal. 197, 35 Pac. 556.) The act of 1891, permitting the organization and creation of sanitary districts, is within the police power of the state. (Woodward v. Fruitvale Sanitary Dist., 99 Cal. 554, 34 Pac. 239.) An act forbidding the sale of lictuors within certain distances of certain named educational and reformatory institutions is a valid police regulation. (Ex parte McClain, 61 Cal. 436, 44 Am. Eep. 554.) It is within the police power of the state to authorize the channel of a river to be turned or straightened. (Green v. Swift, 47 Cal. 536.) The legislature has no power to declare that a physician is guilty of unprofessional conduct in advertising himself as a specialist in certain diseases, and punishable as for a misde- meanor. (Per Thornton, J., in Ex parte McNulty, 77 Cal. 164, 11 Am. St. Eep. 257, 19 Pac. 237.) The legislature has power to organize agricultural societies. (People V. San Joaquin Valley Agr. Assn., 151 Cal. 797, 91 Pac. 740.) The business of pawnbroker is the subject of police regula- tion. (Levinson v. Boas, 150 Cal. 185, 88 Pac. 825, 11 Ann. Cas. 661.) The support of poor and destitute persons unable to care for themselves is a public purpose, clearly within the general legis- lative power. (Board v. Nye, 8 Cal. App. 527, 97 Pac. 208.) INITIATIVE AND REFERENDUM.— The validity of the initiative and referendum is shortly to be passed upon by the supreme court of the United States in the case of Pacific States Telegraph and Telephone Co. v. State of Oregon. It would therefore be useless to express any opinion on the subject, but Mr. Louis Bartlett has prepared for the Commonwealth Club of California an exhaustive review of the authorities applicable to the question, and with his permission and the permission of the club that review is here set forth: "To the Commonwealth Club: "Gentlemen: — The following cases discuss 'The republican form of government guaranteed to States by the United States Constitution.' 103 CONSTITUTION OF 1879. Art. IV, § 1 "Luther V. Borden, 7 How. 1, 12 L. Ed. 581. "This involved determining which State government was in force in Ehode Island in 1842 — the old charter government estab- lished when Ehode Island was an English colony, or a new government attempted to be established by some people of the State, acting without warrant of the existing law. It was held that 'What is the existing government' is a political question, to be settled by the political branch of the government; and in admitting the representatives of a State to Congress, the latter necessarily decides that the form of government is republican; and its 'decision is binding on every other department of the government and could not be questioned in a judicial tribunal.' "The question of what is a republican form of government did not arise and was not discussed. "2. "Minor v. Happersett, 21 Wallace, 175, 88 U. S. 175, 23 L. Ed. 631. "This was an action against a registrar of voters for refusing to register a woman — the State Constitution providing that 'every male citizen of the United States . . . shall be entitled to vote.' It was held that the right to vote is not conferred upon woman by the guaranty to every State of a republican form of government. " 'The guaranty is of a republican form of government. No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially desig- nated. Here, as in other parts of the instrument, we are com- pelled to resort elsewhere to ascertain what was intended. " 'The guaranty necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all, the people participated to some extent, through their representa- tives elected in the manner specially provided. These govern- ments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican. Art. IV, § 1 CONSTITUTION OF 1879. 104 in form, within the meaning of that term as employed in the Constitution. " 'As has been seen, all the citizens of the States were not in- vested with the right of suffrage. In all, save perhaps New Jersey, this right was only bestowed upon men, and not upon all of them. Under these circumstances it is certainly now too late to contend that a government is not republican, within the meaning of this guaranty in the Constitution, because women are not made voters.' "This case concerns itself with the classes of people who can participate in the government and not with the method of their action, whether direct or representative. "3. "In re Pfahler, 150 Cal. 71. "The question was as to the constitutionality of a police regu- lation of the city of Los Angeles, adopted as an ordinance under the initiative provisions of the charter: "Held by majority of the court, McFarland dissenting, that the Federal guaranty of a republican form of government does not prohibit the direct exercise of legislative power by the people of a subdivision of a State in strictly local affairs, as this system existed and was well known when the Constitution was adopted. 'It is apparent from this condition of affairs, existing continuously from the moment of the adoption of the Constitution, that, if there is anything therein inconsistent with a republican form of government, within the meaning of these words as used in the Federal Constitution, the constitutional guaranty was intended to apply only to the form of govern- ment for the State at large, and not at all to the local govern- ment prescribed by the State for its municipalities and other subdivisions.' "4. "Kadderly v. City of Portland, 44 Or. 118, 74 ^ac. 710. "Held that the provision of the United States Constitution, guaranteeing to every State a republican form of government does not prevent a State constitution from |)roviding for the initiative and referendum in laws of state-wide application. 'The initiative and referendum amendment does not abolish or destroy the republican form, of government or substitute an- 105 CONSTITUTION OP 1879. Art. IV, § 1 other in its place. The representative character of the govern- ment still remains. The people simply reserve to themselves a larger share of legislative power, but they have not overthrown the republican form of government and substituted another in its place.' "5. "Kiernan v. City of Portland, 112 Pac. 402, at page 401. "In discussing the constitutional guaranty of a republican form of government, the court said: " 'To ascertain whether taking from the Legislature and dele- gating to the municipalities or to the localities affected, local self-government, or a right to enact, maintain, and alter their " charters as the Legislature formerly did, and whether the tak- ing from the Legislature the right to make special laws upon the subject violates this provision of the national constitution makes it important that we first ascertain what is meant by a republican form of government. It is an expression which all assume to understand, yet, judging from the many unsuccessful attempts of eminent statesmen and writers to give it a clear meaning, it would seem the phrase is not susceptible to being given a precise definition. Especially is this true when soughl to be applied to the constitution of different States, concerning which Mr. James Madison, a member of the constitutional con- vention, said: "... If we resort for a criterion to the different principles on which different forms of government are estab- lished, we may define a republic to be, or may at least bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is adminis- tered by persons holding their office during pleasure for a limited period or during good behavior. It is essential to such govern- ment that it be derived from the great body of society and not from any inconsiderable portion of a favored class of it. . . . " The Federalist (Hamilton Ed.), paper 39, p. 301. Another and more pointed definition appears in Chisholm v. Georgia, 2 Dall. 419^457, 1 L. Ed. 440, by Mr. Justice Wilson, member of the constitutional convention, who, but a short time after the adop- tion of the Federal constitution, in adverting to what is meant by a republican form of government, remarked, "As a citizen, 1 know the government of that State (Georgia) to be republi- can, and my short definition of such a government — one con- structed on this principle, that the supreme power resides in the Art. IV, § 1 CONSTITUTION OF 1879. 106 body of the people." From which it follows that the converse must be true; that is to ?ay, any government in which the supreme power resides with the people is republican in form. See, also, Mr. Justice Wilson's remarks to the same effect re- ported in 5 Ellicott's Debates, 160. " 'Measured in the light of the above, it is difficult to con- ceive of any system of law-making coming nearer to the great body of the people of the entire State, or by those comprising the various municipalities, than that now in use here, and, being so, we are at a loss to understand how the adoption and use of this system can be held a departure from a republican form of government. It was to escape the oppression resulting from governments controlled by the select few, so often ruling under the assumption that "might makes right," that gave birth to republics. Monarchical rulers refuse to recognize their ac- countability to the people governed by them. In a republic the converse is the rule. The tenure of office may be for a short or a long period, or even for life, yet those in office are at all times answerable, either directly or indirectly to the people, and in proportion to their responsibility for those for whom they may be the public agents, and the nearer the power to enact laws and control public servants lies with the great body of the people, the more nearly does a government take unto itself the form of a republic, — not in name alone, but in fact. From this it follows that each republic may differ in its political system or in the political machinery by which it moves, but, so long as the ultimate control of its officials and affairs of state remain in its citizens, it will in the eye of all republics be recog- nized as a government of that class. Of this we have many examples in Central and South America. It becomes then a matter of degree, and the feyr manifested by the briefs filed in this case would seem to indicate, not that we are drifting from the secure moorings of a republic, but that our State, by the direct system of legislation complained of, is becoming too demo- cratic — advancing too rapidly toward a republic pure in form. This, it is true, counsel for petitioner does not concede, but under any interpretation of which the term is capable, or from any view thus far fouud expressed in the writings of the prominent statesmen who were members of the constitutional convention, or who figured in the early upbuilding of the nation, it follows that the system here assailed brings us nearer to a 107 CONSTITUTION OF 1879. Art. IV, § 1 state republican in form than before its adoption. Mr. Thoir.as Jefferson, in 1816, when discussing the term republic, defined and illustrated his view thereof as follows: "Indeed, it must be acknowledged that the term 'republic' is of very vague ap- plication in every language. Witness the self-styled republics of Holland, Switzerland, Genoa, Venice, Poland. Were I to as- sign to this term a precise and definite idea, I would say, purely and simply, it means a government by its citizens in mass, act- ing directly and not personally, according to the rules estab- lished by the majority, and that every other government is more or less republican, in proportion as it has in its composi- tion more or less of this ingredient of the direct action of the citizens." Writings of Thomas Jefferson, vol. 15, p. 19. It is well known that at the time of the adoption of the Federal constitution there existed in some of the Atlantic States a system of local government, known as "New England towns," in which the people had the right to legislate upon various matters, and masses assembling at stated periods for that pur- pose; all of which was within the knowledge of those composirjj the constitutional convention. After observing that a direct republic under his definition would necessarily be restrained to narrow limits, such as in a New England township, and that the next step in use at that time was through the representa- tive system, Mr. Jefferson pointed out that the farther the officials of State or nation are separated from the masses pro- portionately less does such State or government retain the elements of a republic; and on page 23 concludes: "On this view of the import of the term 'republic,' instead of saying, as has been said, that it may mean anything or nothing, we may say with truth and meaning that governments are more or less republican, as they have more or less of the element of popular election and control in their composition; and believing, as I do, that the mass of citizens is the safest depository of their own rights and, especially, that the evils flowing through duperies of the people are less injurious than those from tlie egoism of their agents, I am a friend to that composition of government which has in it the most of this ingredient." The observations quoted are in full accord with the recorded views of all of the writers and statesmen of that lime, when the intention of the framers of our national constitution was fully uudeistood, in the light of which it seems inconceivable that a State, merely be- Art. IV, § 1 CONSTITUTION OP 1879. 108 cause it may evolve a system by which its citizens become a branch of its legislative department, co-ordinate with their representatives in the Legislature, loses caste as a republic. The extent to which a Legislature of any State may enact laws is, and always has been, one of degree, depending upon limita- tions prescribed by its constitution; some constitutions having few and others many limitations. But in all States, whatever may be the restriction placed upon their representatives, the people, either by constitutional amendment or by convention, called for that purpose, have had, and have, the power to directly legislate, and to change all or any laws so far as deemed proper — limited only by clear inhibitions of the national constitution. Cooley Const. Lim. (6th Ed.) 44. " 'An examination of our State constitution, as first adopted, discloses many restrictions upon the law-making department, among which is a provision to the effect that no amendment thereto should be submitted to the people for ratification until after it passed two successive sessions of the Legislature. In course of time, an amendment under this provision was legally submitted and adopted by a majority vote of the people, by which the people reserved the right to change the constitution, or any part thereof without awaiting this legislative formality, the validity of which is not open to doubt. It is not possible, indeed, it is not practicable, then, for the people further to restrict the power of their representatives to legislate upon mat- ters of public interest, and in so doing, are they not, and even under the old system were they not, directly legislating? This system of direct legislation has been in common use throughout the various State governments since their inception, but until the adoption of the initiative and referendum amendments, no one was heard to assert that an amendment to the constitution of a State merely because of depriving the Legislature of some law-making power or powers held by it at the adoption of the national constitution was void on the grounds of being incon- sistent with a republican form of government. The absurdity of such a contention, if made, would at once be obvious.' "6. "Following the case of Luther v. Borden, it appears that when Congress, the political branch of the Federal government, has admitted the representatives of a State to Congress, it has by 109 CONSTITUTION OP 1879. Art. lY, § 1 that fact decided that the form of government of that State is republican. "Congress has admitted the representatives of the State of Oklahoma, and by so doing has declared that its form of govern- ment is republican. Its constitution contains the following pro- visions concerning the initiative and referendum: "Article V. "Legislative Department. "Initiative and Referendum. "Section 1. The legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives, but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the Legis- lature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature. "Section 2. The first power reserved by the people is the initiative, and eight per centum of the legal voters shall have the right to propose any legislative measure, and fifteen per centum of the legal voters shall have the right to propose amend- ments to the constitution by petition, and every such petition shall include the full text of the measure so proposed. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of public peace, health or safety), either by petition signed by five per centum of the legal voters or by the Legislature, as other bills are enacted. The ratio and per centum of legal voters herein- before stated shall be based upon the total general election for the State office receiving the highest number of votes at such election. "Section 7. The reservation of the powers of the initiative and referendum in this article shall not deprive the Legislature of the right to repeal any laws, propose or pass any measure, which may be consistent with the Constitution of the State and the Constitution of the United States. "7. "Eckerson v. City of Des Moines, 147 Iowa, 452, 115 N. W. 177. " 'The Federal guaranty of a republican form of government applies only to States and does not affect their subdivisions.' Art. IV, § 1 CONSTITUTION 0? 1879. 110 "8. "Hopkins v. Duliith, 81 Minn. 189, 83 N. W. 53G. " 'Providing local self-government by tlie voters directly in- terested through a referendum is abstractly as well as con- cretely more republican, than through representatives of the people in the Legislature.' And the State Constitution doing this provides a republican form of government. "9. "State V. Schluer, 115 Pacific (Oregon), 1057. "This is the most recent case decided in Oregon and concerns the construction and effect of initiative provisions of the Oregon constitution, but does not consider whether they are consistent with a republican form of government. "10. "To sum up: "(a) The political branch of the Federal government has de- cided, in admitting Oklahoma to the Union, that the initiative and referendum of state-wide application are not inconsistent with a republican form of goverunient, guaranteed by the Fed- eral constitution. "(b) The Supreme Court of California has decided that the initiative and referendum in municipal affairs is consistent with a republican form of government. "(c) The Supreme Court of Oregon has declared that the referendum and initiative of state-wide application are not repugnant to a republican form of government. "Eespectfully submitted, "LOUIS BARTLETT." Additional References. Political Science Quarterly, Vol. XXVI, No. 1 (March, 1911)— "People's Rule in Oregon" — Hayues. Journal of Accountancy, Vol. XII, No. 2 (June, 1911) — "Facts About the Oregon System"- -Ford; "Direct Legislation, etc." — Walker; "Oregon System in Practice" — Owen; "Massa- chusetts Wants the Initiative and Reforendum" — Johnson. Congressional Record, 62d Congress, 1st Session (1911). De bates on Constitution of Arizona. The People's Law, or Popular Participation in Law-Makingj a Study in the Evolution of Democracy and Direct Law-Making. Ill CONSTITUTION OF 1879. Art. IV, § 1 By diaries S. Lobinger, N. Y. The Macmillan Co., 1009. Pp. xxi, 429. This work contains a copious bibliography. Appellant's brief, State of Oregon v. Pacific States Telegraph and Telephone Co., Snp. Ct. Or., March term, 1908. Pull argu- ment for invalidity of initiative legislation. Initiative and Referendum: Ex parte Wagner (Okl.), 95 Pac. 435; Norris et al. v. Cross (Okl.), 105 Pac. 1000; State v. Lang- worthy (Or.), 104 Pac. 424; In re Initiative Petition No. 2 (Okl.), 109 Pac. 823; Haines v. City of Forest Grove (Or.), 103 Pac. 775; State v. Pacific Tel. & Tel. Co. (Or.), 99 Pac. 427; Farrell v. City of Portland (Or.), 98 Pac. 145; Southwestern Tel. & Tel. Co. v. Citv of Dallas (Tex.), 131 S. W. SO; State v. Eoach (Mo.), 130 S. W. 689; Brazell v. Zeigler (Okl.), 110 Pac. 1052. Initiative; In re Initiative State Question, No. 11 (Okl.), 110 Pac. 647; Common Council v. Harrington (Mich.), 125 N. W. 383. Initiative, Referendum and Recall: Graham v. Roberts (Mass.), 85 N. E. 1009; Booth v. McGuinness (N. J.), 75 At- lantic, 455. Recall: Hillzinger v. Gillman (Wash.), 105 Pac. 471. Referendum: Mever et al. v. Town of Boonville (Ind.), 70 N. E. 146; Ray v. Colby & Tenney et al. (Neb.), 97 N. W. 591; Board of Education of City of Sapulpa et al. v. McMahan (Okl.), 110 Pac. 907; State v. Russell (Wis.). 102 N. W. 1052; North v. McMahan (Okl.), 110 Pac. 1115; State v. Portland Ry. Light & Power Co. (Or.), 107 Pac. 958. The Referendum as a "Republican Form of Government." The Harvard Law Review has the following discussion in its issue for December, 1910: "The referendum has frequently been attacked as a delegation of legislative power and hence contrary to the State institu- tions, which vest that power in the Legislature. (For a dis- cussion of this phase of the problem, see 7 Harv. L. Rev. 485; 16 Ibid. 218.) Notwithstanding this argument, a general statute to take effect only if approved by a majority of the voters was upheld in a recent Wisconsin case. State ex rel. Van Alsline v. Frear, 142 Wis. 320. (For a di.^cussion of another point in the same case, see 24 Harv. L. Rev. 50.) Art. IV, § 1 CONSTITUTION OF 1879. 112 "In view of the comparative ease with which State constitu- tions are amended, the relation to them of direct legislation is not of such great practical importance as its validity under the Constitution of the United States. An objection to the referendum, especially when coupled with the initiative, which has frequently been suggested, [see McClain, Constitutional Law, 10; 56 Cent. L. J. 247. But see Southwestern Telegraph & Telephone Co. v. City of Dallas (Tex.), 131 S. W. 80], but is not discussed in the principal case, is that direct legislation violates the clause of the Federal Constitution which guarantees to each State a republican form of government. (U. S. Const., art. 4, sec. 4.) The contention is that a republic is a represent- ative democracy as distinguished from a direct or pure de- mocracy. Hence, it becomes important to determine the true meaning of the word. "The Latin res publica, at least as late as the sixteenth cen- tury, was altogether colorless as to the form of government it designated. (See Calvin, Institutionum Christianae Eeligionis, lib. 4, cap. 20.) The compound adjective is not found in classical or mediaeval Latin. (It does not appear in Du Cange, Glossarium.) The noun 'republic' and the adjective 'republican' were used by Wilson, [see Chisholm v. Georgia, 2 Dall. (U. S.) 419, 457], the author of the clause in its final form, (see 2 Gil- pin, Madison Papers, 1141) and by other publicists (see 1 Madi- son, Letters and Other Writings, 350; 4 Ibid. 467; 10 Ford, Writings of Thomas Jefferson, 28) of the time in a sense broad enough to include direct democracy. The same thing is true of the use of the corresponding French words republique and republicain by Montesquieu (see L'Esprit des Lois, liv. 2, ch. 1, 2) and apparently by Rousseau, (see Contrat Social, liv. 3, eh. 4) the writings of both of whom had a great influence on American political thought of that period. The political party which advocated keeping the government as close to the people as possible was called, shortly after the formation of the Con- stitution, the Eepublican Party. (See Hart, Formation of the Union, 155, 164.) On the other hand, Madison defines a re- public as 'a government in which the scheme of representation takes place,' and contrasts it with a pure democracy. (See The Federalist, No. 10.) Discussion of the clause under considera- tion in the constitutional convention indicates that it was di- rected against insurrection, invasion, and monarchical forma. (See 2 Gilpin, Madison Papers, 1139-1141.) 113 CONSTITUTION OF 1879. Art. IV, § 2 "The state governments in existence in 17S7 must be taken as examples of the republican form, in the sorsc in -.vliich that phrase is used in the constitution. [See Minor v. llappersett, 21 Wall. (U. S.) 162.] In spite of the fact that t'lc rci'erer.dum appears in the formation of some of the state constitutions (see Lobingier, The People's Law, 163-187) and in spite of the existence of the New England town government (For an argu- ment from this that the guaranty has no application to local government, see Eckerson v. Dcs Moines, 137 la. 452), so close a student of political science as Hamilton believed that the state governments were then wholly representative. (See The Federalist, No. 63.) Another of the authors of The Fed- eralist, however, points out that the constitution does not forbid the substitution of other republican forms for those then ex- isting. [See Ibid. No. 43, sec. 6 (Madison).] It seems, on the whole, that 'republican' in the constitution is ambiguous, and that a positive construction that it had a meaning so narrow as to exclude direct legislation cannot be supported. "But even if 'Republican Form of Government' does mean representative government, it might well be contended that a slight tincture of direct democracy would not destroy the representative character of a state government. (See State v. Pacific States Telephone & Telegraph Co., 53 Or. 162; Kad- derly v. City of Portland, 44 Or. 118.) Furthermore, it is probable that the enforcement of the constitutional guaranty is a political question for Congress and the President rather than for the judiciary. [See Taylor v. Beckham, 178 U. S. 548, 578; Luther v. Borden, 7 How. (U. S.) 1, 42.]" Sessions of legislature. Sec. 2. The sessions of the legislature shall be bien- nial, unless the governor shall, in the interim, convene the legislature, by proclamation, in extraordinary ses- sion. All sessions, other than extraordinary, shall commence at twelve o'clock M., on the first Monday after the first day of January next succeeding the elec- Constitution — 8 Art. IV, § 2 CONSTITUTION OF 1879. 114 tion of its members, and shall continue in session for a period not exceeding thirty days thereafter; where- upon a recess of both houses must be taken for not less than thirty days. On the reassembling of the legis- lature, no bill shall be introduced in either house with- out the consent of three-fourths of the members thereof, nor shall more than two bills be introduced by any one member after such reassembling. (Amend- ment approved October 10, 1911.) [AMENDMENT OP 1908.] Sec. 2. The sessions of the legislature shall commence at twelve o'clock M. on the first Monday after the first day of January next succeeding the election of its members, and after the election held in the year 1880, shall be biennial, unless the governor shall, in the interim, convene the legislature by procla- mation. No bill shall be introduced in either house forty days after the commencement of each session without the consent of three-fourths of the members thereof. (Amendment adopted November 3, 1908.) [OEIGINAL SECTION.] Sec. 2. The sessions of the legislature shall commence at twelve o'clock M. on the first Monday after the first day of January next succeeding the election of its members, and, after the election held in the year eighteen hundred and eighty, shall be biennial, unless the governor shall, in the interim, convene the legislature by proclamation. No pay shall be al- lowed to members for a longer time than sixty days, except for the first session after the adoption of this constitution, for which they may be allowed pay for one hundred days. And no bill shall be introduced, in either house, after the expiration 115 CONSTITUTION OP 1879. Art. IV, § 3 of ninety days from the commencement of the first session, nor after fifty days after the commencement of each succeeding session, without the consent of two-thirds of the members thereof. SESSIONS. — After the legislature has adjourned sine die, the court has no power to carry into effect a mandate requiring legislative action, even if such mandate were otherwise proper. (French v. Senate, 146 Cal. 604, 80 Pac. 1031, 2 Ann. Cas. 756.) The legislature cannot be convened upon the mandate of the judicial power. (French v. Senate, 146 Cal. 604, 80 Pac. 1031, 2 Ann. Cas. 756.) INTRODUCTION OF BILLS.— After the fifty days within which bills may be introduced have expired, a bill previously introduced may be amended in the same manner as before, and several bills may be consolidated in the form of a substitute. (Hale V. McGettigan, 114 Cal. 112, 45 Pac. 1049.) If the legislative journals are silent upon the observance of any constitutional requirement as to the passage of bills, it cannot be assumed that such requirement was omitted by the legislature. (Hale v. McGettigan, 114 Cal. 112, 45 Pac. 1049.) Election and term of assemblymen. Sec. 3. Members of the assembly shall be elected in the year eighteen hundred and seventy-nine, at the time and in the manner now provided by law. The second election of members of the assembly, after the adoption of this constitution, shall be on the first Tuesday after the first IMonday in November, eighteen hundred and eighty. Thereafter, members of the assembly shall be chosen biennially, and their term of office shall be two years; and each election shall be on the first Tuesday after the first Monday in November, unless otherwise ordered by the legislature. Art. IV, §§ 4, 5 CONSTITUTION OP 1879. 116 Election and term of senators. Sec. 4. Senators shall be chosen for the term of four years, at the same time and places as members of the assembly, and no person shall ba a member of the senate or assembly who has not been a citizen and inhabitant of the state three years, and of the district for which he shall be chosen one year, next before his election. MEMBERS. — A person properly qualified when elected to the senate does not forfeit his office by the redistricting of the state, leaving the person outside of the district which he repre- sents. (People V. Markham, 96 Cal. 262, 31 Pac. 102.) Number and classes of senators. Sec. 5. The senate shall consist of forty members, and the assembly of eighty members, to be elected by districts, numbered as hereinafter provided. The seats of the twenty senators elected in the year eighteen hun- dred and eighty-two from the odd-numbered districts shall be vacated at the expiration of the second year, so that one-half of the senators shall be elected every two years ; provided, that all the senators elected at the first election under this constitution shall hold office for the term of three years. TERM OF OFFICE. — The seats of the twenty senators elected in 1882, from the districts designated in the act of 1874 by odd numbers, became vacant at the expiration of the second year, and their successors were required to be elected from the same districts for the term of two years. (McPherson v. Bartlett, 65 Cal. 577, 4 Pac. 582.) 117 CONSTITUTION OF 1879. Art. IV, § 6 Senatorial and legislative districts. Sec. 6. For the purpose of choosing members of the legislature, the state shall be divided into forty senatorial and eighty assembly districts, as nearly equal in popula- tion as may be, and composed of contiguous territory, to be called senatorial and assembly districts. Each senatorial district shall choose one senator, and each assembly dis- trict shall choose one member of assembly. The sen- atorial districts shall be numbered from one to forty, inclusive, in numerical order, and the assembly districts shall be numbered from one to eighty, in the same order, commencing at the northern boundary of the state, and ending at the southern boundary thereof. In the forma- tion of such districts, no county, or city and county, shall be divided, unless it contain sufficient population within itself to form two or more districts; nor shall a part of any county, or of any city and county, be united with any other county, or city and county, in forming any district. The census taken under the direction of the Congress of the United States, in the year one thousand eight hundred and eighty, and every ten years there- after, shall be the basis of fixing and adjusting the legis- lative districts; and the legislature shall, at its first ses- sion after each census, adjust such districts and reappor- tion the representation so as to preserve them as near equal in population as may be. But in making such adjustment no persons who are not eligible to become citizens of the United States, under the naturalization Art. IV, § 6 CONSTITUTION OP 1879. 118 laws, shall be counted as forming a part of the popula- tion of any district. Until such districting as herein provided for shall be made, senators and assemblymen shall be elected by the districts according to the appor- tionment now provided for by law. LEGISLATIVE DISTRICTS.— The legislature may join two counties in one assembly district. (People v. Hill, 7 Cal. 97.) The term of members of the senate is not affected by the fact that after their election the state is so redistricted that some counties in the newly formed districts will have double repre- sentation and others will be deprived of their fair and equal representation. (People v, Pendegast, 96 Cal. 289, 31 Pac. 103.) Where the first legislature whose duty it is to provide for the apportionment fails to do so, the duty devolves upon each suc- ceeding legislature until it is performed. (People v. Eice, 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836.) The legislature cannot be compelled to make an apportion- ment. (In re State Census, 6 S. D. 540, 62 N. W. 129.) The apportionment must be according to population, but mathematical exactness is not required. (People v. Thompson, 155 111. 451, 40 N. E. 307; Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567; Prouty v. Stover, 11 Kan. 235; Opinion of Justices, 18 Me. 458; Board of Supervisors V. Blacker, 92 Mich. 638, 52 N. W. 951, 16 L. R. A. 432; People V. Broome, 20 N. Y. Supp. 470, 65 Hun, 624; People v. Board of Aldermen, 14 Misc. Rep. 105, 35 N, Y. Supp. 259; People v. Eice, 135. N. Y. 473, 31 N. E. 921, 16 L. E. A. 836; Matter of Baird, 142 N. Y. 523, 37 N. E. 619; Matter of Whitney, 75 Hun, 581, 27 N. Y. Supp. 657; State v. Dudley, 1 Ohio St. 437; State v. Cunningham, 81 Wis. 440, 51 N. W. 724.) If the apportionment is made in the exercise of a fair and. honest discretion so as to preserve, as nearly as may be, equality of representation, it cannot be overthrown because not mathe- matically equal; but if the apportionment does not give sub- stantially just and equal representation to the people of each county, it cannot be sustained. (Ballentine v. Willey, 3 Idaho, 496, 31 Pac. 994; Prouty v. Stover, 11 Kan. 235; People v. Thompson, 155 111. 451, 40 N. E. 307; People v. Broome, 20 119 CONSTITUTION OP 1879. Art. IV, § 7 N. Y. Supp. 470; People v. Rice, 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836; Smith v. St. Lawrence Co., 148 'N. Y. 187, 42 N. E. 592; State v. Cunningham, 83 Wis. 90, 35 Am. St. Eep. J 7, 53 N. W. 35, 17 L. R. A. 145.) While this section provides that persons who are not eligible to become citizens of the United States shall not be counted in making the apportionment, an apportionment is not neces- sarily invalid because thev are counted. (Matter of Whitney, 142 isr. Y. 531, 37 N. E. 021; People v. Rice, 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836; Matter of Whitney, 75 Hun, 581, 27 N. Y. Supp. 657.) This section requires that the districts shall be composed of contiguous territory, and, while the legislature has some discre- tion in this matter, if it has been wholly ignored, the appor- tionment is void. (People v. Thompson, 155 111. 451, 40 N. E. 307; State v. Cunningham, 83 Wis. 90, 35 Am. St. Rep. 17, 53 N. W. 35, 17 L. R. A. 145.) As to what territory is "contiguous," see Board of Supervisors V. Blacker, 92 Mich. 038, 52 N. W. 951, 16 L. R. A. 432; Parker v. State, 133 Ind. 178, 32 N. E. 836, 33 N. E. 119, 18 L. R. A. 567; People v. Thompson, 155 111. 451, 40 N. E. 307. Under this section a county cannot be divided, unless it contains sufficient population to make two or more districts. (Board of Supervisors v. Blacker, 92 Mich. 638, 52 N. W. 951. 16 L. R. A. 432; State v. Cunningham, SI Wis. 440, 51 N. W. 724; People v. Board of Aldermen, 89 Hun, 4G0, 35 N. Y. Supp. 817.) Organization of legislature. Sec. 7. Each house shall choose its officers, and judge of the qualifications, elections, and returns of its mem- bers. QUALIFICATIONS OF MEMBERS.— Whether a senator has been regularly elected is a question exclusively for the senate. (Opinion of Justices, 12 Fla. 680.) The house is to judge of the election of its members and the returns are only prima facie evidence of election. (Chrisman Art. IV, § 8 CONSTITUTION OF 1879. 120 V. Anderson, 2 Cong. El. Cas. 328; Spaulding v. Mead, 1 Cong. El. Cas. 157.) The refusal of the executive of a state to grant a certificate of election will not prejudice the right to a seat. (Richard's Case, Clark & H. 95; Clement's Case, Cong. El. Cas. 1864-65, 366.) The qualifications of members being fixed by the constitution, additional ones cannot be required by the legislature. (Barney V. McCreery, 1 Cong. El. Cas. 167; Turney v. Marshall, 2 Cong. El. Cas. 167; Trumbull's Case, 2 Cong. El. Cas. 618.) While the jurisdiction conferred by this provision upon the legislature is exclusive of the jurisdiction of the courts, the canvassers may be compelled by mandamus to conduct the can- vass and declare the result, thus giving the person holding the certificate the prima facie right to the seat. (O'Ferrall v. Colby, 2 Minn. 180.) As to the qualifications of members of inferior legislative bodies, see People v. Bingham, 82 Cal. 238, 22 Pac. 1039. What number constitutes a quorum. Sec. 8. A majority of each house shall constitute a quorum to do business, but a smaller number may ad- journ from day to day, and may compel the attendance of absent members in such manner, and under such penalties, as each house may provide. QUORUM. — A rule providing that "on demand of any member, or at the suggestion of the speaker, the names of members sufficient to make a quorum in the hall of the house who do not vote shall be noted by the clerk and recorded in the journal, and reported to the speaker with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business," is a constitutional mode of ascertaining the presence of a quorum. (United States T. Ballin, 144 U. S. 1, 12 Sup. Ct. 507, 36 L. Ed. 321.) 121 CONSTITUTION OF 1879. Art. IV, §§ 9, 10 Rules for their government — Expulsions. Sec. 9. Each house shall determine the rule of its proceeding, and may, with the concurrence of two-tliirds of all the members elected, expel a member. EXPULSION OF MEMBERS.— A member may be expelled for any misdemeanor which, though not punishable by statute, is inconsistent with the trust and duty of a member. (Smith's Case, 1 Hall Law J. 459.) The power gi-anted by this section to expel a member for bribery is not affected by the provision of section 35 of this article, making such bribery a felonv. (French v. Senate, 146 Cal. 604, 80 Pac. 1031, 2 Ann. Cas. 756.) A resolution of expulsion from the legislature has no effect upon the rights of the member expelled further than to termin- ate his right to sit as a member of the legislative body. (French v. Senate, 146 Gal. 604, 80 Pac. 1031, 2 Ann. Cas. 756'.) The power of the senate to expel a member is exclusive and the judiciary has no power to control the most arbitrary and unfair action of the legislative department in that regard. (French v. Senate, 146 Cal. 604, 80 Pac. 1031, 2 Ann. Cas. 756.) As to the power to punish for contempt, see note to section 1 of this article. Each house to keep a journal. Sec. 10. Each house shall keep a journal of its pro- ceedings, and publish the same, and the yeas and nays of the members of either house, on any question, shall, at the desire of any three members present, be entered on the journal. JOURNALS. — A journal is a public record of which courts may take judicial notice. (Brown v. Nash, 1 Wyo. 85.) The journal cannot be kept secret unless the proceedings are secret. The holding of a secret session by either house is in its discretion. (Nugcnt's Case, 1 Am. L. J., N. S., 139.) Art. IV, § 11 CONSTITUTION OP 1879. 122 The journals required by law to be kept are a record of the proceedings of the houses of the legislature, and so in- tended. They are, to all intents and purposes, records made in perpetuam memoriam rei, there entered. (Oakland Pav. Co. v. Hilton, 69 Cal. 479, 11 Pac. 3.) The decisions in the various states are conflicting as to how far, if at all, the journals of the legislature may be resorted to in order to determine whether or not an act was properly passed; but in this state it is held that the validity of a stat- ute, which has been duly certified, approved, enrolled, and de- posited in the office of the secretary of state, cannot be im- peached by a resort to the journals of the legislature. (Yolo Co. V. Colgan, 132 Cal. 265, 84 Am. St. Eep. 41, 64 Pac. 403; People V. Harlan, 133 Cal. 16, 65 Pac. 9.) The court takes judicial notice of the proceedings had in the legislature and entered upon its journals. (French v. Senate, 146 Cal. 604, SO Pac. 1031, 2 Ann. Cas. 756.) Privilege of members. SeG. 11. Members of the legislature shall, in all eases, except treason, felony, and breach of the peace, be privileged from arrest, and shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session. PRIVILEGE FHOM AEREST. — Arrest implies corporate re- straint. (Wooley V. Butler, 1 Bank. L. T. 35.) This privilege extends to judicial as well as mesne process, and a person arrested is entitled to his discharge on the priv- ilege afterward acquired. (Coxe v. McClenachan, 3 Dall. 478, 1 L. Ed. 687; Nones v. Edsall, 1 Wall. Jr. 189, Fed. Cas. No. 10,290.) There is no privilege from the service or obligation of a sub- poena in a criminal case. (United States v. Cooper, 4 Dall. 341, 1 L. Ed. 859, Fed. Cas. No. 14,861.) Members are privileged not only from arrest, but also from a service of summons or other civil process while in attendance 123 CONSTITUTION OP 1879. Art. IV, §§ 12-14 on their fublic duties. (Coxe v. McClonachan, 3 Dall. 478, 1 L. Ed. 687; Geyer v. Irwin, 4 Dall. 107, 1 L. Ed. 762; Nones V. Edsall, 1 Wall. Jr. 191, Fed. Cas. No. 10,290.) Vacancies, how filled. See. 12. When vacancies occur in either house, thn governor, or the person exercising the functions of the governor, shall issue writs of election to fill such vacancies. VACANCIES may be created by death, resignation, or re- n:oval, or by the acceptance of an incompatible office. (People V. Carrique, 2 Hill, 93; Powell v. Wilson, IG Tex. 60; Biencourt V. Parker, 27 Tex. 558.) A resignation sent to the governor of a state is sufficient. (Edward's Case, Clark & H. 92; Mercer's Case, Clark & H. 44; Bledsoe's Case, Clark & H. 869.) Tlie executive may issue writs for a new election without waiting to be informed by the house that a vacancy exists. (Mercer's Case, Clark & H. 44.) Open doors and secret sessions. Sec. 13. The doors of each house shall be open, ex- cept on such occasions as, in the opinion of the house, may require secrecy. Adjournment, how long and where to. Sec. 14. Neither house shall, without the consent of the other, adjourn for more than three days, nor to any place other than that in which they may be sitting. Nor shall the members of either house draw pay for any recess or adjournment for a longer time than three days. Art. IV, § 15 CONSTITUTION OF 1879. 124 ADJOURNMENT. — An adjournment of the house for more than three days without the concurrence of the senate does not ipso facto work a dissolution of the general assembly. (West Phil. Pass. E. E. Co. v. Union Pass. E. Co., 4 Leg. Gaz. 193, 29 Leg. Int. 196.) Origin and passage of bills. Sec. 15. No law shall be passed except by bill. Nor shall any bill be put upon its final passage until the same, with the amendments thereto, shall have been printed for the use of the members; nor shall any bill become a laAV unless the same be read on three several days in each house, unless, in case of urgency, two-thirds of the house where such bill may be pending shall, by a vote of yeas and nays, dispense with this provision. Any bill may originate in either house, but may be amended or re- jected by the other; and on the final passage of all bills they shall be read at length, and the vote shall be by yeas and nays upon each bill separately, and shall be entered on the journal; and no bill shall become a law without the concurrence of a majority of the members elected to each house. PASSAGE OF BILLS.— The word "read" is used in this sec- tion in its popular, and not in its technical, sense, and means read at length, and not read as is usual in parliamentary bodies. (Weill V. Kenfield, 54 Cal. 111.) It is not essential to the validity of a statute that it should affirmatively appear from the legislative journals that every act required by the constitution to be done in the enactment of a law has been done; nor will it be presumed, in the absence of a showing, that such acts were not done. (People v. Dunn, 80 Cal. 211, 13 Am. St. Eep. 118, 22 Pac. 140; Hale v. McGet- tigan, 114 Cal. 112, 45 Pac. 1049.) 125 CONSTITUTION OF 1879. Art. IV, § 16 If an act is properly enrolled and authenticated, and is de- posited with the secretary of state, it is conclusive evidence of the legislative will, and courts will not look into the journals of the legislature to see whether or how the bill passed. (People v. Burt, 43 Cah 560; Yolo Co. v. Colgan, 132 Cal. 265, 84 Am. St. Eep. 81, 64 Pac. 403; People v. Harlan, 133 Cal. 16, 65 Pac. 9.) A resolution adopted by a two-thirds vote, declaring that a number of specified bills "present cases of urgency," and that the provision of the constitution "requiring that the bill be read on three separate days in each house is hereby dis- pensed with," is sufficient, and it is not objectionable on the ground that it includes more than one bill. (People v. Glenn Co., 100 Cal. 419, 38 Am. St. Eep. 305, 35 Pac. 302.) The fact that several of the senators who voted to declare a bill a case of urgency afterward voted against the bill is immateriah (People v. Glenn Co., 100 Cal. 419, 38 Am, St. Eep. 305, 35 Pac. 302.) Approval and return of bills — Passage over veto. Sec. 16. Every bill which may have passed the legis- lature shall, before it becomes a law, be presented to the governor. If he approve it, he shall sign it ; but if not, he shall return it, with his objections, to the house in which it originated, which shall enter such objections upon the journal and proceed to reconsider it. If after such reconsideration, it again pass both houses, by yeas and nays, two-thirds of tlie members elected to each house voting therefor, it shall become a law, notwith- standing the governor's objections. If any bill shall not be returned within ten days after it shall have been pre- sented to him (Sundays excepted), the same shall be- come a law in like manner as if he had signed it, unless the legislature, by adjournment, prevents such return, in Art. IV, § 16 CONSTITUTION OP 1879. 126 which case it shall not become a law, unless the governor, within thirty days after such adjournment (Sundays ex- cepted), shall sign and deposit the same in the office of the secretary of state, in which case it shall become a law in like manner as if it had been signed by him before adjournment. If any bill presented to the governor con- tains several items of appropriation of money, he may object to one or more items, while approving other por- tions of the bill. In such case he shall append to the bill at the time of signing it, a statement of the items to which he objects, and the reasons therefor, and the ap- propriation so objected to shall not take effect unless passed over the governor's veto, as hereinbefore pro- vided. If the legislature be in session, the governor shall transmit to the house in which the bill originated a copy of such statement, and the items so objected to shall be separately reconsidered in the same manner as bills which have been disapproved by the governor. (Amend- ment adopted November 3, 1908.) [ORIGINAL SECTION.] Sec. 16. Every bill which may have passed the legislature shall, before it becomes a law, be presented to the governor. If he approve it, he shall sign it; but if not, he shall return it, with his objections, to the house in which it originated, which shall enter such objections upon the journal and pro- ceed to reconsider it. If, after such reconsideration, it again pass both houses, by yeas and nays, two-thirds of the members elected to each house voting therefor, it shall become a law, notwithstanding the governor's objections. If any bill shall 127 CONSTITUTION OF 1879. Art. IV, § 16 not be returned within ten days after it shall have been pre- sented to him (Sundays excepted), the same shall become a law in like manner as if he had signed it, unless the legis- lature, by adjournment, prevents such return, in which case it shall not become a law, unless the governor, within ten days after such adjournment (Sundays excepted), shall sign and deposit the same in the office of the secretary of state, in which case it shall become a law in like manner as if it had been signed by him before adjournment. If any bill pre- sented to the governor contains several items of appropriation of money, he may object to one or more items, while approving other portions of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and the reasons therefor, and the appro- priation so objected to shall not take effect unless passed over the governor's veto, as hereinbefore provided. If the legis- lature be in session, the governor shall transmit to the house in which the bill originated a copy of such statement, and the items so objected to shall be separately reconsidered in the same manner as bills which have been disapproved by the governor. APPROVAL BY THE GOVERNOR.— The day upon which the bill is presented to the governor should be excluded. (Price V. Whitman, 8 Cal. 412; Iron Mountain Co. v. llaight, 39 Cal. 540.) In People v. "Whitman, 6 Cal. 659, it was held that only where the last day fell upon a Sunday should Sundays be ex- cepted in making the computation; but this case was over- ruled in the case of Price v. Whitman, 8 Cal. 412, it having been decided upon an error in the printed copy of the con- stitution, the word "Sundays" being used in the singular. A law is not finally passed until it is approved by the governor and transmitted by him to the secretary of state. (Davis V. Whidden, 117 Cal. 618, 49 Pac. 766.) Where inconsistent acts are approved on the same day, it is to be presumed that they were published in the chronological Art. IV, § 17 CONSTITUTION OP 1879. 123 order of their approval; but the court will take judicial notice of the time of the approval of each act, and may resort to the office of the secretary of state to learn the exact time thereof. (Davis v. Whidden, 117 Cal. 618, 49 Pac. 766.) Where an act purports to have been ajiproved by the gov- ernor on the last day of the session, parol evidence is admis- sible to show that in fact it was approved on the succeeding day. (Fowler v. Peirce, 2 Cal. 165.) Where a statute is declared to take effect from and after its passage, it takes effect at the very moment of its approval by the governor. (People v. Clark, 1 Cal. 406.) An act approved by the governor after the adjournment of the legislature was void under the former constitution. (Fow- ler V. Peirce, 2 Cal. 165.) When exercising the powers of approving or disapproving bills, the governor is a special agent with limited powers, and can act only in the specified mode and can exercise only the granted powers. (Lukens v. Nye, 156 Cal. 498, 105 Pac. 593.) Impeachments, presentment and trial of. Sec. 17. The assembly shall have the sole power of impeachment, and all impeachments shall be tried by the senate. When sitting for that purpose, the senators shall be upon oath or affirmation, and no person shall be convicted without the concurrence of two-thirds of the members elected. IMPEACHMENT.— A member of the house voting for the prosecution of an impeachment is not thereby rendered dis- qualified, if subsequently elected to the senate, from sitting on a trial thereof. (Addison's Trial, 21-28; Porter's Trial, 53.) All the functions of the governor are entirely suspended during his trial. (Opinion of Judges, 3 Neb. 463.) For an impeachment to be effectual, the articles must be presented to the senate, and a constitutional quorum of the entire membership must receive it. (Opinion of Justices, 12 Fla. 653.) 129 CONSTITUTION OF 1879. Art. IV, § 18 What officers liable to impeachment — Judgment on. Sec. 18. The governor, lieutenant-governor, secre- tary of state, controller, treasurer, attorney general, surveyor general, chief justice and associate justices of the supreme court, judges of the district court of appeal, and judges of the superior courts, shall be lia- ble to impeachment for any misdemeanor in office ; but judgment in such cases shall extend only to removal from office, and disqualification to hold any office of honor, trust, or profit under the state ; but the party convicted or acquitted shall nevertheless be liable to indictment, trial, and punishment according to law. All other civil officers shall be tried for misdemeanor in office in such manner as the legislature may provide. (Amendment approved October 10, 1911.) [ORIGINAL SECTION.] Sec. 18. The governor, lieutenant-governor, secretary of state, controller, treasurer, attorney general, surveyor general, chief justice and associate justices of the supreme court, and judges of the superior courts, shall be liable to impeachment for any misdemeanor in office; but judgment in such cases shall extend only to removal from office, and disqualification to hold any office of honor, trust, or profit under the state; but the party convicted or acquitted shall nevertheless be liable to indictment, trial, and punishment according to law. All other civil officers shall be tried for misdemeanor in office iu such manner as the legislature may provide. Constitution — 9 Art. IV, § 19 CONSTITUTION OF 1879. 130 REMOVAL OF OFFICERS.— This section gives to tlie legis- lature power to provide for the removal of oflSeers without a jur}^ trial. (Woods v. Varnum, 85 Cal. 639, 24 Pac. 843.) The supreme court has no jurisdiction of an appeal from a judgment in a proceeding under section 772 of the Penal Code for the removal of public officers, the legislature not having provided for such jurisdiction. (In re Curtis, 108 Cal. 661, 41 Pac. 793.) The act of 1853 entitled "An act to prevent extortion in office and to enforce official duty," held valid. (Matter of Marks, 45 Cal. 199.) While the constitution has provided for the impeachment of certain officers, it has left all other civil officers to be tried for misdemeanors in such manner as the legislature may pro- vide. (Matter of Marks, 45 Cal. 199.) A presiding judge is liable to impeachment for preventing an associate judge from delivering his opinion to a grand or petit jury upon a matter before the court. (Addison's Trial, 114, 151; Commonwealth v. Addison, 4 Dall. 225, 1 L. Ed. 810; Porter's Trial, 61.) A public officer who refuses to enforce the law forbidding gambling is guilty of "misdemeanor in office." (Coffey v. Superior Court, 147 Cal. 525, 82 Pac. 75.) Sections 758 and following of the Penal Code do not pro- vide for the removal of public officers by indictment, and the people have no appeal from an order sustaining a demurrer to the accusation. (Matter of Burleigh, 145 Cal. 35, 78 Pac. 242.) Member ineligible to office created during the term. Sec. 19. No senator or member of assembly shall, during the term for which he shall have been elected, be appointed to any civil office of profit under this state which shall have been created, or the emoluments of which have been increased, during such term, except such offices as may be filled by election by the people. 131 CONSTITUTION OF 1879. Art. IV, § 20 OFFICES. — This section does not inhibit the appointment of a member of the legislature to the oflSce of harbor com- missioner, which office was not created, nor the emoluments thereof increased, during his term of office — the method of fill- ing, the duties and functions of the office alone being changed. (People V. Burns, 53 Cal. 660.) This section does not disqualify a member of the legislature from holding an office, the emoluments of which are increased during his legislative term, but after his election to such office. (State V. Boyd, 21 Wis. 208.) Who ineligible to office under state government — Pro- viso. Sec. 20. No person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this state ; provided, that officers in the militia, who receive no annual salary, local officers, or postmasters w^hose compensation does not exceed five hundred dollars per annum, shall not be deemed to hold lucrative offices. OFFICE OF PROFIT.— The words "lucrative office" in the proviso of this section refer solely to the office under the United States; and if the salary of that office exceeds five hundred dollars per annum, its incumbent cannot hold any civil office of profit under the state, notwithstanding the profit of the state office is less than five hundred dollars i^er annum. (People V. Leonard, 73 Cal. 230, 14 Pac. 853.) The federal office of surveyor general is a "lucrative office," and the office of controller of slate an "office of profit." (Peo- ple V. Whitman, 10 Cal. 38.) The office of school superintendent of a county is a civil office. (Crawford v. Dunbar, 52 Cal. 36.) The office of inspector of customs in a collection district, to wiiich there is annexed a salary of one thousand dollars per annum, is a lucrative office. (Crawford v. Dunbar, 52 Cal. 36.) Art. IV, § 21 CONSTITUTION OF 1879. 132. A retired army officer does not hold a lucrative "office" within the meaning of this section. (Eeed v. Schon, 2 Cal. App. 55, 83 Pac. 77.) To constitute a holding, the officer must be appointed, and qualify by giving a bond and taking the oath of office; and one who has not so qualified under a federal appointment is eligible to office in this state. (People v. Whitman, 10 Cal. 38.) This section applies to incumbents de facto of a lucrative office. (Crawford v. Dunbar, 52 Cal. 36.) This section refers to the power to hold as well as to be elected to office; consequently, a person duly eligible and elected to a civil office of profit under the state cannot hold the office after he has accepted a lucrative federal office. (People V. Leonard, 73 Cal. 230, 14 Pac. 853.) "Eligible" means capable of being chosen — the subject of selection or choice; and "compensation" means the income of the office, not its profits. (Searcy v. Grow, 15 Cal. 117.) If a member at the time of his election hold a disqualifying office, it is sufficient that he qualify himself by a resignation of it before he is sworn in. (Commonwealth v. Pyle, 18 Pa. 519.) The appointment to a second incompatible offi.ce is not abso- lutely void, but the first office is ij^so facto vacated. (People V. Carrique, 2 Hill, 93; Biencourt v. Parker, 27 Tex. 558.) A person holding two compatible offices is not precluded from holding the salaries of both. (Converse v. United States, 21 How. (U. S.) 403, 16 L. Ed. 192; Brown's Case, 9 Op. Atty. Gen. 508.) Embezzlement or defalcation — Penalty for. Sec. 21. No person convicted of the embezzlement or defalcation of the public funds of the United States, or of any state, or of any county or municipality therein, shall ever be eligible to any office of honor, trust, or profit under this state, and the legislature shall provide, by law, 133 CONSTITUTION OF 1879. Art. IV, § 22 for the punisliment of embezzlement or defalcation as a felony. Public moneys and accounts — Statement of receipts and expenditures — Panama-Pacific International Ex- position. Sec. 22. No money shall be drawn from the treasury but in er)nsequence of appropriations made by law, and upon warrants duly drawn thereon by the controller; and no money shall ever be appropriated or drawn from the state treasury for the purpose or benefit of any cor- poration, association, asylum, hospital, or any other in- stitution not under the exclusive management and con- trol of the state as a state institution, nor shall any grant or donation of property ever be made thereto by the state; provided, that notwithstanding anything con- tained in this or any other section of this constitution, the legislature shall have the power to grant aid to the institutions conducted for the support and maintenance of minor orphans, or half orphans, or abandoned chil- dren, or aged persons in indigent circumstances — such aid to be granted by a uniform rule, and proportioned to the number of inmates of such respective institutions; provided, further, that the state shall have at any time the right to inquire into the management of such in- stitution; provided, further, that whenever any county, or city and county, or city, or town, shall provide for the support of minor orphans, or half orphans, or Art. IV, § 22 CONSTITUTION OF 1879. 134 abandoned cliildren, or aged persons in indigent circum- stances, such county, city and county, city, or town shall be entitled to receive the same pro rata appropriations as may be granted to such institutions under church or other control. An accurate statement of the receipts and ex- penditures of public moneys shall be attached to and published with the laws at every regular session of the legislature. Provided, however, that for the purpose of raising five million dollars ($5,000,000), to be used in establishing, maintaining, and supporting in the city and county of San Francisco, state of California, an exposition in com- memoration of the completion of the Panama canal, to be known as the Panama-Pacific International Exposition, the state board of equalization shall, for the fiscal year beginning July 1, 1911, and for each fiscal year there- after, to and including the fiscal year beginning July 1, 191-1, fix, establish, and levy such an ad valorem rate of taxation, as when levied upon all the taxable property in the state, after making due allowance for delinquency, shall produce for each of such fiscal years a sum of cue million two hundred and fifty thousand dollars ($1,259.- 000). The said taxes shall be levied, assessed, and col- lected upon every kind and character of property in the state of California not exempt from taxation under the law, and subject to taxation on the 1st day of July, 1910, and in the same manner, and by the same method, as other state taxes were levied, assessed, and collected 135 CONSTITUTION OF 1879. Art. IV, § 22 under the law, as the same existed on the 1st day of July, 1910. The state board of equalization shall each year, at the time it determines the amount or revenue required for other state purposes, determine, fix, and include the rate of tax necessary to raise the revenue herein pro- vided for. There is hereby created in the state treasury a fund to be known as the Panama-Pacific International Exposi- tion fund, and all moneys collected pursuant to this provision, after deducting the proportionate share of the expense for the collection of the same, shall be paid into the state treasury, and credited to such fund. All moneys so paid into such fund are hereby appropriated, without reference to fiscal years, for the use, establish- ment, maintenance, and support of said Panama-Pacific International Exposition. No tax, license fee, or charge of any kind or character shall ever be levied or assessed or charged against any property of said Panama-Pacific International Exposition, or against any property used as exhibit therein, while being used or exhibited in con- nection therewith. There is hereby created a commission to be known as the Panama-Pacific International Exposition Commis- sion of the state of California, which shall consist of the governor of said state and four other members to be appointed by the governor, by and with the advice and consent of the senate of said state. The governor shall have the power to fill all vacancies occurring at any time Art. IV, § 22 CONSTITUTION OF 1879. 136 in said commission. The members of said commission shall receive no compensation and shall hold office until such exposition shall have been closed and its affairs settled. Said four members of said commission shall be selected from different sections of the state, and the ap- pointment thereof shall be made by the governor of the state during the month of February, 1911. The commis- sion hereby created shall have the exclusive charge and control of all moneys paid into the Panama-Pacific In- ternational Exposition fund; and provided further that the legislature shall pass all laws necessary to carry out the provisions of this act, including the times and the manner in which and the terms and conditions upon which money shall be drawn from the state treasury by said commission ; where contracts and vouchers shall be filed; to whom and how often reports shall be made; what disposition shall be made of any sum left unex- pended or received from the sale of any property or buildings purchased or constructed by said commission for the use of said exposition, or of any disposition of any building or improvement constructed by said com- mission out of said fund, and to provide for the transfer to the general fund of the state of California of any portion of said Panama-Pacific International Exposition fund unused. The commission herein created is authorized and directed to make such proper contracts with the Panama- Pacific International Exposition Company, a corporation 137 CONSTITUTION OF 1879. Art. IV, § 22 organized under the laws of tlie state of California on the 22d day of March, 1910, as will entitle the state of California to share proportionately with the contributors to the said Panama-Pacific International Exposition in the returns from the holding of said exposition at the city and county of San Francisco. (Amendment adopted November 8, 1910.) [OEIGINAL SECTION.] Sec. 22. No money shall be drawn from the treasury but in consequence of appropriations made by law, and upon war- rants duly drawn thereon by the controller; and no money shall ever be appropriated or drawn from the state treasury for the use or benefit of any corporation, association, asylum, hospital, or any other institution not under the exclusive man- agement and control of the state as a state institution, nor shall any grant or donation of property ever be made thereto by the state; provided, that notwithstanding anything con- tained in this or any other section of this constitution, the legislature shall have the power to grant aid to institutions conducted for the support and maintenance of minor orphans, or half orphans, or abandoned children, or aged persons in in- digent circumstances — such aid to be granted by a uniform rule, and proportioned to the number of inmates of such re- spective institutions; provided further, that the state shall have, at any time, the right to inquire into the management of such institutions; provided further, that whenever any county, or city and county, or city, or town shall provide for the sup- port of minor orphans, or half orphans, or abandoned children, or aged persons in indigent circumstances, such county, city and county, city, or town shall be entitled to receive the same Art. IV, § 22 CONSTITUTION OF 1879. 138 pro rata appropriations as may be granted to such institutions under church or other control. An accurate statement of the receipts and expenditures of public moneys shall be attached to and published with the laws at every regular session of the legislature. APPROPRIATIONS.— No money can be drawn from the treasury but in consequence of appropriations made by law. (Baggett V. Dunn, 69 Cal. 75, 10 Pae. 125.) To an appropriation nothing more is requisite than a desig- nation of the amount and fund out of which it shall be paid. It is not essential to its validity that funds to meet the same shall be at the time in the treasury. (McCauley v. Brooks, 16 Cal. 11.) This provision is designed only to secure to the legislative department the exclusive power of deciding to what purpose the public funds shall be devoted in each fiscal year, and no particular form of legislative words is required to make an ap- propriation valid. (Humbert v. Dunn, 84 Cal. 57, 24 Pac. 111.) This provision does not prohibit the legislature from appro- priating its funds in time of war to aid a corporation in the construction of a railroad to be used by the state for military purposes. (People v. Pacheco, 27 Cal. 175.) There is no restriction as to the time for which appropria- tions may be made. (People v. Pacheco, 27 Cal. 175.) The provision of this section giving counties, cities, and towns the same pro rata amounts granted by the legislature to private institutions is self-executing, and where the legislature grants such aid to private institutions, such counties, cities, and towns become entitled to the same aid. (Yolo Co. v. Dunn, 77 Cal. 133, 19 Pac. 262; San Francisco v. Dunn, 69 Cal. 73, 10 Pac. 191.) . An act appropriating three hundred thousand dollars to meet the expenses of erecting buildings and maintaining an exhibit of the products of the state at the World's Fair at Chicago, and providing that the appropriation should be expended under the exclusive charge of a commission apjiointed by the governor, is not in conflict with this provision. (Daggett v. Colgan, 92 Cal. 53, 27 Am. St. Rep. 95,28 Pac. 51, 14 L. R. A. 474.) An act creating an office and providing that the officer "shall receive a salary of two thousand four hundred dollars per an- 139 CONSTITUTION OF 1879. Art. IV, § 22 nam, payable monthly, .... to be paid out of any money in the state treasury not otherwise appropriated," is sufficient to show an intention to appropriate such sum. (Humbert v. Dunn, 84 Cal. 57, 24 Pac. 111.) An act providing for the commitment of minor criminals to nonsectarian charitable corporations, the expense of mainte- nance to be paid by the county, is not in violation of this sec- tion, since it only applies to the state treasury. (Boys' & Girls' Aid Soc. V. Eeis, 71 Cal. 627, 12 Pac. 796.) A law providing for the payment of a salary "out of any money in the general fund not otherwise appropriated," only applies to the money subject to appropriation by that legisla- ture and not to some subsequent legislature. (Baggett v. Dunn, 69 Cal. 75, 10 Pac. 125.) An act attempting retroactively to exempt resident nephews and. nieces from the payment of unpaid taxes upon collateral inheritances is in violation of this section. (Estate of Stan- ford, 126 Cal. 112, 54 Pac. 259, 58 Pac. 462, 45 L. E. A. 788.) The act of 1855, providing a fund for the indigent sick, has no application to a fund which comes to a couuty by operation of this section. (Power v. May, 123 Cal. 147, 55 Pac. 796.) The act establishing the state agricultural society made it a state institution, and appropriation for it is not obnoxious to this provision. (Melvin v. State, 121 Cal. 16, 53 Pac. 416.) The act of 1891, fixing a bounty on coyote scalps, did not make a specific appropriation out of the general fund for the pajment of such bounties. (Ingram v. Colgan, 106 Cal. 113, 46 Am. St. Rep. 221, 38 Pac. 315, 39 Pac. 437, 28 L. R. A. 187.) An act requiring the tax collector to pay a part of the fees allowed him by law into the county treasury does not violate this section — first, because the money had never been in the state treasury, and, second, because such act amounts to an appropriation. (Ream v. Si.skiyou Co., 36 Cal. 620.) The legislature has no power to appropriate money to agri- cultural societies not under the exclusive control of the state. (People v. San Joaquin Valley Agr. Assn., 151 Cal. 797, 91 Pac. 740.) The constitution does not expressly prohibit the legislature from converting a private corporation into a state institution and placing it under state control, provided the purposes sought are within tlie general legislative power, or under some duty Art. IV, § 23 CONSTITUTION OF 1879. 140 or function of government. -(Board v. Nye, 8 Cal. App. 527, 97 Pac. 208.) An act appropriating one hundred thousand dollars for the support and maintenance of a mining bureau is not unconstitu- tional because it fails to state specifically on what fund the warrant is to be drawn, or that the money is appropriated out of any moneys in the treasury not otherwise appropriated. (Proll V. Dunn, 80 Cal. 220, 22 Pac. 143.) Compensation not to be increased during term. Sec. 23. The members of the legislature shall receive for their services, the sum of one thousand dollars each for each regular session, to be paid at such times during the session as may be provided by law, and the sum of ten dollars each, for each day while in attendance at a special or extraordinary session, for a number of days not exceeding thirty; and mileage to be fixed by law, all paid out of the state treasury; such mileage shall not exceed ten cents per mile; and each member shall be allowed contingent expenses not exceeding twenty-five dollars per member for each regular biennial session. The legis- lature may also provide for additional help ; but in no case shall the total expense for officers, employees and at- taches exceed the sum of five hundred dollars per day for either house, at any regular or biennial session, nor the sum of two hundred dollars per day for either house, at any special or extraordinary session, nor shall the pay of any officer, employee or attache be increased after he is elected or appointed. (Amendment adopted Novem- ber 3, 1908.) 141 CONSTITUTION OF 1879. Art. IV, §§ 23a, 24 [ORIGINAL SECTION.] Sec. 23. The members of the legislature shall receive for their services a per diem and mileage, to be fixed by law, and paid out of the public treasury; such i^er diem shall not exceed eight dollars, and such mileage shall not exceed ten cents per mile, and for contingent expenses not exceeding twenty-five dollars for each session. No increase in compensation or mile- age shall take effect during the term -for which the members of either house shall have been elected, and the pay of no at- tache shall be increased after he is elected or appointed. Officers, employees and attaches. Sec. 23a. The legislature may also provide for the employment of help; but in no case shall the total ex- pense for officers, employees and attaches exceed the sum of five hundred dollars per day for either house, at any regular or biennial session nor the sum of two hundred dollars per day for either house at any special or extra- ordinary session, nor shall the pay of any officer, em- ployee or attache be increased after he is elected or ap- pointed. (Amendment adopted November 3, 1908.) Title of lav^s — Revision and amendment — Publication of. Sec. 24. Every act shall embrace but one subject, which subject shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in its title, such act shall be void only as to so much thereof as shall not be expressed in its title. No law shall be revised or amended by reference to its title; Art. IV, § 24 CONSTITUTION OF 1879. 142 but in such case the act revised or section amended shall be re-enacted and published at length as revised or amended ; and all laws of the state of California, and all official writings, and the executive, legislative, and judicial proceedings shall be conducted, preserved, and published in no other than the English language. TITLE AISTD FORM OF ACTS— Construction.— A like provi- sion of the former constitution was held to be merely directory. (Washington v. Page, 4 Cal. 388; Pierpont v. Crouch, 10 Cal. 315; San Francisco v. Spring Valley W. W., 54 Cal. 571.) But the provisions of this section are held to be mandatory. (Ex parte Liddell, 93 Cal. 633, 29 Pac. 251.) It was by reason of the provision of section 22 of article 1 that this section was declared mandatory. (Law v. San Fran- cisco, 144 Cal. 384, 77 Pac. 1014.) A like provision of the San Francisco charter is held to be directory only. (Law v. San Francisco, 144 Cal. 384, 77 Pac. 1014.) The title of an act cannot be used to restrain or control any positive provision of the act, but where the meaning of the body of the act is doubtful, the title may be resorted to as a means of ascertaining the intention of the legislature. (People V. Abbott, 16 Cal. 358; Barnes v. Jones, 51 Cal. 303; Matter of Boston Min. etc. Co., 51 Cal. 624; Harris v. Supervisors, 52 Cal. 553.) The provisions of this section should be liberally construed, and the matter must be left largely to legislative discretion. (Ex parte Liddell, 93 Cal. 633, 29 Pac. 251; Abeel v. Clark, 84 Cal. 226, 24 Pac. 383.) This section does not apply to municipal ordinances. (Ex parte Haskell, 112 Cal. 412, 44 Pac. 725, 32 L. R. A. 527.) As to whether this section applies to the amendment of stat- utes enacted before the present constitution, see People v. Par- vin, 74 Cal. 549, 16 Pac. 490. One subject. — Numerous provisions having one general object fairly indicated by the title may be united. (Ex parte Liddell, 93 Cal. 633, 29 Pac. 251; People v. Parks, 58 Cal. 624; Ex parte 143 CONSTITUTION OF 1879. Art. IV, § 24 Kohler, 74 Cal. 38, 15 Pac. 436; De Witt v. San Francisco, 2 Cal. 289; Murphy v. Bondshu, 2 Cal. App. 249, 83 Pac. 278.) The act of 1891, adding a new part to the Vrooman Act in relation to street improvement bonds, does not contain more than one subject. (Hellman v. Shoulters, 114 Cal. 136, 44 Pac. 915, 45 Pac. 1057.) An act entitled "An act to establish a uniform system of county and township governments," classifj'ing the counties by population and fixing the compensation of the county oiScers, only contains one subject. (Longan v. Solano, 65 Cal. 122, 3 Pac. 463.) A resolution approving thirteen separate amendments to a city charter is not in violation of this section. (In re Pfahler, 150 Cal. 71, 88 Pac. 270, 11 Ann. Cas. 911.) The "Torrens Land Law" only embraces one subject. (Rob- inson V. Kerrigan, 151 Cal. 40, 121 Am. St. Rep. 90, 90 Pac. 129, 12 Ann. Cas. 829.) The act of March 23, 1901 (Stats. 1901, p. 647), adding cer- tain sections to the Political Code, re-enacting others, amending others, and repealing others, all relating to revenue and taxa- tion, does not violate this provision. (Murphy v. Bondshu, 3 Cal. App. 249, 83 Pac. 278.) The Primary Election Law of 1909 is not unconstitutional for embracing in its title the subject of an advisory vote for United States senators, as the matter of such a vote is germane to the subject of a primary election. (Socialist Party v. Uhl, 155 Cal. 776, 103 Pac. 181.) The act of March 19, 1878 (Stats. 1877-78, 339), does not con- tain more than one subject. (San Francisco v. Spring Valley W. W., 54 Cal. 571.) If the act is made of incongruous parts, or to comprehend unconnected and dissimilar subjects to that expressed in the title, it cannot be upheld. (People v. Parks, 58 Cal. 624.) The preservation of fish and game is a single subject of leg- islation. (Ah King v. Police Court, 139 Cal. 718, 73 Pac. 587.) Title. — The purpose of this provision is to protect the mem- bers of the legislature as well as the public against fraud from deceitful and misleading titles. (PjX parte Liddell, 93 Cal. 633, 29 Pac. 251; Abeel v. Clark, 84 Cal. 226, 24 Pac. 383.) Art. IV, § 24 CONSTITUTION OP 1879. 144 If the title is of such a character as to mislead the public or the members of the legislature, as to the subjects eiubraced in it, it is void. (Wood v. Election Commrs., 58 Cal. 561.) The words in a title "and for other purposes" do not validate provisions which are not germane to the particular subjects ex- pressed in the title. (Spier v. Baker, 120 Cal. 370, 52 Pac. 659, 41 L. E. A. 196.) It is not necessary that the title of an act should embrace an abstract or catalogue of its contents. (Abeel v. Clark, 84 Cal. 226, 24 Pac. 383; Ex parte Liddell, 93 Cal. 633, 29 Pac. 251; People V. Superior Court, 100 Cal. 105, 34 Pac. 492; People v. Linda Vista Irr, Dist., 128 Cal. 477, 61 Pac. 86; Hellman v. Shoulters, 114 Cal. 136, 44 Pac. 915, 45 Pac, 1057; Ex parte Hal- lawell, 155 Cal. 112, 99 Pac. 490.) The title of an act is not misleading because it purports to provide for a "general" vaccination, when in fact it only ap- plies to children in the public schools. (Abeel v. Clark, 84 Cal. 226, 24 Pac. 383; French v. Davidson, 143 Cal. 658.) Particular acts held valid. — The titles of the following acts have been held sufficient: An act entitled "An act to amend section 3581 of the Political Code" (People v. Parvin, 74 Cal. 549, 16 Pac. 490. But see Lewis v. Dunne, 134 Cal. 291, 86 Am. St. Eep. 257, 66 Pac. 478, 55 L. E. A. 833); a title expressing the object of the act to be "to amend section " of a named code "relating" to the particular object treated of in the body of the act (San Francisco etc. E. E. Co. v. State Board, 60 Cal. 12) ; an act entitled "An act to prohibit the sophistication and adulteration of wine, and to prevent fraud in the manufacture and sale thereof," and defining pure wine, prohibiting the use of deleterious substitutes, and forbidding the sale of impure wine (Ex parte Kohler, 74 Cal. 38, 15 Pac. 436) ; an act entitled "An act to amend an act entitled 'An act to establish a Penal Code,' approved February 14, 1872, by amending section 634, relating to fish and game" (People v. Dobbins, 73 Cal. 257, 14 Pac. 860); an act entitled "An act to provide for laying out, etc., any street, etc., and to condemn and acquire any and all lands and property necessary or convenient for that purpose," and providing for the assessment of other lands to pay for lands condemned (Davies v. Los Angeles, 86 Cal. 37, 24 Pac. 771); an act entitled "An act for the better protection of stock- holders in corporations formed under the laws of the state of 145 CONSTITUTION OF 1879. Art. IV, § 24 California for the purpose of carrying on and conducting the business of mining," and providing a penalty for failure to make or post an itemized account or balance-sheet (Fraucais V. Somps, 92 Cal. 503, 28 Pac. 592); an act entitled "An act to establish a state refonn school for juvenile offenders, and to make an appropriation therefor," and providing for the com- mitment of juvenile offenders to such schools (Ex parte Liddell, 93 Cal. 633, 29 Pac. 251); an act entitled "An act to provide for laying out, etc., any street, etc., in municipalities, and to condemn and acquire any and all land and property necessary and convenient for that purpose," and validating former pro- ceedings for the widening of streets (San Francisco v. Kiernan, 98 Cal. 614, 33 Pac. 720); an act entitled "An act creating a board of bank commissioners, and prescribing their duties and powers," and providing for winding up of banking corporations (People v. Superior Court, 100 Cal. 105, 34 Pac. 492); an act entitled "An act to create the county of Kings, to define the boundaries thereof, and to provide for its organization and election of officers, and to classify said county," and providing for the collection of taxes levied before the formation of the county but collected afterward (Kings County v. Johnson, 104 Cal. 198, 37 Pac. 870) ; an act entitled "An act to create the office of commissioner of transportation, and to define its powers and duties; to fix the maximum charges for transporting pas- sengers and freights on certain railroads, and to prevent extor- tion and unjust discrimination thereon," and providing for the collection of fines against a person evading the payment of his fare (Gieseke v. San Joaquin, 109 Cal. 489, 42 Pac. 446); an act entitled "An act to establish a uniform system of county and township governments," and classifying the counties by population, and fixing the compensation of the county officers (Longan v. Solano, 65 Cal. 122, 3 Pac. 463); an act entitled "An act to regulate fees in ofi&ce," and providing that the oifi- cer shall pay part of his fees into the treasury (Ream v. Siski- you Co., 36 Cal. 621); an act entitled "An act to enable certain parties therein named to alienate and encumber homesteads," and providing for the alienation of the homestead by the sane spouse, under order of the probate court (Jones v. Falvella, 126 Cal. 24, 58 Pac. 311); an act entitled "An act to protect and promote the horticultural interests of the state," and making Constitution — 10 Art. IV, § 24 CONSTITUTION OF 1879. 146 the expense of abating an insect pest nuisance from any prop- erty a lien thereon (Los Angeles v. Spencer, 126 Cal. 670, 77 Am. St. Rep. 217, 59 Pac. 202); a provision relating to city justices of the peace in an act entitled "An act to establish a uniform system of county and township government" (People V. Cobb, 133 Cal. 74, 65 Pac. 325); an act purporting in its title to add thirty-four enumerated sections to the Political Code, "all relating to the establishment of a board of state harbor commissioners for the bay of San Diego," and authorizing the commissioners to institute an action for the possession of any portion of the entire bay of San Diego, of which they are given the possession and control (People v. Mullender, 132 Cal. 217, 64 Pac. 299); the statutes of December 25, 1877, and March 30, 1878, in relation to highways in Los Angeles county (Southern Pac. Co. V. Pomona, 144 Cal. 339, 77 Pac. 929); an act entitled "An act in relation to foreign corporations," and providing for the designation of agents, services of process and proof of cor- porate existence (Anglo-Californian Bank v. Field, 146 Cal. 644, 80 Pac. 1080); an act entitled "An act to provide for the estab- lishment and quieting of title to real property in case of loss or destruction of public records" (Title etc. Restoration Co. v. Kerrigan, 150 Cal. 289, 119 Am. St. Rep. 199, 88 Pac. 356); the act of March 29, 1905, providing for a license tax on cor- porations (Kaiser Land & Fruit Co. v. Curry, 155 Cal. 638, 103 Pac. 341); an act to create a drainage district to be called "Sacramento Drainage District," etc. (People v. Sacramento Drainage District, 155 Cal. 373, 103 Pac. 207); "An act regu- lating the sale of poison in the state of California, and provid- ing a penalty for the violation thereof" (Ex parte Hallawell, 155 Cal. 112, 99 Pac. 490) ; "An act creating a board of bank commissioners and prescribing their duties and powers" (People v. Bank of San Luis Obispo, 154 Cal. 194, 97 Pac. 3t)6); an act to add three new sections to the Code of Civil Procedure, to be known as sections numbers 941a, 941b and 941c of said code, respectively, providing a new and alternative method by which appeals may be taken from judgments, orders or decrees of the superior court of the state of California to the supreme court or district courts of appeal thereof" (Estate of McPhee, 154 Cal. 385, 97 Pac. 878) ; "An act to insure the better education of practitioners of dental surgery, and to regulate the practice of dentistry in the state of California, providing penalties for 147 CONSTITUTION OP 1879. Art. IV, § 24 the violation hereof, and to repeal an act now in force relating to the same and known as "An act, .... etc., approved March 12, 1885" (Ex parte Hornef, 154 Cal. 355, 97 Pac. 891). See, also, People v. King, 127 Cal. 570, 60 Pac. 35; Leake v. Colgan, 125 Cal. 413, 58 Pac. 69; Jennings v. Le Eoy, 63 Cal. 397; People v. Henshaw, 76 Cal. 436, 18 Pac. 413; Pennie v. Eeis, 80 Cal. 266, 22 Pac. 176; People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 Pac. 86; Carpenter v. Furrey, 128 Cal. 665, 61 Pac. 36'9; Vernon etc. Dist. v. Board of Education, 125 Cal. 593, 58 Pac. 175; Ex parte Pfirrman, 134 Cal. 143, 66 Pac. 205; Jack- son v. Baehr, 138 Cal. 266, 71 Pac. 167; In re Martin, 157 Cal. 51, 106 Pac. 235, Particular acts held invalid. — The following acts have been held to violate this provision: An act whose title simply pur- ports to repeal the statute concerning the publication of con- stitutional amendments, but in the body of the act also pro- vides a new method of publishing such amendments (People v. Curry, 130 Cal. 82, 62 Pac. 516); an act amending the act for the formation of sanitary districts, and providing that sanitary boards may determine the qualification of persons authorized to sell liquors at retail, this subject not being germane to the title of the original act (In re Werner, 129 Cal. 567, 62 Pac. 97); an act entitled "An act to establish fees," etc., and provid- ing for the payment of one dollar for each one thousand dollars in excess of three thousand dollars of the appraised value of the estate upon filing the inventory, such payment being a tax and not a fee (Fatjo v. Pfister, 117 Cal. 83, 48 Pac. 1012); an act entitled "An act to amend sections four thousand and four," and other sections "to establish a system of county gov- ernments, approved April 27, 1880," but referring to no par- ticular code or statute (Leonard v. .January, 56 Cal. 1); an act entitled "An act to promote drainage," and providing for the control of debris from mining and other operations, the im- provement and rectification of river channels, and the erection of embankments or dykes necessary for the protection of lands, towns or cities from inundation (People v. Parks, 58 Cal. 624; Doane v. Weil, 58 Cal. 334); an act the title of which provides only for the refunding of the indebtedness of cities, and the issuance of bonds therefor, and rejiealiug an act for the incur- ring of indebtedness by municipal corporations (Los Angeles v. Hance, 122 Cal. 77, 54 Pac. 387); an act entitled "An act to Art. IV, § 24 CONSTITUTION OF 1879. 148 establish a uniform system of county and township govern- ments" and providing for the salaries of official reporters of the superior courts (Pratt v. Browne, 135 Cal. 649, 67 Pac. 1082) ; an act entitled "An act creating a board of commis- sioners of building and loan associations, and prescribing their duties and powers," and providing for withdrawals (Provident etc. Assn. v. Davis, 143 Cal. 253, 76 Pac. 1034); an act pur- porting in its title to deal with publications by certain public officers and in the body of the act providing for other classes of publications (Estate of Melone, 141 Cal. 331, 74 Pac. 991); an act entitled "An act to establish a tax on collateral inherit- ances, bequests, and devises" and imposing such a tax on direct kindred (Estate of Winchester, 140 Cal. 468, 74 Pac. 10). Amendments of codes. — An act entitled an act to amend a particular section of one of the codes sufficiently states the subject of the act. (People v. Gates, 142 Cal. 12, 75 Pac. 337.) The fact that an act does not deal with the matter of crimes and punishments does not prevent it from being in the form of an amendment to the Penal Code, if its title shows its subject matter. (County -of Butte v. Merrill, 141 Cal. 396, 74 Pac. 1036.) An act entitled an act to add a new section to a named code relating to a named subject is sufficient to embrace all matters relating to such subject. (Deyoe v. Superior Court, 140 Cal. 476, 98 Am. St. Kep. 73, 74 Pac. 28.) The fact that an act adds certain sections which relate to procedure to the Civil Code, instead of the Code of Civil Pro- cedure, does not make it invalid. (Deyoe v. Superior Court, 140 Cal. 476, 98 Am. St. Rep. 73, 74 Pac. 28.) An act entitled "An act to revise the Code of Civil Procedure of the state of California by amending certain sections, repeal- ing others, and adding certain new sections," was held not to sufficiently state its subject in its title, for the reason that the "Code of Civil Procedure" does not state or express any sub- ject. (Lewis V. Dunne, 134 Cal. 291, 86 Am. St. Rep. 257, 66 Pac. 478, 55 L. R. A. 833.) That such terms as the "Code of Civil Procedure," "Criminal Code," "Probate Code," "Political Code," etc., do sufficiently state a subject, see Central etc. R. Co. v. State, 104 Ga. 831, 31 S. E. 531, 42 L. R. A. 518; Porter v. Thompson, 22 Iowa, 391; State V. Brassfield, 81 Mo. 151, 51 Am. Rep. 235; Woodruff v. 149 CONSTITUTION OP 1879. Art. IV, § 24: Baldwin, 23 Kan. 491; Heller v. People, 2 Colo. App. 459, 31 Pac. 773; Johnson v. Harrison, 47 Minn. 575, 28 Am. St. Eep. 382, 50 N. W. 923; Marston v. Humes, 3 Wash. 267, 28 Pac. 520; Mathis V. State, 31 Fla. 291, 12 South. 681; Ex parte Thomas, 113 Ala. 1, 21 South. 369; Tribune etc. Co. v. Barnes, 7 N. D. 591, 75 N. W. 904; Murphey v. Menard, 11 Tex. 673. Publishing at length. — A revised act must be construed as a new and original piece of legislation. (Donlon v. Jewett, 88 Cal. 530, 26 Pac. 370; In re Bunkers, 1 Cal. App. 61, 81 Pac. 748.) This provision applies only to acts which are in terms re- visory or amendatory of some former act; and it does not apply to an independent act, although it is inconsistent with some existing statute. (Pennie v. Eeis, 80 Cal. 266, 22 Pac. 176; Jennings v. Le Roy, 63 Cal. 397; Baum v. Raphael, 57 Cal. 361; In re Bunkers, 1 Cal. App. 61, 81 Pac. 748.) An act adding a new section to the Political Code, and by implication amending another section of the same code, was held to violate this provision, if considered as an amendment, since it did not republish the section of the code affected by it. (Earle v. Board of Education, 55 Cal. 489. But see Hell- man v. Shoulters, 114 Cal. 136, 44 Pac. 915, 45 Pac. 1057; Uni- versity of California v. Bernard, 57 Cal. 612.) In amending a section the entire section must be re-enacted. (City of Los Angeles v. Lelande, 11 Cal. App. 302, 104 Pac. 717.) This section does not apply to amendments by implication, nor to an act which merely adds new sections relating to a named subject, which leaves in full operation all the language of the statute which it purports to amend, and does not pur- port to amend any section of that act, but affects its operation only by implication from the sections added. (Hellman v. Shoulters, 114 Cal. 136, 44 Pac. 915, 45 Pac. 1057. But see Earle v. Board of Education, 55 Cal. 489.) This section does not prevent a section amended from taking its place by its appropriate number in the original act. (Fletcher v. Prather, 102 Cal. 413, 36 Pac. 658.) It is a sufficient compliance with this provision to republish the section of the act amended. (Estate of Campbell, 143 Cal. 623, 77 Pac. 674.) Art. IV, § 24 CONSTITUTION OF 1879. 150 Where a section of the code is "amended to read as follows," and the amended section is published at length, without any- saving clause, the effect of the amendment is to repeal the sec- tion as it originally stood; and a section of the amendatory act merely providing that the amendment shall be applicable to certain counties does not operate as a saving clause to continue the original section in force in other counties. (Huffman v. Hall, 102 Cal. 26, 36 Pac. 417.) Under the provisions of this section the amendment of a statute operates as an absolute repeal of the statute or section amended, even if the amendment takes nothing away from the old law, but merely adds a proviso in certain cases. (Billings v. Harvey, 6 Cal. 381.) An act adding five new sections to the Political Code is not within the mischief which this section was intended to prevent. (University of California v. Bernard, 57 Cal. 612.) An act entitled "An act to revise the Code of Civil Procedure of the state of California by amending certain sections, repeal- ing others, and adding certain new sections," and amending, repealing, or adding some five hundred sections of that code, and which did not set out and republish at length the entire Code of Civil Procedure, was held to violate this provision of the constitution. (Lewis v. Dunne, 134 Cal. 291, 86 Am. St. Eep. 257, 66 Pac. 478, 55 L. R. A. 833.) See, however, on the same subject the following cases: Port- land V. Stock, 2 Or. 70; Dolan v. Barnard, 5 Or. 390; David v. Portland etc. Co., 14 Or. 98, 12 Pac. 174; Greencastle etc. Co. V. State, 28 Ind. 382; Town etc. v. Frieze, 33 Ind. 507; Smails V. White, 4 Neb. 353; Aruoult v. New Orleans, 11 La. Ann. 54; Tuskaloosa etc. Co. v. Olmsted, 41 Ala. 9. The act of April 9, 1880, amending one hundred and eight sections of the Penal Code, repealing ten sections, and adding a new section thereto, is not a revision of the entire code, re- quiring a republication thereof. (People v. Oates, 142 Cal. 12, 75 Pac. 337.) As to whether an act is an amendment or a revision of an- other act, see Beach v. Von Detten, 139 Cal. 462, 73 Pac. 187. 151 CONSTITUTION OF 1879. Art. IV, § 25 Local and special laws prohibited. Sec. 25. The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: First — Regulating the jurisdiction and duties of jus- tices of the peace, police judges, and of constables. Second — For the punishment of crimes and misde- meanors. Third — Regulating the practice of courts of justice. Fourth — Providing for changing the venue in civil or criminal actions. Fifth — Granting divorces. Sixth — Changing the names of persons or places. Seventh — Authorizing the laying out, opening, alter- ing, maintaining, or vacating roads, highways, streets,, alleys, town plats, parks, cemeteries, graveyards, or pub- lie grounds not owned by the state. Eighth — Summoning and impaneling grand and petit juries, and providing for their compensation. Ninth — Regulating county and township business, or the election of county and township officers. Tenth — For the assessment or collection of taxes. Eleventh — Providing for conducting elections, or designating the places of voting, except on the organiza- tion of new counties. Twelfth — Affecting the estates of deceased persons, minors, or other persons under legal disabilities. Art. IV, § 25 CONSTITUTION OF 1879. 152 Thirteenth — Extending the time for the collection of taxes. Fourteenth — Giving effect to invalid deeds, wills, or other instruments. Fifteenth — Eefunding money paid into the state treas- ury. Sixteenth — Releasing or extinguishing, in whole or in part, the indebtedness, liability, or obligation of any corporation or person to this state, or to any municipal corporation therein. Seventeenth — Declaring any person of age or authoriz- ing any minor to sell, lease, or encumber his or her prop- erty. Eighteenth — Legalizing, except as against the state, the unauthorized or invalid act of any officer. Nineteenth — Granting to any corporation, association, or individual any special or exclusive right, privilege, or immunity. Twentieth — Exempting property from taxation. Twenty-first — Changing county seats. Twenty-second — Restoring to citizenship persons con- victed of infamous crimes. Twenty-third — Regulating the rate of interest on money. Twenty -fourth — Authorizing the creation, extension, or impairing of liens. 153 CONSTITUTION OF 1879, Art. IV, § 25 Twejity-fifth — Chartering or licensing ferries, bridges, or roads. Twenty-sixth — Remitting fines, penalties, or forfeit- ures. Twenty-seventh — Providing for the management of common schools. Twenty-eighth — Creating offices, or prescribing the powers and duties of officers in counties, cities, cities and counties, townships, election or school districts. Twenty-ninth — Affecting the fees or salary of any officer. Thirtieth — Changing the law of descent or succession. Thirty-first — Authorizing the adoption or legitimation of children. Thirty-second — For limitation of civil or criminal ac- tions. Thirty-third — In all other cases where a general law can be made applicable. LOCAL AND SPECIAL LAWS— In general.— Under the former constitiitiou the legislature was not forbidden to pass local or special laws. (Wigmore v. Buell, 122 Cal. 144, 54 Pac. 600; People v. Twelfth District Court, 17 Cal. 547; Ex parte Burke, 59 Cal. 6, 43 Am. Eep. 231; Nevada School Dist. v. Shoe- craft, 88 Cal. 372, 2G Pac. 211.) The provisions of this section are prospective only, and do not affect statutes passed before its adoption. (Nevada School Dist. V. Shoecraft, 88 Cal. 372, 2G Pac. 211; Ex parte Burke, 59 Cal. 6, 43 Am. Rep. 231; Eollins v. Wright, 93 Cal. 395, 29 Pac. 58; Smith v. McDermott, 93 Cal. 421, 29 Pac. 34; Meade v. Watson, 67 Cal. 591, 8 Pac. 311; Ex parte Chin Yan, 60 Cal. 78.) Art. IV, § 25 CONSTITUTION OF 1879. 154 The legislature cannot make a special act general by a legis- lative declaration that it shall be considered a general act. (San Francisco v. Spring Valley W. W., 48 Cal. 493.) A law which on its face is general and may be applied to all cities cannot be assailed on the ground that it was in fact passed to effect an improvement in one city only. (Davies v. Los Angeles, 86 Cal. 37, 24 Pac. 771.) A special law is one relating to a selected class, as well as a particular object. (Smith v. McDermott, 93 Cal. 421, 29 Pac. 34.) As to what is a general and what a special law, see Ex parte Burke, 59 Cal. 6, 43 Am. Rep. 231, per Morrison, C. J. A general law must be as broad as the subject matter to which it relates. (Desmond v. Dunn, 55 Cal. 242.) An act applying uniformly upon the whole of any single class of individuals or objects, when the classification is founded upon some natural, intrinsic, or constitutional distinc- tion, is a general law. (Abeel v. Clark, 84 Cah 226, 24 Pac. 383; Cody v. Murphey, 89 Cal. 522, 26 Pac. 1081; Foster v. Police Commrs., 102 Cal. 483, 41 Am. St. Rep. 194, 37 Pac. 763; Rode V. Siebe, 119 Cal. 518, 51 Pac. 869; Ex parte Koser, 60 Cal. 177; Vail v. San Diego, 126 Cal. 35, 58 Pac. 392; People V. Central Pac. R. R. Co., 105 Cal. 576, 38 Pac. 905; Murphy v. Pacific Bank, 119 Cal. 334, 51 Pac. 317; Murphy v. Pacific Bank, 130 Cal. 542, 62 Pac. 1059; Ruperich v. Baehr, 142 Cal. 190, 75 Pac. 782; In re Finley, 1 Cal. App. 198, 81 Pac. 1041; In re Martin, 157 Cal. 51, 106 Pac. 235.) In order to make the law general, the classification must not be arbitrary, but must be founded upon some natural, intrinsic, or constitutional distinction, and some reason must appear why the act is not made to apply generally to all classes. (Rauer V. Williams, 118 Cal. 401, 50 Pac. 691; Darcy v. Mayor, 104 Cal. 642, 38 Pac. 500.) Although a law is general when it applies equally to all in- dividuals of a class founded upon a natural, intrinsic, or con- stitutional distinction, it is not general if it confers particular privileges or imposes peculiar disabilities or burdensome con- ditions, in the exercise of a common right, ujjon a class arbi- trarily selected from the general body of those who stand in precisely the same relation to the subject of the law. (Pasa- 155 CONSTITUTION OF 1879. Art. IV, § 25 dena v. Stimson, 91 Cal. 238, 27 Pac. 604; Bloss v. Lewis, 109 Cal. 493, 41 Pac. 1081.) A law which applies only to a part of a class — which relates not to an}' genus, but only to species — is a special law. (People V. Central Pac. E. E. Co., 83 Cal. 393, 23 Pac. 303.) There is no reasonable foundation in the nature of things or such intrinsic difference between corporations and natural per- sons that requires the application of a measure of jurisdiction on an offense committed by a corporation different from that to be invoked when an individual is charged with the same offense. (People V. Palermo L. & W. Co., 4 Cal. App. 717, 89 Pac. 723.) As to when an entire act will not be affected by the fact that one provision thereof is special, see Davidson v. Von Detten, 139 Cal. 467, 73 Pac. 189. Acts held to be general. — The following acts have been held to be general within the meaning of this section: An act relat- ing to elections to elect boards of freeholders, and to adopt and amend charters (Fragley v. Phelan, 126 Cal. 383, 58 Pac. 923) ; an act providing for police courts in all cities of a desig- nated population, and providing that it shall go into effect upon the expiration of the rerm of office of the present police judge of such cities (People v. Heushaw, 76 Cal. 436, 18 Pac. 413; Ex parte Halsted, 89 Cal. 471, 26 Pac. 961; In re Mitchell, 120 Cal. 384, 52 Pac. 799); an act applying to all elections in towns and cities (Vernon School Dist. v. Board of Education, 125 Cal. 593, 58 Pac. 175); an act providing for an action by a reclamation district to determine the validity of an assess- ment (Lower Kings River Eeclamation Dist. No. 531 v. McCul- lah, 124 Cal. 175, 56 Pac. 887); the insanity law of 1897 (People V. King, 127 Cal. 570, 60 Pac. 35); section 1203 of the Code of Civil Procedure (Carpenter v. Furrey, 128 Cal. 665, 61 Pac. 369); an act jiroviding a special method for levying a tax for high schools, dift'erent from that provided for other school dis- tricts (People V. Lodi High School Dist.. 124 Cal. 694, 57 Pac. 660); an act providing for the refunding of indebtedness of municipal corporations other than cities of the first class (Los Angeles v. Teed, 112 Cal. 319, 44 Pac. 580); an act providing for the assessment of taxes upon railroads operating in more than oue county (People v. Central Pac. K. R. Co., 105 Cal. 576, 38 Pac. 905); a law making it a felony to sell intoxicating liquors to Indians (People v. Bray, 1U5 Cal. 344, 38 Pac. 731, Art. IV, § 25 CONSTITUTION OP 1879. 156 27 L. R. A. 158) ; an act providing for vaccination of all chil- dren attending public schools (Abeel v. Clark, 84 Cal. 226, 2-i Pac. 383; French v. Davidson, 143 Cal. 658, 77 Pac. 663); an act relating to the compensation of the auditor and his clerk in all counties of the twentieth class (Farnum v. Warner, 104 Cal. 677, 38 Pac. 421); an act forbidding the erection of parti- tion walls in cities and towns of a greater height than ten feet, without the consent of the adjoining owner, except around public gardens, etc. (Western etc. Co. v. Knickerbocker, 103 Cal. Ill, 37 Pac. 192); the provisions of section 1001 of the Civil Code, providing for the acquisition of private property through the exercise of the right of eminent domain (Santa Cruz V. Enright, 95 Cal. 105, 30 Pac. 197); a county ordinance providing a smaller license tax for the sale of spirituous liquors at waj'side inns and rural watering places, outside of any city, than when sold in a city (Amador Co. v. Kennedy, 70 Cal. 458, 11 Pac. 757); an ordinance making it unlawful to conduct a laundry between 10 P. M. and 6 A. M., or on Sundays (Ex parte Moynier, 65 Cal. 33, 2 Pac. 728) ; the provision of the Code of Civil Procedure giving certain laborers preferred claims as against other attaching creditors (Mohle v. Tschireh, 63 Cal. 381); a law requiring insane persons in state institutions to be supported out of their estates (Estate of Yturburru, 134 Cal. 567, 66 Pac. 729) ; an act relating to license taxes in cities of a particular class (Ex parte Jackson, 143 Cal. 564, 77 Pac. 457); the collateral inheritance tax act taxing brothers and sisters, and exempting the wife of a son, the widow of a son, and the husband of a daughter, the classification being based on a natural distinction (Estate of Campbell, 143 Cal. 623, 77 Pac. 674); an act providing that in divorce suits the final decree shall not be entered until the expiration of one year from the filing of the decision (Deyoe v. Superior Court, 140 Cal. 476, 98 Am. St. Eep. 73, 74 Pac. 28); the act providing for the ap- plication of the salaries of public officers to the payment of their debts (Kuperich v. Baehr, 142 Cal. 190, 75 Pac. 782); section 1143 of the Penal Code relating to fees of jurors in criminal actions (Jackson v. Baehr, 138 Cal. 266, 71 Pac. 167); the provision of section 1373 of the Political Code, making the county in which the indictment was found chargeable with the support of insane criminals (Napa State Hospital v. Yuba County, 138 Cal. 378, 71 Pac. 450); the provisions of the Po 157 CONSTITUTION OF 1879. Art. IV, § 25 litical Code in regard to road taxes, although cities and towns are exempted from their operation, since this does not exempt cities and towns from the tax, but compels cities and towns to maintain their streets under the street improvement act (Miller V. County of Kern, 137 Cal. 516, 70 Pac. 549); an act applying to all foreign corporations and providing for filing designation of agents, service of process and proof of corporate existence (Anglo-Californian Bank v. Field, 146 Cal. 644, 80 Pac. 1030); the act of 1901 authorizing suits against the state upon coyote bounty claims (Bickerdike v. State of California, 144 Cal. 681, 78 Pac. 270); the act of April 23, 1880 (Stats. 1880, p. 131), for- bidding the acquisition or sale of mining ground by mining cor- porations without the assent of two-thirds of its stockholders (Lacy V. Gunn, 144 Cal. 511, 78 Pac. 30) ; the state dental law classifying those who may practice dentistry, as it does not discriminate between persons within the same class (Ex parte Whitley, 144 Cal. 167, 77 Pac. 879); section 3443 of the Po- litical Code requiring the complaint to set forth certain papers, such provision being justified by the nature and object of the act (Boggs v. Gaueard, 148 Cal. 711, 84 Pac. 195); acts provid- ing two independent schemes, to either of which a municipality may have resort as it shall deem expedient in the acquisition of land for park purposes (Oakland v. Thompson, 151 Cal. 572, 91 Pac. 387) ; a law forbidding the employment of children under the age of sixteen years in dangerous or immoral places (In re Weber, 149 Cal. 392, 86 Pac. 809); the provision of the child labor law permitting the employment of children whose parents are unable to labor from sickness (In re Spencer, 149 Cal. 396, 117 Am. St. Rep. 137, 86 Pac. 896, 9 Ann. Cas. 1105); the provision of the child labor law permitting the employment of children during vacations upon the permit of the school prin- cipal (In re Spencer, 149 Cal. 396, 117 Am. St. Rep. 137, 86 Pac. 896, 9 Ann. Cas. 1105); an act forbidding the emplosnnent of children in singing or playing on musical instruments, ex- cept in churches, schools or academies (In re Weber, 149 Cal. 392, 86 Pac. 809); the act providing for the establishment of titles in San Francisco when the records were destroyed by fire, though it makes provisions regulating practice which are not found in other judicial proceedings (Title etc. Restoration Co. V. Kerrigan, 150 Cal. 289, 119 Am. St. Rep. 199, 88 Pac. 356); the act providing for the establisliment of titles when Art. IV, § 25 CONSTITUTION OP 1879. 158 the records are destroyed by eartliqiiake, fire, or flood and not covering destruction by other agencies (Title etc. Restoration Co. V. Kerrigan, 150 Cal. 289, 119 Am. St. Rep. 199, 88 Pac. 356); a curative act as to all tax deeds defective in not stating the time allowed for redemption (Baird v. Monroe, 150 Cal. .560, 89 Pac. 352) ; the law requiring electors to declare their party affiliation when registering which does not apply to per- sons who registered before its enactment (Schostay v. Cator, 151 Cal. GOO, 91 Pac. 502); an act granting power to cities of a particular class to acquire waterworks (Gary v. Blodgett, 10 Cal. App. 463, 102 Pac. 668); an ordinance forbidding the main- tenance of public billiard and pool rooms, but permitting pri- vate billiard-rooms, and billiard-rooms in hotels for bona fida guests only (Ex parte Murphy, 8 Cal. App. 440, 97 Pac. 199); section 710 of the Code of Civil Procedure, providing for the garnishment of the salaries of certain public officers at the in- stance of their judgment creditors (Lawson v. Lawson, 158 Cal. 446, 111 Pac. 354); an act to provide for laying out, opening etc., any street, etc. (Stats. 1889, p. 70), (Clute v. Turner, 157 Cal. 73, 106 Pac. 240), an act regulating the hours of employ- ment in underground mines and in smelting and reduction works (In re Martin, 157 Cal. 51, 106 Pac. 235). See, also, cases cited below under the particular subdivisions of this section. Acts held to be special. — On the other hand, the following acts have been held to be special within the meaning of this section: An act providing for boards of election commissioners in cities and counties having one hundred and fifty thousand or more inhabitants, that being an arbitrary classification with- out reference to the existing classification by general law (Den- man V. Broderick, 111 Cal. 96, 43 Pac. 516); the '-McClure Charter," because it only applied to consolidated city and county governments of a designated population (Desmond v. Dunn, 55 Cal. 242); a provision of the County Government Act providing for salaries in addition to fees of constables in town- ships numbered one to ten in counties of one particular class (Lougher v. Soto, 129 Cal. 610, 62 Pac. 184); an act giving laborers employed by corporations by the week or month a lien for wages (Slocum v. Bear Valley Irr. Co., 122 Cal. 555, 68 Am. St. Rep. 68, 55 Pac. 403); a law depriving certain persons arbi- trarily of the right to participate in an election (Spier v. Baker, 159 CONSTITUTION OP 1879. Art. IV, § 25 120 Cal. 370, 52 Pac. 659, 41 L. E. A. 196); an act directed at and applicable to one particular named municipal corporation, and taking away a large part of its territory (People v. Com- mon Council, 85 Cal. 369, 24 Pac. 727; Fisher v. Police Court, 86 Cal. 158, 24 Pac. lOUO); an act to remedy the failure on the part of the tax collector to publish the names of the owners, etc. (Moore v. Patch, 12 Cal. 265); the provision of section 1203 of the Code of Civil Procedure, requiring contractors for the erection of buildings to secure their contracts by bonds (Shaughnessy v. American Surety Co., 138 Cal. 543, 69 Pac. 250, 71 Pac. 701); a law regulating the rate of interest on chattel mortgages on certain classes of property only (Ex parte Sohncke, 148 Cal. 262, 113 Am. St. Kep. 236, 82 Pac. 956, 2 L. R. A., N. S., 813, 7 Ann. Cas. 475); the provision of the me- chanic's lien law allowing the plaintifif, but not the defendant, an attorney's fee (Builders' Supply Depot v. O'Connor, 150 Cal. 265, 119 Am. St. Rep. 193, 88 Pac. 982, 11 Ann. Cas. 712). See, also, cases cited below under particular subdivisions of this section. Subdivision 1. — An act establishing an additional police court in San Francisco, with the same jurisdiction, and to be gov- erned by the same rules as the court already existing, is not a special law. (Ex parte Jordan, 62 Cal. 464.) This subdivision does not apply to the terms of office of jus- tices of the peace. (Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620.) An act creating a justice's court for one particular named town and fixing its jurisdiction is a special law. (Minor v. Justice's Court, 121 Cal. 264, 53 Pac. 795.) An act creating a police court for cities of one class is con- stitutional. (Union etc. Co. v. Rose, 11 Cal. App. 357, 104 Pac. 1006.) Subdivision 2. — An act making it a misdemeanor "for any person engaged in the business of baking to engage, or to per- mit others in his employ to engage, in the business of baking for the purpose of sale, between the hours of 6 o'clock P. M. on Saturday and 6 o'clock P. M. on Sunday," is a special law. (Ex parte Westcrfield, 55 Cal. 550, 36 Am. Rep. 47.) An act mnking it unlawful to keep open any place of busi- ness on Sunday, but exempting hotels, boarding-liouses, barber- shops, baths, markets, restaurants, taverns, livery-stables, and Art. IT, § 25 coxsTiTUTiox of 1879. 160 retail drug stores, held not to be a special law. (Ex parte Kcser, 60 CaL 117.) This section does not prohibit the legislature from authoriz- ing hy general laws ordiiiances which would be special laws if enacted by the legislature directlv. (Ex parte Chin Yan, 60 CaL 78.) An act allowing certain convicts in the eity and county of San Francisco to be imprisoned in the house of conection in- stead of the county jail or state prison does not violate this subdivision, (Ex parte Williams, S7 CaL 78, 24: Pac. 602, 25 Pae. 248.) An act establishing an additional police court in San Fran- cisco, with the same jurisdiction and to be governed by the same rules as the court already existing, is not a special law. .(Ex parte Jordan, 62 CaL 464.) An act making it a misdemeanor to keep open a barber-shop on Sundavs and other holidays is special legislation. (Ex parte Jentzseh, 112 CaL 468, 44'Pae. 803, 32 L. B. A. 664.) Subdivision 3. — A provision in the municipal corporation act that in cities of one class it shall not be necessary to plead or prove the existence or validity of any ordinance thereof, and that courts shall take judicial notice thereof, is special legisla- tion. (City of Tulare v. Hevren, 126 CaL 226, 58 Pac. 530.) A provision in the act supplemental to the "Wright Act," that in a proceeding to confirm the organization and bonds of an irrigation district "a motion for a new trial must be made upon the minutes of the court," is repugnant to this provision. fCnllen v. Glendora Water Co., 113 CaL 503, 39 Pac. 769, 45 Pac. 822.) The "Banking Commissioners' Act," providing for the wind- ing up of banking corporations, and to that extent superseding the provisions of the general Insolvent Act, is constitutional. (People V. Superior Court, 100 CaL 105, .34 Pac. 492.) An act providing the form of a complaint in an action to con- demn land is valid. (San Francisco v. Kiernan, 98 Cal. 614, 33 Pac. 720.) An act requiring an undertaking on the part of the plaintiff in actions of libel and slander is not a special law. (Smith V. McDermott, 93 Cal. 421, 29 Pac. 34.; The word "practice" includes all "pleadings." (People v. Central E. B. Co., 83 CaL 393, 23 Pac. 303.) 161 cONSxirmox of 1S79. Art. IT, § 25 A law providing for a special form of complaiiit in an action to recover an assessment of ta^es against a railroad situated in more than one eountv is in violation of this section. (People v. Central Pac. B. B. Co.. S3 Cal. 393. 23 Pac. 303. But see People T. Central Pac. B. B. Co. 105 CaL 576, 3S Pae. 905.) An act allowing certain convicts in the city and county of San Francisco to be imprisoned in the house of correction in- stead of the county jail or state prison does not violate this subdivision. (Ex parte Williams. S7 CaL 7S. 24 Pac. 6*J2, 25 Pac. 248.) An act establishing an additional police court in San Fran- cisco, with the same jurisdiction and to be governed by the same rules as the court already existing, is not a special law. (Ex parte Jordan, 62 CaL 464.') Subdivision 6. — Under this subdivision the legislature cannot by special law change the name of a corporation, but may by general law provide for such change by the superior eoort upon application of the incorporators. (Matter of La Soeiete Fran- caise. etc.. 123 CaL 525, 56 Pae. 45S.) Subdivision 7. — The act of 1S91 supplemental to the Trooman Act, relating to street work in all municipalities, is a general law. (Hellman v. Shoulters, 114 CaL 136. 44 Pac. 915, 45 Pac. 1057.) Subdivision 9. — A law providing that, in counties of one par- ticular class only, witnesses in criminal eases shall be entitled to the same fees as jurors, in the discretion of the court, is speeiaL (Turner v. Siskiyou Co., 109 CaL 332, 42 Pae. 434.) A provision of the County Government Act, that in counties of a certain class county licenses collected in cities shall be paid into the treasuries of such cities for street improvements, is in violation of this subdivision. (San Luis Obispo v. Graves, 84 CaL 71, 23 Pae. 1032.) The provisions of the County Government Act of 1S93 em- powering certain of the county officers in counties of one class to appoint a certain number of deputies, whose salaries are fixed by the act and made payable oat of the county treasury, is valid, although in other counties the principals must pay the salaries of their deputies. (Tulare Co. v. May, IIS Cal. 303. 50 Pac 427; Freeman v. Barnum, 131 CaL 356, S2 Am. St. fiep. Consumuon — 11 Art. IV, § 25 CONSTITUTION OF 1879. 162 355, 63 Pae. 691. Welsh v. Bramlet, 98 Cal. 219, 33 Pae. 66, and Walser v. Austin, 10-1 Cal. 128, 37 Pae. 869, overruled.) An act directing the municipality to pay a particular claim against it is in violation of this provision. (Conlin v. Super- visors, 114 Cal. 404, 46 Pae. 279, 33 L. E. A. 752.) SuMivision 10. — A law providing that taxes upon personal property unsecured by real estate shall be collected at the time of the assessment, and before the time provided for the collec- tion of taxes upon other property, is valid. (Rode v. Siebe, 119 Cal. 518, 51 Pae. 869, 39 L. R. A. 342, Van Fleet, J., and Har- rison, J., dissenting; Pacific Postal etc. Co. v. Dalton, 119 Cal. 604, 51 Pae. 1072.) Section 10 of article 13 of the constitution is not "a local or special law" passed by the legislature. (San Francisco etc. E. E. Co. V. State Board, 60 Cal. 12.) A law providing a special method of assessment and collec- tion of taxes against railroads situated in more than one county is special legislation. (People v. Central Pae. E, E. Co., 83 Cal. 393, 23 Pae. 303. But see People v. Central Pae. E. E. Co., 103 Cal. 576, 38 Pae. 905.) Subdivision 11. — In forming a new county the legislature may make special provisions as to the first election to be held in it, and as to all things which must be done in order to com- plete the organization and preserve the orderly and harmonious administration of the laws therein. (People v. McFadden, 81 Cal. 489, 15 Am. St. Eep. 66, 22 Pae. 851.) A law creating and providing for the organization of a new county is not within the prohibition against special and local legislation. (People v. Glenn Co., 100 Cal. 419, 38 Am. St. Eep. 305, 35 Pae. 302.) An act creating a new county may provide for the collection of taxes levied before the formation of the county, but col- lected afterward. (Kings County v. Johnson, 104 Cal. 198, 37 Pae. 870.) The Primary Election Law of 1895, being expressly confined in its operation to counties of the first and second class, is local and special. (Marsh v. Supervisors, 111 Cal. 368, 43 Pae. 975.) Subdivision 13. — A law providing a special method of as- sessment and collection of taxes against railroads situated in more than one county is special legislation. (People v. Central 163 CONSTITUTION OF 1879. Art. IV, § 25 Pac. R. R. Co., 83 Cal. 393, 23 Pac. 303. But see People v. Cen- tral Pae. R. R. Co., 105 Cal. 576, 38 Pac. 905.) Subdivision 14. — An act validating bonds of municipalities when authorized by two-thirds of the inhabitants of the county is not a special law. (Eedlands v. Brook, 151 Cal. 474, 91 Pac. 150.) Subdivision 16. — An act attempting retroactively to exempt resident nephews and nieces from the payment of unpaid taxes upon collateral inheritances is in violation of this provision. (Estate of Stanford, 126 Cal. 112, 54 Pac. 259, 58 Pac. 462, 45 L. R. A. 788.) Subdivision 19.— Tulare Co. v. May, 118 Cal. 303, 50 Pac. 427; People v. Superior Court, 100 Cal. 105, 34 Pac. 492. Subdivision 20. — A law providing a special method of assess- ment and collection of taxes against railroads situated in more than one county is special legislation. (People v. Central Pac. R. R. Co., 83 Cal. 393, 23 Pac. 303. But see People v. Central Pac. R. R. Co., 105 Cal. 576, 38 Pac. 905.) Subdivision 23. — An act making it a misdemeanor for a pawn- broker to charge or receive more than two per cent per month interest is not a special law. (Ex parte Lichenstein, 67 Cal. 359, 56 Am. Rep. 713, 7 Pac. 728.) Subdivision 24.— People v. Central Pac. R. R. Co., 83 Cal. 393, 23 Pac. 303; People v. Central Pac. R. R. Co., 105 Cal. 576, 38 Pac. 905. Subdivision 27. — The fixing of salaries of teachers is part of the "management of the common schools." (Earle v. Board of Education, 55 Cal. 489.) An act relating to salaries of school teachers in cities having one hundred thousand inhabitants or more is local and uncon- stitutional. (Earle v. Board of Education, 55 Cal. 489.) An act providing that in cities having a board of education the city treasurer is to have the custody of the state and county school money appropriated to the city is a special law. (Bruch v. Colombet, 104 Cal. 347, 38 Pac. 45.) Subdivision 28. — An act authorizing the police commissioners of Sacramento to appoint policemen not exceeding thirty in number is a special law, and creates officers within the meaning of this subdivision. (Farrell v. Board of Trustees, 85 Cal. 408, 24 Pac, 868.) Art. IV, § 25 CONSTITUTION OF 1879. 164 The word "officers" includes policemen in cities, and includes all officers who exercise their office and perform their duties within the limits of either political division mentioned. (Far- rell V. Board of Trustees, 85 Cal. 408, 24 Pac. 868.) An act directing the municipality to pay a particular claim against it is in violation of this subdivision. (Conlin v. Super- visors, 114 Cal. 404, 46 Pac. 279, 33 L. R. A. 752.) An act creating officers in but one class of counties, arbi- trarily created and designated by population, without reference to the classification contained in the general law, is in violation of this provision. (San Francisco v. Broderick, 125 Cal. 188, 57 Pac. 887.) This subdivision does not prevent the passage of a special law as to a board of harbor commissioners for the bay of San Diego. (People v. Mullender, 132 Cal. 217, 64 Pac. 299.) See, also. Ex parte Jordan, 62 Cal. 464; Welsh v. Bramlet, 98 Cal. 219, 33 Pac. 66; Tulare Co. v. May, 118 Cal. 303, 50 Pac. 427. Subdivision 29. — An act making an appropriation to pay the salary of an officer during a certain period before the amount of the salary has been fixed is not in violation of this section. (Smith V. Dunn, 64 Cal. 164, 28 Pac. 232, Smith v. Kenfield, 57 Cal. 138, distinguished.) The County Government Act is not in violation of this pro- vision. (Longan v. Solano Co., 65 Cal. 122, 3 Pac. 463.) An act fixing the salaries of county officers and providing that in all counties, except counties of three designated classes, it should not take effect until the expiration of the terms of the incumbents, and in those three it should take effect the first day of the month succeeding its passage, is a special law. (Miller v. Kister, 68 Cal. 142, 8 Pac. 813.) An act readjusting the salaries of all county officers of coun- ties of a particular class is a general law. (Cody v. Murphey, 89 Cal. 522, 26 Pac. 1081.) An act making an appropriation to pay James W. Kankin for services in the state treasurer's office is not in violation of this section. (Rankin v. Colgan, 92 Cal. 605, 28 Pac. 673.) An act providing that when the population of an existing county shall be reduced, by reason of the creation of any new county from the territory thereof, below the class first assumed by it under the act, it should be the duty of the supervisors of 165 CONSTITUTION OF 1879. Art. IV, § 25 such county to designate the class to which such county has been reduced, is a general law. (Kumler v. Supervisors, 103 Cal. 393, 37 Pac. 383.) A provision of the fee bill allowing justices of the peace a certain portion of the fees collected by them, without refer- ence to the classification contained in the County Government Act, is a special law. (Dwyer v. Parker, 115 Cal. 544, 47 Pac. 372.) The provision of the County Government Act of 1897, pro- viding for salaries in certain counties in lieu of fees and per diem is valid. (Vail v. San Diego, 126 Cal. 35, 58 Pac. 392.) See, also, Ex parte Jordan, 62 Cal. 464; Tulare Co. v. May, 118 Cal. 303, 50 Pac. 427. Subdivision 33. — In Earle v. Board of Education, 55 Cal. 489, it was suggested, but not decided, that the court may determine whether a general law can be made applicable in a given ca,se. As to whether the legislative determination of the question whether a general law can be made applicable is conclusive, discussed but not decided. (People v. Mullender, 132 Cal. 217, 64 Pac. 299.) A law cannot be held invalid merely because, in the opinion of the court, it would have been possible to have framed a general law under which the purpose of the special law could have been accomplished. (People v. Mullender, 132 Cal. 217, 64 Pac. 299.) It is impossible for the court to say that a general law could be made applicable to the subject of formation of new coun- ties. (People v. McFadden, 81 Cal. 489, 15 Am. St. Rep. 06, 22 Pac. 851.) A law requiring cities of two designated classes to make effort to agr( e with the owners of land sought to be condemned, before instituting condemnation proceedings, is special legisla- tion. (Pasadena v. Stimson, 91 Cal. 2;;s, 27 Pac. 604.) A provision of the County Government Act that in all coun- ties of one particular class certain additional fees shall be col- lected for filing the inventory in estates of deceased persons, is violative of this section. (Bloss v. Lewis, 109 Cal. 493, 41 Pac. 1081.) The act of 1895, providing for the dislncorporation of munici- pal corporations of the sixth class, is not a special law. (Mint- zer V. Schilling, 117 Cal. 361, 49 Pac. 209.) Art. IV, § 25 CONSTITUTION OP 1879. 166 The act of 1893, providing a special method of collecting fees in cities and counties of over one hundred thousand inhabit- ants, is a special law. (Eauer v. Williams, 118 Cal. 401, 50 Pac. 691.) An act providing a special mode of conducting the election of directors of mining corporations is a special law. (Krause V. Durbrow, 127 Cal. 681, 60 Pac. 438.) An act providing that no misnomer of the owner shall affect any assessment by an irrigation district is a general law. (Es- condido High School Dist. v. Escondido Seminary, 130 Cal. 128, 62 Pac. 401.) The act of 1905 creating the "Sacramento Drainage District," while a special act, is not unconstitutional, as the subject matter necessitated a special law. Determination of the legis- lature as to necessity for special act will not be disturbed, ex- cept upon a clear showing that there was no such necessity. (People v. Sacramento Drainage District, 155 Cal. 373, 103 Pac. 207.) A law prohibiting waste of water from artesian wells is not unconstitutional because not made applicable to surface water and pumps. (Ex parte Elam, 6 Cal. App. 233, 91 Pac. 811.) An act appropriating money for the support of veterans of the Civil War at a particular home is not unconstitutional be- cause not made applicable to all veterans of the Civil War. (Board v. Nye, 8 Cal. App. 527, 97 Pac. 208.) The "Torrens Land Law" is not a special law, although it makes special provisions as to land which is brought under the act. (Eobinson v. Kerrigan, 151 Cal. 40, 121 Am. St. Eep. 90, 90 Pac. 129, 12 Ann. Cas. 829.) An act providing different qualifications for the electors who shall be allowed to vote at an election to be held in pursuance of such act is not a special law forbidden by this provision of the constitution. (Wheeler v. Herbert, 152 Cal. 224, 92 Pac. 353.) See, also, Marsh v. Supervisors, 111 Cal. 368, 43 Pac. 975; People V. Superior Court, 100 Cal. 105, 34 Pac. 492; Conlin v. Supervisors, 114 Cal. 404, 46 Pac. 279, 33 L. R. A. 752; Tulare Co. V. May, 118 Cal. 303, 50 Pac. 427; Ex parte Jentzsch, 112 Cal. 468, 44 Pac. 803, 32 L. E. A. 664. 167 CONSTITUTION OP 1879. Art. IV, §§ 251/2, 26 Fish and game districts. Sec. 251/^). The legislature may provide for the di- vision of the state into fish and game districts, and may enact such laws for the protection of fish and game therein as it may deem appropriate to the respective districts. (Amendment adopted November 4, 1902.) Lotteries prohibited — Purchase and sale of shares of stock to be regulated. Sec. 26. The legislature shall have no power to au- thorize lotteries or gift enterprises for any purpose and shall pass laws to prohibit the sale in this state of lottery or gift enterprise tickets or tickets in any scheme in the nature of a lottery. The legislature shall pass laws to prohibit the fictitious buying and selling of the shares of the capital stock of corporations in any stock board, stock exchange or stock market under the control of any corporation or association. All con- tracts for the purchase or sale of shares of the capital stock of any corporation or association without any in- tention on the part of one party to deliver and of the other party to receive the shares, and contemplating merely the payment of differences between the con- tract and market prices on divers days, shall be void, and neither party to any such contract shall be entitled to recover any damages for failure to perform the same, or any money paid thereon, in any court of this state. (Amendment adopted November 3, 1908.) Art. IV, § 26 CONSTITUTION OF 1879. 168 [ORIGINAL SECTION.] Sec. 26. The legislature shall have no power to authorize lotteries or gift enterprises for any purpose, and shall pass laws to prohibit the sale in this state of lottery or gift enter- prise tickets, or tickets in any scheme in the nature of a lot- tery. The legislature shall pass laws to regulate or prohibit the buying and selling of the shares of the capital stock of corporations in any stock board, stock exchange, or stock mar- ket under the control of any association. All contracts for the sale of shares of the capital stock of any corporation or association, on margin or to be delivered at a future day, shall be void, and any money paid on such contracts may be recov- ered by the party paying it by suit in any court of competent jurisdiction, LOTTERIES. — Under this section an ordinance making the mere possession of a lottery ticket a misdemeanor is valid. (Collins V. Lean, 68 Cal. 284, 9 Pac. 173.) Trading stamps and coupons are not a lottery. (Ex parte Drexel, 147 Cal. 763, 82 Pac. 429, 2 L. R. A., N. S., 588, 3 Ann. Cas. 878.) SALE OF STOCK ON MARGIN. — This provision is remedial, not penal. (Parker v. Otis, 130 Cal. 322, 92 Am. St. Rep. 56, 62 Pac. 571.) It is not in conflict with the federal constitution. (Parker V, Otis, 130 Cal. 322, 92 Am. St. Rep. 56, 62 Pac. 571.) Whether or not a particular transaction is in violation of this provision is a question of fact. (Baldwin v. Zadig, 104 Cal. 594, 38 Pac. 363.) This provision will not be extended so as to forbid the de- livery of stock as a conditional payment for the purchase of land, with a guaranty of cash value, and an agreement to take it back at the end of two years, upon request, and to make the payments in cash. (Maurer v. King, 127 Cal. 114, 59 Pac. 290.) An undisclosed principal may recover money paid by his agent upon a contract in violation of this section. (Parker V. Otis, 130 Cal. 322, 92 Am. St. Eep. 56, 62 Pac, 571.) 169 CONSTITUTION OF 1879. Art. IV, § 26 This provision is not to be confined to the particular person handing over the money. (Parker v. Otis, 130 Cal. 322, 92 Am. St. Eep. 56, 62 Pac. 571.) This provision will not be so construed as to permit an evasion of it. (Parker v. Otis, 130 Cal. 322, 92 Am. St. Rep. 56, 62 Pac. 571.) An agreement by which the broker is to purchase stock, charging the customer with commissions and the interest on the money advanced, and holding the stocks as security until their sale, the customer simplj' receiving and paying the differ- ence between the buying and selling values of the stock, is in violation of this section. (Cashman v. Root, 89 Cal. 373, 23 Am. St. Rep. 482, 26 Pac. 883, 12 L. R. A. 511.) The payment of a mere margin of the cost price of stock to brokers, under an agreement that the brokers were to make advances for the purchaser, and hold the stock purchased as security for their advances, with power to sell to jjrotect their interest, without delivery to the purchaser of any particular shares of stock purchased, but with readiness of the brokers at any time on demand to deliver a like number of shares upon payment of all balance due, is within the prohibition of this section. (Parker v. Otis, 130 Cal. 322, 92 Am. St. Eep. 56, 62 Pac. 571.) A contract made with stockbrokers for the purpose of specu- lating in stocks, to purchase a number of shares on margin, without knowing of whom or where they were to be bought, to be delivered at a future day, if at all, with the under- standing that in case of decline margin was to be kept good, and brokers to retain shares as security and sell when security should be endangered, violates this provision. (Stillwell v. Cutter, 146 Cal. 657, 80 Pac. 1071.) One who sues to recover money voluntarily paid for the purchase of stocks on margins or to be delivered at a future day, in violation of this provision, is not entitled to recover interest thereon. (Baldwin v. Zadig, 104 Cal. 594, 38 Pac. 363.) Evidence held to show a sale upon margins. (Poelitz v. Wickersham, 150 Cal, 238, 88 Pac. 911.) Art. IV, § 27 CONSTITUTION OF 1879. 170 Congressional and senatorial districts. Sec. 27. When a congressional district shall be com- posed of two or more counties, it shall not be separated by any county belonging to another district. No county, or city and county, shall be divided in forming a con- gressional district so as to attach one portion of a county, or city and county, to another county, or city and county, except in cases where one county, or city and county, has more population than the ratio required for one or more congressmen; but the legislature may divide any county, or city and county, into as many congressional districts as it may be entitled to by law. Any county, or city and county, containing a popula- tion greater than the number required for one con- gressional district, shall be formed into one or more congressional districts, according to the population thereof, and any residue, after forming such district or districts, shall be attached by compact adjoining as- sembly districts, to a contiguous county or counties, and form a congressional district. In dividing a county, or city and county, into congressional districts, no assembly district shall be divided so as to form a part of more than one congressional district, and every such con- gressional district shall be composed of compact con- tiguous assembly districts. CONGRESSIONAL DISTRICTS.— As to the apportionment of the state in general, see note to section 6 of this article. 171 CONSTITUTION OF 1879. Art. IV, §§ 28-30 Elections by legislature to be viva voce. Sec. 28. In all elections by the legislature the mem- bers thereof shall vote viva voce, and the votes shall be entered on the journal. General appropriation bill, what to contain. Sec. 29. The general appropriation bill shall contain no item or items of appropriation other than such as are required to pay the salaries of the state officers, the expenses of the government, and of the institutions under the exclusive control and management of the state. GENERAL APPROPRIATION BILL.— The general appro- priation bill cannot create an office. (Lewis v. Colgan, 115 Cal. 529, 47 Pac. 357.) Restriction on appropriations and grants of aid. Sec. 30. Neither the legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant any- thing to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university, hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any city, city and county, town, or other Art. IV, § 31 CONSTITUTION OF 1879. 172 municipal corporation for any religious creed, church, or sectarian purpose whatever; provided, that nothing in this section shall prevent the legislature granting aid pursuant to section twenty-two of this article. Credit of state or municipalities not to be loaned. Sec. 31. The legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the state, or of any county, city and county, city, township, or other political corporation or sub- division of the state now existing, or that may be here- after established, in aid of or to any person, associa- tion, or corporation, whether municipal or otherwise, or to pledge the credit thereof, in any manner whatever, for the payment of the liabilities of any individual, as- sociation, municipal or other corporation whatever; nor shall it have power to make any gift, or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corpora- tion whatever; provided, that nothing in this section shall prevent the legislature granting aid pursuant to section twenty-two of this article; and it shall not have power to authorize the state, or any political subdivision thereof, to subscribe for stock, or to become a stock- holder in any corporation whatever. AID TO PRIVATE ENTERPRISE,— An appropriation to a railroad company to aid in building a railroad, in considera- tion of valuable services, is not a gift or loan of the credit of the state. (People v. Pacheco, 27 Cal. 175.) Art. IV, Sec. 31. Insert at Page 172. Sec. 31. The legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the state, or of any county, city and county, city, township, or other political corporation or subdivision of the state now existing, or that may be hereafter established, in aid of or to any person, association, or corporation, whether municipal or otherwise, or to pledge the credit thereof, in any man- ner whatever, for the payment of the liabilities of any individual, association, municipal or other corporation whatever; nor shall it have power to make any gift, or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever; provided, that nothing in this section shall prevent the legislature granting aid pursuant to section twenty-two of this article ; and it shall not have power to authorize the state or any political subdivision thereof, to subscribe for stock, or to become a stockholder in any corporation shall prevent the legislature granting aid pursuant to sec- tion twenty-two of this article; and it shall not have power to authorize the state, or any political sub- division thereof, to subscribe for stock, or to become a stockholder in any corporation whatever; provided, further, that irrigation districts for the purpose of acquiring the control of any entire international water system necessary for its use and purposes, a part of which is situated in tlir United States, and a part thereof in a foreign country, may in the manner authorized by law, acquire the stock of any foreign corporation which is the owner of, or which holds the title to the part of such system situated in a foreign country. (Amendment adopted November 3, 1914.) 173 CONSTITUTION OF 1879. Art. IV, § 31 Under the former constitution, the legislature might compel a county to become a sul)scribcr to a railroad, and the legis- lature was the sole judge of the question as to whether the railroad was a public benefit. (Napa Valley R. R. Co. v. Napa Co., 30 Cal. 435.) GIFTS. — A statute will not be held unconstitutional on the ground that it makes a gift, unless its invalidity appears upon its face or from facts of which the court takes judicial notice. (Conlin v. Supervisors, 99 Cal. 17, 37 Am. St. Rep. 17, 33 Pac. 753, 21 L. R. A. 474; Stevenson v. Colgan, 91 Cal. 649, 25 Am. St. Rep. 230, 27 Pac. 1089, 14 L. R. A. 457; Rankin V. Colgan, 92 Cal. 605, 28 Pac. 673; Bourn v. Hart, 93 Cal. 321, 27 Am. St. Rep. 203, 28 Pac. 951, 15 L. R. A. 431.) The courts will take judicial notice that in no case would a city be liable for any portion of the expense of street im- provements; and, therefore, an act appropriating money for the same is unconstitutional. (Conlin v. Supervisors, 99 Cal. 17, 37 Am. St. Rep. 17, 33 Pac. 753, 21 L. R. A. 474.) A gift as used in this section includes all appropriations for which there is no authority or enforceable claim, or which rest alone upon some moral or equitable obligation, which in the mind of a generous or even just individual, dealing with his own money, might prompt him to recognize as worthy of reward. (Conlin v. Supervisors, 99 Cal. 17, 37 Am. St. Rep. 17, 33 Pac. 753, 21 L. R. A. 474.) A gift within the meaning of this section is a gratuitous transfer of the property of the state, made voluntarily and without consideration. (Yosemite Stage etc. Co. v. Dunn, 83 Cal. 264, 23 Pac. 369.) Under the former constitution the legislature might author- ize the payment of claims invalid in law, but equitable and just in themselves. (Blanding v. Burr, 13 Cal. 343; Creighton v. San Francisco, 42 Cal. 446.) But a mere moral obligation will not make a transaction other than a gift. (Molineux v. California, 109 Cal. 378, 50 Am. St. Rep. 49, 42 Pac. 34.) The legislature has no power to make gifts to its employees or to allow them extra compensation after service rendered. (Robinson v. Duun, 77 Cal. 473, 11 Am. St. Rep. 297, 19 Pac. 878.) Art. IV, § 31 CONSTITUTION 'op 1879. 174 The legislature has no power to create a liability against the state for any act of negligcuce on the part of its officers. (Chapman v. State, 104 Cal. 690, 43 Am. St. Eep. 158, 38 Pac. 457.^ The legislature has power to waive the statute of limitations in respect to a claim against the state. (Bickerdike v. State of California, 144 Cal. 681, 78 Pac. 270.) A mere change in the remedy does not create a liability against the state. (Chapman v. State, 104 Cal. 690, 43 Am. St. Eep. 158, 38 Pac. 457.) An act attempting retroactively to exempt resident nephews and nieces from the payment of unpaid taxes upon collateral inheritances is in violation of this provision. (Estate of Stanford, 126 Cal. 112, 54 Pac. 259, 58 Pac. 462, 45 L. E. A. 788.) A purchase of an unexpired lease of the Yosemite and Wawona wagon road, made by the Yosemite commissioners, is not a gift. (Yosemite Stage etc. Co. v. Dunn, 83 Cal. 264, 23 Pac. 369.) A law attempting to confer a right to recover interest on coupons upon which there was before no right to recover in- terest is a gift. (Molineux v. California, 109 Cal. 378, 50 Am. St. Eep. 49, 42 Pac. 34.) An act creating an exempt firemen's relief fund, and re- quiring municii^alities to aid exempt firemen who never ren- dered them any service, and thus creating a liability where none existed before, is in violation of this section. (Taylor v. Mott, 123 Cal. 497, 56 Pac. 256.) As to whether a contract by a municipal corporation to pay money to any person or corporation to secure the con- struction of a railroad would be in violation of this section, see Higgins v. San Diego Water Co., 118 Cal. 524, 546, 45 Pac. 824, 50 Pac. 670. An act providing a bounty on coyote scalps does not con- stitute a gift. (Ingram v. Colgan, 106 Cal. 113, 46 Am. St. Eep. 221, 38 Pac. 315, 39 Pac. 437, 28 L. E. A. 187.) The mere fact that the city enjoyed the actual advantage of certain street improvements does not create any moral obligation, and cannot support a statute appropriating money for the same. (Conlin v. Supervisors, 99 Cal. 17, 37 Am. St. Eep. 17, 33 Pac. 753, 21 L. E. A. 474.) 175 CONSTITUTION OF 1879. Art. IV, § 31 An act appropriating five thousand dollars for the benefit of the sufferers from the Tla Juana floods is clearly violative of this provision. (Patty v. Colgan, 97 Cal. 251, 31 Pac. 1133, 18 L. E. A. 744.) An appropriation in payment of a claim for damages on account of personal injuries sustained while in the service of the state, and for which the state is not responsible, is a gift. (Bourn v. Hart, 93 Cal. 321, 27 Am. St. Kep. 203, 28 Pac. 951, 15 L. R. A. 431.) An act creating a police life and health insurance fund, and providing for the payment into such fund of a certain portion of the salaries of police officers, does not make a gift of public money. (Pennie v. Eeis, 80 Cal. 266, 22 Pac. 176.) An act directing the payment of the salary of an oiilcer of an irrigation district out of the funds of the county is in violation of this provision. (Knox v. Los Angeles, 58 Cal. 59.) The provision of the Political Code for the repayment to purchasers of sv/amp lands of the amounts which they had paid for their lands, being a part of the contract between them and the state, is not a gift of public money. (McCoid V. Slavin, 143 Cal. 325, 76 Pac. 1104.) An act providing for the payment of fees to jurors for past services, where there was no previous liability therefor, is in violation of this section. (Powell v. Phelan, 138 Cal. 271, 71 Pac. 335.) After the right of the state to an inheritance tax has be- come vested by death, the legislature cannot, by repeal of the act creating it, affect the right of the state thereto. (Estate of Lander, 6 Cal. App. 744, 93 Pac. 202.) The amendment of 1895 to the act providing for the forma- tion of agricultural associations, authorizing the transfer of all the property of such an association to a private corporation formed within the association, to be used and disposed of for the benefit of such corporation and its stockholders (subject to certain limitations) is an attempted gift of public property. (Sixth District Agr. Assn. y, Wright, 154 Cal. 119, 97 Pac, 144.) Under this section the legislature is without power, either by the repeal of the law in virtue of which the right to a tax under the inheritance tax law vested, or by any other Art. IV, § 32 CONSTITUTION OF 1879. 176 means, to grant or donate it to the successor in estate, or to any other person. (Estate of Martin, 153 Cal. 225, 94 Pac. 1053.) After the right of the state to a collateral inheritance tax has become vested by the death of the decedent, the legislature cannot surrender the same by any repeal or change in the law. (Trippet v. State, 149 Cal. 521, 86 Pac. 1084, 8 L. R. A., N. S., 1210.) An appropriation for the support of the veterans of the Civil War at the Woman's Eelief Corps Home Association is not a gift. (Board v. Nye, 8 Cal. App. 527, 97 Pac. 208.) Extra compensation to officers forbidden. Sec. 32. The legislature shall have no power to grant, or authorize any county or municipal authority to grant, any extra compensation or allowance to any public officer, agent, servant, or contractor, after service has been rendered, or a contract has been entered into and performed, in whole or in part, nor to pay, or to authorize the payment of, any claim hereafter created against the state, or any county or municipality of the state, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void. EXTRA COMPENSATION.— The word "law" as used in this section is used in the same sense as the word "statute," and includes an unconstitutional statute. (Miller v. Dunn, 72 Cal. 462, 1 Am. St. Rep. 67, 14 Pac. 27.) This section does not prevent the legislature from making an appropriation to pay a claim for work done on behalf of the state, in pursuance of an act of the legislature, which is judicially declared unconstitutional after the performance of the work. (Miller v. Dunn, 72 Cal. 462, 1 Am. St. Rep. 67, 14 Pac. 27.) 177 CONSTITUTION OF 1879. Art. IV, § 32 The legislature cannot retroactively give an officer increased compensation over that fixed by law when his terra commcuced, by ratifying the payment of such increased compensation. (County of Butte v. Merrill, 141 Cal. 396, 74 Pac. 1036.) An act creating an exempt firemen's relief fund, and re- quiring municipalities to aid exempt firemen who never ren- dered them any service, and thus creating a liability where none existed before, is in violation of this section. (Taylor v. Mott, 123 Cal. 497, 56 Pac. 256.) The legislature has no power to make gifts to its employees or to allow them extra compensation after service rendered. (Robinson v. Dunn, 77 Cal. 473, 11 Am. St. Rep. 297, 19 Pac. 878.) A contract by a board of supervisors, employing the district attorney to try a suit in another county after the expiration of his term of office, does not increase his salary as district attorney, and is valid. (Jones v. Morgan, 67 Cal. 308, 7 Pac. 734.) An act making an appropriation to pay the salary of an officer during a certain period before the amount of the salary has been fixed is not in violation of this section. (Smith v. Dunn, 64 Cal. 164, 28 Pac. 232.) An act providing for a police life and health insurance fund does not grant an extra compensation in violation of this sec- tion. (Pennie v. Reis, 80 Cal. 266, 22 Pac. 176.) A contract by the clerk of the board of supervisors to collect a claim against the state and divide the commission with the district attorney is in violation of this section. (Power v. May, 114 Cal. 207, 46 Pac. 6.) Although there is no express authority of law for the board of examiners to appoint an expert, they have the power, since, in addition to its express powers, a board has such additional powers as are necessary for the due and efficient exercise of powers expressly granted, or as may be fairly implied. (Lewis v. Colgan, 115 Cal. 529, 47 Pac. 357.) An act appropriating money for the salary of an expert to the board of examiners is valid, and the employment of such expert by the board is not void as being without express au- thority of law. (Lewis v. Colgan, 115 Cal. 529, 47 Pac. 357.) Constitution — 12 Art. IV, §§ 33, 34 constitution of 1879. 178 Charges of gas and telegraph corporations to be regu- lated. See. 33. The legislature shall pass laws for the regu- lation and limitation of the charges for services per- formed and commodities furnished by telegraph and gas corporations, and the charges by corporations or in- dividuals for storage and wharfage, in which there is a public use; and where laws shall provide for the selection of any person or officer to regulate and limit such rates, no such person or officer shall be selected by any corporation or individual interested in the busi- ness to be regulated, and no person shall be selected who is an officer or stockholder in any such corporation. WATER KATES. — As to water and gas rates, see note to eection 1, article 14, and section 19, article 11. This section does not make it necessary for the legislature to pass laws regulating the manner in which the authority conferred by section 19, article 11, shall be exercised, before that section becomes operative. (Denninger v. Kecorder's Court, 145 Cal. 629, 79 Pac. 360.) Special appropriation bill, restriction as to. Sec. 34. No bill making an appropriation of money, except the general appropriation bill, shall contain more than one item of appropriation, and that for one single and certain purpose to be therein expressed. APPROPRIATIONS. — The fact that an act making two or more distinct appropriations has but one general purpose will not render it consistent with this provision of the constitution. (Murray v. Colgan, 94 Cal. 435, 29 Pac. 871.) 179 CONSTITUTION OP 1879. Art. IV, § 35 An act making an appropriation for a county for rar.ne fi'osr, and also an appropriation for the salary of a state siipar- intendent of ramie culture, is in violation of this section. (Murray v. Colgan, 94 Cal. 435, 29 Pac. 871.) An act appropriating money for the purchase of a site for a home for feehle-minded children, and for the erection of buildings thereon, is not in violation of this section. (People V. Dunn, 80 Cal. 211, 13 Am. St. Kep. 118, 22 Pac. 140.) An act making an appropriation to pay the separate claims of five different persons for services rendered a receiver ap- pointed at the suit of the state violates this section. (Sullivan V. Gage, 145 Cal. 759, 79 Pac. 537.) See, also. People v. Counts, 89 Cal. 15, 19, 26 Pac. 612; State V. Sloan, 53 S. W. 47. Lobbying defined — Punishment for. Sec. 35. Any person who seeks to influence the vote of a member of the legislature by bribery, promise of rewiard, intimidation, or any other dishonest means, shall be guilty of lobbying, which is hereby declared a felony; and it shall be the duty of the legislature to provide, by law, for the punishment of this crime. Any member of the legislature, who shall be influenced in his vote or action upon any matter pending before the legislature by any reward, or promise of future reward, shall be deemed guilty of a felony, and upon conviction thereof, in addition to such punishment as may be provided by law, shall be disfranchised and forever disqualified from holding any office or public trust. Any person may be compelled to testify in any lawful investigation or judicial proceeding against any person who may be charged with having committed the Art. IV, § 35 CONSTITUTION OP 1879. 180 offense of bribery or corrupt solicitation, or with having been influenced in his vote or action, as a member of the legislature, by reward, or promise of future reward, and shall not be permitted to withhold his testimony upon the ground that it may criminate himself or sub- ject him to public infamy; but such testimony shall not afterward be used against him in any judicial proceed- ing, except for perjury in giving such testimony. LOBBYING. — The term "lobbying" signifies to address or solicit members of a legislative body with the purpose of influencing their votes. (Colusa Co. v. Welch, 122 Cal. 428, 55 Pac. 243; Le Tourneux v. Gilliss, 1 Cal. App. 546, 82 Pac. 627.) Services rendered by an attorney in endeavoring to persuade the members of the legislature individually to act favorably upon a bill, in which no dishonest, secret, or unfair means were used, do not constitute "lobbsring" within the meaning of this section. (Foltz v. Cogswell, 86 Cal. 542, 25 Pac. 60. Approved in Colusa Co. v. Welch, 122 Cal. 428, 55 Pac. 243.) A contract to pay to secure, by means of personal solicita- tion, and by means of private interviews with members of the legislature, and by means of lobbying, the defeat of a bill pending in the legislature, is prohibited by this section. (Colusa Co. V. Welch, 122 Cal. 428, 55 Pac. 243.) A contract, the object of which is to aid one of the parties to engage in the business of lobbying, will not be enforced. (Le Tourneux v. Gilliss. 1 Cal. App. 546. 82 Pac. 627.) In order to show that certain acts constitute "lobbying," it is not necessary to show that any corrupt means were used to influence votes. (Le Tourneux t. Gilliss, 1 Cal. App. 546, 82 Pac. 627.) This section does not take away the power of the legislature to define legislative bribery and to fix the punishment therefor. (In re Bunkers, 1 Cal. App. 61, 81 Pac. 748.) Nor does it limit the power of the legislature itself to expel a member for bribery under section 9 of this article. (French V. Senate, 146 Cal. 604, 80 Pac. 1031, 2 Ann. Cas. 756.) 181 CONSTITUTION OP 1879. Art. IV, § 36 State highways. Sec. 36. The legislature shall have power to estab- lish a system of state highways or to declare any road a state highway, and to pass all laws necessary or proper to construct and maintain the same, and to extend aid for the construction and maintenance in whole or in part of any county highway. (Amendment adopted November 4, 1902.X Art, V, § 1 CONSTITUTION OP 1879. 182 ARTICLE V. EXECUTIVE DEPAETMENT. Executive power vested in governor. Election of governor and term of ofSce. Eligibility and qualifications. Eeturns of election — Counting votes. Governor to be commander-in-cliief of militia. Executive business of. To see that laws are executed. To fill vacancies in office. "When to convene special sessions. Messages to legislature. When to adjourn legislature. Disability to hold other offices. Keeper of seal of state. To sign and seal grants and commissions. Lieutenant-governor — Election of, etc. When powers of governor devolve on. State officers — Election and terms of office. Secretary of state — Duties of. Compensation of state officers. Governor — Ineligible to United States senate. Executive power vested in governor. Section 1. The supreme executive power of this state shall be vested in a chief magistrate who shall be styled the Governor of the State of California. THE GOVERNOR.— When a ministerial duty, affecting a private right, is specially devolved on the governor by law, he may be compelled to perform the same by writ of man- § 1. § 2. § 3. § 4. § 5. § 6. § 7. § 8. § 9. § 10. § 11. § 12. § 13. § 14. § 15. § 16, § 17. § 18. § 19. § 20. 183 CONSTITUTION OF 1879, Art. V, §§2-4 date. (Middleton v. Low, 30 Cal. 596 j Harpending v. Haight, 39 Cal. 189, 2 Am. Eep. 432.) Election of governor and term of office. Sec. 2. The governor shall be elected by the quali- fied electors at the time and places of voting for mem- bers of the assembly, and shall hold his office four years from and after the first Monday after the first day of January subsequent to his election, and until his suc- cessor is elected and qualified. TERM. — The term is fixed at four years certain, with a contingent extension. When this contingency happens, this extension is as much a part of the entire term as any portion of the four years. (People V. Whitman, 10 Cal. 38.) Eligibility and qualifications. Sec. 3. No person shall be eligible to the office of governor who has not been a citizen of the United States and a resident of this state five years next preceding his election, and attained the age of twenty-five years at the time of such election. Returns of election — Counting votes. Sec. 4. The returns of every election for governor shall be sealed up and transmitted to the seat of gov- ernment, directed to the speaker of the assembly, who shall, during the first week of the session, open and publish them in the presence of both houses of the legis- lature. The person having the highest number of votes shall be governor; but, in case any two or more Art. V, § § 5-8 CONSTITUTION OP 1879. 184 have an equal and the highest number of votes, the legis- lature shall, by joint vote of both houses, choose one of such persons so having an equal and the highest num- ber of votes for governor. Governor to be commander-in-chief of militia. Sec. 5. The governor shall be commander-in-chief of the militia, the army and navy of this state. Executive business of. Sec. 6. He shall transact all executive business with the officers of government, civil and military, and may require information, in writing, from the officers of the executive department, upon any subject relating to the duties of their respective offices. To see that laws are executed. Sec. 7. He shall see that the laws are faithfully executed. EXECUTE LAWS.— In the absence of a provision in the "San Francisco Sea-Wall Act," for the publication required by article 16, the duty to provide for the publication devolved upon the governor. (Spear v. Eeeves, 148 Cal. 501, 83 Pac. 432.) To fill vacancies in office. Sec. 8. When any office shall, from any cause, be- come vacant, and no mode is provided by the constitu- tion and law for filling such vacancy, the governor shall have power to fill such vacancy by granting a commis- 185 CONSTITUTION OF 1879. Art. V, § 8 sion, wliich shall expire at the end of the next session of the legislature, or at the next election by the people. APPOINTMENT OF OFFICERS.— After tlie issuance of the commission, the governor cannot revoke the appointment. (People V. Cazneau, 20 Cal. 503.) The words "constitution and law" mean constitution or law. (People V. Nye, 9 Cal. App. 148, 98 Pac. 241.) Where an officer is to be appointed by the governor by and with the consent of the senate, and the governor makes an appointment during the recess of the legislature, he cannot, before such appointee is rejected by the senate, appoint an- other person to the office. (People v. Mizner, 7 Cal. 519.) An appointment by the governor only lasts till the next election by the people, (Brooks v. Melony, 15 Cal. 58.) The words "next election by the people" do not mean the next general election, or the next election held by the people, but that the appointee shall hold until some one has boon regularly elected to fill that office in the manner provided by law; and as applied to the lieutenant-governor it means the next gubernatorial election. (People v. Budd, 114 Cal. 168, 45 Pac. 1060, 34 L. R. A. 46.) The words "next election by the people" mean the next election after the vacancy happens, and in cases of judges, does not mean the next general judicial election. (People v. Mott, 3 Cal. 502.) This provision is to be read distrihutively, so that, if the office is elective, the appointee shall hold till the next election, and if not elective, till the end of the next session of the legislature, which shall either elect a successor or enact laws for his election. (People v. Mott, 3 Cal. 5-02.) Oflicers. — The term "officer," as used in this section, is suffi- ciently comprehensive to include all persons in any public station or employment conferred by the government, and in- cludes the clerks of the secretary of state. (Vaughn v. Eng- lish, 8 Cal. 39.) Vacancies. — This provision applies only to vacancies occur- ring under circumstances such that the original appointing or electing power cannot act. Such power is limited by the period when the people or the legislature can elect or appoint, Art. V, § 8 CONSTITUTION OF 1879. 186 on the arrival of which period his power ceases and the right of appointment returns to the original appointing power. (People V. Fitch, 1 Cal. 519.) Before this section can apply two things must be shown: 1. That a vacancy exists; and 2. That no mode of filling it is provided by law. (People v. Mizuer, 7 Cal. 519.) This section has no api^lieation to the filling of a vacancy, the mode of filling which is provided by law. (People v. Cazneau, 20 Cal. 503; People v. Stratton, 28 Cal. 382.) As to whether or not this section has any apjilication to local officers, see People v. Hammond, 66 Cal. 654, 6 Pac. 741. The power to fill an office carries with it, by implication, the power to fill a vacancy, and all necessary authority to carry out the original power, and prevent it from becoming inoperative. (People v. Fitch, 1 Cal. 519.) If an act creating an office provides that the incumbent of another office shall, ex officio, fill the office created, and the incumbent is prohibited by the constitution from holding the office, there is no vacancy. (People v. Sanderson, 30 Cal. 160.) When a district judge resigns during his term, there is a vacancy to be filled by the governor, and the appointee will hold until the next general election, or at most until the qualification of the person elected by the people. (People v. Kosborough, 14 Cal. 180.) Where an officer continues to discharge the duties of the office after the expiration of his term, and before the quali- fication of his successor, there is no vacancy in the office within the meaning of this section. (People v. Edwards, 93 Cal. 153, 28 Pac. 831.) Absence of a judge from the state does not create a vacancy within the -meaning of this section. (People v. Wells, 2 Cal. 198, 610, Anderson, J., dissenting.) The legislature has no power to determine when a vacancy exists within the meaning of this section. (People v. Wells, 2 Cal. 198, 610; People v. Mizner, 7 Cal. 519.) When the constitution clearly enumerates the events that shall constitute a vacancy in a particular office, all others must be excluded. (People v. Whitman, 10 Cal. 38.) Failure of an elected officer to qualify does not create a vacancy in the office. (People v. Whitman, 10 Cal. 38.) 187 CONSTITUTION OF 1879. Art. V, § 8 No vacancy occurs by the death, removal, or resignation of a sheriff, as the coroner, by operation of law, becomes sheriff upon the happening of such an event. (People v. Phoenix, 6 Cal. 92.) As to whether a failure to elect a successor leaves an office vacant at the expiration of the term, see People v. Parker, 37 Cal. 639. Particular cases. — If the office of lieutenant-governor be- comes vacant during his term of office, the governor may fill the vacancy for the full remainder of the unexpired term. (People v. Budd, 114 CaL 168, 45 Pac. 1060, 34 L. E. A. 46.) Where a fire commissioner was appointed under the act of 1878 by the judge of the county court for the term of four years and until his successor is appointed and qualified, and the new constitution superseded the appointing functions of such judge and did not vest them in any other person, such commissioner holds over, and there is no vacancy in the office. (People V. Edwards, 93 Cal. 153, 23 Pac. 831.) Where the position of state printer becomes vacant during the session of the legislature, which was the appointing power, the governor has no power to appoint a successor. (People V. Fitch, 1 Cal. 519.) Where the district judge was to be appointed by the legis- lature for the first term and thereafter elected by the people, and the legislature failed to appoint, and the governor appoints to fill the vacancy, the person so appointed only holds till the next election, and not till the next session of the legislature. (People V. Mott, 3 Cal. 502.) Where an officer is appointed by the legislature to hold for two years, and until his successor is appointed and qualified, and the succeeding legislature fails to elect, the governor may appoint. (People v. Eeid, 6 Cal. 288.) Where the legislature fails to elect a successor to an officer at the expiration of the term, the governor may appoint. (People v. Baine, 6 Cal. 509; People v. Langdon, 8 Cal. 1.) Where the appointment of an officer is vested in the gov- ernor, with the advice and consent of the senate, and the terra expires during the recess of the senate, the governor may fill such vacancy for the full term, subject only to be defeated by nonconcurrence by the senate. (People v. Addison, 10 Caf. Art. V,§§ 9-11 CONSTITUTION OP 1879. 188 When the legislature provides that in case of a vacancy in a particular office a board shall fill it until the next session of the legislature, the filling of the vacancy is provided for within the meaning of this section, and no vacancy is caused by the failure of the legislature to elect. (People v. Parker, 37 Cal. 639.) When to convene special sessions. Sec. 9. He may, on extraordinary occasions, con- vene the legislature by proclamation, stating the pur- poses for which he has convened it, and when so con- vened it shall have no power to legislate on any subjects other than those specified in the proclamation, but may provide for the expenses of the session and other mat- ters incidental thereto. EXTRA SESSIONS.— The confirmation of appointments by the governor is not legislation within the meaning of this section. (People v. Blanding, 63 Cal. 333.) But the proposing of constitutional amendments is such legis- lation. (People v. Curry, 130 Cal. 82, 62 Pac. 516.) The governor is the sole judge of the existence of an ex- traordinary occasion for convening the legislature. (Whitman V. Wilmington etc. E. R. Co., 2 Harr. (Del.) 514, 33 Am. Dec. 411.) Messages to legislature. Sec. 10. He shall communicate by message to the legislature, at every session, the condition of the state, and recommend such matters as he shaU deem expedient. When to adjourn legislature. See. 11. In case of a disagreement between the two houses with respect to the time of adjournment, the 189 CONSTITUTION OF 1879. Art. V, §§ 12-U governor shall have power to adjourn the legislature to such time as he may think proper; provided, it be not beyond the time fixed for the meeting of the next legis- lature. Disability to hold other ofTices. Sec. 12. No person shall, while holding any office under the United States or this state, exercise the office of governor except as hereinafter e xpressly provided. Keeper of seal of state. Sec. 13. There shall be a seal of this state, which shall be kept by the governor, and used by him officially, and shall be called "The Great Seal of the State of California." To sign and seal grants and commissions. Sec. 14. All grants and commissions shall be in the name and by the authority of the people of the state of California, sealed with the great seal of the state, signed by the governor, and countersigned by the secre- tary of state. TAX DEEDS. — The fact that a tax deed is not executed in the manner provided by this section does not affect its valid- ity. (Schamblin v. Maus, 6 Cal. App. 2G1, 91 Pac. 1020.) Lands acquired by tlie state for nonpayment of taxes are not within the ])urview of this section, and the state may make the tax collector or any other person its agent and attorney in fact for the passing of the legal title to such lands. (Bank of Lemoore v. Fulgham, 151 Cal. 234, 90 Pac. 936.) Art. V, §§ 15, 16 CONSTITUTION OF 1879. 190 Lieutenant-governor — Election of, etc. Sec. 15. A lieutenant-governor shall be elected at the same time and place, and in the same manner, as the governor, and his term of office and his qualifica- tions shall be the same. lie shall be president of the senate, but shall only have a casting vote therein. (Amendment adopted November 8, 1898.) [ORIGINAL SECTION.] Sec. 15. A lieutenant-governor shall be elected at the same time and place, and in the same manner, as the governor; and his term of oflBce and his qualifications of eligibility shall also be the same. He shall be president of the senate, but shall have only a casting vote therein. If, during a vacancy of the office of governor, the lieutenant-governor shall be im- peached, displaced, resign, die, or become incapable of per- forming the duties of his office, or be absent from the state, the president pro tempore of the senate shall act as governor until the vacancy be filled or the disability shall cease. The lieutenant-governor shall be disqualified from holding any other office, except as specially provided in this constitution, during the term for which' he shall have been elected. When powers of governor devolve on. Sec. 16. In case of the impeachment of the governor, or his removal from office, death, inability to discharge the powers and duties of his office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant-governor for the residue of the term, or until the disability shall cease. And should the lieutenant-governor be impeached, dis- 191 CONSTITUTION OF 1879. Art. V, § 17 placed, resign, die, or become incapable of performing the duties of his office, or be absent from the state, the president pro tempore of the senate shall act as gov- ernor until the vacancy in the office of governor shall be filled at the next general election, when members of the legislature shall be chosen, or until such disability of the lieutenant-governor shall cease. In case of a vacancy in the office of governor for any of the reasons above named, and neither the lieutenant-governor nor the president pro tempore of the senate succeed to the powers and duties of governor, then the powers and duties of such office shall devolve upon the speaker of the assembly, until the office of governor shall be filled at such general election. (Amendment adopted Novem- ber 8, 1898.) [ORIGINAL SECTION.] Sec. 16. In case of the impeachment of the governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant-governor for the residue of the term, or until the disability shall cease. But when the governor shall, with the consent of the legislature, be out of the state in time of war, at the head of any military force thereof, he shall con- tinue commander-in-chief of all the military force of the state. State officers — Election and terms of office. Sec. 17. A secretary of state, a controller, a treas- urer, an attorney general, and a surveyor general shall Art. V, § 17 CONSTITUTION OF 1879. 192 be elected at the same time and places, and in the same manner as the governor and lieutenant-governor, and their terms of office shall be the same as that of the governor. EXECUTIVE OFFICERS.— Neither an appointment by the governor, nor an election by the people, had before the election of governor, can deprive the people of their right to fill the office of controller at such election. (Brooks v. Melony, 15 Cal. 58.) The controller is a ministerial officer and has no discretion as to the issuance of warrants for appropriations. (McCauley V. Brooks, 16 Cal. 11.) Although the constitution is wholly silent as to the duties of the attorney general, secretary of state, controller, and treas- urer, and contains no express limitation on the power of the legislature as to the same, yet a limitation on their power is necessarily implied from the nature of these offices. (Love v. Bachr, 47 Cal. 364.) The legislature may devolve on the secretary of state the per- formance of services foreign to the office, and may pay him a salary therefor in addition to his salary as secretary of state. (Melone v. State, 51 Cal. 549; Green v. State, 51 Cal. 577.) In assigning duties to these officers, the legislature possesses a wide discretion, and while the legislature cannot compel the attorney general to perform the duties of a member of the board of examiners, it may compensate him for doing so volun- tarily. (Love V. Baehr, 47 Cal. 364.) The term of the controller begins on the first Monday after the first day of January. (People v. Nye, 9 Cal. App. 148, 98 Pac. 241.) Where an incumbent of the office of controller dies after his election to a second term and before his qualification, an ap- pointee for the balance of the unexpired term would hold only to the beginning of the second term. (People v. Nye, 9 Cal. App. 148, 98 Pac. 241.) 193 CONSTITUTION OF 1879. Art. V, § § 18, 19 Secretary of state — Duties of. Sec. 18. The secretary of state shall keep a correct record of the official acts of the legislative and executive departments of the government, and shall, when re- ciuired, lay the same, and all matters relative thereto, before either branch of the legislature, and shall per- form such other duties as may be assigned him by law. Compensation of state officers. Sec. 19. The governor, lieutenant-governor, secre- tary of state, controller, treasurer, attorney general, and surveyor general shall, at stated times during their con- tinuance in office, receive for their services a compensa- tion which shall not be increased or diminished during the term for which they shall have been elected, which compensation is hereby fixed for the following officers, as follows: Governor, ten thousand dollars per annum; lieutenant-governor, four thousand dollars, the secretary of state, controller, treasurer, and surveyor general, five thousand dollars each per annum, and the attorney general, six thousand dollars per annum, such compensa- tion to be in full for all services by them respectively rendered in any official capacity or employment what- soever during their respective terms of office ; provided, however, that the legislature may, by law, diminish the compensation of any or all of such officers, but in no case shall have the power to increase the s,ame above Constitution — 13 Art. V, § 10 CONSTITUTION OF 1879. 194 the sums hereby fixed by this constitution. No salary shall be authorized by law for clerical service, in any office provided for in this article, exceeding eighteen hundred dollars per annum for each clerk employed. The legislature may, in its discretion, abolish the office of surveyor general ; and none of the officers hereinbe- fore named shall receive for their own use any fees or perquisites for the performance of any official duty. (Amendment adopted November 3, 1908.) [ORIGINAL SECTION.] Sec. 1&. The governor, lieutenant-governor, secretary of state, controller, treasurer, attorney general, and surveyor gen- eral shall, at stated times during their continuance in office, receive for their services a compensation which shall not be increased or diminished during the term for which they shall have been elected, which compensation is hereby fixed for the following officers for the two terms next ensuing the adoption of this constitution, as follows: Governor, six thousand dollars per annum; lieutenant-governor, the same per diem as may be provided by law for the speaker of the assembly, to be allowed only during the session of the legislature; the secretary of state, controller, treasurer, attorney general, and surveyor gen- eral, three thousand dollars each per annum, such compensation to be in full for all services by them respectively rendered in any official capacity or employment whatsoever during their respective terms of office; provided, however, that the legis- lature, after the expiration of the terms hereinbefore men- tioned, may, by law, diminish the compensation of any or all of such officers, but in no case shall have the power to increase the same above the sums hereby fixed by this constitution. No salary shall be authorized by law for clerical service, in any Art. V, Sec. 20. Insert at Page 195. Sec. 20. United States senators shall be elected by the people of the state in the manner provided by law. (Amendment adopted November 3, 1914.) 195 CONSTITUTION OF 1879. Art. V, § 20 office provided for in this article, exceeding sixteen hundred dollars per annum for each clerk employed. The legislature may, in its discretion, abolish the office of surveyor general j and none of the officers hereinbefore named shall receive for their own use any fees or perquisites for the performance of any official duty. Salaries of state officers. — The original provision of this sec- tion could not affect the power of the people to amend the same and increase the salaries of incumbents. (Kingsbury v. Nye, 9 Gal. App. 574, 99 Pac. 985.) The amendment to this section in 1908 applied to, and in- creased the salaries of, the incumbents. (Kingsbury v. Nye, 9 Cal. App. 57-±, 99 Pac. 985.) Governor — Ineligible to United States senate. Sec. 20. The governor shall not, during his term of office, be elected a senator to the senate of the United States. UNITED STATES SENATE.— This provision is invalid and not binding upon the United States senate. The qualification of members of that body being fixed by the United States con- stitution, additional ones cannot be required by the states. (Barney v. McCreery, 1 Cong. El. Cas. 167; Turney v. Marshall, 2 Cong. El. Cas. 1G7; Trumbull's Case, 2 Cong. EI. Cas. 618.) Art, VI, § 1 CONSTITUTION OF 1879. 196 ARTICLE VI. JUDICIAL DEPAKTMENT. § 1. Judicial powers. § 2. Supreme court, how constituted. § 3. Election of supreme justices. § 4. Jurisdiction of supreme court and courts of appeaL § 4^. Harmless errors to be disregarded. § 5. Superior court, jurisdiction. § 6. Superior court, how constituted. § 7. Superior judges, apportionment of business. § 8. Judge may hold court in other county — Judge pro tem- pore. § 9. Leave of absence — Limitation of time. § 10. Justices and judges, how removed. § 11. Justices of the peace, provision for. § 12. Courts of record. § 13. Jurisdiction of inferior courts to be fixed by legislature. § 14. Clerks of courts and court commissioners. § 15. Judicial officers not to receive fees and perquisites. § 16. Supreme court opinions to be published. § 17. Compensation of justices and judges. § 18. Justices and judges ineligible to other offices. § 19. Charges to juries. § 20. Style of process. § 21. Keporter of supreme court decisions. § 22. Judges not to practice law. § 23. Eligibility of justices and judges. § 24. Condition precedent to draft of salary. § 25. Supreme court commission. Judicial powers. Section 1. The judicial power of the state shall be vested in the senate, sitting as a court of impeachmeut, 197 CONSTITUTION OF 1879. Art. VI, § 1 in a supreme court, district courts of appeal, superior courts and such inferior courts as the legislature may establish in any incorporated city or toAvn, township, county, or city and county. (Amendment approved October 10, 19il.) [AMENDMENT OF 1904.] Section 1. The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts of appeal, superior courts, justices of the peace, and such inferior courts as the legislature may establish in any incorporated city or town, or city and county. (Amendment adopted November 8, 1904.) [OEIGINAL SECTION.] Section 1. The judicial power of the state shall be vested in the senate sitting as a court of impeachment, in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may establish in any incorporated city or town, or city and county. JUDICIAL DEPARTMENT — Pre- constitutional courts.— The correctness of the proceedings of the courts exercising civil juris- diction in California between the time of its acquisition by the United States and the establishment of a state government are not to be tested by the strict rules of the civil or common law. (Ryder v. Cohn, 37 Cal. 69.) Judicial power. — It is the inherent authority not only to de- cide but to make binding orders or judgments which constitutes judicial power. (People v. Ilayne, 83 Cal. Ill, 17 Am. St. Eep. 217, 23 Pac. 1, 7 L. R. A. 348.) The legislature cannot enjoin upon a private person the duty of settling a bill of exceptions, nor require a judge to continue to discharge judicial duties after his term of office has expired, though it may authorize him to settle such bill. (Leach v. Aitken, 91 Cal. 484, 28 Pac. 777.) Art. VI, § 1 CONSTITUTION OP 1879. 198 The matter of the adoption of children is not part of the judi- cial power within the meaning of this section, and may, there- fore, be confeired upon a judge as distinguished from the court. (In re Stevens, 83 Cal. 322, 17 Am. St. Rep. 252, 23 Pac. 379.) A tribunal presided over by a police judge is a court. (Boys' and Girls' Aid Soc. v. Reis, 71 Cal. 627, 12 Pac. 796.) The proceeding to establish title to land in San Francisco when the records were destroyed by fire is judicial in its nature. (Title etc. Restoration Co. v. Kerrigan, 150 Cal. 289, 119 Am. St. Rep. 199, 88 Pac. 356.) The legislature cannot confer jurisdiction of special cases upon a judge as distinguished from a court. (Spencer etc. Co. V. Vallejo, 48 Cal. 70.) An act creating supreme court commissioners to assist the court — which commissioners simply examine the record and re- port to the court their conclusions — is not unconstitutional as vesting judicial power in the commissioners. (People v. Hayne, 83 Cal. ill, 17 Am. St. Rep. 217, 23 Pac. 1, 7 L. R. A. 348.) The legislature may provide that the city council shall be the final and exclusive judge of the election of all municipal officers. (Carter v. Superior Court, 138 Cal. 150, 70 Pac. 1067.) The legislature cannot invest ministerial officers with the power to punish individuals by fine and imprisonment. (Burns V. Superior Court, 140 Cal. 1, 73 Pac. 597.) The legislature may invest judicial officers with power to punish for contempt. (Crocker v. Conrey, 140 Cal. 313, 73 Pae. 1006.) Inferior courts. — A freeholders' charter is not a law within the meaning of this section, and, therefore, an inferior court cannot be established by such charter. (People v. Toal, 85 Cal. 333, 24 Pac. 603; Miner v. Justice's Court, 121 Cal. 264, 53 Pac. 795; Ex parte Sparks, 120 Cal. 395, 52 Pac. 715.) This section limits the power of the legislature to the estab- lishment of municipal and inferior courts within the limits of an incorporated city or town. (Ex parte Stratman, 39 Cal. 517.) The municipal criminal court of San Francisco is an inferior court within the meaning of this section. (Ex parte Stratman, 39 Cal. 517; People v. Nyland, 41 Cal. 129.) The police court of San Francisco was not abolished by the constitutional amendments in 18C2. (People v. Provines, 34 Cal. 520.) 199 CONSTITUTION OF 1879. Art. VI, § 1 The term "municipal courts" hns a legal meaning and includes mayors' and recorders' courts. (Uridias v. Morrill, 22 Cal. 473.) The legislature may vest in inferior courts jurisdiction of cases of which the courts established by the constitution have jurisdiction. (Hickman v. O'Neal, 10 Cal. 292; Scale v. Mitchell, 5 Cal. 401; Vassault v. Austin, 36 Cal. 691 j Curtis v. Eichards, 9 Cal. 33.) Under this section, the legislature has power to create police or other inferior courts in any incorporated city or town which has not taken advantage of the permission granted by section 8% of article 11 to include in its charter provision for the establishment of a police court. (Fleming v. Hance, 153 Cal. 162, 94 Pac. 620.) The board of drainage commissioners created by the "Sacra- mento Drainage District" act, in equalizing assessments and correcting errors therein, is not exercising judicial functions in violation of the constitution. (People v. Sacramento Drainage Dist., 155 Cal. 373, 103 Pac. 207.) The legislature may authorize a municipal court to send its process beyond the territorial limits of the municipality. (Hickman v. O'Neal, 10 Cal. 292. Meyer v. Kalkman, 6 Cal. 582, overruled.) Judges of the police court of San Francisco are not affected by the provisions of the County Government Act, but derive their power from this section and the act of 1893. (Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620; In re Mitchell, 120 Cal. 384, 52 Pac. 799. But see People v. Cobb, 133 Cal. 74, 65 Pac. 325.) An act creating police courts in cities having fifteen thou- sand, and under eighteen thousand, inhabitants, not being in conformity with the general classification of municipal cor- porations, is void. (Ex parte Giambonini, 117 Cal. 573, 49 Pac. 732.) An act creating a justice's court for one particular named town, and fixing its jurisdiction, is not authorized by this sec- tion. (Miner v. .Justice's Court, 121 Cal. 264, 53 Pac. 795.) An act {iroviding for a police judge necessarily presupposes a police court. (Kx parte Mauch, 131 Cal. 500, 66 Pac. 734.) The late superior court of San Francisco was an inferior court, but its jirocess ran outside of the city. (Chii)man v. Bowman, 14 Cal. 157; McCaulcy v. Fulton, 44 Cal. 355.) Art. VI, § 2 CONSTITUTION OP 1879. 200 Supreme court, how constituted. Sec. 2. The supreme court shall consist of a chief justice aud six associate justices. The court may sit in departments and in bank, and shall always be open for the transaction of business. There shall be two de- partments, denominated, respectively, department one and department two. The chief justice shall assign three of the associate justices to each department, and such assignment may be changed by him from time to time. The associate justices shall be competent to sit in either department, and may interchange with each other by agreement among themselves or as ordered by the chief justice. Each of the departments shall have the power to hear and determine causes and all questions aris- ing therein, subject to the provisions hereinafter con- tained in relation to the court in bank. The presence of three justices shall be necessary to transact any business in either of the departments, except such as may be done at chambers, and the concurrence of three justices shall be necessary to pronounce a judgment. The chief justice shall apportion the business to the de- partments, and may, in his discretion, order any cause pending before the court to be heard and decided by the court in bank. The order may be made before or after judgment pronounced by a department; but where a cause has been allotted to one of the depart- ments, and a judgment pronounced thereon, the order must be made within thirty days after such judgment, 201 CONSTITUTION OP 1879. Art. VI, § 2 and concurred in by two associate justices, and if so made it shall have the effect to vacate and set aside the judgment. Any four justices may, either before or after judgment by a department, order a case to be heard in bank. If the order be not made within the time above limited the judgment shall be final. No judg- ment by a department shall become final until the ex- piration of the period of thirty days aforesaid, unless approved by the chief justice, in writing, with the con- currence of two associate justices. The chief justice may convene the court in bank at any time, and shall be the presiding justice of the court when so convened. The concurrence of four justices present at the argu- ment shall be necessary to pronounce a judgment in bank; but if four justices, so present, do not concur in a judgment, then all the justices qualified to sit in the cause shall hear the argument; but to render a judg- ment a concurrence of four judges shall be necessary. In the determination of causes, all decisions of the court in bank or in departments shall be given in writ- ing, and the grounds of the decision shall be stated. The chief justice may sit in either department, and shall preside when so sitting, but the justices assigned to each department shall select one of their number as presiding justice. In case of the absence of the chief justice from the place at which the court is held, or his inability to act, the associate justices shall select one of their own number to perform the duties and exercise Art. VI, § 2 CONSTITUTION OF 1879. 202 the powers of the chief justice during such ahsence or inability to act. SUPREME COURT. — This section by implication forbids the legislature to increase the number of justices of the supreme court. (People v. Wells, 2 Cal. 198, 610.) In the absence of any provision on the subject, all the judges composing the court must sit. (People v. Ah Chung, 5 Cal. 103; People v. Barbour, 9 Cal. 230.) The word "heard" means the consideration and determina- tion of a cause by the court. (Niles v. Edwards, 95 Cal. 41, 30 Pac. 134.) "When a cause is submitted on briefs, all the justices are deemed to be present, and all of them are qualified to join in the decision. (Philbrook v. Newman, 148 Cal. 172, 82 Pac. 772.) It is not necessary that four justices be physically present at an oral argument, nor that all of the justices qualified to "sit" shall literally "hear" an argument; but whenever there is an oral argument, only the justices who were present at such argument are authorized to take part in the decision of the court. (Niles v. Edwards, 95 Cal. 41, 30 Pac. 134.) It is not necessary that four justices should concur in the judgment upon the same grounds. (Philbrook v. Newman, 148 Cal. 172, 82 Pac. 772.) The fact that one of the judges who participated in a deci- sion of the court did not hear the oral argument does not render the judgment absolutely void. It is an irregularity which may be waived by the parties. (Blanc v. Bowman, 22 Cal. 23.) The constitution requires the concurrence of four judges to pronounce a judgment, and a mere failure to agree cannot have the effect, ipso facto, of an affirmance; and where the personnel of the court is soon to be changed, a motion to affirm the judg- ment on account of an equal division of opinion will be denied. (Luco v. De Toro, 88 Cal. 26, 25 Pac. 983, 11 L. R. A. 543.) But where there is no probability of an immediate change in the personnel of the court, the judgment will be affirmed. (Frankel v. Ueidesheimer, 93 Cal. 73, 28 Pac. 794; Santa Rosa City R. R. Co. v. Railway Co., 112 Cal. 436, 44 Pac. 733.) 203 CONSTITUTION OF 1879. Art. VI, § 2 Judicial days. — The supreme court is always open for the transaction of business. (People v. Heacock, 10 Cal. App. 450, 102 Pac. 543.) Opinions. — The legislature cannot require the supreme court to give in writing reasons for its decisions. (Houston v. Will- iams, 13 Cal. 24, 73 Am. Dec. 565.) Rehearings. — In an original proceeding in the supreme court the proper practice is to move for a rehearing, and a motion for a new trial is not proper. (In re Philbrook, 108 Cal. 14, 40 Pac. 1061; Grangers' Bank v. San Francisco, 101 Cal. 198, 35 Pac. 642.) There is only one supreme court, and the jurisdiction which is vested in it may be exercised either in bank or in depart- ment. The court in bank has power to correct an error in or modify a judgment rendered in a department, without appli- cation therefor, and without the case being argued in bank. (Niles V. Edwards, 95 Cal. 41, 30 Pac. 134.) Although a petition for a rehearing by the court in bank is filed within thirty days after the judgment in department, if it does not reach the hands of the court until after the expiration of the period allowed by the constitution for order- ing a rehearing, the petition must be denied, irrespective of its merits. (Durgin v. Neal, 82 Cal. 595, 23 Pac. 133.) The provision of this section as to the granting of rehear- ings in bank after the decision by a department does not create an implication against the constitutional power of the court in bank to grant rehearings in cases determined by it in bank. (In re Jessup, 81 Cal. 408, 21 Pac. 976, 22 Pac. 742, 6 L. R. A. 594.) The supreme court, in bank, has power to grant rehearings by orders of the court entered upon its minutes, without the written signatures of five justices, and the legislature cannot take that power away. (In re Jessup, 81 Cal. 408, 21 Pac. 976, 22 Pac. 742, 6 L. R. A. 594.) An order modifying a judgment is not rendered nugatory by reason of the failure of the clerk to enter it in the minutes until after the expiration of thirty days from the judgment in department. (Niles v. Edwards, 95 Cal. 41, 30 Pac. 134.) The determination by the court on passing upon an appli- cation for a rehearing that the justice of that court, and not the justice of the court of appeals selected to act pro tempore Art. VI, § 3 CONSTITUTION OF 1879. 204 on account of the illness of the former, was the proper one to act, becomes the law of the case, and will not be inquired into on a motion to set aside the rehearing. (Reese v. Colusa Gas etc. Co., 151 Cal. 29, 91 Pac. 802.) Remittitur. — The supreme court has no appellate jurisdiction over its own judgments. (Leese v. Clark, 20 Cal. 387.) Therefore, after the issuance of the remittitur, the court loses jurisdiction of the cause. (Blane v. Bowman, 22 Cal. 23; Grogan v. Ruckle, 1 Cal. 193; Mateer v. Brown, 1 Cal. 231; Davidson v. Dallas, 15 Cal. 75; Herrlich v. McDonald, 83 Cal. 505, 23 Pac. 710; In re Levinson, 108 Cal. 450, 41 Pac. 483, 42 Pac. 479; Martin v. Wagner, 124 Cal. 204, 56 Pac. 1023.) After the remittitur has been duly and regularly issued with- out inadvertence, the court has no power to recall it, except in a case of mistake, fraud, or imposition. (In re Levinson, 108 Cal. 450, 41 Pac. 483, 42 Pac. 479.) The mere pendency of a motion to modify the judgment is not sufficient ground for recalling the remittitur, when it was issued without inadvertence. (Herrlich v. McDonald, 83 Cal. 505, 23 Pac. 710.) Nor is the fact that it was issued after the death of one of the parties ground for recalling it. (Martin v. Wagner, 124 Cal. 204, 56 Pac. 1023.) But the remittitur may be recalled if issued by reason of fraud or imposition. (Trumpler v. Trumpler, 123 Cal. 248, 55 Pac. 1008.) Election of supreme justices. Sec. 3. The chief justice and the associate justices shall be elected by the qualified electors of the state at large at the general state elections, at the times and places at which state officers are elected ; and the term of office shall be twelve years, from and after the first Monday after the first day of January next succeeding their election ; provided, that the six associate judges elected at the first election shall, at their first meeting, so 205 CONSTITUTION OF 1879. Art. VI, § 4 classify themselves, by lot, that two of them shall go out of office at the end of four years, two of them at the end of eight years, and two of them at the end of twelve years, and an entry of such classification shall be made in the minutes of the court in bank, signed by them, and a duplicate thereof shall be tiled in the office of the secretary of state. If a vacancy occur in the office of a justice, the governor shall appoint a person to hold the office until the election and gualification of a jus- tice to fill the vacancy, which election shall take place at the next succeeding general election, and the justice so elected shall hold the office for the remainder of the unexpired term. The first election of the justices shall be at the first general election after the adoption and ratification of this constitution. JUSTICES. — Absence of a justice from the state is not such a vacancy as can be supplied by the executive, and an act authorizing an appointment in such a case is unconstitutional. (People V. Wells, 2 Cal. 198, 610.) Jurisdiction of supreme court and courts of appeal. Sec. 4. The supreme court shall have appellate juris- diction on appeal from the superior courts in all cases in equity, except such as arise in justices' courts; also, in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assess- ment, toll, or municipal fine, or in which the demand, exclusive of interest, or the value of the property in controversy, amounts to two thousand dollars; also, in Art. VI, § 4 CONSTITUTION OF 1879. 206 all such probate matters as may be provided by law; also, on questions of law alone, in all criminal cases where judgment of death has been rendered; the said court shall also have appellate jurisdiction in all cases, matters, and proceedings pending before a district court of appeal which shall be ordered by the supreme court to be transferred to itself for hearing and decision as herein- after provided. The said court shall also have power to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and all other writs necessary or proper to the complete exercise of its appellate jurisdiction. Each of the justices shall have power to issue writs of habeas corpus to any part of the state, upon petition by or on be- half of any person held in actual custody, and may make such writs returnable before himself or the supreme court, or before any district court of appeal, or before any judge thereof, or before any superior court in the state, or before any judge thereof. The state is hereby divided into three appellate dis- tricts, in each of which there shall be a district court of appeal consisting of three justices. The first dis- trict shall embrace the following counties: San Fran- cisco, Marin, Contra Costa, Alameda, San Mateo, Santa Clara, Fresno, Santa Cruz, Monterey, and San Benito. The second district shall embrace the following coun- ties: Tulare, Kings, San Luis Obispo, Kern, Inyo, Santa Barbara, Ventura, Los Angeles, San Bernardino, Orange, Riverside, and San Diego. 207 CONSTITUTION OF 1879. Art. VI, § 4 The third district shall embrace the following coun- ties: Del Norte, Siskiyou, Modoc, Humboldt, Trinity, Shasta, Lassen, Tehama, Plumas, Mendocino, Lake, Colusa, Glenn, Butte, Sierra, Sutter, Yuba, Nevada, Sonoma, Napa, Yolo, Placer, Solano, Sacramento, El Dorado, San Joaquin, Amador, Calaveras, Stanislaus, Mariposa, Madera, Merced, Tuolumne, Alpine, and Mono. The supreme court, by orders entered in its minutes, may from time to time remove one or more counties from one appellate district to another, but no county not contiguous to another county of a district shall be added to such district. Said district courts of appeal shall hold their regular sessions respectively at San Francisco, Los Angeles, and Sacramento, and they shall always be open for the trans- action of business. The district courts of appeal shall have appellate jurisdiction on appeal from the superior courts in all cases at law in which the demand, exclusive of interest, or the value of the property in controversy, amounts to three hundred dollars, and does not amount to two thousand dollars; also, in all cases of forcible and un- lawful entry and detainer (except such as arise in jus- tices' courts), in proceedings in insolvency, and in ac- tions to prevent or abate a nuisance ; in proceedings of mandamus, certiorari, and prohibition, usurpation of office, contesting elections and eminent domain, and in Art. VI, § 4 CONSTITUTION OF 1879. 208 such other special proceedings as may be provided by law (excepting cases in which appellate jurisdiction is given to the supreme court) ; also, on questions of law alone, in all criminal cases prosecuted by indictment or information in a court of record, excepting criminal cases where judgment of death has been rendered. The said courts shall also have appellate jurisdiction in all cases, matters, and proceedings pending before the supreme court which shall be ordered by the supreme court to be transferred to a district court of appeal for hearing and decision. The said courts shall also have power to issue writs of mandamus, certiorari, prohibi- tion, and habeas corpus, and all other writs necessary or proper to the complete exercise of their appellate jurisdiction. Each of the justices thereof shall have power to issue writs of habeas corpus to any part of his appellate district upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself or the district court of appeal of his district, or before any superior court within his district, or before any judge thereof. The supreme court shall have . power to order any cause pending before the supreme court to be heard and determined by a district court of appeal, and to order any cause pending before a district court of ap- peal to be heard and determined by the supreme court. The order last mentioned may be made before judg- ment has been pronounced by a district court of appeal. 209 CONSTITUTION OF 1879. Art. VI, § 4 or within thirty days after such judgment shall have become final therein. The judgments of the district courts of appeal shall become final therein upon the expiration of thirty days after the same shall have been pronounced. The supreme court shall have power to order causes pending before a district court of appeal for one dis- trict to be transferred to the district court of appeal of another district for hearing and decision. The justices of the district courts of appeal shall be elected by the qualified electors within their respective districts at the general state elections at the times and places at which justices of the suprem.e court are elected. Their terms of office and salaries shall be the same as those of justices of the supreme court, and their salaries shall be paid by the state. Upon the ratification by the people of this amendment the governor shall appoint nine persons to serve as justices of the district courts of appeal until the first Monday after the first day of January in the year 1907, provided, that not more than six of said persons shall be members of the same political party. At the election in the year 1906 nine of such justices shall be elected as above provided, and the justices of each district court of appeal shall so classify themselves by lot that one of them shall go out of office at the end of four years, one of them at the end of eight years, and one of them at the end of Constitution — 14 Art. VI, § 4 CONSTITUTION OF 1879. 210 twelve years; an entry of such classification shall be made in the minutes of the court, signed by the three justices thereof, and a duplicate thereof filed in the office of the secretary of state. If any vacancy occur in the office of a justice of the district courts of appeal, the governor shall appoint a person to hold office until the election and qualification of a justice to fill the vacancy; such election shall take place at the next suc- ceeding general state election as aforesaid; the justice then elected shall hold the office for the unexpired terra. One of the justices of each of the district courts of appeal shall be the presiding justice thereof, and as such shall be appointed or elected as the case may be. The presence of three justices shall be necessary for the transaction of any business by such court, except such as may be done at chambers, and the concurrence of three justices shall be necessary to pronounce a judg- ment. "Whenever any justice of the supreme court is for any reason disc^ualified or unable to act in a cause pending before it, the remaining justices may select one of the justices of a district court of appeal to act pro tempore in the place of the justice so disqualified or unable to act. "Whenever any justice of a district court of appeal is for any reason disqualified or unable to act in any cause pending before it, the supreme court may ap- point a justice of the district court of appeal of another district, or a judge of a superior court who has not 211 CONSTITUTION OF 1879. Art. VI, § 4 acted in the cause in the court below, to act pro tempore in the place of the justice so disqualified or unable to act. No appeal taken to the supreme court or to a district court of appeal shall be dismissed for the reason only that the same was not taken to the proper court, but the cause shall be transferred to the proper court upon such terms as to costs or otherwise as may be just, and shall be proceeded with therein as if regularly appealed thereto. All statutes now in force allowing, providing for, or regulating appeals to the supreme court shall apply to appeals to the district courts of appeal so far as such statutes are not inconsistent with this article and until the legislature shall otherwise provide. The supreme court shall make and adopt rules not inconsistent with law for the government of the supreme court and of the district courts of appeal and of the officers thereof, and for regulating the practice in said courts. (Amendment adopted November 8. 1904.) [ORIGINAL SECTION.] Sec. 4. The supreme court shall have appellate jurisdiction in all cases of equity, except such as arise in justices' courts; also, in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll or municipal fine, or in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars; also, in cases of forcible entry and detainer, and in proceedings in insolvency, and in actions to Art. VI, § -1 CONSTITUTION OP 1879. 212 prevent or abate a nuisance, and in all such probate matters as may be provitled by law; also, in all criminal cases prose- cuted by indictment or information in a court of record on questions of law alone. The court shall also have power to issue writs of mandamus, certiorari, prohibition and habeas corpus, and all other writs necessary or proper to the complete exercise of its appellate jurisdiction. Each of the justices shall have power to issue writs of habeas corpus to any part of the state, upon petition by or on behalf of any person held in actual custody, and may make such writs returnable before himself or the supreme court, or before any superior court in the state or before any judge thereof. JURISDICTION — In general. — The jurisdiction of the courts as established by the constitution cannot be altered by the legislature. (Thompson v. Williams, 6 Cal. 88; Hicks v. Bell, 3 Cal. 219; Burgoyne v. Supervisors, 5 Cal. 9; Parsons v. Tuolumne Co. Water Co., 5 Cal. 43, 63 Am. Dec. 76; People v. Applegate, 5 Cal. 295; Fitzgerald v. Urton, 4 Cal. 235; Wilson V. Eoach, 4 Cal. 362; Zander v. Coe, 5 Cal. 230; Haight v. Gay, 8 Cal. 297, 68 Am. Dec. 323; People v. Peralta, 3 Cal. 379; Caullield v. Hudson, 3 Cal. 389. But see Seale v. Mitchell, 5 Cal. 401; People v. Day, 15 Cal. 91.) An affirmative grant of jurisdiction is negative of all others. (Burgoyne v. Supervisors, 5 Cal. 9.) But the grant of original jurisdiction to a particular court, of a particular class of cases, without any words excluding other courts from exercising jurisdiction in the same cases, does not deprive other courts of concurrent jurisdiction in such cases, when such courts are given jurisdiction in general terms broad enough to include such particular cases. (Courtwright V. Bear River etc. Co., 30 Cal. 573; Zander v. Coe, 5 Cal. 230, distinguished.) Where jurisdiction is given in all cases not otherwise pro- vided for it is not exclusive. (People v. Fowler, 9 Cal. 85.) Consent will not confer jurisdiction. (Feillett v. Engler, 8 Cal. 76.) Supreme court. — The supreme court acquired its jurisdiction from the constitution, and such jurisdiction can neither be en- 213 CONSTITUTION OF 1879. Art. VI, § 4 larged nor abridged by the legislature. (In re Jessiip, 81 Cal. 408, 21 Pac. 976, 22 Pac. 742, 6 L. R. A. 59 i; Ex parte Attorney- General, 1 Cal. 85.) The constitution has not clothed the supreme court with the same powers and jurisdiction as the court of king's bench in England. (Ex parte Attorney General, 1 Cal. 85.) Procedure. — The right of appeal is conferred by the consti- tution, and statutes and rules of procedure for its exercise are to be liberally construed; and no appeal will be dismi'^sed on technical grounds, when there has been no violation or dis- regard of any express rules of procedure. (Estate of Nelson, 128 Cal. 242, GO Pac. 772.) The supreme court acquires jurisdiction upon the filing of the notice of appeal in the lower court, and the jurisdiction is not diverted or suspended either on account of the failure to file a transcript on appeal, or by loss thereof. (Estate of Davis, 151 Cal. 318, 121 Am. St. Rep. 105, 86 Pac. 183, 90 Pac. 711.) When jurisdiction is given to the supreme court of a par- ticular case, it has jurisdiction of all appeals therein, whether or not they involve the merits. (Rickey Land etc. Co. v. Glader, 6 Cal. App. 113, 91 Pac. 414.) The legislature cannot impair or take away the appellate jurisdiction of the supreme court, but it may prescribe the mode in which appeals may be taken. (Haight v. Gay, 8 Cal. 297, 68 Am. Dec. 323.) It is the duty of the supreme court, whose jurisdiction is defined by the constitution, to secure uniformity in the admin- istration of justice, and the legislature, as a co-ordinate branch of the government, cannot interfere with that function, or control the use by the appellate court of the power and discretion vested in it. (San Jose R. Co. v. San Jose etc. Co., 126 Cal. 322, 58 Pac. 824.) The supreme court cannot exercise appellate jurisdiction by means of a writ of prohibition, without any appeal, and in a case to which its apjjellate jurisdiction does not extend. (Pow- elson V. Lockwood, 82 Cal. 613, 23 Pac. 143.) When the constitution gives the supreme court jurisdiction, and the legislature fails to prescribe the means for taking the appeal, the supreme court lias inherent power to establish any appropriate system of procedure. (People v. Jordan, 65 Cal. Art. VI, § 4 CONSTITUTION OP 1879. 214 644, 4 Pac. 683. But see Warner v. Hall, 1 Cal. 90; "Warner V. Kelly, 1 Cal. 91; White v. Ligbthall, 1 Cal. 347.) If the legislature has not provided a mode of exercising the jurisdiction conferred by the constitution, a case may be brought up from an inferior court to the supreme court by writ of error. (Ex parte Thistleton, 52 Cal. 220; Adams v. Town, 3 Cal. 247.) The legislature may prescribe the procedure by which the jurisdiction conferred is to be exercised, provided the regula- tions adopted do not substantially impair the constitutional power of the court, or practically defeat its exercise. (Ex parte Harker, 49 Cal. 465.) Rules. — The supreme court has power to make rules having the force of positive law so far as the rights of the parties are concerned, if they do not conflict with any act of the legislature. (Brooks v. Union Trust Co., 146 Cal. 134, 79 Pac. 843.) Rule XXX of the supreme court, requiring a petition for rehearing to be served upon the adverse party within twenty days after judgment and allowing an answer thereto, is valid. (Brooks V. Union Trust Co., 146 Cal. 134, 79 Pac. 843.) Rules adopted by the supreme court for the government of appellate practice are as much part of our system of procedure as the rules promulgated by the legislature; and the conse- quence of a failure to observe them rests upon the lawyer and not the court. (Reclamation Dist. No. 70 v. Sherman, 11 Cal. App. 399, 105 Pac. 277.) Salaries. — The act fixing the salaries of justices of the supreme court at eight thousand dollars cannot affect the sal- aries of present incumbents of that court, and cannot be looked to as a measure of the salaries of justices of district courts of appeal. (Harrison v. Colgan, 148 Cal. 69, 82 Pac. 674.) Removal before judgment. — The power to remove causes from the district court of appeal is entirely discretionary, and the parties have no right to insist upon the exercise of that power. (People V. Davis, 147 Cal. 346, 81 Pac. 718.) A cause will not be transferred to the district court of ap- peal to accommodate the parties or to facilitate a decision. (Gates V. Green, 148 Cal. 728, 84 Pac. 37.) 215 CONSTITUTION OF 1879. Art. VI, § 4 Where a writ of proliibitlon is appHed for from the supreme court to prevent the trial of a case of which the district court of appeal has jurisdiction, the proceeding will be trans- ferred to that court. (Collins v. Superior Court, 147 Cal. 264, 81 Pac. 509.) Where the appeal is erroneously taken to the district court of appeal, instead of to the supreme court, the proper practice is to file the record in the court to which the appeal was taken and to move in that court to transfer the cause to the supreme court. (In re Eussell, 148 Cal. 768, 84 Pac. 155.) Removal after judgment. — The supreme court will not exer- cise its power to remove a cause pending in a district court of appeal after decision for the purpose of revising its de- cision upon CLuestions of fact. (People v. Davis, 147 Cal. 346, 81 Pac. 718.) The supreme court will only remove a case pending in a district court of appeal after decision when it is necessary to secure unifonnity of decision or to settle important ques- tions of law. (People v. Davis, 147 Cal. 346, 81 Pac. 718.) Where one of the justices signing an order transferring a cause to the supreme court, after a decision by the court of appeals, signed the order while in the state, but left the stats before it received the signatures of the requisite number of judges to make it effective, such order is a nullity. (People V. Euef, 14 Cal. App. 576, 114 Pac. 54.) . Where the district court of appeal has issued an alternative writ of mandate which acts as a stay, the effect thereof is not affected by a judgment of the court denying the per- emptory writ which has not become final by the expiration 9f thirty days. (Noel v. Smith, 2 Cal. App. 158, 83 Pac. 167.) The supreme court has power, within thirty days after the decision of the district court of appeal has become final, to order the cause heard and determined by itself. (Noel v. Smith, 2 Cal. App. 158, 83 Pac. 167.) The judgment of a district court of appeal is not final until the expiration of thirty days after the judgment is pronounced. (Noel V. Smith, 2 Cal. App. 158, 83 Pac. 167.) An order of the district court of appeal denying a rehear- ing, but modifying the opinion theretofore rendered, is not a judgment, and the time within wiiich the supreme court might order a transfer of the case runs from the original Art. VI, § 4 CONSTITUTION OF 1879. 216 jiulgnient. (National Bank v. Los Angeles etc. Co., 3 Cal. App. 659, 84 Pac. 466.) The supreme court has no authority to order a transfer of a cause from the district court of appeal after the lapse of sixty daj's from the giving of the judgment of the district court. (National Bank v. Los Angeles, 2 Cal. App. 659, 84 Pac. 466; People v. Euef, 14 Cal. App. 576, 114 Pac. 54.) In cases going in the first instance to the court of appeal, a rehearing will be granted by the supreme court only when error appears upon the face of the opinion of the appellate court, or when a doubtful and important question is presented upon which further argument is desired by the court. (Burke V. Maze, 10 Cal. App. 206, 101 Pac. 438.) In causes referred to the court of appeal by the supreme court, the supreme court, in passing upon an application for rehearing, will look into the record to see whether anything deserving consideration has been overlooked in deciding the cause, or any of the facts misconceived in material particulars. (Burke v. Maze, 10 Cal. App. 206, 101 Pao. 438.) A justice may join in an order granting a rehearing apart from any consultation and from the presence of his associates. (People v. Ruef, 14 Cal. App. 576, 114 Pac. 54.) The court may exercise the power to grant a rehearing with- out any petition or application therefor. (People v. Euef, 14 Cal. App. 576, 114 Pac. 54.) Admission of attorneys. — The supreme court now has no au- thority to admit attorneys to practice, that power having been conferred by the legislature upon the district courts of appeal. (In re Mock, 146 Cal. 378, 80 Pac. 64.) Cases at law. — The meaning of this section is that the supreme court shall have appellate jurisdiction in all cases at law; provided, that when the subject of litigation is capable of pecuniary compensation, the matter in dispute must exceed in value or amount the sum of three hundred dollars, unless a question of the legality of a tax, etc., is drawn in question. (Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717.) Therefore, the supreme court has jurisdiction of a case where the matter in dispute is incapable of pecuniary estimation. (Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717.) The words "matter in dispute" mean the subject of litigation — the matter for which suit is brought — and do not include 217 CONSTITUTION OF 1879. Art. VI, § 4 costs. (Dumpily v. Guindon, 13 Cal. 28; Maxfield v. Johnson, 30 Cal. 545; Zabiiskie v. Torrey, 20 Cal. 173; Votan v. Reese, 20 Cal. 89; Bolton v. Landers, 27 Cal. lOG; Henigan v. Ervin, 110 Cal. 37, 42 Pac. 457. Contra, Gordon v. Eoss, 2 Cal. 156, overruled.) But where the supreme court obtains jurisdiction of the appeal, it can correct the costs in the judgment. (Votan v. Reese, 20 Cal. 89.) Neither is percentage allowed by statute any part of the matter in dispute. (Zabriskie v. Torrey, 20 Cal. 173.) Under the former constitution, before the amendments of 18C2, it was held that the interest due forms part of the matter in dispute. (Skillman v. Laehman, 23 Cal. 198, 83 Am. Dec. 96; Malson v. Vaughan, 23 Cal. 61.) But under the amendment of 1862 and under the present constitution the demand must exceed three hundred dollars •'exclusive of interest." (Dashiell v. Slingerland, 60 Cal. 653.) In cases at law, when the demand in controversy, exclusive of interest, is less than three hundred dollars, the supreme court has no jurisdiction. (Sweet v. Tice, 45 Cal. 71; Votan V. Reese, 20 Cal. 89; Maxfield v. Johnson, 30 Cal. 545; Hopkins V. Cheeseman, 28 Cal. 180.) The words "cases at law .... which involve .... the legality of any tax," etc., refer to civil, as distinguished from criminal, cases. (People v. .Johnson, 30 Cal. 98.) The record must affirmatively show that the case involves the constitutional amount, or the supreme court will not en- tertain jurisdiction. (Doyle v. Seawall, 12 Cal. 280.) If the appeal is by the plaintiff and the verdict for the de- fendant, it is sufficient if the amount claimed by the complaint exceeds the jurisdictional amount. (Votan v. Reese, 20 Cal. 89; Skillman v. Laehman, 23 Cal. 198, 83 Am. Dec. 96.) The ad damnum clause of the complaint is the test of juris- diction of both the superior and supreme courts, and if the lower court had jurisdiction, the supreme court also has juris- diction, whatever the amount recovered, and whether the appeal be taken by the plaintiff or the defendant. (Solomon v. Reese, 34 Cal. 28, overruling Votan v. Reese, 20 Cal. 89; Dashiell v. Slingerland, 60 Cal. 053; Lord v. Goldberg, 81 Cal. 596, 15 Am. St. Rep. 82, 22 Pac. 1126; Henigan v. Ervin, 110 Cal. 37, 42 Pac. 457.) Art. VI, § 4 CONSTITUTION OF 1879. 218 Where the plaintiff, having a judgment of more than the jurisdictional amount, sought to have a judgment against him for less than two hundred dollars set off against it, the su- preme court has no jurisdiction of an appeal from an order denying the motion. (Crandall v. Blen, 15 Cal. 406.) The fact that an offset is pleaded by the defendant which, together with the demand of the plaintiff, swells the amount to more than the jurisdictional amount, does not give the court jurisdiction. (Simmons v. Brainard, 14 Cal. 278.) The appellate jurisdiction of the supreme court extends to an appeal from a judgment of a superior court dismissing a writ of certiorari, and affirming a judgment of a justice's court, which amounts to less than three hundred dollars. (Heinlen V. Phillips. 88 Cal. 557, 26 Pac. 366. Bienenfeld v. Fresno etc. Co., 82 Cal. 425, 22 Pac. 1113, overruled.) The supreme court has no jurisdiction of an appeal from the superior court in an action commenced in the justice's court under section 1206 of the Civil Code, whether the action be viewed as a suit in equity to enforce a lien vipon personal prop- erty, or an action at law for wages due. (Edsall v. Short, 122 Cal. 533, 55 Pac. 327.) The fact that the defendant in an action in a justice's court sets up a coanterclaiin in excess of three hundred dollars does not give the supreme court jurisdiction on appeal. (Maxfield V. Johnson, 30 Cal. 545.) A proceeding in the nature of a quo warranto to try the title to a public office, where the court can impose a fine of five thousand dollars, is a case at law in which the demand amounts to three hundred dollars. (People v. Perry, 79 Cal. 105, 21 Pac. 423; People v. Bingham, 82 Cal. 238, 22 Pac. 1039. ) A writ of error will not lie to reverse the judgment of the superior court granting a nonsuit on appeal from a judgment of a justice's court. (Pool v. Superior Court, 2 Cal. App. 533, 84 Pac. 53.) No appeal lies to the district court of appeal from any order or judgment of the superior court upon appeal from a justice's court. (Pool v. Superior Court, 2 Cal. App. 533, 84 Pac. 53.) An appeal will not lie to the court of appeals from an order of the superior court dismissing an appeal from a judgment of a justice's court in an action at law involving less than 219 CONSTITUTION OF 1879. Art. VI. § 4 three hunclred dollars. (Willon Land Co. v. Goldsclimidt, 11 Cal. App. 297, 104 Pac. 841.) An action for damages exceeding two thousand dollars is within the jurisdiction of the supreme court. (Randall v. Freed, 7 Cal. App. 553, 94 Pac. 105C; Wright v. Sonoma, 7 Cal. App. 567, 96 Pac. 333; McAulay v. Tahoe lee Co., 3 Cal. App. 642, 86 Pac. 912.) SUITS IN EQUITY, — An action to enforce a trust is a suit in equity. (Marston v. Kuhland, 2 Cal. App. 316, 84 Pac. 357.) A suit to avoid a decree of foreclosure taken by default is within the equitable jurisdiction of the supreme court. (Litch V. O'Connor, 8 Cal. App. 489, 97 Pac. 207.) An action for maintenance is a suit in equity. (Hiner v. Iliner, 5 Cal. App. 546, 90 Pac. 957.) A suit to restrain a trespass is in equity and within the jurisdiction of the supreme court. (Barnes v. Daveck, 7 Cal. App. 220, 94 Pac. 779.) Appellate jurisdiction of all cases in eciuity is given to the supreme court. (Rickey Land etc. Co. v. Glader, 6 Cal. App. 113, 91 Pac. 414.) An action to enjoin the diversion of water is a suit in equity. (Rickey Land etc. Co. v. Glader, 6 Cal. App. 113, 91 Pac. 414.) A suit to quiet title is equitable and within the jurisdiction of the supreme court. (Davey v. Mulroy, 7 Cal. App. 1, 93 Pac. 297.) Under the general equity powers the superior court has power to remedy any wrong committed by election boards. (Cerini V. De Long, 7 Cal. App. 398, 94 Pac. 582.) An action to foreclose a mechanic's lien is a case in equity, although the liens, by order of the court, are to be paid out of a fund deposited in court by the owner of the property. (Stockton L. Co. v. Schuler, 7 Cal. App. 257, 94 Pac. 399.) A suit to foreclose a mortgage is within the equitable juris- diction of the supreme court. (Aetna Indemnity Co. v. Alta- dena Mining etc. Co., 11 Cal. App. 26, 104 Pac. 470.) Real property. — Where a case is certified to the superior court from the justice's court on the ground that it involves the title or possession of real property, the supreme court has jurisdiction on appeal, although no question is raised on that subject on the appeal. (Baker v. Southern Cal. Ry. Co., 110 Cal! 455, 42 Pac. 975.) Art. VI, § 4 CONSTITUTION OF 1879. 220 A mere statement by counsel that a case involves tlie title or possession of real property is not sufficient to give the supreme court jurisdiction. (Kaisch v. Sausalito Land etc. Co., 131 Cal. 215, 63 Pac. 346.) The supreme court has jurisdiction of an action for the usurpation of a franchise for a toll road, since the right to the possession of real property is involved. (People v. Horsley, 65 Cal. 381, 4 Pac. 384.) The supreme court has jurisdiction in actions for damages to real property, when the title thereto is involved, although the damages claimed are less than three hundred dollars. (Doherty v. Thayer, 31 Cal. 140.) The district courts of appeal have appellate jurisdiction in all cases specifically mentioned as belonging to its jurisdiction, although they may incidentally involve the title to or pos- session of real estate, or the legality of a tax. (Keech v. Joplin, 157 Cal. 1, 106 Pac. 222.) Fines. — A fine imposed by a county court for wrongfully de- manding and collecting toll is not a municipal fine. (People V. Johnson, 30 Cal. 98.) On the trial of a criminal action for wrongfully collecting toll, the legality of the fine to be imposed in case of a con- viction is not involved. (People v. Johnson, 30 Cal. 98.) The word assessment as used in the clause of this section conferring appellate jurisdiction on the supreme court of all cases involving "the legality of any .... assessment," refers to assessments relating to public taxation or to raise funds for local public improvements. (Bottle Mining and Milling Co, V. Kern, 154 Cal. 96, 97 Pac. 25.) Special cases. — The supreme court has jurisdiction of an appeal from an order discharging an insolvent. (Fisk v. His Creditors, 12 Cal. 281.) An arbitration is a special proceeding. (Fairchild v. Doten, 42 Cal. 125.) A proceeding to condemn land for the use of a railroad company is a "special case." (Stockton etc. Co. v. Galgiani, 49 Cal. 139.) A contest of the right to purchase state lands is a special proceeding within the jurisdiction of the supreme court. (Risdon v. Prewett, 8 Cal. App. 434, 97 Pac. 73.) 221 CONSTITUTION OF 1879. Art. VI, § 4 Special orders. — The supreme court has appellate jurisdiction of all special orders made after final judgment in the superior court, without reference to the amount involved. (Southern Cal. Ey. Co. v. Superior Court, 127 Cal. 417, 59 Pac. 789; Harron v. Harron, 123 Cal. 508, 56 Pac. 334. Langan v. Lan- gan, 83 Cal. 618, 23 Pae. 1084, and Fairbanks v. Lampkin, 99 Cal. 429, 34 Pac. 101, overruled.) In all cases, legal or equitable, vphen the supreme court has appellate jurisdiction of the matter brought in controversy in the lower court, the appealability of an order made before or after final judgment is not controlled by the amount involved in such order. (Sierra Union etc. Co. v. Wolff, 144 Cal. 430, 77 Pac. 1038.) A special order after judgment, refusing to strike out a cost-bill in the superior court in a case appealed from the justice's court, is not appealable to the supreme court, although the cost-bill amounts to over three hundred dollars. (Henigan V. Ervin, 110 Cal. 37, 42 Pac. 457.) An order for twenty-five dollars each month alimony, being a continuing order, may be reviewed upon appeal. (Langan V. Langan, 86 Cal. 132, 24 Pac. 852. See Harron v. Harron, 123 Cal. 508, 56 Pac. 334.) Criminal cases. — The supreme court has jurisdiction in crim- inal cases, upon questions of law alone. (People v. Logan, 123 Cal. 414, 56 Pac. 56; People v. Kuches, 120 Cal. 566, 52 Pac. 1002; People v. Smallman, 55 Cal. 18-5; People v. Williams, 133 Cal. 165, 65 Pac. 323.) The propriety of a conviction on the evidence becomes a question of law only when there is a clear failure of proof. (People V. Kuches, 120 Cal. 566, 52 Pac. 1002; People v. Smallman, 55 Cal. 185.) The supreme court has appellate jurisdiction of all misde- meanors prosecuted by indictment or information. (People v. Jordan, 65 Cal. 644, 4 Pac. 683, prescribing a method for taking such appeals.) Under the former constitution, the supreme court had no jurisdiction in criminal cases, except such as amount to felony. (People V. Apgar, 35 Cal. 389; People v. .Johnson, 30 Cal. 98; People V. Shear, 7 Cal. 139; People v. Vick, 7 Cal. 165; People V. Applegate, 5 Cal. 295.) Art. VI, § 4 CONSTITUTION OF 1879. 222 The supreme court has jurisdiction of an appeal from a judg- ment sustaining a demurrer to an indictment for misconduct in office. (People v. Kalloch, 60 Cal. 113.) The supreme court has jurisdiction of an appeal in a crim- inal case, although the lower court had no jurisdiction. (Peo- ple V. Pingree, 61 Cal. 141.) The supreme court has no jurisdiction of an appeal from a judgment of a superior court, affirming a judgment of the police court, adjudging a defendant guilty of a misdemeanor, and imposing a fine of fifty dollars, it not being "a criminal case prosecuted by indictment or information in a court of record." (People v. Meiggs' Wharf Co., 65 Cal. 99, 3 Pac. 491.) Under the former constitution the jurisdiction of the supreme court in criminal cases on defendant's appeal was not to be determined by the offense charged, but by the offense of which the defendant was convicted. (People v. Apgar, 35 Cal. 389.) The "information" referred to is that named in section 8, article 1, of the constitution. (Larue v. Davies, 8 Cal. App. 750, 97 Pac. 903.) A proceeding to remove an officer summarily for misde- meanor in office by accusation, not being presented by indict- ment or information, is not within the appellate jurisdiction of the supreme court or the court of appeals. (Larue v. Davies, 8 Cal. App. 750, 97 Pac. 903, arguendo.) When there is only evidence to support the verdict in a criminal case, the appellate court has no jurisdiction to disturb it. (People V. Meyers, 5 Cal. App. 674, 91 Pac. 167.) The propriety of a conviction becomes a question of law only when there is a clear failure of proof. (People v. Caul- field, 7 Cal. App. 656, 95 Pac. 666.) Probate. — The supreme court has jurisdiction of only such appeals in probate matters as are provided by law. (Estate of Walkerly, 94 Cal. 352, 29 Pac. 719; Estate of Ohm, 82 Cal. 160, 22 Pac. 927; Estate of Moore, 86 Cal. 58, 24 Pac. 816; Estate of Winslow, 128 Cal. 311, 60 Pac. 931; Estate of Witt- meier, 118 Cal. 255, 50 Pac. 393; Estate of Cahill, 142 Cal. 628, 76 Pac. 383.) An order compelling an administratrix to allow her name to be used by a creditor of the estate is a probate matter within the meaning of this section, and, not being one in 223 • CONSTITUTION OP 1879. Art. VI, § 4 which an appeal is provided by law, no appeal lies. (Estate of Ohm, 82 Cal. 160, 22 Pac. 927.) Divorce. — An action for divorce is a case in equity within the meaning of this section. (Sharon v. Sharon, 67 Cal. 1S5, 7 Pac. 456, 8 Pac. 709; Cassidy v. Sullivan, 64 Cal. 266, 28 Pac. 234; Stewart v. Torrance, 9 Cal. App. 209, 98 Pac. 396.) The supreme court has jurisdiction of an appeal in an action for divorce. (Conant v. Conant, 10 Cal. 249, 70 Am. Dec. 717.) Liens. — Under the former constitution, prior to the amend- ments of 1862, the supreme court had no jurisdiction of an action to foreclose a mortgage or mechanic's lien when the amount involved did not exceed two hundred dollars. (Poland V. Carrigan, 20 Cal. 174.) Otherwise, since those amendments. (Willis V. Farley, 24 Cal. 490, 499.) An action to foreclose a mechanic's lien or to reach the fund in the hands of the owner, being an equitable action, is within the appellate jurisdiction of the supreme court. (Wel- don V. Superior Court, 138 Cal. 427, 71 Pac. 502.) Writs. — The language of the present constitution giving the supreme court power to "issue writs of mandamus, certiorari, prohibition, and habeas corpus, and all other writs necessary or proper to the complete exercise of the appellate jurisdiction," has the same meaning as the language in the former constitu- tion giving it power to "issue writs of mandamus, certiorari, prohibition, habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction." Thus construed, the section gives the court original jurisdiction to issue the writs specially named. (Hyatt v. Allen, 54 Cal. 353.) The writ of prohibition mentioned in this section is the ■writ of prohibition as known to the common law, and its office is to restrain subordinate courts and inferior judicial tribunals from exceeding their jurisdiction. (Maurer v. Mitchell, 53 Cal. 289.) The legislature cannot enlarge or extend the office of the writs mentioned in this section. (Camron v. Kenficld, 57 Cal. 550; Farmers' Union v. Thresher, 62 Cal. 407; Hobart v. Till- Bon, 66 Cal. 210, 5 Pac. 83.) In issuing writs of mandamus or other prerogative writs, the supreme court and the several superior courts are peers — each Art. VI, § 4 CONSTITUTION OP 18,79. . 224 having original jurisdiction; and a determination tliereon by a superior court is conclusive upon the supreme court, except on appeal. (Santa Cruz etc. Co. v. Santa Clara, 62 Cal. 40.) The supreme court will not entertain an application for a writ of mandamus, or other prerogative writ, where the peti- tion shows no sufficient reason why the application was not made to the superior court. (Menzies v. Board of Equaliza- tion, 62 Cal. 179.) The supreme court has appellate jurisdiction in cases of mandamus. (Palache v. Hunt, 64 Cal. 473, 2 Pac. 245.) The supreme court has appellate jurisdiction in a proceeding in the nature of a quo warranto. (People v. Perry, 79 Cal. 103, 21 Pac. 423.) The supreme court may exercise its appellate jurisdiction by means of the writs mentioned in this section. (People v. Turner, 1 Cal. 143, 52 Am. Dec. 295.) Mandamus is the proper remedy to compel the district court to restore an attorney whose name has been stricken from the rolls by the order of such court. (People v. Turner, 1 Cal. 143, 52 Am. Dec. 295.) Prior to the amendment of 1862, the supreme court could issue writs of certiorari, etc., only in aid of its appellate juris- diction. (Miliken v. Huber, 21 Cal. 166; Ex parte Attorney General, 1 Cal. 85.) Under the amendment of 1862, the supreme court had juris- diction to issue writs of mandamus, etc., without reference to its appellate jurisdiction. (Tyler v. Houghton, 25 Cal. 26; Miller v. Supervisors, 25 Cal. 93.) The district courts had jurisdiction to issue writs of man- date regardless of the amount involved. (Cariaga v. Dryden, 30 Cal. 244.) The jurisdiction of the supreme court in cases of certiorari does not depend upon the amount in controversy. (Winter v. Fitzpatrick, 35 Cal. 269.) The writ of certiorari can be rightfully issued only upon an order of the court, made upon application for that purpose, and not upon an order of the justices of the court as such, or any of them. (Smith v. Oakland, 49 Cal. 491.) A mandamus proceeding involving the validity of the organ- ization of a protection district and a tax thereof is within the 225 CONSTITUTION OF 1879. Art. VI, § 4 jurisdiction of the supreme court. (Kccch v. Joplin, 9 Cal. App. 217, 101 Pac. 417.) When mandamus is sought in aid of the exercise of appellate jurisdiction, as to compel the settlement of a bill of excep- tions, the application must be addressed to the court having appellate jurisdiction of the cause. (Stewart v, Torrance, 9 Cal. App. 209, 98 Pac. 396.) The constitution does not confine the jurisdiction of district courts to issue writs of mandamus within their respective dis- tricts, but, as a matter of comity, such writs should be in- variably applied for to the court of the district in which the cause for the writ arises, unless there are shown special cir- cumstances which justify the issuance of the writ by the court of another district. (Older v. Superior Court, 10 Cal. App. 564, 102 Pac, 829.) It is a sufficient ground for presenting a petition for writ of mandate to the district court of a district outside of which the cause for the writ arose that it would be impracticable to present it to the other court on account of Loss of time. (Older V. Superior Court, 10 Cal. App. 564, 102 Pac. 829.) Power of district court of appeals to issue writs in cases appealable to district court of appeals of anotlier district dis- cussed but not decided. (Older v. Superior Court, 157 Cal. 770, 109 Pac. 478.) Miscellaneous. — The supreme court has no jurisdiction of an appeal from a judgment in a proceeding under section 772 of the Penal Code, for the removal of public officers. (In re Curtis, 108 Cal. 661, 41 Pac. 793; Wheeler v. Donnell, 110 Cal. 655, 43 Pac. 1.) The supreme court has appellate jurisdiction of an appeal in a civil proceeding to remove an officer. (Morton v. IBrod erick, 118 Cal. 474, 50 Pac. 644.) The supreme court has no original jurisdiction to try the title to an office. (People v. Harvey, 62 Cal. 508.) The supreme court has appellate jurisdiction of an election contest. (Lord v. Dunster, 79 Cal. 477, 21 Pac. 805.) The supreme court has no jurisdiction to naturalize aliens. (Ex parte Knowles, 5 Cal. 300.) Constitution — 15 Art. VI, § 4 CONSTITUTION OP 1879. 226 The supreme court has no jurisdiction of an appeal frum a judgiiiput of the district court upon appeal from the court of sessions. (Webb v. Hanson, 3 Cal. 65.) FAILURE TO AGREE.— When the judges of the district court of appeal fail to agree upon an application for a writ of mandate it is deemed denied. (Ex parte Sauer, 3 Cal. App. 237, 84 Pac. 995.) PRESIDING JUSTICE.— The functions conferred on the chief justice by section 1174 of the Penal Code are to be per- formed by the presiding justices of the district courts of appeal, in cases in whieli appeals must be taken to such courts. (People v. Lapique, 154 Cal. 518, 98 Pac. 257.) REMITTITUR. — The remittitur is the judgment of the appel- late tribunal which is authenticated to the court from which the appeal is taken or over which its controlling influence is exercised, and applies to all judgments, whether rendered in the exercise of appellate or original jurisdiction. (Noel v. Smith, 2 Cal. App. 158, 83 Pac. 167.) Under rule 34 of the supreme court a judgment of the district court of appeal does not become conclusive until the remittitur is issued thereon. (Noel v. Smith, 2 Cal. App. 158, 83 Pac. 167.) APPEAL TO WRONG COURT.— Where an appeal is errone- ously taken to the court of appeal instead of the supreme court, the case will be transferred to the latter court. (Marston V, Kuhland, 2 Cal. App. 316, 84 Pac. 357; Hiner v. Hincr, 5 Cal. App. 546, 90 Pac. 957; Rickey Land etc. Co. v. Glader, 6 Cal. App. 113, 91 Pac. 414; Barnes v. Daveck, 7 Cal. App. 220, 94 Pac. 779; Stockton L. Co. v. Schuler, 7 Cal. App. 257. 94 Pac. 399; Randall v. Freed, 7 Cal. App. 553, 94 Pac. 1056; Wright V. Sonoma, 7 Cal. App. 567, 96 Pac. 333; Aetna In- demnity Co. V. Altadena Mining etc. Co., 11 Cal. App. 26, 104 Pac. 470; Pacific Paving Co. v. Verso, 11 Cal. App. 383, 105 Pac. 136; Risdon v. Prewett, 8 Cal. App. 434, 97 Pac. 73; Litch v. O'Connor, 8 Cal. App. 489, 97 Pac. 207; Keech v. Joplin, 9 Cal. App. 217, lui Pac. 417.) When an appeal is taken to the supreme court, but the undertaking recites an appeal to the district court of appeal, it is ineffectual. (McAulay v. Tahoe Ice Co., 3 Cal. App. 642, 86 Pac. 912.) Art. VI, Sec. 41/2- Insert at Page 227. Sec. 41/2- No judgment shall be set aside, or iieM'- trial granted, in any case, on the ground of mis- direction of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has re- sulted in a miscarriage of justice. (Amendment adopted November 3, !1914.) 227 CONSTITUTION OP 1879. Art. VI, §§ iy^, 5 When an appeal is properly taken to the supreme court, but the transcript and briefs are entitled in the district court of appeal, the latter court will not dismiss the appeal, but will order the record transmitted to the supreme court. (Davey V. Mulroy, 7 Cal. App. 1, 93 Pac. 297.) An appeal bond erroneously reciting that the appeal was about to be taken to the supreme court instead of the court of appeal may be cured by a new bond. (Pacific Paving Co. V. Verso, 11 Cal. App. 383, 105 Pac. 136.) Harmless errors to be disregarded. Sec. 41/^. No judgment shall be set aside, or new tri I granted in any criminal case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, after an examination of the entire cause including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Amendment approved October 10, 1911.) Superior court, jurisdiction. Sec. 5. The superior court shall have original juris- diction in all cases in equity, and in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the de- mand, exclusive of interest or the value of the prop- erty in controversy amounts to three hundred dollars, and in all criminal cases amounting to felony, and cases of misdemeanor not otherwise provided for; of Art. VI, § 5 CONSTITUTION OP 1879. 228 actions of forcible entry and detainer; of proceedings in insolvency; of actions to prevent or abate a nui- sance; of all matters of probate; of divorce and for annulment of marriage ; and of all such special cases and proceedings as are not otherwise provided for, and said courts shall have the power of naturalization, and to issue papers therefor. They shall have appel- late jurisdiction in such cases arising in inferior courts in their respective counties as may be prescribed by law. They shall be always open (legal holidays and nonjudicial days excepted), and their process shall ex- tend to all parts of the state ; provided, that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated. Said courts, and their judges, shall have power to issue writs of mandamus, certi- orari, prohibition, quo warranto, and habeas corpus, on petition by or on behalf of any person in actual custody, in their respective counties. Injunctions and writs of prohibition may be issued and served on legal holidays and nonjudicial days. (Amendment approved October 10, 1911.) [ORIGINAL SECTION.] Sec. 5. The superior court shall have original jurisdiction in all cases in equity, and in all cases at law which involve the title or possession of real property, or the legality of any tax, 229 CONSTITUTION OP 1879. Art. VI, § 5 impost, assessment, toll, or municipal fine, and in all other eases in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars, and in all criminal cases amounting to felony, and cases of misde- meanor not otherwise provided for; of actions of forcible entry and detainer; of proceedings in insolvency; of actions to pre- vent or abate a nuisance; of all matters of probate; of divorce and for annulment of marriage, and of all such special cases and proceedings as are not otherwise provided for. And said court shall have the power of naturalization, and to issue papers there- for. They shall have appellate jurisdiction in such cases arising in justices' and other inferior courts in their respective counties as may be prescribed by law. They shall be always open (legal holidays and nonjudicial days excepted), and their process shall extend to all parts of the state; provided, that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof affected by such action or actions, is situated. Said courts, and their judges, shall have power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus, on petition by or on behalf of any person in actual custody in their respective counties. Injunctions and writs of prohibition may be issued and served on legal holidays and nonjudicial days. JURISDICTION OF SUPERIOR COURT— In general.— The superior court is a court of general jurisdiction. (Bishop V. Superior Court, 87 Cal. 226, 25 Pac. 435; Campe v. Lassen, 67 Cal. 139, 7 Pac. 430.) Its jurisdiction is conferred by the constitution, and cannot be taken away by the legislature. (Tulare v. Hevren, 126 Cal. 226, 58 Pac. 530.) The superior courts are state courts. (Pratt v. Browne, 135 Cal. 649, 67 Pac. 1082.) There is only one superior court in each county. (Carter v. Lothian, 133 Cal. 451, 65 Pac. 962.) Art. VI, § 5 CONSTITUTION OF 1879. 230 This section was intended to be prospective only in its oper- ation, and does not apply to actions pending when the constitu- tion went into effect. (Gurnee v. Superior Court, 58 Cal. 88; Watt V. Wright, 66 Cal. 202, 5 Pac. 91.) This section does not prohibit the legislature from allowing judicial business to be transacted on a legal holiday or non- judicial day. (People v. Soto, 65 Cal. 621, 4 Pac. 664.) The fact that the constitution gives the superior court juris- diction in cases of equity does not prevent the legislature from regulating the practice of proceedings in such cases. (Wright V. Superior Court, 139 Cal. 469, 73 Pac. 145.) A superior court is always in session. (County of San Luis Obispo V. Limas, 1 Cal. App. 175, 81 Pac. 972.) As to jurisdiction in general, see note to last section. HOLIDAYS. — There is an apparent conflict between this provision and section 134 of the Civil Code so far as holidays are concerned. (People v. Heacock, 10 Cal. App. 450, 102 Pac. 543.) As to whether Saturday afternoon is a legal holiday so far as judicial business is concerned, see People v. Heacock, 10 Cal. App. 450, 102 Pac. 543. This section does not forbid the legislature from permitting tlie transaction of business on legal holidays. (People v. Heacock, 10 Cal. App. 450, 102 Pac. 543.) By this section it was never intended to prohibit all busi- ness in the superior courts on a legal holiday or nonjudicial day, except the issuance of injunctions and writs of prohibition, and the legislature is at liberty to allow or disallow the transaction of all or any class of judicial business on legal holidays. (Matter of Smith, 152 Cal. 566, 93 Pac. 191; Diepen- brock V. Superior Court, 153 Cal. 597, 95 Pac. 1121.) Cases at law. — The ad damnum clause of the complaint de- termines the jurisdiction of the superior court. (Dashiell v. Slingerland, 60 Cal. 653; Jackson v. Whartenby, 5 Cal. 94; Maxfield v. Johnson, 30 Cal. 545; Greenbaum v. Martinez, 86 Cal. 459, 25 Pac. 12; Bailey v. Sloan, 65 Cal. 387, 4 Pac. 349; Derby v. Stevens, 64 Cal. 287, 30 Pac. 820; Rodley v. Curry, 120 Cal. 541, 52 Pac. 999; Tulare v. Hevren, 126 Cal. 226, 58 Pac. 530.) The "demand" spoken of in this section is a demand for judgment evidenced by the prayer of the complaint, and a stato- 231 CONSTITUTION OF 1879. Art. VI, § 5 nient of facts wliich can uphold the judgment prayed for. (.Derby v. Stevens. 64 Cal. 287, 30 Pae. 820, arg^neudo.) It is the demand and not the finding of value which fixes the jurisdiction of the court. (Pratt v. Welcome, 6 Cal. App. 475, 92 Pac. 500.) The jurisdiction of the court is not affected by the fact that the plaintiff does not succeed in establishing all that he claims. (Becker v. Superior Court, 151 Cal. 313, 90 Pac. 689.) The jurisdiction depends upon the amount demanded in good faith, in the complaint. (Jackson v. Whartenby, 5 Cal. 91, arguendo.) In an action for conversion, where the value of the property sued for and the money expended in pursuit of it exceed three hundred dollars, the superior court has jurisdiction, although, separately considered, neither of them is equal to that sum. (Greenbaum v. Martinez, 86 Cal. 459, 25 Pac. 12.) The superior court has no jurisdiction of a counterclaim, under subdivision 2 of section 438 of the Code of Civil Pro- cedure, for less than three hundred dollars, where it is not pleaded as a defense, but merely as a ground for aflSrmative relief. (Griswold v. Pieratt, 110 Cal. 259, 42 Pac. 820.) A counterclaim for less than three hundred dollars may be pleaded in an action in the superior court by way of defense, but no affirmative judgment can be rendered thereon. (Free- man V. Seitz, 126 Cal. 291, 58 Pac. 690.) An action for less than the constitutional amount does not confer jurisdiction. (Page v. Ellis, 9 Cal. 248.) But where the amount sued for exceeds the jurisdictional amount, the court has jurisdiction, although the amount recov- ered is less than that sum. (Solomon v. Reese, 34 Cal. 28; Pennybecker v. McDougal, 48 Cal. 160.) Where several plaintiffs sue together on several distinct claims each for less than three hundred dollars, and the court enters a joint judgment for the entire amount of the claims, the judgment is void. (Winrod v. Wolters, 141 Cal. 399, 74 Pac. 1037.) Costs are to be excluded in determining the jurisdictional amount. (Bradley v. Kent, 22 Cal. 169.) The interest due is also to be excluded. (Arnold v. Van Brunt, 4 Cul. 89.) Art. VI, § 5 CONSTITUTION OP 1879. 232 This rule applies to compound as well as to simple interest. (Christian v. Superior Court, 122 Cal. 117, 54 Pac. 518.) But a penalty of fifty per cent on the amount of principal and interest due on a promissory note, provided for in the note in case of a suit thereon, is to be included in determining the jurisdictional amount. (Reed v. Bernal, 40 Cal. 628.) Also an attorney's fee provided for in a note. (De Jarnatt v. Marquez, 132 Cal. 700, 64 Pac. 1090.) An action to recover funds in the hands of a receiver is an action at law. (Garniss v. Superior Court, 88 Cal. 413, 26 Pac. 351.) The superior court has jurisdiction of an action to recover money, although the amount claimed in each count is less than three hundred dollars, when the aggregate amount sued for ex- ceeds that sum. (Bailey v. Sloan, 65 Cal. 387, 4 Pac. 349; Ventura County v. Clay, 114 Cal. 242, 46 Pac. 9.) The superior court has jurisdiction to enjoin an action in the justice's court for the price of goods sold, when the defendant has a counterclaim for breach of warranty of the goods in excess of the jurisdiction of the justice's court, and has brought an action for damages in the superior court. (Gregory v. Diggs, 113 Cal. 196, 45 Pac. 261.) The superior court has no jurisdiction of an action to recover from one or more stockholders their several shares of a debt of a corporation, where the amount demanded from each is less than three hundred dollars, although the entire amount ex- ceeds that sum. (Derby v. Stevens, 64 Cal. 287, 30 Pac. 820; Hyman v. Coleman, 82 Cal. 650, 16 Am. St. Eep. 178, 23 Pac. 62.) "The superior court has no jurisdiction of an action upon sejaa- rate and distinct promises of several defendants, contained in one instrument, to pay respectively sums less than three hun- dred dollars. (Thomas v. Anderson, 58 Cal. 99.) An action to recover unpaid taxes is not a case in equity, but an action at law; and where the amount is less than three hun- dred dollars, the court has no jurisdiction; but an action to foreclose a lien for taxes is a case in equity, of which the su- perior court has jurisdiction regardless of the amount. (People V. Mier, 24 Cal. 61; Bell v. Crippen, 28 Cal. 327; People v. Oiivera, 43 Cal. 492.) 233 CONSTITUTION OF 1879. Art. VI, § 5 Cases in equity. — The legislature cannot take away the equity jurisdiction conferred by the constitution. (Rosenberg v. Frank, 58 Cal. 387.) But the constitutional grant of jurisdiction in all cases in equity was not intended as a limitation upon the power of the legislature to regulate the rights of persons; and the legislature may create new rights under which new cases in equity may arise, or cause some rights to cease to exist, so that certain cases which courts of equity once entertained can no longer arise. (Spreckels v. Hawaiian Com. etc. Co., 117 Cal. 377, 49 Pac. 353.) The grant of jurisdiction in all cases in equity confers the same jurisdiction as that formerly exercised by a court of chancery. (Sanford v. Head, 5 Cal. 297.) The superior court has jurisdiction of an action for an ac- counting between mortgagor and mortgagee, although the prop- erty is out of the state. (Peninsular etc. Co. v. Pacific etc. Co., 123 Cal. 689, 56 Pac. 604.) Where an action in equity involves matters of probate juris- diction, but no objection to the mode of exercising the juris- diction is made in the trial court, it will be treated upon appeal as within the equity jurisdiction. (Simons v. Bedell, 122 Cal. 341, 68 Am. St. Eep. 35, 55 Pac. 3.) An action against a county for less than three hundred dol- lars, claimed as compensation for services rendered by the plain- tiff as a member of the county board of education, is not a suit in equity, and the superior court has no jurisdiction of it. (Wright V. Del Norte County, 115 Cal. 464, 47 Pac. 258.) The same superior court has jurisdiction both in equity and in matters of probate; and in an action in equity for an ac- counting against the executor of a deceased administrator, it may administer full and entire relief according to the prin- ciples of equity, and also in accordance with the statutes with reference to matters of probate. (Pcnnie v. Eoach, 94 Cal. 515, 29 Pac. 956, 30 Pac. 106.) A court of equity has jurisdiction of an action to recover property intentionally and fraudulently concealed by a guardian from the court and the ward. (Lataillade v. Orena, 91 Cal. 565, 25 Am. St. Eep. 219, 27 Pac. 924.) Art. VI, § 5 CONSTITUTION OF 1879. 23-4 The superior court cannot enjoin tlie execution of a mandate of tlie supreme court. (Quan Wo Chung v. Laumeister, 83 Cal. 384, 17 Am. St. Kep. 261, 23 Pac. 320.) An action to annul an ordinance of the board of supervisors fixing water rates is within the equitable jurisdiction of the superior court. (Spring Valley W. \V. v. San Francisco, 82 Cal. 286, 16 Am. St. Rep. 116, 22 Pac. 910, 6 L. R. A. 756.) The superior court, as a court of equity, has power in proper cases to hear and determine questions relating to the rights and duties of executors and beneficiaries under wills which have been admitted to probate. (Williams v. Williams, 73 Cal. 99, 14 Pae. 394.) The superior court has jurisdiction of a suit in equity against the administrator of a deceased person for the specific perform- ance of a contract for the sale and purchase of lands. (Hall V. Rice, 64 Cal. 443, 1 Pac. 891.) The superior courts are vested with the same chancery juris- diction which was vested in the high courts of chancery in Eng- land, and the equity power is not curtailed by tlie code provi- sions regulating injunctions. (Pasadena v. Superior Court, 157 Cal. 781, 109 Pac. 620.) The superior court in an action brought in good faith to fore- close an asserted mechanic's lien has jurisdiction upon finding against the claim of lien to render a personal judgment. (Becker v. Superior Court, 151 Cal. 313, 90 Pac. 689.) An action to foreclose a mechanic's lien is a suit in equity. (Becker v. Superior Court, 151 Cal. 313, 90 Pac. 689.) The legislature cannot take away the equity jurisdiction con- ferred on the courts by the constitution. (Bacon v. Bacon, 150 Cal. 477, 89 Pac. 317.) The superior court has power to compel a discovery in all cases in which, under the established rules of chancery practice existing at the time of the adoption of the constitution, a party would have been entitled to this relief. (Union etc. Co. v. Supreme Court, 149 Cal. 790, 87 Pac. 1035.) The district courts had power to appoint receivers in "cases where receivers had theretofore been appointed by the usages of the courts of equity." (Bateman v. Superior Court, 54 Cal. 285; La Societe Francaise v. District Court, 53 Cal. 495.) 235 CONSTITUTION OF 1879. Art. VI, § 5 In this state, the jurisdiction of courts of equity over ques- tions of title to real estate has no existence. (Ritchie v. Dor- land, 6 Cal. 33.) Under the general grant of jurisdiction in all cases in equity, the court may issue writs of mandamus, certiorari, prohibition, and habeas corpus. (Perry v. Ames, 26 Cal. 372.) An action to abate a nuisance is a case in equity. (People V. Moore, 2& Cal. 427; Courtwright v. Bear Eiver etc. Co., 30 Cal. 573; Yolo County v. Sacramento, 36 Cal. 193.) In Rosenberg v. Prank, 58 Cal. 387, it was held that the cor- responding section of the constitution of 1849 conferred upon the district courts the same jurisdiction in equity as that ad- ministered by the high court of chancery in England, including the power to construe a will after it has been admitted to pro- bate. But, under the present constitution, it is held that the power to construe a will is vested exclusively in the superior court sitting as a court of probate. (Toland v. Earl, 129 Cal. 148, 79 Am. St. Rep. 100, 61 Pac. 914.) Conceding that the superior court has jurisdiction of an ac- tion to construe a will, it is not bound to entertain such an action, and should not do so, except in case where there is some special reason for seeking its interpretation. (Siddall v. Har- rison, 73 Cal. 560, 15 Pac. 130.) Under the former constitution it was held that an action in equity to compel an administrator to account would lie, al- though his account had been settled by the probate court. (Clarke v. Perry, 5 Cal. 58, 63 Am. Dec. 82.) Probate. — Prior to the organization of the state, there was no such a thing as the probate of a will; and the probate court has no jurisdiction to probate a will executed prior to that time by the death of the testator. (Grimes v. Norris, 6 Cal. 621, 65 Am. Dec. 545; Coppinger v. Rice, 33 Cal. 408; Castro V. Castro, 6 Cal. 158.) The courts of first instance, between the acquisition of Cali- fornia by tjie United States and the passage of the probate act, had jurisdiction in matters of probate. (Ryder v. Cohn, 37 Cal. 69.) The estates of deceased persons in this state, who died prior to the passage of the Probate Act of 1850, and subsequent to the organization of the state, can be administered on in accord- ance with the probate act. (People v. Senter, 28 Cal. 502.) Art. VI, § 5 CONSTITUTION OF 1879. 236 The probate court is a court of limited and inferior jurisdic- tion, (Grimes v. Norris, 6 Cal. 621, 65 Am. Dec. 545; Clarke V. Perry, 5 Cal. 58, 63 Am. Dec. 82; Smith v. Andrews, 6 Cal. 6o2; Smith v. Wcsterfield, 88 Cal. 374, 26 Pac. 206.) No distiuet "court of probate" has been created or recognized by the constitution. (In re Burton, 93 Cal. 459, 29 Pac. 36.) The superior court, when sitting as a court of probate, ha3 power to hear and determine all questions of law and fact, the determination of which is ancillary to a proper judgment in such case. (In re Burton, 93 Cal. 459, 29 Pac. 36.) The jurisdiction of the superior court over probate matters is conferred by the constitution, and it is not a statutory tribunal when sitting in probate. (Heydenfeldt v. Superior Court, 117 Cal. 348, 49 Pac. 210.) The probate court has exclusive jurisdiction of legacies. (Drinkhouse v. Merritt, 134 Cal. 580, 66 Pac. 785.) The probate court has no jurisdiction to settle a disputed claim by a third person against the guardian or the estate of a ward. (Guardianship of Breslin, 135 Cal. 21, 66 Pac. 962.) A court of equity cannot set aside a decree of distribution made by the probate court on the ground of fraud of the person securing it; but in case of extrinsic fraud it may declare such person a trustee of the defrauded parties. (Sohler v. Sohler, 135 Cal. 323, 87 Am. St. Kep. 98, 67 Pac. 282.) Questions in regard to assignments made by an heir apparent are not within the scope of probate proceedings. (Estate of Ryder, 141 Cal. 366, 74 Pac. 993.) The superior court sitting as a court of probate has no juris- diction to annul an administration and compel the administrator to return all the property which has come into his hands, on the ground that the administration was granted on the estate of a living person, (Costa v. Superior Court, 137 Cal. 79, 69 Pac. 840.) The determination of a judgment lien against a devisee is not a matter of probate. (Martinovich v. Marsicano, 137 Cal. 354, 70 Pac. 459.) When a title by patent from the United States vested abso- lutely in the widow and two children of the deceased husband and father, free of any trust attaching to his estate, the su- perior court sitting in probate has no jurisdiction over it. 237 CONSTITUTION OP 1879. Art. VI, § 5 (Southern Cal. M. T. Co. v. Lincoln University, 137 Cal. 508, 70 Pac. 1129.) The former constitution did not confer on the probate court jurisdiction of all matters relating to the estates of deceased persons, but of such matters only as the statutes direct it to exercise jurisdiction over. (Bush v. Lindsey, 44 Cal. 121.) Probate courts have no jurisdiction to enforce a trust by com- pelling an administrator to convey property by him held in trust. (Haverstick v. Trudel, 51 Cal. 431.) The probate court has no jurisdiction to compel an attorney of an executrix to return a fee paid him by her. (Tomsky v. Superior Court, 131 Cal. 620, 63 Pac. 1020.) The probate courts have not exclusive jurisdiction in cases of guardlan.ship of minors. (Wilson v. Roach, 4 Cal. 362.) The district courts had the same control over the persons of minors, as well as their estates, that the court of chancery in England possesses. (Wilson v. Roach, 4 Cal. 362.) Neither the probate court, nor the superior court when exer- cising probate jurisdiction, has power to set aside a decree of distribution on the ground of fraud, after the time mentioned in section 473 of the Code of Civil Procedure. (Estate of Hud- son, 63 Cal. 454.) The jurisdiction of the probate courts over the estates of deceased persons did not devest the district courts of their gen- eral jurisdiction as courts of chancery over actions for a settle- ment of the affairs of a partnership. (Griggs v. Clark, 23 Cal. 427.) Where the executors named in the will are also appointed trustees to control and manage the residue of the estate and to distribute it among certain beneficiaries, a court of equity has no jurisdiction of a bill to enforce an accounting of the trust estate, pending administration of the estate in the probate court. (Dougherty v. Bartlett, 100 Cal. 496, 35 Pac. 431.) The probate court cannot decide an adverse claim to property asked to be set aside as a homestead. (Estate of Kimberly, 97 Cal. 281, 32 Pac. 234.) The superior court sitting as a court of probate may examine into the title to parcels of real estate, for the purpose of select- ing a homestead, but has no jurisdiction to determine the title as between adverse claimants. (Estate of Burton, 64 Cal. 428, 1 Pac. 702.) Art. VI, § 5 CONSTITUTION OP 1879. 238 In probate proceedings the court has jurisdiction of the claims of assignees of the heir, but its jurisdiction does not extend to claims of an equitable nature against the legal owner, or, in other words, to trusts. (More v. More, 133 Cal. 489, 65 Pac. 104-1.) The probate court has no jurisdiction to settle the accounts of a deceased guardian. (In re Allgier, 65 Cal. 228, 3 Pac. 849.) The probate court has no jurisdiction to determine whether or not certain property in the possession of the executor belongs to the estate or is held by him in some other capacity. (In re Haas, 97 Cal. 232, 31 Pac. 893.) Sections 1458 to 1461 of the Code of Civil Procedure do not provide for a proceeding involving title to property of which the probate court has no jurisdiction. (Levy v. Superior Court, 105 Cal. 600, 38 Pac. 965, 29 L. R. A. 811.) Where property is devised, exonerated of the mortgage thereon, the probate court has jurisdiction to compel the ex- ecutor to pay the mortgage debt from the assets of the estate. (In re Heydenfeldt, 106 Cal. 434, 39 Pac. 788.) The probate court has inherent power to order the distributee to return to the executors the property distributed, when the decree of distribution is reversed upon appeal. (Heydenfeldt V. Superior Court, 117 Cal. 348, 49 Pac. 210.) Under the former constitution it was held that the jurisdic- tion of the probate court over testamentary and probate matters was not exclusive. The district court might take jurisdiction of the settlement of an estate when there were peculiar cir- cumstances of embarrassment, and when the assuming jurisdic- tion would prevent waste, delay and expense, and thus con- clude, by one action and decree, a protracted litigation. (Deck V. Gerke, 12 Cal. 433, 73 Am. Dec. 555.) The probate court has exclusive jurisdiction of the following matters: Matters relating to the proof of wills (Castro v. Rich- ardson, 18 Cal. 478); probate of wills, granting of letters, allow- ance of claims, settlement of accounts (In re Bowen, 34 Cal. 682); to adjust and enforce a claim for expenses of adminis- tration (Gurnee v. Maloney, 38 Cal. 85, 99 Am. Dec. 352); to compel an executor to account, and to distribute the estate (Auguisola v. Arnaz, 51 Cal. 435); to construe a will (Toland v. Earl, 129 Cal. 148, 79 Am. St. Rep. 100, 61 Pac. 914); to de- termine who is entitled to distribution (Simons v. Bedell, 122 239 CONSTITUTION OF 1879. Art. VI, § 5 Cal. 341, 68 Am. St. Eep. 35, 55 Pac. 3); to determine whether an attorney for absent or minor heirs shall be appointed, and to fix the amount of his compensation. (Dougherty v. Bartlett, 100 Cal. 496, 35 Pac. 431.) The superior court, when sitting as a court of probate, has exclusive jurisdiction of the distribution of an estate, and is not bound by an adjudication by the same court, when sitting as a court of equity, as to the interest of an heir or devisee, where such interest was merely incidentally involved. (Estate of Freud, 134 Cal. 333, 66 Pac. 476.) An action will not lie to recover from an executrix rents received by her after the settlement of her account, although she neglected to account for the same. (Washington v. Black, 83 Cal. 290, 23 Pac. 300.) A court of equity has no power to establish a will, eve a though the will has been lost or destroyed, or has been fraudu- lently suppressed, and the relief is aslved against a person who destroyed the will and is one of the witnesses necessary to prove its contents. (McDaniel v. Pattison, 98 Cal. 86, 32 Pac. 805.) In an action of ejectment, the superior court has no power to set aside the land sought to be recovered as a homestead. This can only be done by the superior court sitting as a court of probate, (Eichards v. Wetmore, 66 Cal. 365, 5 Pac. 620.) Under the former constitution, the district courts had power to decide issues of fact joined in the probate court and certi- fied to the district courts. This provision, however, did not give such courts any appellate jurisdiction from the probate courts. (Reed v. McCormick, 4 Cal. 342.) An act providing for the transfer to the district courts of issues of fact already decided by the probate court is void as conferring appellate jurisdiction upon the district courts, which under the constitution they cannot exercise. (Deck v. Gerke, 6 Cal. 666.) After the amendment in 1862, district courts had no jurisdic- tion to try issues arising in the probate courts. (In re Bowen, 34 Cal. 682; Matter of Tomlinsou, 35 Cal. 509.) The probate court was not bound by a decision by the district court as to a fact certified to that court for decision. (Pond v. Pond, 10 Cal. 495.) Art. VI, § 5 CONSTITUTION OP 1879. 240 The probate court had jurisdiction to try and determine is- sues of fact arising in proceedings before it, and was only- required to certify the issue to the district court when the evi- dence was conflicting, etc. (Keller v. Franklin, 5 Cal. 432.) The supreme court sitting in probate has exclusive jurisdic- tion of accounts of executors and administrators. (Elizalde v. Murphy, 4 Cal. App. 114, 87 Pac. 245.) The superior court sitting in probate has exclusive jurisdic- tion on allowance of administrator's fees, expenses and attor- ney's fees, whether claimed by the administrator or the repre- sentatives of a deceased administrator. (Elizalde v. Murphy, 4 Cal. App. 114, 87 Pac. 245.) The superior court sitting in probate has such equitable juris- diction as may be necessary to the exercise of its proper func- tions. (Elizalde v. Murphy, 4 Cal. App. 114, 87 Pac. 245.) . Under the former constitution the probate court had such jurisdiction only as was conferred upon it by the legislature, while under the present constitution the superior court has ju- risdiction "of all matters of probate." (Elizalde v. Murphy, 4 Cal. App. 114, 87 Pac. 245.) Divorce. — In a suit for divorce and a partition of the prop- erty acquired during coverture, the jurisdiction of the court does not depend upon the amount involved. (Deuprez v. Deu- prez, 5 Cal. 387.) The grant of jurisdiction in actions of divorce does not pre- vent the legislature from making reasonable regulations as to the proceedings by which such jurisdiction is exercised, or from taking away the right of divorce entirely. (Grannis v. Su- perior Court, 146 Cal. 245, 106 Am. St. Rep. 23, 79 Pac. 891.) Insolvency. — The act creating the bank commissioners did not deprive the superior court of its power to hear and determine matters of insolvency. (People v, Superior Court, 100 Cal. 105, 34 Pac. 492.) The legislature may pass an insolvency law while a United States bankruptcy law is in force, but its operation will be suspended until the repeal of the federal law. (Lewis v. County Clerk, 55 Cal. 604; Seattle Coal etc. Co. v. Thomas, 57 Cal. 197; Boedefeld v. Reed, 55 Cal. 299.) Since the new constitution proceedings in insolvency are no longer special cases. (People v. Rosborough, 29 Cal. 415.) 241 CONSTITUTION OP 1879. Art. VI, § 5 The mere fact that jurisdiction in eases of insolvency is vested in the court does not prevent the legislature from au- thorizing the judge to make an order in chambers directing the clerk to give notice to creditors. (Flint v. Wilson, 36 Cal. 24.) Tax. etc. — The term "assessment" as used in this section does not include assessments made by a private corporation upon its stockholders, but refers to such assessments as are authorized in relation to revenue and taxation, and such as may be made under the authority of a municipal or other corporation to meet the cost of a public improvement. (Arroj'o Ditch etc. Co. v. Superior Court, 92 Cal. 47, 27 Am. St. Eep. 91, 28 Pac. 54.) A forfeiture for issuing a certificate of relief in violation of section 596 of the Political Code is not a municipal fine, or a tax, impost, toll, or assessment. (Thomas v. Justice's Court, 80 Cal. 40, 22 Pae. 80.) An action against an assessor to recover damages for a wrongful and fraudulent assessment made by him does not in- volve "the legality of a tax." (Perkins v. Ralls, 71 Cal. 87, 11 Pac. 860.) A proceeding to modify the grade of a street is a special one. and not a case at law involving the legality of an assessment. (Appeal of Houghton, 42 Cal. 35.) A license fee or charge for the transaction of any business is a tax. (Santa Barbara v. Stearns, 51 Cal. 499.) An action to recover a sum exacted by a toll gatherer, greater than he is permitted by law to collect, does not involve the legality of a toll. (Brown v. Rice, 52 Cal. 489.) Special proceedings. — The county courts only had jurisdic- tion in such special cases as the legislature should determine. (Matter of Marks, 45 Cal. 199.) A grant of jurisdiction in such special cases as the legislature may prescribe does not confer exclusive jurisdiction in special cases. (O'Callaghan v. Booth, 6 Cal. 63; Harper v. Freelou, 6 Cal. 76.) As to whether the legislature may confer jurisdiction of spe- cial cases upon courts not established by the constitution, see Spencer Creek Water Co. v. Vallejo, 48 Cal. 70. The legislature cannot confer jurisdiction in "special cases" upon a judge. (Spencer Creek Water Co. v. Vallejo, 48 Cal. 70.) Constitution — 16 Art. VI, § 5 CONSTITUTION OF 1879. 242 Special cases are cases created by statute and the procecdinga under which are unknown to the general framework of the courts of common law and eciuity. (Parsons v. Tuolumne Co. Water Co., 5 Cal. 43, 63 Am. Dec. 76; Feople v. Day, 15 Cal. &1; People V. Kern Co., 45 Cal. 679.) An action to prevent or abate a nuisance is not a special case. (Parsons v. Tuolumne Co. Water Co., 5 Cal. 43, 63 Am. Dec. 76.) Writs of mandate are not special cases. (People v. Kern Co., 45 Cak 679.) The incoraoration of towns is not a special case. (People v. Nevada, 6 Cal. 143.) The following matters are special cases within the* meaning of the constitution: Cases of insolvency (Harper v. Freelon, 6 Cal. 76); election contests (Dorsey v. Barry, 24 Cal. 449; Saun- ders V. Haynes, 13 Cal. 145); the examination of claims for public lands (Ricks y. Reed, 19 Cal. 551); proceedings to en- force mechanics' liens (McNeil v. Borland, 23 Cal. 144, distin- guishing Brock V. Bruce, 5 Cal. 279); proceedings for the con- demnation of water (Spencer Creek Water Co. v. Vallejo, 48 Cal. 70); proceedings under sections 312 and 315 of the Civil Code (Wickersham v. Brittan, 93 Cal. 34, 28 Pac. 792, 29 Pac. 51, 15 L. R. A. 106); proceedings to condemn land (Bishop v. Superior Court, 87 Cal. 226, 25 Pac. 435). Section 4 of the act of 1897 for the formation of irrigation districts (Stats. 1897, p. 254), providing for an appeal directly to the superior court of the county from an order of the board of supervisors granting an application for the formation of a district, is unconstitutional and void. The legislature has no power to extend the jurisdiction, original or appellate, of the superior court. (Chinn v. Superior Court, 156 Cal. 478, 105 Pac, 580.) Real property. — The idea intended to be embodied in the phrase, "cases at law which involve the title or possession of real property," may be expressed by the paraphrase: Cases at law in which the title or possession of real property is a mate- rial fact in the case, upon which the plaintiff relies for a re- covery or the defendant for a defense. (Holman v. Taylor, 3J Cal. 338; Copertini v. Oppermann, 76 Cal. 181, 18 Pac. 256.) When the title to real property is involved, the amount sued for is not material in determining the jurisdiction. (Cullen v. Langridge, 17 Cal. 67; Holman v. Taylor, 31 Cal. 338.) 243 CONSTITUTION OP 1879. Art. VI, § 5 It is not enough that the possession is a fact in controversy, or incidentally in question, or that the fact of possession is in issue; but the right of possession must be involved. (Pollock V. Cummings, 38 Cal. 683; Cornett v. Bishop, 39 Cal. 319.) An action to recover one-half of the value of a partition fence involves the title to real property. (Holman v. Taylor, 31 Cal. 338.) An action brought in a justice's court against a railroad com- pany by an owner of adjoining land, to recover for the killing of a colt alleged to have strayed upon the track by reason of the insufficiency of a division fence, necessarily involves the title to such land, although the answer raises no issue as to such ownership. (Boyd v. Southern Cal. Ky. Co., 126 Cal. 571, 58 Pac. 1046.) An action to foreclose a vendor's lien upon premises con- tracted to be sold is an action for the enforcement of a lien upon real estate within the provisions of this section. (South- ern Pac. R. R. Co. V. Pixley, 103 Cal. 118, 37 Pac. 191.) An action by a vendee to a contract for the sale of land to recover a part payment made on the purchase price, because of a defect in the title of the vendor, involves the title to real property. (Copertini v. Oppermann, 76 Cal. 181, 18 Pac. 256.) Where an action involving the title or possession of real prop- erty is brought in the justice's court, and the defendant appeals to the superior court, which renders judgment in favor of the plaintiff, the defendant may appeal to the supreme court. (Hart v. Carnall-Hopkins Co., 101 Cal. ICO, 35 Pac. 633; Santa Barbara v. Eldred, 95 Cal. 378, 30 Pac. 562.) Where an action to recover less than three hundred dollars is transferred from the justice's court to the superior court on the ground that it involves the title to real estate, and the plaintiff afterward amends his complaint and asks for damages to certain lands, the superior court has no jurisdiction of the action, as it does not appear that the action involves the title to real estate. (Gorton v. Ferdinando, 64 Cal. 11, 27 Cal. 941.) An action for specific performance of a contract for the sale of land is not an action for the recovery of the possession of or quieting title to real estate. (Grocers etc. Union v. Kern etc. Co., 150 Cal. 466, 89 Pac. 120.) Place of trial. — The proviso in this section is mandatory. (Fresno Nat. Bank v. Superior Court, 83 Cal. 491, 24 Pac. 157.) Art. VI, § 5 CONSTITUTION OF 1879. 244 The proviso to this section is to be strictly construed, and does not include an action to recover damages for interfering with an easement for a canal, where there is nothing in the complaint to indicate that the defendant claims any right or title to the easement of the canal. (Miller & Lux v. Kern Co. Land Co., 140 Cal. 132, 73 Pac. 836.) An action may be brought under the proviso to this section to partition several distinct tracts of land situated in different counties. As to whether or not partition is an action "quieting title to" real estate not decided. (Murphy v. Superior Court, 138 Cal. 69, 70 Pac. 1070.) An action to have it adjudged that plaintiff is the owner of an undivided third of a mining property, and to compel a con- veyance thereof, must be brought in the county in which the miniiig property is located. (McFarland v. Martin, 144 Cal. 771, 78 Pac. 239.) An action to establish a trust in land must be tried in the county where the laud is situated. (Hannah v. Canty, 1 Cal App. 225, 81 Pac. 1035.) Where property situated in different counties is mortgaged to secure a debt, the superior court of either county has juris- diction of a suit to foreclose. (Kent v. Williams, 146 Cal. 3, 79 Pac. 527.) The superior court has no jurisdiction of an action to enforce a lien upon real property situated in another county. (Urton V. Woolsey, 87 Cal. 38, 25 Pac. 154.) This section has no application to an action for the settle- ment of a triist in relation to real and personal property, and such an action is not required to be brought in the county where the real property is situated. (Le Breton v. Superior Court, 66 Cal. 27, 4 Pac. 777.) If an action to quiet title to real estate is brought outside of the county in which the land is situated, the court has no jurisdiction, and such lack of jurisdiction cannot be waived. (Fritts V. Camp, 94 Cal. 393, 29 Pac. 867.) An action to set aside a judgment procured by fraud is a suit in equity and need not be brought in the county in which the judgment was recovered, (Herd v. Tuohy, 133 Cal. 55, 65 Pac. 139.) 245 CONSTITUTION OF 1879. Art. VT, § 5 The creating of a new county does not affect an action pend- ing in the superior court affecting real property in such new county. (Tolman v. Smith, 85 Cal. 280, 24 Pac. 743.) This section does not provide that the actions referred to must be tried, but simply that they must be commenced in the county in which the land is situated. (Hancock v. Burton, 61 Cal. 70.) Writs. — The legislature has no power to enlarge the office of the writs mentioned in this section. (Camron v. Kenfield, 57 Cal. 550; Farmers' Union v. Thresher, 62 Cal. 407.) The superior court may issue a writ of mandamus to run out of the county, or to be executed out of the county in which the court is held. (Kings County v. Johnson, 104 Cal. 198, 37 Pac. 870.) If the provisions of this section reviving the writ of quo war- ranto repealed by implication the provisiong of the code for an action against persons who usurp offices or franchises, it made little difference, as the power under a writ of quo war- ranto is quite as broad as under the statute. (People v. Dash- away Assn., 84 Cal. 114, 24 Pac. 277, 12 L. R. A. 117.) The county court had no jurisdiction to issue the writ of cer- tiorari, except in aid of its appellate jurisdiction. (Wilcox v. Oakland, 49 Cal. 29.) Criminal cases. — The superior court has jurisdiction of an offense punishable by imprisonment and fine, which may exceed one thousand dollars. (Ex parte Neustadt, 82 Cal. 273, 23 Pac. 124.) Where the legislature confers upon police courts jurisdiction of certain misdemeanors, such jurisdiction is exclusive, and the superior court has no jurisdiction of such misdemeanors. (Green v. Superior Court, 78 Cal. 556, 21 Pac. 307. 541; People V. Joselyn, 80 Cal. 544, 22 Pac. 217; People v. Lawrence, 82 Cal. 182, 22 Pac. 1120; Ex parte Wallingford, 60 Cal. 103; Gaf- ford V. Bush, 60 Cal. 149.) If a defendant is charged with a felony of which the superior court has jurisdiction, he may be convicted of a lesser offense involved in such felony, although such lesser offense is not one of which the superior court is given jurisdiction. (Ex parte Donahue, 65 Cal. 474, 4 Pac. 449.) Tlie provision of the San Francisco charter giving the police court "concurrent jurisdiction with the superior court" of all Art. VI, § 5 CONSTITUTION OP 1879, 246 other misdemeanors than those arising under the violation of ordinances is in violation of this section. (Eobert v. Police Court, 148 Cal. 131, 82 Pae. 838.) A newly created county has jurisdiction of a defendant charged with the commission of an offense prior to the creation of the county, upon territory within its boundaries; and a prosecution pending in the old county is no bar to the prosecu- tion, if dismissed before the commencement of the prosecution in the new, and before jeopardy has attached. (People v. Stokes, 103 Cal. 193, 42 Am. St. Kep. 102, 37 Pac. 207.) The superior court has no jurisdiction of a misdemeanor com- mitted by a corporation punishable by fine not exceeding five hundred dollars or imprisonment not exceeding six months. (People v. Palermo L. & W. Co., 4 Cal. App. 717, 89 Pac. 723.) The superior court only has jurisdiction of cases of misde- meanor not otherwise provided for. (People v. Palermo L. & W. Co., 4 Cal. App. 717, 89 Pac. 723.) Appellate jurisdiction. — The superior court has appellate ju- risdiction only to the extent and in the mode which the legis- lature may prescribe. (Sherer v. Superior Court, 94 Cal. 354, 29 Pac. 716.) The constitution gives the superior court no appellate juris- diction, but the legislature is permitted to give it such appel- late jurisdiction as it may see fit. (Wells v. Torrance, 119 Cal. 437, 51 Pac. 626.) By reason of the provisions of section 11, article 22, of the constitution, the superior court had jurisdiction of appeals frona justices' courts before the legislature acted upon the subject. (California etc. Co. v. Superior Court, GO Cal. 305.) The superior courts only have jurisdiction of appeals from justices' courts in their respective counties, and therefore, after an appeal, the action cannot be transferred to another county for trial, although the defendant resides in another county. (Gross V. Superior Court, 71 Cal. 382, 12 Pac. 264; Luco v. Su- perior Court, 71 Cal. 555, 12 Pac. 677.) The superior court has no jurisdiction of an appeal from an order of a justice's court, directing the judgment debtor to apply certain property in satisfaction of the judgment. (Wells V. Torrance, 119 Cal. 437, 51 Pae. 626.) Upon an appeal from a judgment of the justice's court vacat- ing a former judgement, the superior court cannot affirm such 247 CONSTITUTION OF 1879. Art, VI, § 5 former judgment, but, if it was erroneously set aside, it should reverse such judgment and order a new trial. (Sherer v. Su- perior Court, 94 Cal. 354, 29 Pac. 716.) Although the county court was authorized to try cases on appeal de novo, such a trial was not an exercise of original jurisdiction. (Townsend v. Brooks, 5 Cal. 52.) Where a case is appealed to the superior court on question of both law and fact, the superior court acquires jurisdiction of the cause, although it was not originally within the juris- diction of the justice's court. (De .Jarnatt v. Marquez, 132 Cal. 700, 64 Pac. 1090; Hart v. Carnall-Hopkins Co., 103 Cal. 132, 37 Pac. 196. But see Ballerino v. Bigelow, 90 Cal. 500, 27 Pac. 372.) A judgment on appeal from a judgment of a justice's court, in which the amount is in excess of the jurisdiction of the jus- tice, is not void, but merely erroneous. (Moore v. Martin, 38 Cal. 428.) A judgment of a county court upon appeal for the sum of three hundred dollars is void, and will be annulled upon certi- orari. (Will V. Sinkwitz, 39 Cal. 570.) As to whether the provision of the constitution of 1849 giv- ing the county courts appellate jurisdiction in cases arising in inferior courts is self-executing, see People v. Nyland, 41 Cal. 129. Forcible entry and detainer.^The words "forcible entry and detainer" include not only forcible entry and forcible detainer, but also unlawful detainer after the termination of or contrary to the terms of the lease. (Caulfield v. Stevens, 28 Cal. 118.) Liens. — The superior court has concurrent jurisdiction with justices of the peace for the foreclosure of liens on personal property when the claim is for less than three hundred dollars, and the plaintiff is entitled to costs, whether he seeks relief in one jurisdiction or the other. (Clark v. Brown, 141 Cal. 93, 74 Pac' 548.) Miscellaneous. — The county courts have common-law jurisdic- tion and may admit foreigners to citizenship. (In re Conner, 39 Cal. 98, 2 Am. Dec. 427.) Granting to county judges power to issue injunctions does not trench upon the jurisdiction of the district courts. (Thomp- son V. Williams, 6 Cal. 88.) Art. VI, § 6 CONSTITUTION OF 1879. 248 An act providing for the eonfirmation of the organization and bonds of irrigation districts is not unconstitutional because it authorizes the court to determine the rights of the parties in advance of aiiy controversy as to such rights. (Cullen v. Glendora etc. Co., 113 Cal. 503, 3& Pac. 769, 45 Pac. 822, 1047.) Superior court, how constituted. Sec. 6. There shall be in each of the organized coun- ties, or cities and counties of the state, a superior court, for each of which at least one judge shall be elected by the qualified electors of the county, or city and county, at the general state election; provided, that until other- wise ordered by the legislature, only one judge shall bo elected for the counties of Yuba and Sutter, and that in the city and county of San Francisco there shall be elected twelve judges of the superior court, any one or more of whom may hold court. There may be as many sessions of said court, at the same time, as there are judges thereof. The said judges shall choose from their own number a presiding judge, who may be removed at their pleasure. He shall distribute the business of the court among the judges thereof, and prescribe the order of business. The judgments, orders, and proceedings of any session of the superior court, held by any one or more of the judges of said courts, respectively, shall be equally effectual as if all the judges of said respective courts presided at such session. In each of the counties of Sacramento, San Joaquin, Los Angeles, Sonoma, Santa Clara, and Alameda, there shall be elected two 249 CONSTITUTION OF 1879. Art. VI, § 6 such judges. The term of office of judges of the su- perior courts shall be six years from and after the first Monday of January, next succeeding their election; pro- vided, that the twelve judges of the superior court, elected in the city and county of San Francisco at the first election held under this constitution, shall, at their first meeting, so classify themselves, by lot, that four of them shall go out of office at the end of two years, and four of them shall go out of office at the end of four years, and four of them shall go out of office at the end of six years, and an entry of such classification shall be made in the minutes of the court, signed by them, and a duplicate thereof filed in the office of the secretary of state. The first election of judges of the superior courts shall take place at the first general election held after the adoption and ratification of this constitution. If a vacancy occur in the office of judge of a superior court, the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vacancy, which election shall take place at the next suc- ceeding general election, and the judge so elected shall hold office for the remainder of the unexpired term. SUPERIOR JUDGES.— There is only one superior court in t'ue city and county of San Francisco. (Brown v. Campbell, 110 Cal. 644, 43 Pa'c. 12.) The departments of the superior court of a single county, though theoretically one court, are practically as distinct, for the trial of causes, as other superior courts, and a jury drawn for one department cannot be used in another. (People v. Wong Bin, 139 Cal. 60, 72 Pac. 505.) Art. VI, § 6 CONSTITUTION OP 1879. 250 There is no probate court of the city and county of San Fran- cisco, and there is no law authorizing the designation of any one department of said court for probate jurisdiction; but each of the twelve judges has jurisdiction in probate matters. (In re Pearsons, 113 Cal. 577, 45 Pac. 819.) The legislature may fix the commencement of the term of a county judge as well as the time of election, but cannot fix the term. (People v. Eosborough, 14 Cal. 180.) Though by the terms of this section the term of office of the superior judges appears to be exclusive of the first Monday in January after their election, yet this provision is controlled by section 20, article 20, making the terms of all officers elected under the constitution commence on the first Monday after the first day of January next following their election. (Merced Bank v. Rosenthal, 99 Cal. 39, 31 Pac. 849, 33 Pac. 732.) A judge elected under an act creating an additional judge holds for six years. (People v. Waterman, 86 Cal. 27, 24 Pac. 807.) Under this section the commencement of the first regular full term of every newly created superior judgeship commences on the first Monday in January [first Monday after the first day of January] after the next ensuing general election, and the legislature has no power to extend the provisional term of office of a newly created judge beyond such date. (People v. Markham, 104 Cal. 232, 37 Pac. 918.) The legislature may provide for the appointment of a judge of a newly created court to hold until the next election. (Brodie v. Campbell, 17 Cal. 11.) The legislature has no power to increase or diminish the terra of office of superior judges r.s fixed by the constitution; and such judge, therefore, cannot hold after the expiration of such term and until his successor has been elected or appointed. (People V. Campbell, 138 Cal. 11, 70 Pac. 918.) A district judge, elected on the occasion of a vacancy in the office caused by the resignation of the incumbent, holds, not merely for the unexpired term, but for the full six years. (People V. Burbank, 12 Cal. 378.) A person elected judge of the district court is entitled to hold for six years, and it is not necessary that all district judges should be elected, or that their terms should expire, at the same time. (People v. Weller, 11 Cal. 77.) 251 CONSTITUTION OP 1879. Art. VI, §§ 7, 8 Where, after tlie appointment of a judge to fill a vacancy caused by the death of the incumbent, the legislature passed an act reducing the number of judges of such county, and pro- viding that the act should go into effect immediately in case of a vacancy in the term prior to January 1, 1897, the act did not go into effect by reason of the election of a judge to fill the unexpired term, (Church v. Colgan, 117 Cal. 683, 50 Pac. 12.) "When the legislature provides for an additional superior judge, the governor may appoint a provisional judge to act until the next election, but the terra of such judge ends abso- lutely with the beginning of the constitutional term of the additional judge and is not extended by the failure of the person elected to qualify. (Bush v. Nye, 6 Cal. App. 298, 92 Pac. 108.) Superior judges, apportionnient cf business. See. 7. In any county, or city and county, other than the city and county of San Francisco, iu which there shall be more than one judge of the superior court, the judges of such court may hold as many sessions of said court at the same time as there are judges thereof, and shall apportion the business among themselves as equally as may be. SESSIONS. — The rule is the same in the city and county of San Francisco, except that the business of the court is appor- tioned by the presiding judge. (Bee section 6 of this article.) Judge may hold court in other county — Judge pro tem- pore. Sec. 8. A judge of any superior court may hold a superior court in any county, at the request of a judge of the superior court thereof, and upon the request of Art. VI, § 8 CONSTITUTION OP 1879. 252 the governor it shall be his duty so to do. But a cause in the superior court may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant, or their attorneys of record, and sworn to try the cause and the person so selected shall be empowered to act in such capacity in all further pro- ceedings in any suit or proceedings tried before him until the final determination thereof. There may be as many sessions of a superior court at the same time as there are judges thereof, including any judge or judges acting upon request, or any judge or judges pro tempore. The judgments, orders, acts and proceedings of any session of any superior court held by one or more judges acting upon request, or judge or judges pro tempore, shall be equally effective as if the judge or all of the judges of such court presided at such session. (Amendment adopted November 8, 1910.) [ORIGINAL SECTION.] Sec. 8. A judge of any superior court may hold a superior court in any county, at the request of a judge of the superior court thereof, and upon the request of the governor it shall be his duty so to do. But a cause in a superior court may be tried by a judge pro tempore, who must be a member of the bar, agreed upon in writing by the parties litigant or their attorneys of record, approved by the court, and sworn to try the cause. JUDGE OF ONE COUNTY SITTING IN ANOTHER.— Where a judge of one county acts in another, it must be presumed that he was properly requested to do so. (In re Corralitos etc. Co., 130 Cal. 570, 62 Pac. 107G.) 253 CONSTITUTION OP 1879. Art. VI, § 9 Under the constitution of 18i9 it Tvas held that the legis- lature might authorize a judge of one district to sit and act in another district, although no express provision was made in the constitution on the subject. (People v. McCauley, 1 Cal. 379.) A statute authorizing a county judge of one county to hold court for the county judge of another county is valid. (People V. Mellon, 40 Cal. 648.) A judge who is disqualified has power to select a qualified judge to try the case. (People v. Ebey, 6 Cal. App. 769, 93 Pac. 379.) Leave of absence — Limitation of time. Sec. 9. The legislature shall have no power to grant leave of absence to any judicial officer; and any such officer who shall absent himself from the state for more than sixty consecutive days shall be deemed to have forfeited his office. The legislature of the state may at any time, two-thirds of the members of the senate and two-thirds of the members of the assembly voting there- for, increase or diminish the number of judges of the superior court in any county, or city and county, in the state; provided, that no such reduction shall affect any judge who has been elected. ADDITIONAL JUDGES.— When the legislature provides for an additional judge, the governor may appoint a provisional judge to act until the next election, but the term of such judge ends absolutely with the beginning of the constitutional term of the additional judge and is not extended by the failure of the person elected to qualify. (Bush v. Nye, 6 Cal. App. 298, 92 Pac. 108.) Art. VI, § 10 CONSTITUTION OF 1879. 254 Justices and judges, how removed. Sec. 10. Justices of the supreme court, and of the district courts of appeal, and judges of the superior courts may be removed by concurrent resolution of both houses of the legislature adopted by a two-thirds vote of each house. All other judicial officers, except justices of the peace, may be removed by the senate on the recom- mendation of the governor; but no removal shall be made by virtue of this section unless the cause thereof be en- tered on the journal, nor unless the party complained of has been served with a copy of the complaint against him and shall have had an opportunity of being heard in his defense. On the question of removal the ayes and noes shall be entered on the journal. (Amendment adopted November 8, 1904.) [ORIGINAL SECTION.] Sec. 10. Justices of the supreme court, and judges of the superior courts, may be removed by concurrent resolution of both houses of the legislature, adopted by a two-thirds vote of each house. All other judicial officers, except justices of the peace, may be removed by the senate on the recommenda- tion of the governor, but no removal shall be made by virtue of this section, unless the cause thereof be entered on the journal, nor unless the party complained of has been served with a copy of the complaint against him, and shall have had an opportunity of being heard in his defense. On the question of removal, the ayes and noes shall be entered on the journal. 255 CONSTITUTION OF 1879. Art. VI, § 11 Justices of the peace, provision for. Sec. 11. The legislature shall determine the number of each of the inferior courts in incorporated cities or towns, and in townships, counties, or cities and counties, according to the population thereof and the number of judges or justices thereof, and shall fix hy law the powers, duties and responsibilities of each of such courts and of the judges or justices thereof; pro- vided, such powers shall not in any case, trench upon the jurisdiction of the several courts of record, except that the legislature shall provide that said courts shall have concurrent jurisdiction with the superior courts in cases of forcible entry and detainer, where the rental value does not exceed twenty-five dollars per month, and where the whole amount of damages claimed does not exceed two hundred dollars, and in cases to enforce and foreclose liens on personal property when neither the amount of liens nor the value of the property amounts to three hundred dollars. (Amendment ap- proved October 10, 1911.) [ORIGINAL SECTION.] Sec. 11. The legislature shall determine the number of justices of the peace to be elected in townships, incorporated cities and towns, or cities and counties, and shall fix by law the powers, duties and responsibilities of justices of the peace; provided, such powers shall not in any case trench upon the jurisdiction of the several courts of record, except that taid justices shall have con- current jurisdiction with the superior courts in cases of forcible entry and detainer, where the rental value does not exceed tweuty- Art. VI, § 11 CONSTITUTION OF 1879. 256 five doHars per month, and where the whole amount of damages claimed does not exceed two hundred dollars, and in cases to enforce and foreclose liens on personal property when neither the amount of the liens nor the value of the property amounts to three hundred dollars. JUSTICES OF THE PEACE— Creation of.— A justice's court •cannot be created by a freeholders' charter. (People v. Toal, 85 Cal. 333, 24 Pac. 603; People v. Sands, 102 Cal. 12, 36 Pac. 404; Milner v. Reibenstein, 8.5 Cal. 593, 24 Pac. 935; Ex parte Eeilly, 85 Cal. 632, 24 Pac. 807; Ex parte Giambonini, 117 Cal. 573, 49 Pac. 732.) The laws relating to this portion of the judicial system need not be uniform throughout the state. (Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. E. A. 620.) The justice's court of Berkeley was not superseded by the constitution. (Ex parte Armstrong, 84 Cal. 655, 24 Pac. 598.) The provision of the County Government Act authorizing the supervisors to appoint a justice of the peace to fill a vacancy is not in conflict with this section making them elective. (People V. Chaves, 122 Cal. 134, 54 Pac. 596.) Justices of the peace are judicial officers and must be elected at the general election, (McGrew v. Mayor etc. of San Jose, 55 Cal. 611.) Justices of the peace are neither city nor county oflicers, but form part of the jadicial system of the state. (People v. Cobb, 133 Cal. 74; Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 65 Pac. 325.) The board of supervisors of a county may by ordinance aboli&h two contiguous judicial townships having a justice's court in each, and may establish one new consolidated town- ship, comprising the territory of both of them. (Proulx v. Graves, 143 Cal. 243, 76 Pac. 1025.) The constitutional provision as to justice's courts operates specifically only by means of such local logislation as the state legislature has delegated to the supervisors under general laws, and automatically establishes a justice's court in each town- ship established by the local body which continues while the township exists, and is merged in another justice's court when two townships are merged into one. (Proulx v. Graves, 143 Cal. 243, 76 Pac. 1025.) 257 CONSTITUTION OF 1879. Art. VI, § 11 Justices of the peace are part of the constitutional judicial system of the state. (Graham v. Fresno, 151 Cal. 465, 91 Pac. 147.) The legislature, in creating justices' courts, is justified in classifying municipalities in accordance with population. (In re Johnson, 6 Cal. App. 734, 93 Pac. 199.) As to whether it is necessary to classify justices' courts for the purpose of establishing them, as distinguished from pre- scribing their duties of jurisdiction, query? (In re Johnson, 6 Cal. App. 734, 93 Pac. 199.) Jurisdiction. — A justice's court is a court of limited and inferior jurisdiction, and its jurisdiction must be shown affirm- atively by a party relying upon or claiming any right or title under its judgments. (Eltzroth v. Ryan, 89 Cal. 135, 26 Pac. 647; Jones v. Justice's Court, 97 Cal. 523, 32 Pac. 575; Keybers v. McComber, 67 Cal. 395, 7 Pac. 838.) There can be no concurrent jurisdiction of any special pro- ceeding other than the two mentioned in this section. (Edsall V. Short, 122 Cal. 533, 55 Pac. 327.) No power can be conferred upon justices of the peace which has been by the constitution conferred upon other courts. (Zander v. Coe, 5 Cal. 230; Small v. Gwiun, 6 Cal. 447.) But where the jurisdiction conferred by the constitution is not exclusive, the same may be conferred upon justices' courts. (People V. Fowler, 9 Cal. 85.) "Where the justice of the peace has no jurisdiction, the judgment should bo reversed and tho cause dismissed. (Ford V. Smith, 5 Cal. 331.) It has been held that an appeal to the superior court upon questions of law and fact does not enlarge the jurisdiction of the justice's court, or confer jurisdiction upon the superior court, if the justice's court had no jurisdiction. (Ballerino v. Bigelow, 90 Cal. 500, 27 Pac. 372. But see De Jarnatt v. Mar- quez, 132 Cal. 700, 64 Pac. 1090; Hart v. Carnall-Hopkins Co., 103 Cal. 132, 37 Pac. 196.) Where the verified answer in an action in a police court dis- closes that tho action involves the legality of a tax, but, not- withstanding, the court proceeds with the case, and an appeal is taken to the superior court on questions of law and fact, Constitution — 17 Art. VI, § 11 CONSTITUTION OP 1879. 258 the superior court acquires jurisdiction — not appellate, but original. (Santa Barbara v. Eldred, 95 Cal. 378, 30 Pac. 562.) The parties to an action in the justice's court cannot confer jurisdiction upon the court of an action involving the title or possession of real estate by failing to plead such lack of juris- diction by verified answer. (King v. Kutner-Goldstein Co., 135 Cal. 65, 67 Pac. 10.) Cases at law. — A justice's court haT no jurisdiction of an action upon a promissory note, where the amount of the prin- cipal sum and attorneys' fees demanded exceeds three hundred dollars. (De Jarnatt v. Marquez, 127 Cal. 558, 78 Am. St. Kep. 90, 60 Pac. 45.) The justice's court has jurisdiction of an action upon a money demand of less than three hundred dollars for improving a street under a private contract, where there is nothing in the pleadings to show that the action involves the title or possession of real estate. (Raisch v. Sausalito etc. Co., 131 Cal. 215, 63 Pac. 346.) Where several suits to recover the same property, the value of which is less than three hundred dollars, are consolidated, the justice's court has jurisdiction of the action as consoli- dated. (Cariaga v. Dryden, 29 Cal. 307.) In an action for the recovery of specific property in a jus- tice's court, the standard of jurisdiction is "the value of the property," and it would seem that the justice's jurisdiction for the incidental damages for detention is unlimited; and at all events, the demand for damages cannot oust the justice of jurisdiction, if the value of the property is less than three hundred dollars. (Astell v. Phillippi, 55 Cal. 265; Wratten v. Wilson, 22 Cal. 465.) A justice's court has no jurisdiction of an action for the recovery of property alleged to exceed three hundred dollars in value, although the complaint prays judgment for a less sum in case possession cannot be had. (Shealor v. Superior Court, 70 Cal. 564, 11 Pac. 653.) A justice's court has no jurisdiction of a counterclaim ex- ceedinj the jurisdictional amount. (Malson v. Vaughn, 23 Cal. 61; Maifield t, Johnson, 30 Cal. 545.) The justice's court has jurisdiction of an action for the recovery of property of the value of two hundred and fifty- dollars and fifty dollars damages, where the plaintiff only 259 CONSTITUTION OP 1879. Art. VI, § 11 prays for two hundred and ninety-nine dollars, since both the value of the property and the demand are less than three hun- dred dollars. (Sanborn v. Superior Court, 60 Cal. 425.) Forcible entry and detainer. — The words "forcible entry and detainer" include unlawful detainer after the expiration of the term. (Caulfield v. Stevens, 28 Cal. 118; Brummagim v. Spen- cer, 29 Cal. 661; Mecham v. McKay, 37 Cal. 154; Norblett v. Farwell, 38 Cal. 155; Stoppelkamp v. Mangeot, 42 Cal. 316; Ivory V. Brown, 137 Cal. 603, 70 Pac. 657.) The actual rental value, and not the value alleged in the complaint, is the test of jurisdiction. (Ballerino v. Bigelow, 90 Cal. 500, 27 Pac. 372.) The justice's court has no jurisdiction of an action of un- lawful detainer, when the amount of rent due is one hundred and twenty dollars, and the plaintiff asks to have it trebled, or of any such case when the amount of the rent when trebled exceeds two hundred dollars. (Hoban v. Eyan, 130 Cal. 96, 62 Pac. 296.) Real property. — Where the proceedings do not show on their face that the^ title or possession of real property is involved, but only that it may contingently become involved, the justice has jurisdiction to try the case, unless it appears that the pre- dicted contingency actually occurred during the trial. (Hart V. Carnall-Hopkins Co., 103 Cal. 132, 37 Pac. 196.) Where a case involving the title or possession of real prop- erty is appealed from the justice's court on questions of law and fact, the superior court has jurisdiction to determine the case, and an appeal may be taken to the supreme court in the same manner as if the action had been originally brought in the superior court, or had been transferred to it by the jus- tice. (Hart v. Carnall-Hopkins Co., 103 Cal. 132, 37 Pac. 196.) A complaint to recover a sum paid upon a contract to locate the plaintiff on certain government land does not necessarily involve the title or possession of real i)roperty. (Hart v. Car- nall-Hopkins Co., 103 Cal. 132, 37 Pac. 196.) A justice of the peace has no jurisdiction to try a cause for an injury arising out of a diversion of water. (Hill v. New- man, 5 Cal. 445, 63 Am. Dec. 140.) If the defendant's verified answer raises a question of title to real property, the cause must be transferred. (Doherty v. Thayer, 31 Cal. 140.) Art. VI, § 12 CONSTITUTION OP 1879. 260 An action for trespass on real property is within the juris- diction of a justice of the peace, when the damages sued for are less than three hundred dollars. (Pollock v. Cummings, 38 Cal. 683.) Fines, etc. — An act requiring actions to recover a penalty imposed upon a railroad company, for charging a passenger an excess of fare, to be brought in the justice's court, is valid. (Reed v. Omnibus R. R. Co., 33 Cal. 212; Smith v. Omnibus R. R. Co., 36 Cal. 281.) The justice's court has jurisdiction of an action to recover two hundred dollars for a forfeiture for issuing a certificate of relief in violation of section 596 of the Political Code, the same being a penalty given by statute, and not a municipal fine. (Thomas v. Justice's Court, 80 Cal. 40, 22 Pac. 80.) If, in an action to recover a money judgment for taxes, an answer is filed which puts in issue the legality of the tax, the justice of the peace is ousted of jurisdiction. (People v. Mier, 24 Cal. 61.) Misdemeanors. — The jurisdiction of justices' courts on mis- demeanors is exclusive of the jurisdiction of the superior court. (People v. Palermo L. & W. Co., 4 Cal. App. 717, 89 Pac. 723.) Miscellaneous. — A statute conferring equitable jurisdiction upon justices' courts is unconstitutional. (Young v. Wright, 52 Cal. 407; Sutherland v. Sweem, 53 Cal. 48.) The county court had jurisdiction to try an indictment for misdemeanor, the jurisdiction of the justice of the peace being exclusive as to misdemeanors where no indictments had been found. (Ex parte McCarthy, 53 Cal. 412.) Courts of record. Sec. 12. The supreme court, the district courts of ap- peal, the superior courts, and such other courts as the legislature shall prescribe, shall be courts of record. (Amendment adopted November 8, 1904.)^ 261 CONSTITUTION OP 1879. Art. VI, §§ 13, 14 [ORIGINAL SECTION.] Sec. 12. The supreme court, the superior courts, arid such other courts as the legislature shall prescribe, shall be courts of record. Jurisdiction of inferior courts to be fixed by legislature. Sec. 13. The legislature shall fix by law the jurisdic- tion of any inferior courts which may be established in pursuance of section one of this article, and shall fix by law the powers, duties, and responsibilities of the judges thereof. INFERIOR COURTS. — The jurisdiction, powers, duties and responsibilities of inferior courts cannot be fixed by a free- holders' charter. (People v. Toal, 85 Gal. 333, 24 Pac. 603; Ex parte Reilly, 85 Gal. 632, 24 Pac. 807; People v. Sands, 102 Gal. 12, 36 Pac. 404; Milner v. Eeibenstein, 85 Gal. 593, 24 Pac. 935; Ex parte Giambonini, 117 Gal. 573, 49 Pac. 732.) The municipal superior court of San Francisco had no author- ity to issue writs of quo warranto, it being an inferior court, and the jurisdiction not being expressly conferred by statute. (People V. Gillespie, 1 Gal. 342.) As to the jurisdiction of the recorder's court, see Ex parte Soto, 88 Gal. 624, 26 Pac. 530. The legislature may create a recorder's court with a dual jurisdiction — being a recorder as to some matters, and a justice of the peace as to others. (Prince v. Fresno, 88 Gal. 407, 26 Pac. 606.) The act of 1889, creating the police court of the city and county of San Francisco, held constitutional. (Ex parte Lloyd, 78 Gal. 421, 20 Pac. 872.) Clerks of courts and court commissioners. Sec. 14. The county clerks shall be ex-officio clerks of the courts of record in and for their respective couu- A.rt. VI, 5 15 CONSTITUTION OP 1879. 262 ties or cities 'and counties. The legislature may also provide for the appointment, by the several superior courts, of one or more commissioners in their respective counties, or cities and counties, with authority to per- form chamber business of the judges of the superior courts, to take depositions, and to perform such other business connected with the administration of justice as may be prescribed by law. (Amendment approved October 10, 1911.) [ORIGINAL SECTIOK] Sec. 14. The legislature shall provide for the election of a clerk of the supreme court and shall fix by law his duties and compensation, which compensation shall not be increased or diminished during the term for which he shall have been elected. The county clerks shall be ex officio clerks of the courts of record in and for their respective counties, or cities and counties. The legislature may also provide for the appoint- ment, by the several superior courts, of one or more commis- sioners in their respective counties, or cities and counties, with authority to perform chamber business of the judges of the superior courts, to take depositions, and perform such other business connected with the administration of justice as may be prescribed by law. Judicial officers not to receive fees and perquisites. Sec. 15. No judicial officer, except court commission- ers, shall receive to his own use any fees or perquisites of office; provided, that justices of the peace now hold- ing office shall receive to their own use such fees as are now allowed by law during the terms for which they 263 CONSTITUTION OF 1879. Art. VI, §§ 16,. 17 have been elected. (Amendment approved October 10, 1911.) [ORIGTISrAL SECTION.] Sec. 15. No judicial officer, except justices of the peace and court commissioners, shall receive to his own use any fees or perquisites of office. FEES OF JUDICIAL OFFICERS.— The words "justices of the peace" as used in this section include those, by whatever name they are called, who are invested with the duties assigned by the law to those officers, and include a recorder of a city. (Curtis V. Sacramento, 13 Cal. 290.) Supreme court opinions to be published. Sec. 16. The legislature shall provide for the speedy publication of such opinions of the supreme court and of the district courts of appeal as the supreme court may deem expedient, and all opinions shall be free for pub- lication by any person. (Amendment adopted November 8, 1904.) [ORIGINAL SECTION.] Sec. 16. The legislature shall provide for the speedy publi- cation of such opinions of the supreme court as it may deem expedient, and all opinions shall be free for publication by any person. Compensation of justices and judges. Sec. 17. The justices of the supreme court and of the district courts of appeal, and the judges of the superior courts, shall severally, at stated times during their con- tinuance in office, receive for their service such com- pensation as is or shall be provided by law. The salaries Art. VI, § 17 CONSTITUTION OF 1879. 264 of the judges of the superior court, in all counties having but one judge, and in all counties in which the terms of the judges of the superior court expire at the same time, shall not hereafter be increased or diminished after their election, nor during the term for which they shall have been elected. Upon the adoption of this amendment the salaries then established by law shall be paid uniformly to the justices and judges then in office. The salaries of the justices of the supreme court and of the district courts of appeal shall be paid by the state. One-half of the salary of each superior court judge shall be paid by the state; and the other half thereof shall be paid by the county for which he is elected. On and after the first day of January, A. D. one thousand nine hundred and seven, the justices of the supreme court shall each receive an annual salary of eight thousand dollars, and the jus- tices of the several district courts of appeal shall each receive an annual salary of seven thousand dollars; the said salaries to be payable monthly. (Amendment adopted November 6, 1906.) [AMENDMENT OF 1904.] Sec. 17. The justices of the supreme court and of the dis- trict courts of appeal, and the judges of the superior court shall severally, at stated times during their continuance in office, receive for their services such compensation as is or shall be provided by law, which shall not be increased or diminished after their election, nor during the term for which they shall have been elected. The salaries of the justices of the supreme court and of the district courts of appeal shall 265 CONSTITUTION OF 1879. Art. VI, § 17 be paid by the state. One-half of the salary of each superior court judge shall be paid by the state; the other half thereof shall be paid by the county for which he is elected. (Amend- ment adopted November 8, 1904.) [ORIGINAL SECTION.] Sec. 17. The justices of the supreme court and judges of the superior court shall severally, at stated times during their continuance in oflSce, receive for their services a compensation which shall not be increased or diminished after their election, nor during the term for which they shall have been elected. The salaries of the justices of the supreme court shall be paid by the state. One-half of the salary of each superior court judge shall be paid by the state; the other half thereof shall be paid by the county for which he is elected. During the term of the first judges elected under this constitution, the annual salaries of the justices of the supreme court shall be six thou- sand dollars each. Until otherwise changed by the legislature, the superior court judges shall receive an annual salary of three thousand dollars each, payable monthly, except the judges of the city and county of San Francisco, and the counties of Alameda, San Joaquin, Los Angeles, Santa Clara, Yuba and Sutter combined, Sacramento, Butte, Nevada, and Sonoma, which shall receive four thousand dollars each. SALARIES OF JUDICIAL OFFICERS.— This provision does not exempt judges from the necessity of an appropriation for their salaries by the legislature. (Myers v. English, 9 Cal. 341.) The law providing for an increase of salary of justices of the supreme court, though an existing statute, is not in force, because there is no subject upon which it can constitutionally operate until the expiration of the terms of the present jus- tices. (Harrison v. Colgan, 148 Cal. 69, 82 Pac. 674.) The terms of justices of the district court of appeal began to run as soon as that office was created, and not upon their Art. VI, §§ 18, 19 CONSTITUTION OF 1879. 2G6 appointment, and any increase in their salary cannot affect persons appointed for that term. (Harrison v. Colgan, 148 Cal. 69, 82 Pac. 674.) An act which is approved before the beginning of a term, but does not go into effect until after the term commences, cannot affect the salary of ofl&cers during that terra. (Harri- son V. Colgan, 148 Cal. 69, 82 Pac. 674.) Justices and judges ineligible to other offices. Sec. 18. The judges of the supreme court, and the district courts of appeal, and the judges of the superior courts shall be ineligible to any other office or public employment than a judicial office or employment during the term for which they shall have been elected. (Amendment adopted November 8, 1904.) [ORIGINAL SECTION.] Sec. 18. The justices of the supreme court and judges of the superior courts shall be ineligible to any other office or public employment than a judicial office or employment during the term for which they shall have been elected. Charges to juries. Sec. 19. Judges shall not charge juries with respect to matters of fact, but may state the testimony and de- clare the law. INSTRUCTIONS. — A mere statement of the evidence is not in violation of this section. (People v. Christensen, 85 Cal. 568, 24 Pac. 888.) It is error for the judge to state his impressions of the substance and effect of the testimony without stating its con- 267 CONSTITUTION OF 1879. Art. YI, § 19 tents, and to tell the jury that other witnesses corroborate cer- tain statements of the prosecuting witness. (People v. Gordon, 88 Cal. 422, 26 Pac. 502.) An instruction that "the testimony in the case shows" cer- tain facts is violative of this section. (People v. Casey, 65 Cal. 260, 3 Pac. 874.) A charge which assumes as proven a fact in issue is errone- ous. (Caldwell v. Center, 30 Cal. 539, 89 Am. Dec. 131; People v. Dick, 32 Cal. 213.) As to the effect of this provision on section 2061 of the Code of Civil Procedure, see People v. Paulsell, 115 Cal. 6, 14, 46 Pac. 734. Improper instructions. — The following particular instructions have been held to violate this section: An instruction that pos- session of property recently stolen is a strong circumstance of guilt (People v. Cline, 74 Cal. 575, 16 Pac. 391; People V. Titherington, 59 Cal. 598; People v. Ah Sing, 59 Cal. 4U0); an instruction that the recent possession of stolen goods raises a presumption that the possessor is the thief (People v. Gutier- rez, 74 Cal. 81, 15 Pac. 444; People v. Mitchell, 55 Cal. 236); an instruction that the flight of the defendant is strong pre- sumptive evidence of his guilt (People v. Wong Ah Ngow, 54 Cal. 151, 35 Am. Rep. 69); a charge as to the relative value of direct and circumstantial evidence (People v. Verenes- eneckockockhoff, 129 Cal. 497, 58 Pac. 156, 62 Pac. Ill; People V. O'Brien, 130 Cal. 1, 62 Pac. 297); an instruction that "it may be impossible to show or establish a motive, for the reason that we cannot fathom the mind of the accused on trial, and ascertain if there is not a hidden desire of vengeance or some passion to be gratified" (People v. Vereneseneckockock- hofif, 129 Cal. 497, 58 Pac. 156, 62 Pac. Ill; People v. Botkin, 132 Cal. 231, 84 Am. St. Rep. 39, 64 Pac. 2S6); an instruction that certain facts are proper to be taken into consideration by the jury, as throwing doubt upon a certain controverted fact (People" V. Lee, 119 Cal. 84, 51 Pac. 22); an instruction that if the jury are satisfied that an attempt to commit rape was made, the evidence must also satisfy them that it was accom- plished, and that in the opinion of the judge upon the evidence Art. VI, § 19 CONSTITUTION OP 1879. 268 there could be no conviction of an attempt (People v. Baldwin, 117 Cal. 244, 49 Pac. ISG); an instruction that if the prose- cutrix committed lewd and immodest acts, she was not of chaste character (People v, Samonset, 97 Cal. 448, 32 Pac. 520); an instruction that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution (People v. O'Brien, 96 Cal. 171, 31 Pac. 45; Goss v. Steiger Terra Cotta Works, 148 Cal. 155, 82 Pac. 681); an instruction that, if the testimony is believed, it would undoubtedly make out a case of murder in the first degree, and that it tended to show that the murder was willful (People V. Chew Sing Wing, 88 Cal. 268, 25 Pac. 1099); an instruction that, the testimony of the prosecuting witness not being disputed, the jury were bound to presume it to be true, where there is a conflict as to the facts testified to by such witness (People v. Murray, 86 Cal. 31, 24 Pac. 802); an in- struction virtually assuming the testimony of a party to a material fact to be true (Vulicevich v. Skinner, 77 Cal. 239, 19 Pac. 424); an instruction that unless the dam had gates suffi- cient for certain named purposes, it was insufficiently and negligently constructed (Weiderkind v. Tuolumne County Water Co., 65 Cal. 431, 4 Pac. 415); an instruction that "under the case and proofs as here made no presumption of negligence arises against the defendant from the mere fact that an acci- dent has occurred" (Sullivan v. Market St. Ey. Co., 136 Cal, 479, 69 Pac. 143); an instruction that the condemnation sought is not necessary (Santa Ana v. Gildmacher, 133 Cal. 395, 65 Pac. 883) ; an instruction that the testimony of an accomplice ought to be viewed with distrust and the evidence of the oral admission of a party with caution (People v. Wardrip, 141 Cal. 229, 74 Pac. 744) ; an instruction that if the jury believe a particular witness they shall render a verdict accordingly (People v. Barker, 137 Cal. 557, 70 Pac. 617); an instruction assuming that there may be an inference or definite presump- tion of guilt of the crime of burglary from the mere unex- plained fact of possession of stolen property (People v. Boxer, 137 Cal. 562, 70 Pac. 671. See, also, Kerrigan v. Market Street By. Co., 138 Cal. 506, 71 Pac. 621); an instruction that to run an engine at a particular rate of speed is negligence (Wyckofif V. Southern Pac. Co., 4 Cal. App. 94, 87 Pac. 203); an instruc- tion that there was no evidence of any conspiracy (People v. 269 CONSTITUTION OF 1879. Art. VI, § 19 King, 4 Cal. App. 213, 87 Pac. 400); an instruction that it is negligence for a person to fail to have a trench (Eyan v. Oak- land Gas etc. Co., 10 Cal. App. 4S4, 102 Pac. 558); an instruction that evidence of previous good character is to be considered "with great caution" (People v. Piner, 11 Cal. App. 542, 105 Pac. 780); an instruction that a person's confession is always admitted against him, for the law presumes that a person will not say anything untrue against himself or his own inter- ests (People V. Piner, 11 Cal. App. 542, 105 Pac. 780); an instruction that the absence of motive is a circumstance in favor of the accused (People v. McGee, 14 Cal. App. 99, 111 Pac. 264) ; an instruction that a certain fact constitutes negli- gence (Manning v. App. Con. Gold M. Co., 149 Cal. 35, 84 Pac. 657); an instruction that it is not negligence on the part of a motorman to assume that a person will not attempt to cross the track in front of an approaching car, which is so near as to render a collision probable (Bresee v. Los Angeles Traction Co., 149 Cal. 131, 85 Pac. 152, 5 L. R. A., N. S., 1059). Proper instructions. — On the other hand, the following in- structions have been held not to violate this provision: An instruction that the jury may consider the circumstance that the defendant fled from arrest (People v. Eoss, 115 Cal. 233, 46 Pac. 1059); ail instruction that there is no evidence which would reduce the crime charged to manslaughter (People v. King, 27 Cal. 507, 87 Am. Dec. 95); an instruction that there •was evidence tending to show that the watch was taken near the door, and that the defendant testified that he picked it up near the counter (People v. Perry, 65 Cal. 568, 4 Pac. 572); an instruction that possession of stolen goods soon after they were stolen, unless satisfactorily explained, is a circum- stance to be considered in connection with other suspicious facts, in determining the guilt of the defendant (People v. Hannon, 85 Cal. 374, 24 Pac. 706); an instruction that the jury might consider the relation of the defendant to the ease in considering his testimony, the consequences to him resulting from the verdict, etc. (People v. O'Brien, 96 Cal. 171, 31 Pac. 45); an instruction that a ratification may be found from an unreasonable delay to object (Hill v. Finigan, 77 Cal. 267, 11 Am. St. Kep. 279, 19 Pac. 494); an instruction as to the credi- Art. VI, §§ 20, 21 CONSTITUTION OF 1879. 270 bility of witnesses based on section 1847 of the Corle of Civil Procedure (People v. Matezuski, 11 Cal. App. 465, 105 Pac. 425). Style of process. Sec. 20. The style of all process shall be, "The People of the State of California," and all prosecutions shall be conducted in their name and by their authority. PROCESS. — The word "process" as used in this section does not apply to the warrants by which prisoners are held and committed to the state prison after conviction. (Ex parte Ahern, 103 Cal. 412, 37 Pac. 390.) The notice to be given to creditors on filing a petition in insolvency is not process; and even if it were process, the fact that it does not run in the name of the people of the state of California is not a fatal error going to the jurisdiction. (Brewster v. Ludekins, 19 Cal. 162.) An action to punish a defendant for the violation of an ordinance is a criminal action, and must be prosecuted in the name of the people. (Santa Barbara v. Sherman, 61 Cal. 57.) An act authorizing the removal of a board of supervisors from office for delay in fixing water rates "at the suit of any interested party" is in conflict with this section. (Fitch v. Supervisors, 122 Cal. 285, 54 Pac. 901.) An order of arrest in a civil action is not "process" within the meaning of this section. (Dusy v. Helm, 59 Cal. 188.) Reporter of supreme court decisions. Sec. 21. The supreme court shall appoint a clerk of the supreme court; provided, however, that any person elected to the office of clerk of the supreme court before the adoption hereof, shall continue to hold such office until the expiration of the term for which he may have been elected. Said court ma.y also appoint a reporter and not more than three assistant reporters of the de- 271 CoNsTiTTUTioN OP 1879. Art. VI, § 21 cisions of the supreme court and of the district courts of appeal. Each of the district courts of appeal shall appoint its own clerk. All the officers herein mentioned shall hold office and be removable at the pleasure of the courts by which they are severally appointed, and they shall receive such compensation as shall be prescribed by law, and discharge such duties as shall be prescribed by law, or by the rules or orders of the courts by which they are severally appointed. (Amendment approved October 10, 1911.) [AMENDMENT OF 1904.] Sec. 21. The supreme court may appoint a reporter and not more than three assistant reporters of the decisions of the supreme court and of the district courts of appeal. Each of the district courts of appeal shall appoint its own clerk. All of the oflScers herein mentioned shall hold office and be re- movable at the pleasure of the courts by which they are severally appointed, and they shall receive such compensation as shall be prescribed by law, and discharge such duties as Bhall be prescribed by law, or by the rules or orders of the courts by which they are severally appointed. (Amendment adopted November 8, 1904.) [ORIGINAL SECTION.] Sec. 21. The justices shall appoint a reporter of the de- cisions of the supreme court, who shall hold his office and be removable at their pleasure. He shall receive an annual sal- ary not to exceed twenty-five hundred dollars, payable monthly. REPORTER OF DECISIONS.— The provision of this section as to the salary of the reporter is prohibitory, and forbids a salary greater than two thousand five hundred dollars. (Smith V. Kenfield, 57 Cal. 138.) Art. VI, §§ 22-24 constitution of 1879. 272 Judges not to practice law. Sec. 22. No judge of a court of record shall practice law in any court of this state during his continuance in office. Eligibility of justices and judggs. See. 23. No one shall be eligible to the office of a justice of the supreme court, or of a district court of ap- peal, or of a judge of a superior court, unless he shall have been admitted to practice before the supreme court of the state. (Amendment adopted November 8, 1904.) [ORIGINAL SECTION.] Sec. 23. No one shall be eligible to the office of justice of the supreme court, or to the office of judge of a superior court, unless he shall have been admitted to practice before the supreme court of the state. Condition precedent to draft of salary. Sec. 24. No judge of the supreme court nor of a dis- trict court of appeal, nor of a superior court, shall draw or receive any monthly salary unless he shall make and subscribe an affidavit before an officer entitled to admin- ister oaths, that no cause in his court remains pending and undecided, that has been submitted for decision for a period of ninety days. In the determination of causes all decisions of the supreme court and of the district courts of appeal shall be given in writing, and the grounds of the decision shall be stated. When the jus- 273 CONSTITUTION OF 1879. Art. VI, § 25 tices of a district court of appeal are unable to concur in a judgment, they shall give their several opinions in writing and cause copies thereof to be forwarded to the supreme court. (Amendment adopted November 8, 1904.) [ORIGINAL SECTION.] Sec. 24. No judge of a superior court nor of the supreme court shall, after the first day of July, one thousand eight hundred and eighty, be allowed to draw or receive any monthly salary unless he shall take and subscribe an affidavit before an officer entitled to administer oaths, that no cause in his court remains undecided that has been submitted for decision for the period of ninety days. DECISIONS. — Failure to decide all cases within ninety days does not work a forfeiture of the salary of the judge. (Meyers v..Kenfield, 62 Cal. 512.) The judge is liable to no penalty for failure to decide a case within the time specified except the penalty prescribed, and he cannot be answerable to an individual for damages for such delay. (Wyatt v. Arnot, 7 Cal. App. 221, 94 Pac. 86.) Supreme court commission. Sec. 25. The present supreme court commission shall be abolished at the expiration of its present term of office, and no supreme court commission shall be created or pro- vided for after January 1st, A. D. 1905. (Amendment adopted November 8, 1904.) Constitution — 18 Art. VII, § 1 CONSTITUTION OP 1879. 274 ARTICLE VII. PAEDONING POWER. Section 1. The governor shall have the power to grant reprieves, pardons, and commutations of sentence, after conviction, for all offenses except treason and cases of impeachment, upon such conditions, and with such re- strictions and limitations, as he may think proper, sub- ject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason, the governor shall have power to suspend the execution of the sentence until the case shall be reported to the legislature at its next meeting, when the legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. The gov- ernor shall communicate to the legislature, at the be- ginning of every session, every case of reprieve or pardon granted, stating the name of the convict, the crime for which he was convicted, the sentence, its date, the date of the pardon or reprieve, and the reasons for granting the same. Neither the governor nor the legislature shall have power to grant pardons, or commutations of sen- tence, in any case where the convict has been twice con- victed of felony, unless upon the written recommenda- tion of a majority of the judges of the supreme court. PARDONING POWER. — The pardoning power is the same as that exercised by the representatives of the English crown 275 CONSTITUTION OF 1879. Art. VII, § 1 in this country in colonial times. (People v. Bowen, 43 Cal. 439, 13 Am. Eep. 148.) A document signed by the governor releasing a prisoner be- fore the expiration of his term for good behavior does not remove the disability to testify. (Blanc v. Rodgers, 49 Cal. 15.) A pardon removes the disability to testify, and all disabilities which follow the conviction. (People v. Bowen, 43 Cal. 439, 13 Am. Rep. 148.) An offender may be pardoned after he has suffered the pun- ishment adjudged for his crime. (People v. Bowen, 43 Cal. 439, 13 Am. Rep. 148.) An executive act restoring a convicted criminal to the right Of citizenship is not a pardon and does not remove the legal infamy and disability. (People v. Bowen, 43 Cal. 439, 13 Am. Rep. 14 8.) The pardoning power does not extend to the reinstatement of an attorney excluded from the practice by law or the order of a court. (Cohen v. "Wright, 22 Cal. 293, 323.) The governor may pardon as well before as after trial, (Hatzfield v. Gulden, 7 Watts, 152, 31 Am. Rep. 750; York Co. V. Dalhousie, 45 Pa. 372; Commonwealth v. Hitchman, 46 Pa. 357.) The pardon may be conditional as well as absolute. (Fla- vell's Case, 8 Watts & S. 197; People v. Potter, 1 Park. C. C. 47; Ex parte Wells, 18 How. 314, 15 L. Ed. 421.) If a pardon be obtained by fraud it may be revoked before actual delivery. (Ex parte De Puy, 3 Ben. 307, Fed. Cas. No. 3814; Commonwealth v. Ahl, 43 Pa. 53.) The pardoning power has no authority to decree a repayment of a fine. (Cook v. Middlesex, 27 N. J. L. G37.) Delivery is essential to give effect to a pardon. (Matter of Do Puy, 3 Ben. 320, Fed. Cas. No. 3814.) Art. VIII, §§ 1, 2 CONSTITUTION OF 1879. 276 ARTICLE VIII. MILITIA. § 1. Organization and calling forth of. § 2. Device, banner, or flag to be used. Organization and calling forth of. Section 1. The legislature shall provide, \>y law, for organizing and disciplining the militia, in such manner as it may deem expedient, not incompatible with the constitution and laws of the United States. Officers of the militia shall be elected or appointed in such manner as the legislature shall from time to time direct, and shall be commissioned by the governor. The governor shall have power to call forth the militia to execute the laws of the state, to suppress insurrections, and repel in- vasions. MILITIA. — As to the power of the governor to call out the militia, see Stimson's American Statute Law, sec. 298. An act authorizing the governor to call out the militia when he deemed it necessary to suppress riots or mobs was held un- constitutional. (Green v. State, 15 Lea, 708.) The mere refusal, by incumbents of oflB.ces, to surrender them is not an insurrection, and will not justify employment of the militia. (In re Fire etc. Commrs., 19 Colo. 503, 36 Pac. 234.) Device, banner, or flag to be used. Sec. 2, All military organizations provided for by this constitution, or any law of this state, and receiving 277 CONSTITUTION OP 1879. Art. VIII, § 2 state support, shall, while under arms either for cer- emony or duty, carry no device, banner, or flag of any state or nation, except that of the United States or the state of California. Art. IX, § 1 CONSTITUTION OP 1879. 278 'ARTICLE IX. EDUCATION. § 1. Promotion of intellectual improvement. § 2. Superintendent of public instruction. § 3. County superintendents of schools. § 4. School funds, source and origin, and how appropriated. § 5. System of common schools to be provided. § 6. School system, what to include. § 7. Text-books, who to adopt — Local boards of education. § 8. Sectarianism prohibited. § 9. University fund, creation, management, and application of. § 10. Leland Stanford Junior University. § 11. The California School of Mechanical Arts. § 12. The California Academy of Sciences. § 13. Cogswell Polytechnical College. Promotion of intellectual improvement. Section 1. A general diffusion of knowledge and in- telligence being essential to the preservation of the rights and liberties of the people, the legislature shall encourage by all suitable means the promotion of intellectual, scien- tific, moral, and agricultural improvement. EDUCATION.— The act of 1880 establishing the state agri- cultural society, and providing for the exhibition of breeds of horses, etc., and of agricultural, mechanical, and domestic manufactures and productions, is authorized by this section. (Melvin v. State, 121 Cal. 16, 53 Pac. 416; People v. San Joaquin Valley Agr. Assn., 151 Cal. 797, 91 Pac. 740.) 279 CONSTITUTION OF 1879. Art. IX, §§ 2, 3 Superintendent cf public instruction. Sec. 2. A superintendent of public instruction shall, at each gubernatorial election after the adoption of this constitution, be elected by the qualified electors of the state. He shall receive a salary equal to that of the secretary of state, and shall enter upon the duties of his office on the first Monday after the first day of January next succeedinpf his election. 'o County superintendents of schools. Sec. 3. A superintendent of schools for each county shall be elected by the qualified electors thereof at each gubernatorial election; provided, that the legislature may authorize two or more counties to unite and elect one superintendent for the counties so uniting. SUPERINTENDENT. — The superintendent of schools is a county officer. (People v. Babcoek, 114 Cal. 559, 46 Pac. 818.) The superintendent of schools of San Francisco is not affected by the provision of the County Government Act making the board of supervisors the appointing power, (People v. Bab- cock, 114 Cal. 559, 46 Pac. 818.) The election of superintendent of schools is governed by this constitutional provision, and not by the County Govern- ment Act. (Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620.) Under a provision of the Consolidation Act providing that officers appointed to fill vacancies should hold office "until the regular election then next following," a superintendent of schools thus appointed will only hold till the next general election, and not till the next gubernatorial election. (Peoplo V. Babcoek, 123 Cal. 307, 55 Pac. 1017.) Art. IX, § 4 CONSTITUTION OF 1879. 280 School funds, source and origin, and how appropriated. Sec. 4. The proceeds of all lands that have been or may be granted by the United States to this state for the support of common schools which may be, or may have been, sold or disposed of, and the five hundred thousand acres of land granted to the new states under an act of Congress distributing the proceeds of the public lands among the several states of the Union, ap- proved A, D. one thousand eight hundred and forty-one, and all estates of deceased persons who may have died without leaving a will or heir, and also such per cent as may be granted, or may have been granted, by Congress on the sale of lands in this state, shall be and remain a perpetual fund, the interest of which, together with all the rents of the unsold lands, and such other means as the legislature may provide, shall be inviolably appro- priated to the support of common schools throughout the state. SCHOOL FUND. — The word "means" includes any fund aris- ing from annual taxation for school purposes levied under gen- eral laws passed for that purpose. (Crosby v. Lyon, 37 Cal. 242.) Whenever the legislature raises a fund for the support of common schools, any contemporaneous or subsequent legislature having for its object the diversion of such fund to any other purpose is void. (Crosby v. Lyon, 37 Cal. 242.) This section does not limit the power of the legislature to declare that aliens may be heirs. It contemplates some pro- cedure in the nature of office found by which the right of the state shall be ascertained and determined, and legislation pro- viding for the sale of the land. (State T. Smith, 70 Cal. 153, 12 Pac. 121.) 281 CONSTITUTION OF 1879. Art. IX, § 5 Money raised for the support of the common schools does not become a part of the school fund of the county until it has been apportioned to the several counties by the super- intendent of public instruction. (McCord v. Slavin, 143 Cal. 325, 76 Pac. 1104.) System of common schools to be provided. Sec. 5. The legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year, after the first year in which a school has been established. SCHOOL SYSTEM. — The opportunity for instruction in pub- lic schools given by the statutes and constitution is a legal right, as much as a vested right in property. (Ward v. Flood, 48 Cal. 36, 17 Am. Eep. 405.) By the constitution the educational department is made a state, as distinguished from a municipal, care, and the regula- tion of schools in San .Francisco does not remain unchangeable under the Consolidation Act. The Consolidation Act may re- main for municipal purposes, yet the educational department, as a state matter, be subject to general laws passed for that purpose. (Earl v. Board of Education, 55 Cal. 489.) This provision requires the adoption of one system, which shall be applicable to all the common schools. (Kennedy v. Miller, 97 Cal. 429, 32 Pac. 558; San Diego v. Dauer, 97 Cal. 442, 32 Pac. 561; Bruch v. Colombet, 104 Cal. 347, 38 Pac. 45.) It does not authorize one system for school districts having boards of education, and another system for school districts not having boards of education. (Bruch v. Colombet, 104 Cal. 347, 38 Pac. 45.) It is within the constitutional power of the legislature to provide for the establishment of separate schools for colored children, and the exclusion of colored children from schools attended by white children. (Wysinger v. Crookshank, 82 Cal. 588, 23 Pac. 54; Ward v. Flood, 48 Cal. 30, 17 Am. Kep. 405.) Art. IX, § 6 CONSTITUTION OP 1879. 282 But the legislature cannot, while providing a system of edu- cation for the youth of the state, exclude from its benefits children merely because of their African descent. (Ward T. Flood, 48' Cal. 36, 17 Am. Eep. 405.) School system, what to include. Sec. 6, The public school system shall include day and evening elementary schools, and such day and even- ing secondary schools, normal schools, and technical schools as may be established by the legislature, or by municipal or district authority. The entire revenue de- rived from the state school fund and from the general state school tax shall be applied exclusively to the sup- port of day and evening elementary schools; but the legislature may authorize and cause to be levied a special state school tax for the support of day and evening secondary schools and technical schools, or either of such schools, included in the public school system, and all revenue derived from such special tax shall be applied exclusively to the support of the schools for which such special tax shall be levied. (Amendment adopted No- vember 3, 1908.) [AMENDMENT OF 1902.] Sec. 6. The public school system shall include primary and grammar schools, and such high schools, evening schools, normal schools, and technical schools as may be established by the legislature, or by municipal or district authority. The entire revenue derived from the state school fund and from the general state school tax shall be applied exclusively to the support of primary and grammar schools; but the legislature 283 CONSTITUTION OF 1879. Art. IX, § 6 may authorize and cause to be levied a special state scbool tax for the support of high schools and technical schools, or either of such schools, included in the public school system, and all revenue derived from such special tax shall be applied exclusively to the support of the schools for which such special tax shall be levied. (Amendment adopted November 4, 1902.) [ORIGINAL SECTION.] Sec. 6. The public school system shall include primary and grammar schools, and such high schools, evening schools, normal schools, and technical schools as may be established by the legislature, or by municipal or district authority; but the en- tire revenue derived from the state school fund, and the state school tax, shall be applied exclusively to the support of primary and grammar schools. CCHOOLS AND FUNDS. — High schools are an integral part of our public school system. (Chico High School Board v. Supervisors, 118 Gal. 115, 50 Pac. 275.) A law providing a special method of levying a tax for high schools, differing from that provided for other school districts, is valid. (People v. Lodi High School Dist., 124 Gal. 691, 57 Pac. 6G0.) A statute authorizing county assessors to retain, as their compensation in collecting, fifteen per cent of all poll taxes collected by them, is not in conflict with this section, since the word "exclusively" is directed to the point that the school funds must be applied to the support of primary and grammar Bchools, to the exclusion of other schools. (San Luis Obispo V. Felts, 104 Cal. 60, 37 Pac. 780.) The words "average daily attendance," used in subdivision 4 of section 1858 of the Political Code, in regard to appor- tionment of funds, mean average daily attendance in the common schools of the district, and do not incUule the high schools and evening schools. (Stockton School Dist. v. Wright, 134 Cal. 64, 66 Pac. 34.) All school funds must be applied exclusively to primary and grammar schools. (Stockton School District v. Wright, 134 Cal. 64, 66 Pac. 34.) Art. IX, § 7 CONSTITUTION OP 1879. 284 The provision that the moneys derived from the sale of uncovered lands should be "paid into the school fund of the county where the laud lies" was not an "appropriation" of these moneys. (McCord v. Slavin, 143 Cal. 325, 76 Pac. 1104.) While high schools are part of the public school system, it was intended to make them entirely distinct from primary and grammar schools. (Brown v. City of Visalia, 141 Cal. 372, 74 Pac. 1042.) The term "public schools" in section 798 of the Municipal Corporation Act does not embrace high schools. (Brown v. City of Visalia, 141 Cal. 372, 74 Pac. 1042.) Kindergartens are not part of the "primary and grammar" schools, and attendance upon them cannot be considered in apportioning the state school fund. (Los Angeles v. Kirk, 148 Cal. 385, 83 Pac. 250.) Evening schools having the status of a high school are au- thorized by the constitution as a part of the public school system. (Board of Education v. Hyatt, 152 Cal. 515, 93 Pac. 117.) Text-books, who to adopt — Local boards of education. Sec. 7. The governor, as superintendent of public instruction, the president of the University of Califor- nia, and the professor of pedagogy therein and the prin- cipals of the state normal schools, shall constitute the state board of education, and shall compile, or cause to be compiled, and adopt a uniform series of text-books for use in the common schools throughout the state. The state board may cause such text-books when adopted, to be printed, and published by the superin- tendent of state printing, at the state printing office; and when so printed and published, to be distributed and sold at the cost price of printing, publishing and distributing the same. The text-books, so adopted, shall Art. IX, Sec. 7. Insert at Page 284. Sec. 7. The legislature shall provide for the appoint- ment or election of a .state board of education, and said board shall provide, compile, or cause to he compiled, and adopt, a uniform scries of text-liooks for use in the day and evening' elementary schools throughout the state. The state board may cause such text-books, when adopted, to be printed and published by the superintendent of state printing, at tlu' state i)riiitiiii>- office; and wherever and however such text-books may bi^ ju-itited and pub- lished, they shall be furnished and distrilMited by tlie .state free of cost pointment and removal ; and 6. For the compensation of such fish and game wardens, probation and other officers as may be pro- vided by general law, or for the fixing of such com- pensation ])}' boards of supervisors. All elective officers of counties, and of townships, of road districts and of highway construction divisions therein sliall lie noiiiiiuited and elected in the manner provided by general laws for the nomination and elec- tion of such officers. All charters framed under the authority given by this section, in addition to the matters herein above specified, may provide as follows : For officers other than those required by the Con- stitution and laws of the state, or for the creation of any or all of such offices by boards of supervisors, for the election or appointment of persons to fill such offices, for the manner of such appointment, for the times at which and the terms for which such persons shall be so elected or appointed, and for their com- pensation, or for the fixing of such compensation by boards of supervisors. For offices hereafter created by this Constitution or by general law, for the election or appointment of persons to fill such offices, for the manner of such ap- pointment, for the times at which and the terras for which such persons shall be so elected or appointed, and for their compensation, or for the fixing of such compensation by boards of supervisors. For the formation, in such counties, of road districts for the care, maintenance, repair, inspection and super- vision only of roads, highways and bridges; and for the formation, in such counties, of highway construc- tion divisions for the construction only of roads, high- ways and bridges; for the inclusion in any such dis- trict or division, of the whole or any part of any incorporated city or town, upon ordinance passed by such incorporated city or town authorizing the same, and upon the assent to such inclusion by a majority of the qualified electors of such incorporated city or town, or portion thereof, proposed to be so included. at au election held for that purpose ; for the organiza- tion, government, powers and jurisdiction of such dis- tricts and divisions, and for raising revenue therein, for such purposes, by taxation, upon the assent of a majority of the qualified electors of such districts or divisions, voting at an election to be held for that purpose ; for the incurring of indebtedness therefor by such counties, districts or divisions for such pur- poses respectively, by the issuance and sale, by the counties, of bonds of such counties, districts or di- visions, and the expenditure of the proceeds of the sale of such bonds, and for levying and collecting taxes against the property of the counties, districts or divisions, as the case may be, for the payment of the principal and interest of such indebtedness at ma- turity ; provided, that any such indebtedness shall not be incurred without the assent of two thirds of the qualified electors of the county, district or division, as the case may be, voting at an election to be held for that purpose, nor unless before or at the time of incurring such indebtedness provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also for a sinking fund for the payment of the princi- pal thereof on or before maturity, which shall not ex- ceed forty years from the time of contracting the same, and the procedure for voting, issuing and selling such bonds shall, except in so far as the same shall be prescribed in such charters, conform to general laws for the authorizing and incurring by counties of bonded indebtedness, so far as applicable ; provided, further, that provisions in such charters for the con- struction, care, maintenance, repair, inspection and supervision of roads, highways and bridges for which aid from the state is granted, shall be subject to such regulations and conditions as may be imposed by the legislature. Whenever any county has framed and adopted a charter, and the same shall have been approved by the legislature, as herein provided, the general laws adopted by the legislature in pursuance of sections four and five of this article, shall, as to such county, be supersededed by said charter as to matters for which, under this section it is competent to make l)rovision in such charter, and for which provision is made therein, except as herein otherwise expressly; provided ; and except that any such charter shall nol affect the tenure of office of the elective officers of the county, or of any district, toAvnship or division thereof in office at the time such charter goes into eff'ect, anc such officers shall continue to hold their respective offices until the expiration of the term for which thej shall have been elected, unless sooner removed in the manner provided by law. The charter of any county, adopted under the au thority of this section, may be surrendered and an nulled with the assent of two thirds of the ciualifiec electors of such county, voting at a special election held for that purpose, and to be ordered and callec by the board of supervisors of the county upon re reiving a written petition, signed and certified as hereinabove provieleel for the purposes of the adop tion of charters, requesting said board to submit th( question of the surrender anel annnlment of sucli charter to the (|ualified electors of such county, and, ii the event of the surrender and annulment of any sucl charter, such county shall thereafter be governed under general laws in force for the government of counties. The provisions of this section shall not be appli- cable to any county that is consolidated vrith any cit3^ (Amendment adopted November 3, 1914.) 323 CONSTITUTION OF 1879. Art. XI, § 71/2 Section 5, article 11, requiring the legislature to provide for the strict accountability of county officers for all fees" which may be collected by them, is applicable to consolidated cities and counties. (Rauer v. Williams, US Cal. 401, 50 Pac. 691.) Freeholders' charters for counties. Sec. 71/2- Any county may frame a charter for its own government consistent with and subject to the con- stitution (or, having framed such a charter, may frame a new one,) relating to the matters hereinafter in this section specified, and none other, by causing a board of fifteen freeholders, who have been for at least five years qualified electors thereof, to be elected by the qualified electors of said county, at a general or special election. Said board of freeholders may be so elected in pursuance of an ordinance adopted by the vote of three-fifths of all the members of the board of super- visors of such county, declaring that the public interest requires the election of such board for the purpose of preparing and proposing a charter for said county, or in pursuance of a petition of qualified electors of said county as hereinafter provided. Such petition, signed by fifteen per centum of the qualified electors of said county, computed upon the total number of votes cast therein for all candidates for governor at the last pre- ceding general election at which a governor was elected, praying for the election of a board of fifteen freeholders to prepare and propose a charter for said county, may be filed in the office of the county clerk. It shall be Art. XI, § 7l^ CONSTITUTION OF 1879. 324 the duty of said county clerk, within twenty days af- ter the filing of said petition, to examine the same, and to ascertain from the record of the registration of electors of the county, whether said petition is signed by the requisite number of qualified electors. If re- quired by said clerk, the board of supervisors shall au- thorize him to employ persons specially to assist him in the work of examining such petition, and shall pro- vide for their compensation. Upon the completion of such examination, said clerk shall forthwith attach to said petition his certificate, properly dated, showing the result thereof, and if, by said certificate, it shall appear that said petition is signed by the requisite number of qualified electors, said clerk shall immediately present said petition to the board of supervisors, if it be in session, otherwise at its next regular meeting after the date of such certificate. Upon the adoption of such ordinance, or the presentation of such petition, said board of supervisors shall order the holding of a special election for the purpose of electing such board of free- holders, which said special election shall be held not less than twenty days nor more than sixty days after the adoption of the ordinance aforesaid or the presenta- tion of said petition to said board of supervisors; pro- vided, that if a general election shall occur in said county not less than twenty days nor more than sixty days after the adoption of the ordinance aforesaid, or such presentation of said petition to said board of su- 325 CONSTITUTION OF 1879. Art. XI, § 7i^ pervisors, said board of freeholders may be elected at such general election. Candidates for election as mem- bers of said board of freeholders shall be nominated by petition, substantially in the same manner as may be provided by general law for the nomination, by peti- tion of electors, of candidates for county offices, to be voted for at general elections. It shall be the duty of said board of freeholders, within one hundred and twenty days after the result of such election shall have been declared by said board of supervisors, to prepare and propose a charter for said county, which shall be signed in duplicate by the members of said board of freeholders, or a majority of them, and be filed, one copy in the office of the county clerk of said county and the other in the office of the county recorder thereof. Said board of super- visors shall thereupon cause said proposed charter to be published for at least ten times in a daily newspaper of general circulation, printed, published and circu- lated in said county; provided, that in any county where no such daily newspaper is printed, published and circulated, such proposed charter shall be pub- lished for at least three times in at least one weekly newspaper, of general circulation, printed, published and circulated in such county; and provided, that in any county where neither such daily nor such weekly newspaper is printed, published and circulated, a copy of such proposed charter slnill be posted by the county Art. XI, § 71/2 CONSTITUTION OF 1879. 326 clerk in three public places in said county, and on or near the entrance to at least one public schoolhouse in each school district in said county, and the first publi- cation or the posting of such proposed charter shall be made within fifteen days after the filing of a copy thereof, as aforesaid, in the office of the county clerk. Said proposed charter shall be submitted by said board of supervisors to the qualified electors of said county at a special election held not less than thirty days nor more than sixty days after the completion of such publication, or after such posting; provided, that if a general election shall occur in said county not less than thirty days nor more than sixty days after the completion of such publication, or after such posting, then such proposed charter may be so submitted at such general election. If a majority of said qualified electors, voting thereon at such general or special election, shall vote in favor of such proposed charter, it shall be deemed to be ratified, and shall be forthwith submitted to the legislature, if it be in regular session, otherwise at its next regular session, or it may be submitted to the legislature in extraordinary session, for its approval or rejection as a whole, without power of alteration or amendment. Such approval may be made by concurrent resolution, and if approved by a majority vote of the members elected to each house, such charter shall become the charter of such county and shall become the organic law thereof relative to the 327 CONSTITUTION OF 1879. Art. XI, § lYz matters therein provided, and supersede any existing charter framed under the provisions of this section, and all amendments thereof, and shall supersede all laws inconsistent with such charter relative to the matters provided in such charter. A copy of such charter, cer- tified and authenticated by the chairman and clerk of the board of supervisors under the seal of said board and attested by the county clerk of said county, setting forth the submission of said charter to the electors of said county, and its ratification by them, shall, after the approval of such charter by the legislature, be made in duplicate, and filed, one in the office of the secretary of state and the other, after being recorded in the office of the recorder of said county, shall be filed in the office of the county clerk thereof, and thereafter all courts shall take judicial notice of said charter. The charter, so ratified, may be amended by proposals therefor submitted by the board of supervisors of the county to the qualified electors thereof at a general or special election held not less than thirty days nor more than sixty days after the publication of such proposals for ten times in a daily newspaper of general circulation, printed, published and circulated in said county, pro- vided that in any county where no such daily news- paper is printed, published and circulated, such pro- posed charter shall be published for at least three times in at least one weekly newspaper, of general circu- lation, printed, published, and circulated in such Art. XI, § 71/2 CONSTITUTION OP 1879. 328 county; provided, that in any county where neither such daily nor such weekly newspaper is printed, pub- lished and circulated, a copy of such proposed charter shall be posted by the county clerk in three public places in said county, and on or near the entrance to at least one public schoolhouse in each school district in said county. If a majority of such qualified electors voting thereon, at such general or special election, shall vote in favor of any such proposed amendment or amendments, or any amendment or amendments pro- posed by petition as hereinafter provided, such amend- ment or amendments shall be deemed to be ratified, and shall be forthwith submitted to the legislature, if it be in regular session, otherwise at its next regular session, or may be submitted to the legislature in extraordinary session, for approval or rejection as a whole, without power of alteration or amendment, and if approved by the legislature, as herein provided for the approval of the charter, such charter shall be amended accordingly. A copy of such amendment or amendments shall, after the approval thereof by the legislature, be made in duplicate, and shall be authenticated, certified, recorded and filed as herein provided for the charter, and with like force and effect. Whenever a petition signed by ten per centum of the qualified electors of any county, com- puted upon the total number of votes cast in said county for all candidates for governor at the last general elec- tion, at which a governor was elected, is filed in the office 329 CONSTITUTION OF 1879. Art. XI, § 7^/2 of the county clerk of said county, petitioning the board of supervisors thereof to submit any proposed amend- ment or amendments to the charter of such county, which amendment or amendments shall be set forth in full in such petition, to the qualified electors thereof, such peti- tion shall forthwith be examined and certified by the county clerk, and if signed by the requisite number of qualified electors of such county, shall be presented to the said board of supervisors, by the said county clerk, as hereinbefore provided for petitions for the election of boards of freeholders. Upon the presentation of said petition to said board of supervisors, said board must submit the amendment or amendments set forth therein to the qualified electors of said county at a general or special election held not lass than thirty days nor more than sixty days after the publication or posting of such proposed amendment or amendments in the same man- ner as hereinbefore provided in the case of the submis- sion of any proposed amendment or amendments to such charter, proposed and submitted by the board of super- N'isors. In submitting any such charter, or amendments thereto, any alternative article or proposition may be presented for the choice of the electors, and may be voted on separately without prejudice to others. Every special election held under the provisions of this section, for the election of boards of freeholders or for the submission of proposed charters, or any amend- ment or amendments thereto, shall be called by the Art. XI, § 7y2 CONSTITUTION 0? 1879. 330 board of supervisors, by ordinance, which shall specify the purpose and time of such election and shall establish the election precincts and designate the polling places therein, and the names of the election officers for each such precinct. Such ordinance, prior to such election, shall be published five times in a daily newspaper, or twice in a weekly newspaper, if there be no such daily newspaper, printed, published and circulated in said county ; provided that if no such daily or weekly news- paper be printed or published in such county, then a copy of such ordinance shall be posted by the county clerk in three public places in such county and in or near the entrance to at least one public schoolhouse in each school district therein. In all other respects, every such election shall be held and conducted, the returns thereof canvassed and the result thereof declared by the board of supervisors in the same manner as provided by law for general elections. Whenever boards of free- holders shall be elected, or any such proposed charter, or amendment or amendments thereto, submitted, at a general election, the general laws applicable to the elec- tion of county officers and the submission of proposi- tions to the vote of electors, shall be followed in so far as the same may be applicable thereto. It shall be competent, in all charters, framed under the authority given by this section to provide, in addi- tion to any other provisions allowable by this constitu- 331 CONSTITUTION OF 1879. Art. XI, § 7V2 tion, and the same shall provide, for the following matters : 1. For boards of supervisors and for the constitution, regulation and government thereof, for the times at which and the terms for which the members of said board shall be elected, for the number of members, not less than three, that shall constitute such boards, for their compensation and for their election, either by the electors of the counties at large, or by districts; pro- vided, that in any event said board shall consist of one member for each district, who must be a qualified elec- tor thereof; and 2. For sheriffs, county clerks, treasurers, recorders, license collectors, tax collectors, public administrators, coroners, surveyors, district attorneys, auditors, asses- sors and superintendents of schools, for the election or appointment of said officers, or any of them, for the times at which, and the terms for which, said officers, shall be elected or appointed, and for their compensa- tion, or for the fixing of such compensation by boards of supervisors, and, if appointed, for the manner of their appointment; and 3. For the number of justices of the peace and con- stables for each township, or for the number of such judges and other officers of such inferior courts as may be provided by the constitution or general law, for the election or appointment of said officers, for the times at which and the terms for which said officers shall be Art. XI, § 71/^ CONSTITUTION OF 1879. 332 elected or appointed, and for their compensation, or for the fixing of such compensation by boards of supervis- ors, and if appointed, for the manner of their appoint- ment; and 4. For the powers and duties of boards of supervisors and all other county officers, for their removal and for the consolidation and segregation of county offices, and for the manner of filling all vacancies occurring therein; provided, that the provisions of such charters relating to the powers and duties of boards of supervis- ors and all other county officers shall be subject to and controlled by general laws; and 5. For the fixing and regulation by boards of super- visors, by ordinance, of the appointment and number of assistants, deputies, clerks, attaches and other persons to be employed, from time to time, in the several offices of the county, and for the prescribing and regulating by such boards of the powers, duties, qualifications and compensation of such persons, the times at which, and terms for which they shall be appointed, and the man- ner of their appointment and removal; and 6. For the compensation of such fish and game war- dens, probation and other officers as may be provided by general law, or for the fixing of such compensation by boards of supervisors. All elective officers of counties, and of townships, of road districts and of highway construction divisions therein shall be nominated and elected in the manner 333 CONSTITUTION OP 1879. Art. XI, § 7i/^ provided by general laws for the nomination and elec- tion of such officers. All charters framed under the authority given by this section, in addition to the matters hereinabove specified, may provide as follows: For officers other than those required by the constitu- tion and laws of the state, or for the creation of any or all of such offices by boards of supervisors, for the elec- tion or appointment of persons to fill such offices, for the manner of such appointment, for the times at which and the terms for which such persons shall be so elected or appointed, and for their compensation, or for the fix- ing of such compensation by boards of supervisors. For offices hereafter created by this constitution or by general law, for the election or appointment of persons to fill such offices, for the manner of such appointment, for the times at which and the terms for which such per- sons shall be so elected or appointed, and for their com- pensation, or for the fixing of such compensation by boards of supervisors. For the formation, in such counties, of road districts for the care, maintenance, repair, inspection and super- vision only of roads, highways and bridges ; and for the formation, in such counties, of highway construction divisions for the construction only of roads, highways and bridges ; for the inclusion in any such district or di- vision, of the whole or any part of any incorporated city or town, upon ordinance passed by such incorporated Art. XI, § 71/2 CONSTITUTION OP 1879. 33-i city or town authorizing the same, and upon the assent to such inclusion by a majority of the qualified electors of such incorporated city or town, or portion thereof, proposed to be so included, at an election held for that purpose; for the organization, government, powers and jurisdiction of such districts and divisions, and for raising revenue therein, for such purposes, by taxation, upon the assent of a majority of the qualified electors of such districts or divisions, voting at an election to be held for that purpose ; for the incurring of indebtedness therefor by such counties, districts or divisions for such purposes respectively, by the issuance and sale, by the counties, of bonds of such counties, districts or divi- sions, and the expenditure of the proceeds of the sale of such bonds, and for levj'ing and collecting taxes against the property of the counties, districts or divi- sions, as the case may be, for the payment of the prin- cipal and interest of such indebtedness at maturity; provided, that any such indebtedness shall not be in- curred without the assent of two-thirds of the quali- fied electors of the county, district or division, as the case may be, voting at an election to be held for that purpose, nor unless before or at the time of incurring such indebtedness provision shall be made for the col- lection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also for a sinking fund for the payment of the principal thereof on or before maturity, which shall not exceed forty 335 CONSTITUTION OP 1879. Art. XI, § 7i^ years from the time of contracting the same, and the procedure for voting, issuing and selling such bonds shall, except in so far as the same shall be prescribed in such charters, conform to general laws for the au- thorizing and incurring by counties of bonded indebt- edness, so far as applicable; provided, further, that provisions in such charters for the construction, care, maintenance, repair, inspection and supervision of roads, highways and bridges for which aid from the state is granted, shall be subject to such regulations and con- ditions as may be imposed by the legislature. Whenever any county has framed and adopted a charter, and the same shall have been approved by the legislature, as herein provided, the general laws adopted by the legislature in pursuance of sections 4 and 5 of this article, shall, as to such county, be superseded by said charter as to matters for which, under this section it is competent to make provision in such charter, and for which provision is made therein, except as herein otherwise expressly provided, and except that any such charter shall not affect the tenure of the office of the elective officers of the county, or of any district, town- ship or division thereof, in office at the time such charter goes into effect, and such officers shall continue to hold their respective offices until the expiration of the terra for which they shall have been elected, unless sooner removed in the manner provided by law. Art. XI, § 8 CONSTITUTION OP 1879. 336 The charter of any county, adopted under the au- thority of this section, may be surrendered and an- nulled with the assent of two-thirds of the qualified ' electors of such county, voting at a special election, held for that purpose, and to be ordered and called by the board of supervisors of the county upon receiving a written petition, signed and certified as hereinabove provided for the purposes of the adoption of charters, requesting said board to submit the question of the sur- render and annulment of such charter to the qualified electors of such county, and, in the event of the surren- der and annulment of any such charter, such county shall thereafter be governed under general laws in force for the government of counties. The provisions of this section shall not be applicable to any county that is consolidated with any city. (New section added by amendment approved October 10, 1911.) City charters, how framed and ratified. Sec. 8. Any city containing a population of more than three thousand five hundred inhabitants as ascer- tained and established by the last preceding census, taken under the direction of the Congress of the United States, or by a census of said city, taken, subsequent to the aforesaid census, under the direction of the legis- lative body thereof, under laws authorizing the taking of the census of cities, may frame a charter for its 337 ^ CONSTITUTION OF 1879, Art. XI, § 8 own government, consistent with, and subject to, the constitution, (or, having framed such a charter, may frame a new one), by causing a board of fifteen free- holders, who shall have been, for at least five years,, qualified electors thereof, to be elected by the qualified electors of said city, at a general or special municipal election. Said board of freeholders may be so elected in pursuance of an ordinance adopted by a vote of two- thirds of all the members of the council, or other legis- lative body, of such city, declaring that the public interest requires the election of such board for the pur- pose of preparing and proposing a charter for said city, or in pursuance of a petition of qualified electors of said city, as hereinafter provided. Such petition, signed by fifteen per centum of the qualified electors of said city computed upon the total number of votes cast therein for all candidates for governor at the last preceding general election at which a governor was elected, pray- ing for the election of a board of fifteen freeholders to prepare and propose a charter for said city, may be filed in the office of the city clerk thereof. It shall be the duty of said city clerk, within twenty days after the filing of said petition, to examine the same and to ascertain from the record of the registration of electors of the county, showing the registration of electors of said city, whether the petition is signed by the requisite number of qualified electors of such city. If required Constitution — 23 Art. XI, § 8 CONSTITUTION OF 1879. , 338 by said clerk, the council, or other legislative body, of said city shall authorize him to employ persons specially to assist him in the work of examining such petition, and shall provide for their compensation. Upon the completion of such examination, said clerk shall forth- with attach to said petition his certificate, properly dated,- showing the result thereof, and if, by said certi- ficate, it shall appear that said petition is signed by the requisite number of qualified electors, said clerk shall present the said petition to said council, or other legislative body, at its next regular meeting after the date of such certificate. Upon the adoption of such ordinance, or the presentation of such petition, said council, or other legislative body, shall order the hold- ing of a special election for the purpose of electing such board of freeholders, which said special election shall be held not less than twenty days, nor more than sixty days after the adoption of the ordinance afore- said, or the presentation of said petition to said council, or other legislative body; provided, that if a general municipal election shall occur in said city not less than twenty days, nor more than sixty days, after the adop- tion of the ordinance aforesaid, or the presentation of said petition to said council, or other legislative body, said board of freeholders may be elected at such gen- eral municipal election. Candidates for election as members of said board of freeholders shall be nominated by petition, substantially in the same manner as may 339 CONSTITUTION OF 1879. Art. XI, § 8 be provided by general laws for the nomination by pe- tition of electors of candidates for public offices to be voted for at general elections. It shall be the duty of said board of freeholders, within one hundred and twenty days after the result of such election shall have been declared by said council, or other legislative body, to prepare and propose a charter for said city, which shall be signed in dupli- cate by the members of said board of freeholders, or a majority of them, and be filed, one copy in the office of the city clerk of said city, and the other in the office of the county recorder of the county in which said city is situated. Said council, or other legislative body, shall, thereupon, cause said proposed charter to be pub- lished for at least ten times, in a daily newspaper of general circulation, printed, published and circulated in said city; provided, that in any city where no such daily newspaper is printed, published and circulated, such proposed charter shall be published, for at least three times, in at least one weekly newspaper of general circulation, printed, published and circulated in said city, and, in any event, the first publication of such proposed charter shall be made within fifteen days after the filing of a copy thereof, as aforesaid, in the office of the city clerk. Such proposed charter shall be submitted by said council, or other legislative body, to the qualified electors of said city at a special election held not less than twenty days, nor more than forty Art. XI, § 8 CONSTITUTION OF 1879. 340 days, after the completion of such publication; pro- vided, that if a general municipal election shall occur in said city not less than' twenty days, nor more than forty days, after the completion of such publication, then such proposed charter may be so submitted at such general election. If a majority of such qualified electors voting thereon at such general or special election shall vote in favor of such proposed charter, it shall be deemed to be ratified, and shall be submitted to the legislature, if it be in regular session, otherwise at its next regular session, or it may be submitted to the legis- lature in extraordinary session, for its approval or re- jection as a whole, without power of alteration or amendment. Such approval may be made by concur- rent resolution, and if approved by a majority vote of the members elected to each house, such charter shall become the charter of such city, or, if such city be con- solidated with a county, then of such city and county, and shall become the organic law thereof, and supersede any existing charter, (whether framed under the pro- visions of this section of the constitution or not,) and all amendments thereof, and all laws inconsistent with such charter. A copy of such charter, certified by the mayor, or other chief executive officer of said city, and authenticated under the seal of such city, setting forth the submission of such charter to the electors of said city, and its ratification by them, shall, after the ap- proval of such charter by the legislature, be made in du- 341 CONSTITUTION OP 1879. Art. XI, § 8 plicate and deposited, one in the office of the secretary of state and the other, after being recorded in the office of the recorder of the county in which such city is situ- ated, shall be deposited in the archives of the city, and thereafter all courts shall take judicial notice of said charter. The charter, so ratified, may be amended by proposals therefor submitted by the council, or other legislative body of the city, to the qualified electors thereof at a general or special municipal election held at intervals of not less than two years (except that charter amend- ments may be submitted at a general municipal election at an interval of less than two years after the last elec- tion on charter amendments provided that no other election on charter amendments has been held since the beginning of the last regular session of the state legis- lature or shall be held prior to the next regular session of the state legislature), and held not less than twenty days, nor more than forty days after the completion of the publication of such proposals for ten times in a daily newspaper of general circulation, printed, pub- lished and circulated in said city, or for three times in at least one weekly newspaper of general circulation, printed, published and circulated in said city, if there be no such daily newspaper. If a majority of such qualified electors voting thereon at such general or special election shall vote in favor of any such pro- posed amendment or amendments, or any amendment Art. XI, § 8 CONSTITUTION OP 1879. 342 or amendments proposed by petition, as hereinafter provided, such amendment or amendments shall be deemed to be ratified, and shall be forthwith submitted to the legislature, if it be in regular session, otherwise at its next regular session, or may be submitted to the legislature in extraordinary session, for approval or rejection as a whole, without power of alteration or amendment, and if approved by the legislature, as herein provided for the approval of the charter, such charter shall be amended accordingly. A copy of such amendment or amendments shall, after the approval thereof by the legislature, be made in duplicate, and shall be authenticated, certified, recorded and filed as herein provided for the charter, and with like force and effect. Whenever a petition signed by fifteen per centum of the qualified electors of the city, computed upon the total number of votes cast therein for all can- didates for governor at the last preceding general elec- tion at which a governor was elected, is filed in the ofiice of the city clerk of said city, petitioning the coun- cil, or other legislative body thereof, to submit any pro- posed amendment or amendments to the charter of such city, which amendment or amendments shall be set forth in full in such petition, to the qualified electors thereof, such petition shall forthwith be examined and certified by the city clerk, and if signed by the requisite number of qualified electors of said city, it shall be presented to the said council, or other legislative body, 343 CONSTITUTION OF 1879. Art. XI, § 8 by the said cit}^ clerk, as hereinbefore provided for petitions for the election of boards of freeholders. Upon the presentation of said petition to said council, or other legislative body, said council, or other legisla- live body, must submit the amendment or amendments set forth in said petition to the qualified electors of said city, at a general or special municipal election, held not less than twenty, nor more than forty, days after the completion of the publication of such pro- posed amendment or amendments, in the same manner as hereinbefore provided in the case of the submission of any proposed amendment or amendments to such charter, proposed and submitted by the council, or other legislative body. The first publication of any proposed amendment or amendments to such charter so proposed by petition shall be made within fifteen days after the aforesaid presentation of said petition to said council, or other legislative body. In submitting any such charter, amendment or amendments thereto, any alter- native article or proposition may be presented for the choice of the electors, and may be voted on separately without prejudice to others. Every special election held in any city under the provisions of this section, for the election of a board of freeholders, or for the submission of any proposed charter or any amendment or amendments thereto, shall be called by the council, or other legislative body thereof, by ordinance, which shall specify the purpose Art. XI, § 8 CONSTITUTION OF 1879. 344 and time of such election, and shall establish the election precincts and designate the polling places therein, and the names of the election officers for each such precinct. Such ordinance shall, prior to such election, be pub- lished five times in a daily newspaper, or twice in a weekly newspaper, if there be no such daily newspaper printed, published and circulated in said city. Such election shall be held and conducted, the returns thereof canvassed, and the result thereof declared by the coun- cil, or other legislative body of such city in the manner that is now or may be hereafter provided by general law for such elections in the particulars wherein such pro- vision is now or may hereafter be made therefor, and in all other respects in the manner provided by law for general municipal elections, in so far as the same may be applicable thereto. Whenever any board of freeholders shall be elected, or any such proposed charter or amendment or amend- ments thereto shall be submitted at a general municipal election, the laws governing the election of city officers, or the submission of propositions to the vote of electors, shall be followed in so far as the same may be appli- cable thereto and not inconsistent herewith. It shall be competent in any charter framed by any city under the authority given in this section, or by amendment to such charter, to provide, in addition to those provisions allowed by this constitution and by the laws of the state, for the establishment of a borough 345 CONSTITUTION OF 1879. Art. XI, § 8 system of government for the whole or any part of the territory of such city, by which one or more districts may be created therein, which districts shall be known as boroughs, and which shall exercise such special munici- pal powers as may be granted by such charter, and for the organization, regulation, government and jurisdic- tion of such boroughs. All the provisions of this section relating to the city clerk shall, in any city and county, be deemed to relate to the clerk of the legislative body thereof. (Amend- ment approved October 10, 1911.) [AMENDMENT OF 1906.] Sec. 8. Any city containing a population of more than three thousand five hundred inhabitants may frame a charter for its own government, consistent with and subject to the constitution, (or, having framed such a charter, may frame a new one), by causing a board of fifteen freeholders, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of said city at any general or special election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, which shall be signed in duplicate by the members of such board, or a majority of them, and returned, one copy to the mayor thereof, or other chief executive officer of such city, and the other to the recorder of the county. Such proposed charter shall then be published in two daily newspapers of general circulation in such city, for at least twenty days, and the first publication shall be made within twenty days after the completion of the charter; provided, that in cities con- taining a population of not more than ten thousand inhabitants, Art. XI, § 8 CONSTITUTION OF 1879. 346 such proposed charter shall be published in one such daily newspaper; and within thirty days after such publication it shall be submitted to the qualified electors of said city at a general or special election, and if a majority of such qualified electors voting thereon shall ratify the same, it shall thereafter be submitted to the legislature for its approval or rejection as a whole, without power of alteration or amendment. Such approval may be made by concurrent resolution, and if ap- proved by a majority vote of the members elected to each house, it shall become the charter of such city, or, if such city be consolidated with a county, then of such city and county, and shall become the organic law thereof, and supersede any existing charter, (whether framed under the provisions of this section of the constitution or not,) and all amendments thereof, and all laws inconsistent with such charter. A copy of such charter, certified by the mayor, or chief executive officer, and authenticated by the seal of such city, setting forth the sub- mission of such charter to the electors, and its ratification by them, shall after the approval of such charter by the legis- lature, be made in duplicate, and deposited, one in the office of the secretary of state, and the other, after being recorded in said recorder's office shall be deposited in the archives of the city, and thereafter all courts shall take judicial notice of said charter. The charter, so ratified, may be amended at .intervals of not less than two years by proposals therefor, sub- mitted by the legislative authority of the city to the qualified electors thereof at a general or special election held at least forty days after the publication of such proposals for twenty days in a daily newspaper of general circulation in such city, and ratified by a majority of the electors voting thereon, and approved by the legislature as herein provided for the approval of the charter. Whenever fifteen per cent of the qualified voters of the city shall petition the legislative authority thereof 347 CONSTITUTION OF 1879. Art. XI, § 8 to submit any proposed amendment or amendments to said charter to the qualified voters thereof for approval, the legis- lative authority thereof must submit the same. In submitting any such charter, or amendments thereto, any alternative article or proposition may be presented for the choice of the voters, and may be voted on separately vsrithout prejudice to others. (Amendment adopted November 6, 1906.) [AMENDMENT OF 1902.] Sec. 8. Any city containing a population of more than three thousand five hundred inhabitants may frame a charter for its own government, consistent with and subject to the constitu- tion and laws of this state, by causing a board of fifteen free- holders, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of said city at any general or special election, whose duty it shall be, within ninety days after such election to prepare and pro- pose a charter for such city, which shall be signed in duplicate by the members of such board, or a majority of them, and returned, one copy to the mayor thereof, or other chief execu- tive officer of such city, and the other to the recorder of the county. Such proposed charter shall then be published in two daily newspapers of general circulation in such city, for at least twenty days, and the first publication shall be made within twenty days after the completion of the charter; 'pro- vided, that in cities containing a population of not more than ten thousand inhabitants, such proposed charter shall be pub- lished in one such daily newspaper; and within not less than thirty days after such publication it shall be submitted to the qualified electors of said city at a general or special election and if a majority of such qualified electors voting thereon shall ratify the same, it shall thereafter be submitted to the legis- lature for its approval or rejection as a whole, without power Art. XI, § 8 CONSTITUTION OF 1879. 348 of alteration or amendment. Such approval may be made by concurrent resohition, and if approved by a majority vote of the members elected to each house, it shall become the charter of such city, or, if such city be consolidated with a county, then of such city and county, and shall become the organic law thereof, and supersede any existing charter and all amend- ments thereof, and all laws inconsistent with such charter. A copy of such charter, certified by the mayor, or chief executive oflScer, and authenticated by the seal of such city, setting forth the submission of such charter to the electors, and its ratifica- tion by them, shall after the approval of such charter by the legislature, be made in duplicate, and deposited, one in the office of the secretary of state, and the other, after being re- corded in said recorder's office, shall be deposited in the archives of the city, and thereafter all courts shall take judicial notice of said charter. The charter, so ratified, may be amended at intervals of not less than two years by proposals therefor, submitted by the legislative authority of the city to the quali- fied electors thereof at a general or special election, held at least forty days after the publication of such proposals for twenty days in a daily newspaper of general circulation in such city, and ratified by a majority of the electors voting thereon, and approved by the legislature as herein provided for the approval of the charter. Whenever fifteen per cent of the qualified voters of the city shall petition the legislative author- ity thereof to submit any proposed amendment or amendments to said charter to the qualified voters thereof for approval, the legislative authority thereof must submit the same. In submitting any such charter, or amendments thereto, any alter- native article or proposition may be presented for the choice of the voters, and may be voted on separately without, preju- dice to others. (Amendment adopted November 4, 1902.) 349 CONSTITUTION OP 1879. Art. XI, § 8 [AMENDMENT OF 1892.] Sec. 8. Any city containing a population of more than three thousand five hundred inhabitants may frame a charter for its own government, consistent with and subject to the constitution and laws of this state, by causing a board of fifteen freeholders, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of said city at any general or special election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, which shall be signed, in duplicate, by the members of such board, or a majority of them, and returned, one copy to the mayor thereof, or other chief executive ofiicer of such city, and the other to the re- corder of the county. Such proposed charter shall then be published in two daily newspapers of general circulation in such city, for at least twenty days, and the first publication shall be made within twenty days after the completion of the charter; provided, that in cities containing a population of no more than ten thousand inhabitants such proposed charter shall be published in one such daily newspaper; and within not less than thirty days after such publication it shall be sub- mitted to the qualified electors of said city at a general or special election, and if a majority of such qualified electors voting thereat shall ratify the same, it shall thereafter be submitted to the legislature for its approval or rejection as a whole, without power of alteration or amendment. Such ap- proval may bo made by concurrent resolution, and if approved by a majority vote of the members elected to each house, it shall become the charter of such city, or if such city be con- solidated with a county, then of such city and county, and shall become the organic law thereof, and supersede any exist- ing charter and all amendments thereof, and all laws incon- sistent with such charter. A copy of such charter, certified A.rt. XI, § 8 CONSTITUTION OF 1879. 350 by the mayor, or chief executive officer, and authenticated by the seal of such city, setting forth the submission of such charter to the electors, and its ratification by them, shall, after the approval of such charter by the legislature, be made, in duplicate, and deposited, one in the office of the secretary of state, and the other, after being recorded in said recorder's office, shall be deposited in the archives of the city, and there- after all courts shall take judicial notice of said charter. Tho charter, so ratified, may be amended at intervals of not less than two years by proposals therefor, submitted by the legis- lative authority of the city to the qualified electors thereof, at a general or special election, held at least forty days after the publication of such proposals for twenty days in a daily news- paper of general circulation in such city, and ratified by at least three-fifths of the qualified electors voting thereat, and approved by the legislature, as herein provided for the ap- proval of the charter. In submitting any such charter, or amendments thereto, any alternative article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others. (Ratification de- clared December 30, 1892.) [AMENDMENT OF 1887.] Sec. 8. Any city or consolidated city and county, containing a population of more than one hundred thousand inhabitants, may frame a charter for its own government, consistent with and subject to the constitution and laws of this state, by causing a board of fifteen freeholders, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of such city, or city and county, at any general or special election, whose duty it shall be, within one hundred days after such election, to prepare and propose a charter for Bueh city, or city and county, which shall bs 351 CONSTITUTION OP 1879. Art. XI, § 8 signed in duplicate by the members of such board, or a major- ity of them, and returned, one copy thereof to the mayor, or other chief executive officer of such city or city and county, and the other to the recorder of deeds of the county, or city and county. Such proposed charter shall then be published in two daily papers of general circulation in such city, or city and county, for at least twenty days, and such publication shall be commenced within twenty (20) days after the completion of the charter, and within not less than thirty days after the completion of such publication, it shall be submitted by the legislative authority of said city, or city and county, to the qualified electors thereof at a general or special election, and if a majority of such qualified electors voting thereat shall ratify the same, it shall thereafter be submitted to the legis- lature for its approval or rejection as a whole, without power of alteration or amendment; and if approved by a majority vote of the members elected to each house, it shall become the charter of such city, or if such city be consolidated with a county, then of such city and county, and shall become the organic law thereof, and supersede any existing charter and all amendments thereof, and all special laws inconsistent with such charter. A copy of such charter, certified by the mayor or other chief executive officer, and authenticated by the seal of such city, or city and county, setting forth the submission of Buch charter to the electors, and its ratification by them, shall be made in duplicate, and deposited, one in the office of the secretary of state, the other, after being recorded in the office of the recorder of deeds of the county, or city and county, among the archives of the city, or city and county. All courts shall take judicial notice thereof. The charter so ratified may be amended at intervals of not less than two years, by pro- posals therefor submitted by legislative authority of this city, or city and county, to the qualified voters thereof at a general xVrt. XI, § 8 CONSTITUTION OF 1879. 352 or special election held at least sixty days after the publication of such proposals, and ratified by at least three-fifths of the qualified electors voting thereat, and approved by the legis- lature as herein provided, for the approval of the charter. In submitting any such charter, or amendment thereto, any alter- native article or proposition may be presented for the choice of the voters, and may be voted on separately without preju- dice to others. Any city, or consolidated city or county, con- taining a population of more than ten thousand and not more than one hundred thousand inhabitants, may frame a charter for its own government, consistent with and subject to the constitution and laws of the state, by causing a board of fifteen freeholders, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of said city, or city and county, at any general or special election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, or city and county, which shall be signed in duplicate by the members of such board, or a majority of them, and returned, one copy thereof to the mayor, or other chief executive officer of said city or city and county, and the other to the recorder of the county, or city and county. Such proposed charter shall then be published in two daily papers of general circulation in such city, or city and county, for at least twenty days, and publication shall be commenced within twenty days after the completion of the charter; and within not less than thirty days after the completion of such publication it shall be submitted by the legislative authority of said city, or city and county, to the qualified electors of said city, or city and county, at a general or special election, and if a majority of such qualified electors voting thereat shall ratify the same, it shall thereafter be submitted to the legislature for its approval or rejection as a whole, without power of alteration or amendment, and 353 CONSTITUTION OF 1879. Art. XI, § 8 if approved by a majority vote of the members elected to each house, it shall become the charter of such city, or if such city be consolidated with a county, then of such city and county, and shall become the organic law thereof, and shall supersede any existing charter and all amendments thereof, and all special laws inconsistent with such charter. A copy of such charter, certified by the mayor, or other chief executive officer, and authenticated by the seal of such city, or city and county, setting forth the submission of such charter to the electors, and its ratification by them, shall be made in duplicate, and deposited, one in the office of the secretary of state, and the other, after being recorded in the office of the recorder of deeds of the county, or city and county, among the archives of the city, or city and county; and thereafter all courts shall take judicial notice thereof. The charter so ratified may be amended, at intervals of not less than two years, by proposals therefor, submitted by the legislative au- thority of the city, or city and county, to the qualified electors thereof, at a general or special election held at least sixty days after the publication of such proposals, and ratified by at least three-fifths of the qualified electors voting thereat, and approved by the legislature as herein provided for the ap- proval of the charter. In submitting any such charter, or amendment thereto, any alternative article or proposition may be presented for the choice of the voters, and may be voted on separately without prejudice to others. [ORIGINAL SECTION.] 6ec. 8. Any city containing a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the constitution And laws of this state, by causing a board of fifteen freehold- OoDstitutiou — 23 Art. XI, § 8 CONSTITUTION OF 1879. 354 ers, who shall have been for at least five years qualified electors thereof, to be elected by the qualified voters of such city, at any general or special election, whose duty it shall be, within ninety days after such election, to prepare and propose a charter for such city, which shall be signed in duplicate by the members of such board, or a majority of them, and re- turned one copy thereof to the mayor, or other chief executive ofiicer of such city, and the other to the recorder of deeds of the county. Such proposed charter shall then be published in two daily papers of general circulation in such city for at least twenty days, and within not less than thirty days after such publication it shall be submitted to the qualified electors of such city at a general or special election, and if a majority of such qualified electors voting thereat shall ratify the same, it shall thereafter be submitted to the legislature for its approval or rejection as a whole, without power of alteration or amendment, and if approved by a majority vote of the members elected to each house, it shall become the charter of such city, or if such city be consolidated with a county, then of such city and county, and shall become the organic law thereof, and supersede any existing charter and all amendments thereof, and all special laws inconsistent with such charter. A copy of such charter, certified by the mayor, or chief executive ofiicer and authenticated by the seal of such city, setting forth the submission of such charter to the electors, and its ratification by them, shall be made in dupli- cate, and deposited, one in the office of the secretary of state, the other, after being recorded in the office of the recorder of deeds of the county, or city and county, among the archives of the city, all courts shall take judicial notice thereof. The charter so ratified may be amended at intervals of not less than two years, by proposals therefor submitted by legislative authority of the city, to the qualified voters thereof at a gen- 355 CONSTITUTION OF 1879. Art. XI, § 8 eral or special election held at least sixty days after the publication of such proposals, and ratified by at least three- fifths of the qualified electors voting thereat, and approved by the legislature as herein provided for the approval of the charter. In submitting any such charter, or amendment thereto, any alternative article or proposition may be presented for the choice of voters, and may be voted on separately without prejudice to others. CHARTERS — In general. — This section is self-executing. (People V. Hoge, 55 Cal. 612.) The provisions of this section as to the adoption of the charter are mandatory and prohibitory, and a failure to ob- serve them will invalidate the charter. (People v. Gunn, 85 Cal. 238, 24 Pac. 718.) The purpose of this section was to emancipate municipal governments from the authority and control formerly exercised over them by the legislature. (People v. Hoge, 55 Cal. 612.) The right to frame a charter is not a continuing right, and after it has been once exercised by the adoption of a charter, the municipality cannot adopt another charter, but must amend the one already adopted. (Blanchard v. Ilartwell, 131 Cal. 263, 63 Pac. 319.) The legislature cannot abridge the right given by this sec- tion to cities to adopt charters. (People v. Bagley, 85 Cal. 343. 24 Pac. 716.) A charter is a "statute" within the meaning of section 1622 of the Civil Code. It is also a "law," and also written law. (Frick V. Los Angeles, 115 Cal. 512, 47 Pac. 250.) The autliority to adopt a charter is a part of the law-making power of the state. (Sheehan v. Scott, 145 Cal. 684, 79 Pac. 350.) A charter must be consistent with the constitution and gen- eral laws of the state. But the whole charter will not be held invalid because a few of its provisions may be inconsistent with general statutes in force at the time of its adoption, (Broohs V. Fischer, 79 Cal. 173, 21 Pac. 652, 4 L. E. A. 429.) A charter unlawfully attempting to give a police court ex- clusive jurisdiction of certain misdemeanors is not inconsist- Art. XI, § 8 CONSTITUTION OF 1879. 356 ent with the general law giving such jurisdiction to justices' courts. (Ex parte Dolan, 128 Cal. 460, 60 Pae. 1094.) A city may provide in its charter for taxation for municipal purposes. (Security Sav. etc. Co. v. Ilinton, 97 Cal. 214, 32 Pac. 3.) The charter cannot extend its authority outside of the terri- tory of the city. (Kennedy v. Miller, 97 Cal. 429, 437, 32 Pac. 558.) A reference in a special charter of a city to a particular title of the Political Code for its powers and provisions has the effect to make the appropriate title a part of the charter of the cit}-. (Ex parte Lemon, 143 Cal. 558, 77 Pac. 455, 65 Ij. R. a. 946.) The provisions of the Political Code as to the formation of the legislative body of municipalities is not such a general law that a charter must be consistent with it. (In re Pfahler, 150 Cal. 71, 88 Pae. 270, 11 Ann. Cas. 911.) There is no limitation in the constitution on the right to include in a freeholders' charter power to acquire, own and operate public utilities. (Piatt v. City and County, 158 Cal. 74, 110 Pac. 304.) Freeholders. — The board of election commissioners of San Francisco have power to call an election of freeholders under this section. (People v. Hoge, 55 Cal. 612.) The action of the board of election commissioners in order- ing an election of freeholders under this section is not judicial in its nature. (People v. Election Commrs., 54 Cal. 404.) All that is necessary to the validity of an election of free- holders is that they may be chosen at a general or special elec- tion; and where there has been such an election, the voice of the people is not to be rejected for a defect or even want of notice, if they have in truth been called upon and have spoken. (People v. Hoge, 55 Cal. 612.) As to whether or not irregularities in the election of free- holders can affect the validity of the charter, see People v. Gunn, 85 Cal. 238, 24 Pac. 718. Where the person receiving the highest number of votes for freeholder is disqualified, the next highest person is not en- titled to a certificate of election. (People v. Hecht, 105 Cal. 621, 45 Am. St. Kep. 96, 38 Pac. 941, 27 L. K. A. 203.) 357 CONSTITUTION OF 1879. Art. XI, § 8 The acts of de facto freeholders are valid. (People v. Hecht, 105 Cal. 621, 38 Pac. 941, 27 L. R. A. 203.) Where some of the freeholders elected are ineligible, the remainder of them may frame the charter. A majority of those qualified may act. (People v. Hecht, 105 Cal. 621, 48 Am. St. Rep. 96, 38 Pac. 941, 27 L. R. A. 203.) A person who has not been for at least five years a qualified elector of the city is ineligible to the office of freeholder. (People V. Hecht, 105 Cal. 621, 45 Am. St. Rep. 96, 38 Pac. 941, 27 L. R. A. 203.) Ratification. — The duty of calling an election to ratify a charter is one clearly enjoined by law, and may be enforced by mandamus; and it is no defense that there may not be sufficient funds in the treasury to defray the expenses of thf election. (Gibbs v. Bartlett, 63 Cal. 117.) A municipal charter must receive a majority of all the votes cast at the election, and not merely a majority of the votes cast thereupon. (Santa Rosa v. Bower, 142 Cal. 299, 75 Pac. 829.) An election is invalid if no duplicate of the proposed chartei was delivered to the mayor or recorder, or if held without sufficient publication of notice, or in less than the required number of days after completion of the publication. (People V. Gunn, 85 Cal. 238, 24 Pac. 718.) A city charter may be approved by a majority of the members elected to each house of the legislature by joint reso- lution, without the approval of the governor. (Brooks v. Fischer, 79 Cal. 173, 21 Pac. 652, 4 L. R. A. 429.) The legislature in approving a freeholders' charter does not exercise its law-making power. (People v. Toal, 85 Cal. 333, 24 Pac. 603; People v. Gunn, 85 Cal. 238, 24 Pac. 718.) The legislature in approving a freeholders' charter cannot conclusively determine whether or not the municipal author- ities and people of the city have proceeded regularly in its framing and adoption. (People v. Gunn, 85 Cal. 238, 24 Pac. 718.) Effect. — A new charter supersedes the old and all amend- ments thereto. (People v. Oakland, 92 Cal. 611, 28 Pac. 807.) A description of the territory of a municipal corporation is an essential part of the cliarter, and is superseded by an entirely new charter containing a different description of tor- Art. XI, § 8 CONSTITUTION OP 1879. 358 ritory from that contained in the original charter. (People v. Oakland, 92 Cal. 611, 28 Pac. 807.) The adoption of a new charter operates, not ex proprio vigore, but by virtue of the provisions of the constitution, to super- sede the existing charter and all amendments thereto, and although such charter cannot establish a police court, it will abolish one established by the former charter. (Ex parte Sparks, 120 Cal. 395, 52 Pac. 715.) A new charter supersedes the provision of aa existing char- ter establishing a justice's court. (Miner v. Justice's Court, 121 Cal. 264, 53 Pac. 795.) While the charter of the city of Eureka superseded the pro- visions of the former charter creating the office of harbor- master, vpithout making any provision for such officer, it did not supersede the provisions of the Political Code providing for the duties of such harbormaster. (Quigg v. Evans, 121 Cal. 546, 53 Pac. 1093.) The charter is the organic law of the city and supersedes all laws inconsistent therewith. (Dinan v. Superior Court, 6 Cal. App. 217, 91 Pac. 806.) The charter of San Francisco, when approved by the legis- lature, became the organic law of the city and county, and superseded the existing charter and all laws inconsistent there- with, and thereafter the city and county was no longer subject to or controlled by general laws. (Burke v. Board of Trustees, 4 Cal. App. 235, 87 Pac. 421.) Validity. — The municipality, real or pretended, is a neces- sary party to a proceeding to test the validity of a municipal charter. (People v. Gunn, 85 Cal. 238, 24 Pac. 718.) Amendments. — After the adoption of a freeholders' charter a second board of freeholders cannot be elected to frame a second charter for the city to be adopted by a majority vote, but the first charter must be amended. (Blanchard v. Hart- well, 131 Cal. 263, 63 Pac. 349.) The provisions of the constitution in regard to the adoption and amendment of freeholders' charters are mandatory and prohibitory; and the mode of amendment of such charters is exclusively commanded, and all others are prohibited. (Blanch- ard v. Hartwell, 131 Cal. 263, 63 Pac. 349.) The amendment mentioned in this section relates only to amendments made by and at the instance of the officers and 359 CONSTITUTION OP 1879. Art. XI, § 8 electors of the city, and cloes not inhibit the amendment or change of the charter within two years under general laws. (People V. Coronado, 100 Cal. 571, 35 Pac. 162.) The annexation of additional territory to the city does not work an amendment to the charter. (People v. Oakland, 123 Cal. 598, 56 Pac. 445.) The mayor of the city and county of San Francisco is not included in the term "legislative authority of the city," and a proposed amendment need not be approved by him. (Harrison V. Roberts, 145 Cal. 173, 78 Pac. 537.) The use of the words legislative authority was not intended to define the powers of that body or place it in a position where it would be beyond restriction by the organic law of the city. (In re Pfahler, 150 Cal. 71, 88 Pac. 270, 11 Ann. Cas. 911.) The interval of two years refers to the time which must elapse between the elections at which the amendments are ratified and not to the action of the legislative authority of the citv or the approval by the legislature. (Harrison v. Rob- erts, 145 Cal. 173, 78 Pac. 537.) Where amendments are petitioned for by fifteen per cent of the voters, the legislative authority of city has discretion either to call a special election or to wait until the next gen- eral election to submit them to the people. (Lubliner v. Alpers, 145 Cal. 291, 78 Pac. 722.) A provision in a freeholder's charter fixing the salaries of officers and providing that "the common council in the month of .January, 1891, and every four years thereafter shall readjust and fix anew the amount of all official salaries provided for in this charter," is not an amendment to the charter. (Coyne V. Rennie, 97 Cal. 590, 32 Pac. 578.) In Harrison v. Roberts, 145 Cal. 173, 78 Pac. 537, it was held that the limitation of two years referred to the time of the adoption of the amendment by the electors, and not to the time of the proposal thereof or the ratification thereof by the legislature. In doing so the court said: "The only effect of the limitation as to time is to prohibit a submission for rati- fication by the electors of any proposed amendment within two years from the submission for ratification of any prior amend- ment; in other words, that proposals for amendments may be submitted at elections, only at intervals of two years." In Mlgliavacca v. Napa, 10 Cal. App. 383, 102 Pac. 227, it was Art. XI, § 8l^ CONSTITUTION OF 1879. 360 held that this language could not be construed to mean that if the amendments were rejected at the first election other amendments could not be submitted within two years. Amendments may be submitted in less than two years after the rejection of other amendments. (Migliavacca v. Napa, 10 Cal. Ajip. 383, 102 Pac. 227.) The "special election" provided for by this section is an election held for the special purpose of voting upon the amend- ments to the charter. (People v. Davie, 114 Cal. 363, 46 Pac. 150.) On<^ resolution approving thirteen separate amendments to a city charter is sufficient. (In re Pfahler, 150 Cal. 71, 88 Pac. 270, 11 Ann. Cas. 911.) When charter takes effect. — "When a newly adopted charter expressly provided for a preliminary election under it on a date prior to the date at which the charter is to take effect, the charter is to be construed as consistent with itself, and the general provision as to its taking effect merely means that the machinery of the new government shall not start until the later date and does not conflict with the provision for a preliminary election. (Trafton v. Quinn, 143 Cal. 469, 77 Pac. 164.) City and county charters, to contain what. Sec. 81/2. It shall be competent, in all charters framed under the authority given by section eight of article eleven of this constitution, to provide, in addi- tion to those provisions allowable by this constitution and by the laws of the state, as follows : 1. For the constitution, regulation, government, and jurisdiction of police courts, and for the manner in which, the times at which, and the terms for which the judges of such courts shall be elected or appointed, and for the qualifications and compensation of said judges and of their clerks and attaches. 3G1 CONSTITUTION OP 1879. Art. XI, § 8i^ 2. For the manner in which, the times at which, and the terms for which the members of boards of educa- tion shall be elected or appointed, for their qualifica- tions, compensation and removal, and for the number which shall constitute any one of such boards. 3. For the manner in which, the times at which, and the terms for which the members of the boards of police commissioners shall be elected or appointed; and for the constitution, regulation, compensation, and govern- ment of such boards and of the municipal police force. 4. For the manner in which and the times at which any municipal election shall be held and the result thereof determined; for the manner in which, the times at which, and the terms for which the members of all boards of election shall be elected or appointed, and for the constitution, regulation, compensation and gov- ernment of such boards, and of their clerks and at- taches; and for all expenses incident to the holding of any election. Where a city and county government has been merged and consolidated into one municipal govern- ment, it shall also be competent, in any charter framed under said section eight of said article eleven, or by amendment thereto, to provide for the manner in which, the times at which and the terms for which the several county and municipal officers and employees whose com- pensation is paid by such city and county, excepting judges of the superior court, shall be elected or ap- Art. XI, § 81/^ CONSTITUTION OF 1879. 362 pointed, and for their recall and removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees. All provisions of any charter of any such consolidated city and county heretofore adopted, and amendments thereto, which are in accord- ance herewith, are hereby confirmed and declared valid. (Amendment approved October 10, 1911.) [AMENDMENT OF 1896.] Sec. 8*^. It shall be competent, in all charters framed un- der the authority given by section eight of article eleven of this constitution, to provide, in addition to those provisions allowable by this constitution and by the laws of the state, as follows: 1. For the constitution, regulation, government, and juris- diction of police courts, and for the manner in which, the times at which, and the terms for which the judges of such courts shall be elected or appointed, and for the compensation of said judges and of their clerks and attaches. 2. For the manner in which, the times at which, and the terms for which the members of boards of education shall be elected or appointed, and the number which shall constitute any one of such boards. 3. For the manner in which, the times at which, and the terms for which the members of the boards of police com- missioners shall be elected or appointed; and for the constitu- tion, regulation, compensation, and government of such boards and of the municipal police force. 363 CONSTITUTION OP 1879. Art. XI, § Si/o 4. For the manner in which, the times at which, and the terms for which the members of all boards of election shall be elected or appointed, and for the constitution, regulation, compensation, and government of such boards, and of their clerks and attaches; and for all expenses incident to the hold- ing of any election. Where a city and county government has been merged and consolidated into one municipal government, it shall also be competent in any charter framed under said section eight of said article eleven, to provide for the manner in which, the times at which, and the terms for which the several county officers shall be elected or appointed, for their compensation, and for the number of deputies that each shall have, and for the compensation payable to each of such deputies. (Amend- ment adopted November 3, 1896.) PROVISIONS OF CHARTER.— This section is not retroac- tive, and has no application to charters previously adopted. (Ex parte Sparks, 120 Cal. 395, 52 Pac. 715.) This section does not revive or validate a provision in the charter of a municipality, adopted and ratified before the con- stitution was amended, providing for the establishment of a police court. (Fleming v. Hance, 153 Cal. 162, 94 Pac. 620.) As to such matters as this section authorizes to be provided for in freeholders' charters, the provisions of the charter are supreme. (Graham v. Fresno, 151 Cal. 465, 91 Pac. 147.) Where the charter of a consolidated city and county govern- ment is silent as to the election or appointment of special ofl[i- cers or their compensation, the general law prevails. (Nicholl V. Koster, 157 Cal. 416, 108 Pac. 302.) Under this provision the freeholders' charter of San Fran- cisco properly fixed the manner in which, the times at which, and the terms for which the several county ofiacers shall be elected or appointed. (Martin v. Election Commrs., 126 Cal. 404, 58 Pac. 932.) Under this section the charter cannot vest exclusive jurisdic- tion of certain misdemeanors in the police court, and thus oust Art. XI, § 8y2 CONSTITUTION OF 1879. 364 the justices' courts of such jurisdiction. (Ex parte Dolan, 128 Cal. 460, 60 Pac. 1094.) Under this provision it is competent for the charter of a city and county to provide that the salary of the assessor shall be in full compensation for his services, although the general law allowed him extra compensation for collecting poll taxes. (Matter of Dodge, 135 Cal. 512, 67 Pac. 973.) As to the meaning of the word "deputies" as used in this section, see Garnett v. Brooks, 136 Cal. 585, 69 Pac. 298. This section confers no power upon the municipality to pre- scribe by a freeholders' charter the qualifications of the depu- ties mentioned in this section. (Crowley v. Freud, 132 Cal. 440, 64 Pac. 696.) A provision of a freeholders' charter that officers of the city and county must have been electors of the city and county for at least five years before their election is valid. (Sheehan v. Scott, 145 Cal. 684, 79 Pac. 350.) Stenographers of the police court are "attaches" of the court within the meaning of this section. (Elder v. McDougald, 145 Cal. 740, 79 Pac. 429.) This section does not authorize the charter to confer on the police court concurrent jurisdiction with the superior courts of misdemeanors. (Robert v. Police Court, 148 Cal. 131, 82 Pae. 838.) The power given by the charter to the police judges to ap- point stenographers and fixing their compensation supersedes the provisions of the Penal Code on the subject. (Elder v. McDougald, 145 Cal. 740, 79 Pac. 429.) The power conferred by this section includes the power to provide for the attaches not only of the police court, but also of the police judge when acting as a committing magistrate, and whether acting under the charter or under the general law. (Elder v. McDougald, 145 Cal. 740, 79 Pac. 429.) The mere fact that this section only refers to "police courts" does not prevent the city from conferring the same jurisdiction upon a "recorder." (In re Baxter, 3 Cal. App. 716, 86 Pac. 998.) This provision has no application to justices' courts. (In re Johnson, 6 Cal. App. 734, 93 Pac. 199.) Since the adoption of this section the legislature has no power to establish a police court in a city maintaining a police 365 CONSTITUTION OF 1879. Art. XI, § 8a court under its charter. (Graham v. Fresno, 151 Cal. 465, 91 Pac. 147.) The term "police court" probably includes such inferior courts as may properly be held to be purely municipal, though given by the state certain jurisdiction in state as distinguished from municipal matters. (Graham v. Fresno, 151 Cal. 4G5, 91 Pac. 147.) The term "police court" ordinarily refers to an inferior municipal court with a limited jurisdiction in criminal cases only, with the power to try certain misdemeanor cases arising from the violation of state law or municipal ordinance, and to conduct preliminary examination in cases of felony and certain misdemeanors, and does not include justices' courts. (Graham V. Fresno, 151 Cal. 465, 91 Pac. 147.) This section has no application to justices of the peace and did not restrict the power of the legislature to provide for jus- tices' courts in cities and towns. (Graham v. Fresno, 151 Cal. 465, 91 Pac. 147.) Panama-Pacific International Exposition. Sec. 8a. The charter of the city and county of San Francisco may be amended, in addition to the method and the times provided in section 8 of article XI of the constitution, in the following particulars : (a) Authorizing the city and county of San Fran- cisco, a municipal corporation, by its legislative author- ity, to incur a bonded indebtedness in an amount not exceeding five million dollars, and to issue municipal bonds therefor, and to grant and turn over to the Panama-Pacific International Exposition Company (a corporation organized under the laws of the state of California March 22, 1910) the proceeds of said bonds, the same to be used and disbursed by said exposition company for the purposes of an exposition to be held in Art. XI, § 8a constitution op 1879. 3G6 the city and county of San Francisco to celebrate the completion of the Panama canal; said bonds, so issued, to be of such form and to be redeemable, registered and converted in such manner and amounts, and at such times not later than forty years from the date of their issue, as such legislative authority shall determine; the interest on said bonds to not exceed five per centum per annum, and said bonds to be exempt from all taxes for state and municipal purposes, and to be sold for not less than par at such times and places, and in such manner, as shall be determined by said legislative authority ; the proceeds of said bonds, when sold, to be payable imme- diately by the treasurer of said city and county to the treasurer of said Panama-Pacific International Exposi- tion Company, upon the demand of said treasurer of said exposition company, without the necessity of the approval of such demand by other authority, the same to be used and disbursed by said Panama-Pacific Inter- national Exposition Company for the purposes of such exposition, under the direction and control of such expo- sition company; (b) Providing that any bonded indebtedness in- curred for the purposes aforesaid shall be exclusive of the bonded indebtedness of the said city and county limited by section 9 of article XII of said charter. (c) Granting to said Panama-Pacific International Exposition Company the exclusive possession and use, together with the management and control, of that por- 367 CONSTITUTION OF 1879. Art. XI, § 8a tion of Golden Gate Park in the city and county of San Francisco westerly from Twentieth avenue, as extended, for such exposition purposes, such possession and use, also management and control, to terminate not later than one year after the closing of such exposition ; (d) Granting to said Panama-Pacific International Exposition Company the exclusive possession and use, together with the management and control, for such ex- position purposes, of any lands held by the board of education of the city and county of San Francisco, and by the city and county of San Francisco, not in actual use, such possession and use, also management and con- trol, to terminate not later than one year after the clos- ing of such exposition. (e) Authorizing said Panama-Pacific International Exposition Company to temporarily close streets in the city and county of San Francisco westerly from Twen- tieth avenue, for such exposition purposes, and to have the exclusive possession and use, together with the man- agement and control, of said streets for such exposition purposes, such possession and use, also management and control of said streets, to terminate not later than one year after the closing of such exposition. Proposals to amend the charter of the city and county of San Francisco in the foregoing particulars may be submitted by the legislative authority of said city and county to the electors of said city and county, at any general or special election (and a special election may Art. XI, § 8a constitution of 1879. 368 be called therefor) held in said city and county, after the publication of such proposals in a newspaper of gen- eral circulation in said city and county, for such time as shall be determined by such legislative authority. Upon the ratification of any such proposed amendment by a majority of the electors of said city and county voting at such election on such proposed amendment, said proposed amendment receiving such majority vote shall become operative immediately as an amendment to said charter, without the necessity of approval thereof by the legislature. Any act of the legislative authority of the city and county of San Francisco, in submitting to the electors of said city and county, at any general or special elec- tion, proposals to amend the charter of said city and county in the foregoing particulars, including any no- tice by publication or otherwise of such proposals, and of such election, and the holding of such election, in ac- cordance with the provisions hereof, before the adoption of this amendment, are hereby validated in all respects as if performed subsequent to the adoption of this amendment. The disbursement of all funds obtained from said bonds shall be accounted for by said Panama- Pacific International Exposition Company by an item- ized statement thereof to be filed with the auditor of the city and county of San Francisco. (New section added by amendment adopted November 8, 1910.) 369 CONSTITUTION OP 1879. Art. XI, § 9 Compensation of officers. Sec. 9. The compensation of any county, city, town, or municipal officer shall not be increased after his election or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed. COMPENSATION OF OFFICERS.— The provision against altering the compensation of an officer during his term applies to those officers elected at the first election after the adoption of the constitution, whose salaries were fixed by previous laws. (Gross V. Kenfield, 57 Cal. 626.) This section does not apply to incidental expenses of the office, but only to the compensation for services. (Kirkwood v. Soto, 87 Cal. 394, 25 Pac. 488.) Where a County Government Act increases the salaries of certain officers and provides that it "shall not affect the present incumbents," such increase does not accrue to a person ap- pointed to fill a vacancy in an unexpired term of such incum- bent. (Larew v. Newman, 81 Cal. 58S, 23 Pac. 227.) An order of the board of supervisors allowing a county clerk a deputy at a salary of fifty dollars a month, to be paid by the county, made after the election of the county clerk, is in con- flict with this provision. (Dougherty v. Austin, 94 Cal. 601, 28 Pac. 834, 29 Pac. 1092, 16 L. R. A. 161.) An ordinance of a board of supervisors diminishing the com- pensation of constables during their term is not in conflict with this provision. (Pco[)Ie v. Johnson, 95 Cal. 471, 31 Pac. 611.) Under the provisions of the County Government Act provid- ing that the salaries provided for therein shall be in full com- pensation for all services rendered by the officers, the clerk of the board of supervisors is not entitled to receive any extra compensation for extra work done by him in preparing data for a claim of the county against the state, wlicther rendered in the line of his official duty or otherwise. (Humboldt v. Stern, 136 Cal. 63, 68 Pac. 324.) Constitution — 24 Art. XI, § 9 CONSTITUTION OF 1870. 370 This section only applies to a "county, city, town, or munici- pal oflicer," for whose term of office the constitution makes no provision, and does not apply to superior judges. (People v. Campbell, 138 Cal. 11, 70 Pac. 918.) Where the term is fixed by the constitution, the legislature has no power to extend or diminish it. (People v. Campbell, 138 Cal. 11, 70 Pac. 918.) An act relieving county oflicers, who were elected prior to the passage of the act, from the payment of their own assistants, is void. (Welsh v. Bramlet, 98 Cal. 219, 33 Pac. 66.) An act increasing the salary of a policeman during his term of oflfiee is void. (Darcy v. Mayor, 104 Cal. 642, 38 Pac. 500.) A contract to pay a city attorney extra compensation for ser- vices rendered during his term of office is void; but he might recover for services performed under such contract after the expiration of his term of office. (Buck v. Eureka, 109 Cal. 504, 42 Pac. 243, 30 L. R. A. 409.) An act increasing the compensation of county officers cannot constitutionally increase the salaries of incumbents. (Tulare Co. V. Jefferds, 118 Cal. 303, 50 Pac. 427.) This prohibition applies to a person appointed to fill a vacancy caused by the death of the incumbent, after the pas- sage of the law increasing the salary of the officer. (Storke v. Goux, 129 Cal. 526, 62 Pac. 68.) The legislature may change the form of compensation from fees to a salary, provided the compensation is not increased. (McCauley v. Culbert, 144 Cal. 276, 77 Pac. 923.) For the board of supervisors to allow the district attorney a salary for a stenographer not provided for by the County Gov- ernment Act at the time of his election is a violation of this section. (Humiston v. Shaffer, 145 Cal. 195, 78 Pac. 651.) Also to an officer holding over after the expiration of Ms term, by failure of his successor to qualify. (Rice v. National City, 132 Cal. 354, 64 Pac. 580.) This provision was intended as well to avoid and prevent the abuses which may arise bj"^ reason of arrangements between candidates who are reasonably assured of election or appoint- ment and the legislative power, to take effect after the election of such candidates regardless of the time of the enactment, as arrangements made after such election or appointment. (Woods V. Potter, 8 Cal. App. 41, 95 Pac. 1125.) 371 CONSTITUTION OP 1879. Art. XI, § 10 The validity of a law fixing compensation is not to be judged by the date of its adoption but by the date when it took effect. (Woods V. Potter, 8 Cal. App. 41, 95 Pac. 1125.) In the absence of a provision in the charter providing a salary for members of the city council, that body has no power to provide such salary by ordinance. (Woods v. Potter, 8 Cal. App. 41, &5 Pac. 1125.) The expression "term of office" applies only to officers who have a fixed and definite term, and does not apply to appointive ofiicers who hold at the pleasure of the appointing power. (Ilarrold v. Barnum, 8 Cal. App. 21, 96 Pac. 104.) An increase in a separate allowance for expenses of an officer serving under a fixed salary, or an increase in the number of deputies or their compensation, does not violate this provision. (Newman v. Lester, 11 Cal. App. 577, 105 Pac. 785.) The prohibition of this section refers only to increase of com- pensation, and the legislature has the power to reduce the com- pensation of any county or township officer during his term of office, or to change the method of compensation, provided the compensation is not increased. (Crockett v. Matthews, 157 Cal. 153, 106 Pac. 575.) TERM OF OFFICE.— An act changing the time of the elec- tion of certain officers so that no election will be held until after the expiration of the terms of the present incumbents is not violative of this section, although they are entitled to hold until their successors are appointed. (Treadwell v. Yolo Co., 62 Cal. 563.) State taxes, no release or discharge from. Sec. 10. This section was repealed by amendment adopted November 8, 1910. This amendment was part of the same amendment by which section 14 of this article was added. The section repealed was as follows : Sec. 10. No county, city, town, or other public or municipal corporation, nor the inhabitants thereof, nor the property therein, shaU be released or discharged from its or their proportionate share Art. XI, § 11 CONSTITUTION OF 1879. 372 of taxes to be levied for state purposes, nor shall commutation for such taxes be authorized in any form whatsoever. RELEASE OF INDEBTEDNESS. — This section was not in- tended to embrace a release of doubtful claims which the state may hold against a corporation. (Burr v. Carbondale, 76 111. 455.) Local police, sanitary, and other regulations may be enforced. Sec. 11. Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws. NATTTRE OF GRANT OF POWER.— The grant is to the body politic and not to the city council, and may be exercised by the electors directly by the initiative and referendum. (In re Pfahler, 150 Cal. 71, 88 Pac. 270, 11 Ann. Cas. 911.) This section contains a direct grant of power. (Denton v. Vann, 8 Cal. App. 677, 97 Pac. 675.) The legislature cannot limit the power conferred by this sec- tion so long as it does not conflict with any general law of the state. (In re Ackerman, 6 Cal. App. 5, 91 Pac. 429.) This grant must be construed to mean counties in their organ- ized condition as bodies politic, and is an authorization by the constitution to the local legislative body as the representative of the county thus organized to exercise the powers thereby granted in enacting local laws. (Denton v. Vann, 8 Cal. App. 677, 97 Pac. 675.) LOCAL, POLICE AND SANITARY LAWS.— The police power is subordinate to the power of the federal government to regulate commerce. (Lin Sing v. Washburn, 20 Cal. 534.) The "other regulations" mentioned in this section must be lim- ited to objects similar to those denominated police and sanitary. (Ex parte Hodges, 87 Cal. 162, 25 Pac. 277.) Any restriction of the rights of individuals to pursue a lawful avocation must extend to all individuals who might exercise 373 CONSTITUTION OP 1879. Art. XI, § 11 that right within the same district. (Los Angeles v. Hollywood Cem. Assn., 124 Cal. 344, 71 Am. St. Eep. 75, 57 Pac. 153.) Any practice or business the tendency of which, as shown by experience, is to weaken or corrupt the morals of those who fol- low it or to encourage idleness, instead of habits of industry, is a legitimate subject of police regulation. Gambling is such a practice. (Ex parte Tuttle, 91 Cal. 589, 27 Pac. 933.) The question as to what measures are needful or appropriate to be taken in the exercise of the police power is primarily for the legislative body to determine; and such determination will not be disturbed by the courts, unless the fundamental rights of the citizen are assailed. (Ex parte Tuttle, 91 Cal. 589, 27 Pac. 933.) It is not necessary to the exercise of the police power in regu- lating a busicess that it shall constitute a nuisance per se. (Ex parte Lacey, 108 Cal. 326, 49 Am. St. Eep. 93, 41 Pac. 411, 38 L. R. A. 640.) The right to regulate is not confined to such interference with the public welfare and comfort as comes strictly within the common-law definition of nuisance. (In re Junqua, 10 Cal. App. 602, 103 Pac. 159.) The legislative determination of what is a proper exercise of police powers is not final but is subject to supervision by the courts, which will interfere when the case is made plain, either upon the face of the measure or by extraneous evidence, that needless oppression is w^orked or that constitutional rights are invaded, or when the local ordiriance is unreasonable and oppres- sive. (In re Junqua, 10 Cal. Apn. 602, 103 Pac. 159.) Police power is limited to such measures as are reasonable in their application and which tend in some appreciable degree to promote, protect, or preserve the public health, morals, or safety, or the general welfare. (Ex parte Quarg, 149 Cal. 79, 117 Am. St. Rep. 115, 84 Pac. 766, 5 L. R. A., N. S.', 183, 9 Ann. Cas. 747.) The business of conducting a laundry is not unlawful, and cannot be made to depend upon the will of any number of citi- zens or propertv owners. (Ex parte Sing Lee, 96 Cal. 354, 31 Am. St. Eep. 218, 31 Pac. 245, 24 L. R. A. 195.) Police power is exercised in the enforcement of a penalty prescribed for a noncompliance with law. (Merced County v. HeJm, 102 Cal. 159, 36 Pac. 399.) Art. XI, § 1] CONSTITUTION OF 1879. 374 The legislature may delegate to boards of supervisors of coun- ties power to pass local, police, and sanitary regulations. (Ex parte Shrader, 33 Cal. 279.) This provision does not authorize cities to change their char- ters, or to revolutionize the city government or abrogate a de- partment thereof. (People v. Newman, 96 Cal. 605, 31 Pac. 564.) Under the charter the supervisors have power to pass ordi- nances placing such restrictions upon the use of any property or the conduct of any business as may be necessary for the public health. (Laurel Hill Cemetery v. City and County, 152 Cal. 464, 93 Pac. 70, 14 Ann. Cas. 1080.) This section includes the power to amend an existing ordi- nance upon the same subject. (Foster v. Police Commrs., 102 Cal. 483, 41 Am. St. Rep. 194, 37 Pac. 763.) So far as mere police regulations are concerned, if city and county ordinances conflict, the police regulations made by the city will control within the limits of the city. (Ex parte Roach, 104 Cal. 272, 37 Pac. 1044; Ex parte Mansfield, 106 Cal. 400, 39 Pac. 775; Los Angeles v. Eikenberry, 131 Cal. 461, 63 Pac. 766; Ex parte Pfirrman, 134 Cal. 143, 66 Pac. 205.) But a county license upon the sale of liquor, collected not merely as a regulation but for revenue, may be collected within a city although the city has collected a license tax for the same business. (Los Angeles v. Eikenberry, 131 Cal. 461, 63 Pac. 766.) A city ordinance is not a general law within the meaning of this section. (Los Angeles v. Eikenberry, 131 Cal. 461, 63 Pac. 766.) A sanitary district is not a municipal corporation, and has none of the powers granted by this section, nor can the legisla- ture confer such powers upon it. (In re Werner, 129 Cal. 567, 62 Pac. 97.) Conflict with general laws. — An act which is violative of an express provision of the constitution cannot be upheld as a police regulation. (San Francisco v. Insurance Co., 74 Cal. 113, 5 Am. St. Rep. 425, 15 Pac. 380.) A county ordinance in conflict with a valid general law is void. (San Luis Obispo v. Graves, 84 Cal. 71, 23 Pac. 1032; Ex parte Keeney, 84 Cal. 304, 24 Pac. 34.) 375 CONSTITUTION OF 1879, Art. XI, § 11 But this is not true of a conflict between a valid county ordi- nance and an unconstitutional general statute. (San Luis Obispo V. Graves, 84 Cal. 71, 23 Pac. 1032.) A prov'ision of a city ordinance prohibiting the sale of spiritu- ous lirLUors in a city is not in conflict with the general law, which shows a tendency simply to regulate the sale of liquors. (Ex parte Campbell, 74 Cal. 20, 5 Am. St. Eep. 418, 15 Pac. 318; Ex parte Noble, 96 Cal. 362, 31 Pac. 224.) An ordinance making it unlawful to visit a gambling-house is not in conflict with a provision of the general law making it unlawful to bet at such house. (Ex parte Boswell, 86 Cal. 232, 24 Pac. 1060.) An ordinance undertaking to punish precisely the same acts which are punishable under the general law of the state is to be deemed in conflict with such general law. (Ex parte Stephen, 114 Cal. 278, 46 Pac. 86; In re Sic, 73 Cal. 142, 14 Pac. 405.) The mere fact that a certain provLsion of a city ordinance is in conflict with the general law will not invalidate the entire ordinance if the provisions thereof are separable. (Ex parte Christensen, 85 Cal. 208, 24 Pac. 747.) An ordinance containing certain regulations as to the burden of proof and the effect of certain acts as evidence is void. (Ex parte Christensen, 85 Cal. 208, 24 Pac. 747.) A municipal ordinance making it a misdemeanor to fail to remove an obstruction of a sidewalk is not in conflict with the provisions of the general law declaring such an obstruction a nuisance and punishable as such, since the municipality miglit legalize a partial obstruction of a street. (Ex parte Taylor, 87 Cal. 91, 25 Pac. 258.) When the state law provides a general and municipal scheme to prevent the adulteration and sale of milk and dairy products, a municipal ordinance establishing a different standard of purity is void. (Tn re Desanta, 8 Cal. App. 295, 96 Pac. 1027.) An ordinance imposing a fine not less than twenty-five dol- lars nor more than five hundred dollars, and imprisonment not less than ten nor more than one hundred days is in conflict with a general law imposing a fine of not less than twenty-five dol- lars nor more than two hundred dollars and imprisonment not less than ten nor more than one hundred days. (In re Desanta, 8 Cal. App. 295, 96 Pac. 1027.) Art. XI, § 11 CONSTITUTION OP 1879. 376 An ordinance in direct conflict with a subsequently enacted general law cannot be enforced. (In re Desanta, 8 Cal. App. 295, 96 Pac. 1027.) A municipal ordinance licensing brothels is subject to the state law punishing the crime of keeping a house of prostitution. (Farmer v. Behmer, 9 Cal. App. 77.3, 100 Pac. 901.) An ordinance imposing a less punishment than that imposed by the general law for the same offense is void. (Ex parte Sweetman, 5 Cal. App. 577, 90 Pac. 1069.) A city ordinaHce imposing a penalty for having lottery tickets in one's possession, greater than the penalty provided by the general laws for kindred and more serious offenses, is in conflict with the general laws and void. (Ex parte Solomon, 91 Cal. 440, 27 Pac. 757.) A city ordinance providing that no opium shall be sold with- out a prescription of a physician is not in conflict with the state law prohibiting the sale of opium unless a record be kept of the sale and the package marked "poison." (Ex parte Hong Shen, 98 Cal. 681, 33 Pac. 799.) An ordinance is not inconsistent with the general law merely because it makes another and different regulation on the same subject, when there is no direct conflict between its terms and the provisions of the state law. (Ex narte Hong Shen, 98 Cal. 681, 33 Pac. 799.) Where the penalty imposed for the violation of an ordinance conflicts with the provisions of the Penal Code, the penal clause of the ordinance is void. (Ex parte Mansfield, 106 Cal. 400, 39 Pac. 775.) An ordinance declaring it unlawful for any person to have in his possession any lottery ticket, unless it be shown that such possession is innocent, is void as in conflict with the general presumption of innocence. (In re Wong Hane, 108 Cal. 680, 49 Am. St. Eep. 138, 41 Pac. 693.) An ordinance forbidding further interment in the city ceme- tery is not in conflict with section 3035 of the Political Code. (La Societa etc. v. San Francisco, 131 Cal. 169, 63 Pac. 174, 53 L. E. A. 382.) It is competent for a city ordinance to prohibit all games played for money which are not specifically denounced by the statute. (In re Murphy, 128 Cal. 29, 60 Pac. 465.) 377 CONSTITUTION OP 1879. Art. XI, § 11 The fact that an ordinance prohibiting games for money in- cludes, by way of general description, games prohibited by stat- ute, as well as those not so prohibited, does not affect the validity of the ordinance; but all games so prohibited by the general laws must be excluded from the operation of the ordi- nance. (In re Murphy, 12S Cal. 29, 60 Pac. 465.) Reasonableness, etc. — A municipal ordinance must be consist- ent with the general powers and purposes of the corporation, must harmonize with the general laws, the municipal charter, and the principles of the common law, and can have no extra- territorial force unless by express permission of the sovereign power. (South Pasadena v. Terminal Ry. Co., 109 Cal. 315, 41 Pac. 1093; Ex parte Green, 94 Cal. 387, 29 Pac. 783; In re Ah You, 88 Cal. 99, 22 Am. St. Rep. 280, 25 Pac. 974, 11 Pac. 408.) But where the legislature in terms confers upon a municipal corporation the power to pass ordinances of a specified char- acter, an ordinance passed in pursuance thereof cannot be im- peached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental powers of the corporation, or under a grant of power general iu its nature. But where the power to legislate on a given subject is conferred and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced void. (Ex parte Chin Yan, 60 Cal. 78.) When the question as to the unreasonableness of a municipal ordinance is in doubt, the ordinance will be upheld; but when the ordinance is clearly unreasonable, it will be held void. (Ex parte McKenna, 126 Cal. 429, 58 Pac. 916.) The question of the reasonableness of an ordinance is to be determined by the court from the ordinance, and not by the jury from evidence of facts not appearing upon the face of the ordinance. (Merced County v, Fleming, 111 Cal. 46, 43 Pac 392.*) In determining whether or not an ordinance regulating a lawful business is reasonable the court may consider matters dehors the ordinance, but not the motives of the supervisors (In re Smith, 143 Cal. 368, 77 Pac. 180.) An ordinance may be reasonable as applied to the regulation of cemeteries within a city or town, which would be unreason- able if applied to all parts of a county thinly populated in many Art. XI, § 11 CONSTITUTION OP 1879. 378 of its parts. (Los Angeles v. Hollywood Cem. Assn., 124 Cal. 344, 71 Am. St. Eep. T.'), 57 Fac. 153.) An ordinance restricting the use of private property in the interests of the public health must bear a rational relation to the object sought to be obtained and cannot be arbitrary or unreasonable, or made a cloak for the arbitrary interference with of suppression of a lawful business. > But the courts will not interfere with the exercise of legislative discretion unless it clearly appears that such discretion has been arbitrarily or un- reasonably exe'rcised; (Laurel Hill Cemetery v. City and County of San Francisco, 152 Cal. 464, 93 Pac. 70, 14 Ann. Cas. 1080.) An ordinance imposing a fine not exceeding one thousand dol lars and imprisonment not exceeding six months, for uttering profane and abusive language in the presence of other persons, is not unreasonable. (McDonald v. Taylor, 89 Cal. 42, 26 Pac. 595.) A city ordinance prohibiting the carrying of concealed weapons by any person other than public officers and travelers, without a permit of the police commissioners, and prescribing a fine of not less than two hundred and fifty and not exceeding five hun- dred dollars, or imprisonment not less than three and not ex- ceeding six mouths, or both, does not impose any excessive or unreasonable penalty. (Ex parte Cheney, 90 Cal. 617, 27 Pac. 436.) An ordinance making a violation thereof punishable by im- prisonment for ten days and a fine of one hundred and fifty dol- lars, and imprisonment in case of nonpayment of the fine at the rate of two dollars a day, is not unreasonable. (Ex parte Green, 94 Cal. 387, 29 Pac. 783.) A municipal ordinance permitting a fine of not less than twenty and not more than one thousand dollars for visiting a house of ill-fame is unreasonable, and not in harmony with the general law. (In re Ah You, 88 Cal. 99, 22 Am. St. Eep. 280, 25 Pac. 974, 11 L. R. A. 408.) A county ordinance prohibiting the maintenance of gasworks in a sparsely settled rural district, and which has the effect to stop the operation of the gasworks of the petitioner, in the immediate vicinity of which there are no dwelling-houses, is un- reasonable. (In re Smith, 143 Cal. 368, 77 Pac. 180.) An ordinance making it a mifdemeanor to sell gas at a higher rate than that fixed by law is not unreasonable or con- 379 CONSTITUTION OF 1879. Art. XI, § 11 trary to the policy of the state. (Denninger v. Eecorder's Court, 145 Cal. 629, 79 Pac. 360.) Valid ordinances. — In accordance with the foregoing general principles, the following ordinances have been held valid as police and sanitary measures: An ordinance for the removal of shade trees growing in the sidewalks of public streets (Van derhurst v. Tholeke, 113 Cal. 147, 45 Pac. 266, 35 L. R. A. 267; an ordinance providing for a sewer farm outside of a city (Mc- Bean v. Fresno, 112 Cal. 159, 53 Am. St. Rep. 191, 44 Pac. 358, 31 L. R. A. 794); an ordinance prohibiting the conducting of any carpet-beating machine within one hundred feet of any church, schoolhouse, residence, or dwelling-house (Ex parte Lacey, 108 Cal. 326, 49 Am. St. Rep. 93, 41 Pac. 411, 38 L. R. A. 640) ; an ordinance providing for the improvement of the channel and banks of a river passing through the city (De Baker V. Railway Co., 106 Cal. 257, 46 Am. St. Rep. 237, 39 Pac. GIO) ; a city ordinance forbidding the beating of drums in the traveled streets of a city, without the permission of the president of the board of trustees (In re Flaherty, 105 Cal. 558, 38 Pac. 981, 27 L. R. A. 529); an ordinance providing that no liquor license shall be granted to any person who has conducted the business of selling liquors in any place where females are employed (Foster v. Police Commrs., 102 Cal. 483, 41 Am. St. Rep. 194, 37 Pae. 763); an ordinance providing that no license shall be issued to persons engaged in the sale of liquors in dance-cellars or dance-halls, or in places where musical, theatrical, or other public exhibitions are given, and where females attend as wait- resses (Ex parte Hayes, 98 Cal. 555, 33 Pac. 337); an ordinance fixing the license for conducting a saloon where females are employed and where intoxicating liquors are sold in less quanti- ties than one quart at a higher rate than a license for conduct- ing a saloon where females are not employed (Ex parte Felchlin, 96 Cal. 360, 31 Am, St. Rep. 223, 31 Pae.'224, approving opinion of McKinstry, J., in Matter of Maguire, 57 Cal. 604, 40 Am. Rep. 125); a city ordinance prohibiting the selling of pools on horseraces, except within the inclosure of a race-track where the race is to be run (I']x parte Tuttle, 91 Cal. 589, 27 Pac. 933); an ordinance making the issuance of a liquor license depend upon the permi?sion of a majority of the police commissioners or the approval of twelve property owners in the block in which the business is carried on (Ex parte Christensen, 85 Cal. 208, Art. XI, § 11 CONSTITUTION OF 1879. 380 24 Pac. 747) ; an act providing for the exclusion of all unvac- cinated children from the public schools (Abeel v. Clark, 84 Oal. 226, 24 Pac. 383); a city onlinance making it unlawful to visit a place for the practice of gambling (Ex parte Lane, 76 Cal. 587, 18 Pac. 677); an ortlinance proliibiting the maintenance within the city limits of any tippling-house, dramshop, or bar- room, where spirituous liquors are sold or given away (Ex parte Campbell, 74 Cal. 20, 5 Am. St. Eep. 418, 15 Pac. 318); an ordi- nance which prohibits any person, for the purpose of prostitu- tion, to visit any building kept for the purpose of prostitution (Ex parte Johnson, 73 Cal. 228, 15 Pac. 43); an ordinance pro- hibiting the alteration or repair of any wooden building within certain designated fire limits, without permission of the fire wardens and approval of a majority of the committee on fire department and the mayor (Ex parte Fiske, 72 Cal. 125, 13 E'ac. 310); an ordinance prohibiting the keeping of more than two cows within certain portions of a city (In re Linehan, 72 Cal. 114, 13 Pac. 170); an ordinance prohibiting the carrying on of a public laundry within the city limits, except within prescribed boundaries (In re Hang Kie, 69 Cal. 149, 10 Pac 327); an ordinance prohibiting the carrying on of a laundry without the consent of the board of supervisors, except in a brick or stone building (In re Yick Wo, 68 Cal. 294, 58 Am. Rep. 12, 9 Pac. 139); an ordinance providing that all buildings used as laundries shall be constructed but one story in height, with brick or stone walls, and with metal roofs, doors, and window shutters (Ex parte White, 67 Cal. 102, 7 Pac. 186) ; a provision of a city charter prohibiting the slaughtering of ani- mals and the maintenance of slaughter-houses within the city (Ex parte Heilbron, 65 Cal. 609, 4 Pac. 648); an ordinance mak- ing it unlawful for any person to conduct a laundry within cer- tain limits, without a certificate from the health ofiicer as to its sanitary condition, and a certificate from one of the fire wardens as to the condition of the heating appliances, and for- bidding the operation of any laundry between 10 P. M. and 6 A. M., or on Sundays (Ex parte Moynier, 65 Cal. 33, 2 Pac. 728); an ordinance prohibiting the utterance of profane lan- guage in the hearing of two or more persons (Ex parte Delaney, 43 Cal. 478); an ordinance forbidding the sale of milk of cows fed upon still slops, etc. (Johnson v. Simonton, 43 Cal. 242); an ordinance making it unlawful to play upon any musical instru- 381 CONSTITUTION OF 1879. Art. XI, § 11 ment, etc., in any saloon, etc., after miclniglit (Ex parte Smith & Keating, 38 Cal. 702); an ordinance malting it unlawful for any female to be in any saloon, etc., after midnight (Ex parte Smith & Keating, 38 Cal. 702); an ordinance providing that no person shall establish or maintain any slaughter-house, keep herds of more than five swine, keep or cure hides, slaughter cattle, etc., in any part of the city and county (Ex parte Shrader, 33 Cal. 279); an ordinance making it unlawful for any person to have in his possession any lottery ticket, etc. (Ex parte McClain, 134 Cal. 110, 86 Am. St. Eep. 243, 66 Pac. 69, 54 L. R. A. 779); an ordinance making it unlawful to exhibit in any barred or barricaded house or room or in any place built or protected in a manner to make it difficult of access to police officers, when three or more persons are present, any cards, etc. (Matter of Ah Cheung, 136 Cal. 678, 69 Pac. 492); an ordinance of the city and county of San Francisco prohibiting interments of dead bodies within the city limits (Odd Fellows' Cem. Assn. V, San Francisco, 140 Cal. 226, 73 Pac. 987) ; an act providing that any person excluded from a place of amusement may re- cover his actual damages and a penalty (Greenberg v. Western Turf Assn., 140 Cal. 357, 73 Pac. 1050); an ordinance making it unlawful to maintain gasworks within certain defined limits (Dobbins v. Los Angeles, 139 Cal. 179, 96 Am. St. Rep. 95, 72 Pac. 970; In re Daly, 139 Cal. 216, 72 Pac. 1097); an ordinance requiring the exclusive removal of all garbage by the city to be consumed at the city crematory (In re Zhizhu7.za, 147 Cal. 328, 81 Pac. 955); an ordinance employing an expert medical em- ployee as health officer (Valle v. Shaffer, 1 Cal. App. 1S3, 81 Pac. 1028); an ordinance suppressing public billiard and pool rooms (Ex parte Murphy, 8 Cal. App. 2140, 97 Pac. 199); an ordinance forbidding or regulating the sale of poisons (Ex parte Hallawell, 8 Cal. App. 563, 97 Pac. 320); reasonable regulations governing the use of streets bv holders of franchises (Merced Falls Gas etc. Co. v. Turner, '2 Cal. App. 720, 84 Pac. 239); an ordinance prolii]>iting the selling, storing or keeping for sale of Intoxicating liquors, except at private residences or for medicinal, mechanical or scientific purposes (Selma v. Brewer, 9 Cal. App. 70, 98 Pac. 61); an ordinance forbidding the alco- holic lifiuor traffic (Ex parte Mogenscn, 5 Cal. App. 596. 90 Pac. 1063); an ordinance forbidding the escape of soot from any furnace in which distillate or crude oil is consumed (In re Jun- Art. XI, § 11 CONSTITUTION 0? 1879. 382 qua, 10 Cal. App. 602, 103 Pac. 1^9); an ordinance forbidding the maintenance of a laundry in the city limits in any building used in part for a public store (In re San Chung, 11 Cal. App. 511, 105 Pac. 609); an ordinance regulating the laying of sewers in the public streets (Harter v. Barkley, 158 Cal. 742, 112 Pac. 556) ; an ordinance prohibiting the business of selling intoxi- cating liquors within the county of Orange, etc. (Ex parte Young, 154 Cal. 317, 97 Pac. 822, 22 L. E. A., N. S., 330); an ordinance limiting the liquor business to certain specified dis- tricts within a municipality (Grumbach v. Lelande, 154 Cal. 679, 98 Pac. 1059); an ordinance forbidding the interment of dead bodies within the limits of the city and county of San Francisco (Laurel Hill Cemetery v. City and County, 152 Cal. 464, 93 Pac. 70, 14 Ann. Cas. 1080); a law forbidding the em- ployment of children under the age of fourteen years at any regular occupation (In re Spencer, 149 Cal. 396, 117 Am. St. Rep. 137, 86 Pac. 896, 9 Ann. Cas. 1105). Invalid Ordinances. — On the other hand, the following ordi- nances have been held to be invalid as police and sanitary measures: A county ordinance forbidding the shipment of game from the county in which it has been lawfully killed (Ex parte Knapp, 127 Cal. 101, 59 Pac. 315); a county ordinance making it unlawful to establish, extend or enlarge any cemetery within the county, but permitting burials in cemeteries already estab- lished (Los x\ngeles v. Hollywood Cem. Assn., 124 Cal. 344, 71 Am. St. Eep. 75, 57 Pac. 153); a municipal ordinance, not pro- hibiting all burials within the city, but merely prohibiting further purchases of cemetery lots, and allowing burials in lots already purchased (Ex parte Bohen, 115 Cal. 372, 47 Pac. 55, 36 L. R. A. 618) ; an ordinance regulating rates of transporta- tion of a street railway outside of the city limits (South Pasa- dena V. Terminal Ry. Co., 109 Cal. 315, 41 Pac. 1093); a county ordinance providing that all insane asylums shall be constructed of either l3riek, iron, or stone, and surrounded by a brick or stone wall, that they shall not be within four hundred yards of any dwelling or school, that only one class of persons shall be treated in the same building, and that male and female patients shall not be cared for in the same building (Ex parte Whitwell, 98 Cal. 73, 35 Am. St. Rep. 152, 32 Pac. 870, 19 L. R. A. 727); an ordinance prohibiting the carrying on of a public laundry within the corporate limits of the town, except in certain spec- 383 CONSTITUTION OP 1879. Art. XI, § 11 ified bloclis tbereof, without a -written permit from tlie board of trustees, and the written consent of a majority of the real property owners within the block in which the business is to be carried on, and also of the four blocks immediately sur- rounding the same (Ex parte Sing Lee, 96 Cal. 354, 31 Am. St. Eep. 218, 31 Pac. 245, 21 L. E. A. 195); an ordinance requiring all occupants of lands within ninety days to exterminate and destroy the ground-squirrels on their respective lands (Ex parte Hodges, 87 Cal. 162, 25 Pac. 277); an ordinance making it un- lawful for any contractor performing work for the city to employ any person to work more than eight hours a day, or to employ Chinese labor (Ex parte Kuback, 85 Cal. 274, 20 Am. St. Rep. 226, 24 Pac. 737, 9 L. R. A. 482); an ordinance intended to discriminate in favor of sportsmen and against all other per- sons in respect to the disposition of game lawfully killed (Ex parte Knapp, 127 Cal. 101, 59 Pac. 315); an ordinance pro- hibiting the employment of females in dance-halls, etc. (Matter of Maguire, 57 Cal. 604, 40 Am. Rep. 125. But see Ex parte Felchlin, 96 Cal. 360, 31 Am, St. Rep. 223, 31 Pac. 224); a municipal ordinance which undertakes to absolutely forbid the erection or maintenance of any billboard for advertising pur- poses. (Varney & Green v. Williams, 155 Cal. 318, 132 Am. St. Rep. 88, 100 Pac. 867, 21 L. R. A., N. S., 741.) An act prohibiting any person from selling tickets to a theater or other place of amusement for a price higher than that originally charged by the management thereof, is invalid. (Ex parte Quarg, 149 Cal. 79, 117 Am. St. Rep. 115, 84 Pac. 766, 5 L. R. A., N. S., 183, 9 Ann. Cas. 747.) An act requiring the durable marking of packages of butter containing less than six pounds, and more than one-half pound, by figures or letters not less than one-fourth of an inch high, so as to advise the purchaser or others as to the exact weight of butter contained in such package. (Ex parte Dietrich, 149 Cal. 104, 84 Pac. 770, 5 L. R. A., N. S., 873.) License regulations. — An ordinance requiring a license tax from all peddlers of meat, fish, vegetables, fruit, game, poultry, etc., is valid. (Ex parte Heylman, 92 Cal. 492, 28 Pac. 675.) An ordinance requiring a license to be obtained by every person who at a fixed place of business sells any goods, etc., if authorized by this section. (Ex parte Mount, 66 Cal. 448, Art. XI, § 11 CONSTITUTION OP 1879. SSi 6 Pac. 78; San Luis Obispo v. Grcenberg, 120 Cal. 300, 52 Pac. 797.) An ordinance imposing upon traveling salesmen a license tax of fifty dollars per quarter is valid, although a less amount is imposed upon those who sell at a fixed place of business. (Ex parte Haskell, 112 Cal. 412, 44 Pac. 725, 32 L. K. A. 527.) An ordinance requiring all persons engaged in the business of raising, grazing, herding, or pasturing sheep in the county to pay an annual license of fifty dollars for every thousand sheep is valid. (Ex parte Mirande, 73 Cal. 365, 14 Pac. 888.) A governing body of a city or county in denying a liquor license is not limited to the terms of the ordinance, but in the exercise of the police power may refuse it upon sufficient grounds addressed to the unfitness of the applicant or the unsuit- ableness of the place at whicli the license is to be exercised. (Eced V. Collins, 5 Cal. App. 494, 90 Pac. 973.) An ordinance requiring a license on do£S and requiring the owner to attach to the collar a tag as evidence of ownership, and payment of the tax, and providing for the destruction of dogs bearing no collar as required is valid. (In re Ackerman, 6 Cal. App. 5, 91 Pac. 429.) A license imposed upon dogs is an exercise of the police, and not of the taxing power. (In re Ackerman, 6 Cal. App. 5, 91 Pac. 429.) The power to regulate a business may be exercised by means of a license fee, provided the amount is not more than is rea- sonably necessary for the regulation of the business. (Plumas Co. V. Wheeler, 149 Cal. 758, 87 Pac. 909.) A city has no power to impose a license tax upon the right to practice law. (Sonora v. Curtin, 137 Cal. 583, 70 Pac. 674.) An ordinance levying a license tax upon all sheep which are pastured in the county, except sheep listed as taxable property in the county, and upon which taxes are paid, is not a valid police regulation. (Lassen Co. v. Cone, 72 Cal. 387, 14 Pac. 100.) A municipal ordinance which, under the guise of a revenue measure, attempts to put an end to the issue of trading stamps, by levying an excessive tax upon that business, however small their monthly sales, assuming to exact from them a tax eight times that required of merchants doing the largest business, is unreasonable and void. (Ex parte McKenna, 126 Cal. 429, 58 Pac. 916.) 385 CONSTITUTION OP 1879. Art. XI, § 11 An ordinance requiring a license fee of fifty dollars a month for carrying on a saloon, where liquors are sold or given away in quantities less than a gallon, will not be presumed to be oppressive, unreasonable or prohibitory of trade. (In re Guer- rero, 69 Cal. 88, 10 Pae. 261.) A county may impose a license tax upon the sale of spirituous liquors, (Ex parte Wolters, 65 Cal. 269, 3 Pac. 894.) An ordinance making it a misdemeanor to sell liquors with- out a license is a valid police regulation. (In re Stuart, 61 Cal. 374.) An ordinance establishing a license tax of twenty-five dollars a month for the sale of spirituous and fermented liquors is not unreasonable, oppressive or in restraint of trade. (Ex parte Benninger, 64 Cal. 291, 30 Pac. 846.) A county ordinance providing a smaller license tax for the sale of spirituous liquors at wayside inns and rural watering places than when sold in a city is not unlawful as unreasonable, oppressive, or in restraint of trade. (Amador Co. v. Kennedy, 70 Cal. 458, 11 Pac. 757.) The same is true of an ordinance imposing a higher tax upon such saloons. (Ex parte Stephen, 114 Cal. 278, 46"Pac. 86.) An ordinance imposing an annual tax of two hundred dollars upon the business of selling spirituous liquors within the city limits is valid. (Ex parte McNally, 73 Cal. 632, 15 Pac. 368.) An ordinance providing that a liquor license can only be obtained upon petition to the city council of the applicant ac- comjianied by a certificate of five respectable citizens of the neighborhood in which the business is to be conducted as to his character, and upon a determination by the board that he is qualified to carry on the business, is valid. (In re Bickerstaflf, 70 Cal. 35, 11 Pac. 393.) An ordinance purporting to regulate the business of selling liquors, but in fact prohibiting the sale thereof, cannot be up- held. (Merced Co. v. Flemming, 111 Cal. 46, 43 Pac. 392.) An ordinance imposing a license tax for carrying on the "business" or "occupation" of retail liquor dealer in a "retail liquor establishment," is a tax upon the business and not upon the articles sold. (Los Angeles v. Eikenberry, 131 Cal. 461, 63 Pac. 766.) Constitution — 25 Art. XI, § 12 CONSTITUTION OP 1879. . 386 A countj' ordinance imposing a liquor license of tliirteen dol- lars per nioiith is reasonable. (Los Angeles v. Eikenberry, 131 Cal. 461, 63 Pac. 767.) Assessment and collection of taxes. Sec. 12. The legislature shall have no power to im- pose taxes upon counties, cities, towns, or other public or municipal corporations, or upon the inhabitants or property thereof, for county, city, town, or other munic- ipal purposes, but may, by general laws, vest in the cor- porate authorities thereof the power to assess and collect taxes for such purposes. TAXATION FOR MUNICIPAL PURPOSES.— Under this sec- tion the whole subject of county and municipal taxes for local purposes is relegated to the corporate authorities thereof, and the legislature has no power to impose any tax whatever within those territories for local purposes. (San Francisco v. Insurance Co., 74 Cal. 113, 5 Am. St. Eep. 425, 15 Pac. 380.) The legislature cannot directly exercise the power of assess- ment within an incorporated city, but may empower the munici- pal authorities to do so. (People v. Lvnch, 51 Cal. 15, 21 Am. Eep. 677.) The legislature has power to direct and control the affairs and property of a municipal corporation for municipal purposes, and may for such purposes so control its affairs by appropriate legislation as ultimately to compel it, out of the funds of its treasury, or by taxation, to pay a demand which in good con- science it ought to pay. (Sinton v. Ashbury, 41 Cal. 525.) The legislature may authorize the authorities of a city to purchase an agricultural park, to issue bonds in payment there- for, and to levy a tax for the payment of the same. (Bank of Sonoma v. Fairbanks, 52 Cal. 196.) The power of a county or other public corporation to impose taxes is only that which is granted bv the legislature. (Hughes V. Ewing, 93 Cal. 414, 28 Pac. 1067.") 387 CONSTITUTION OF 1879. Art. XI, § 12 The legislature cannot impose a tax upon the property or in- habitants of a school district, without leaving any discretion in regard thereto to the local authorities. (McCabe v. Car- penter, 102 Cal. 4C9, 36 Pac. 836.) A local board cannot be authorized to levy local taxes and assessments for a general public purpose. (People v. Parks, 58 Cal. 624.) An ordinance imposing a license tax and distinguishing be- tween hotels where meals are cooked and served by a pro- prietor or the members of his family and those where meals are not so cooked and served is valid. (Ex parte Lemon, 143 Cal. 558, 77 Pac. 455, 65 L. E. A. 946.) License taxes for revenue are taxes within the meaning of this section. (Ex parte Jackson, 143 Cal. 564, 77 Pac. 457.) The act of 1876, authorizing the construction of a bridge, and declaring that the cost should be assessed upon certain specified lands, and providing for a commission to apportion the cost, was held constitutional. (Pacific Bridge Co. v. Kirk- ham, 64 Cal. 519, 2 Pac. 409.) An act providing for the completion of the city liall in San Francisco, and providing that the work should only be done after the board of supervisors declare that they deem the work expedient, is not violative of this section. (People v. Bartlett, 67 Cal. 156, 7 Pac. 417.) This section does not prevent a city from providing in a free- holders' charter for taxation for municipal purposes. (Security Sav. etc. Co. v. Hinton, 97 Cal. 214, 32 Pac. 3.) Til 6 words "corporate authorities thereof" are to be con- strued distributively as referring to the governing body of each of the several municipalities and quasi municipalities referred to in the section, and as importing the legislative department of the municipalitv only. (Board of Education v. Board of Trustees, 129 Cal. 599, 62 Pac. 173.) The provision of the fee bill of 1895, requiring the payment of one dollar for each one thousand dollars, in excess of three thousand dollars, of the appraised value of an estate, upon the filing of the inventory, is in violation of this section. (Fatjo V. Pfister, 117 Cal. S3, 48 Pac. 1012.) An act requiring foreign insurance corporations to pay to the county treasury a certain pro)iortion of premiums received by them, to constitute a firemen's relief fund, to be under the con- Art. XI, § 12 CONSTITUTION OP 1879. 388 trol of the fire commissioners, is in violation of this section. (San Francisco v. Insurance Co., 74 Cal. 113, 5 Am. St. Kep. 425, 15 Pac. 380.) An act validating a void assessment is contrary to the provi- sions of this section. (Brady v. King, 53 Cal. 44; Taylor v. Palmer, 31 Cal. 240; People v. Lynch, 51 Cal. 15, 21 Am. Kep. 677; Sehumaker v. Toberman, 5G Cal. 508; Fanning v. Schammel, 68 Cal. 428', 9 Pac. 427; Kelly v. Luning, 76 Cal. 309, 18 Pac. 335.) An act requiring the trustees of a swamp land reclamation district to make up a sworn statement of the cost of the reclama- tion work, "based upon the books and vouchers thereof," and re- quiring the amount so reported to be assessed upon the lands of the district, is violative of the provisions of this section. (People v. Houston, 54 Cal. 536.) The act of 1891, permitting the organization and creation of sanitary districts, is not in violation of this section, since such districts do not necessarily include municipal corporations. (Woodward v. Fruitvale Sanitary Dist., 99 Cal. 554, 34 Pac. 239.) An act authorizing the county superintendent of schools to furnish the board of supervisors an estimate of a tax, and mak- ing it the duty of the board to proceed to fix a rate which will realize the amount of the estimate, is void. (McCabe v. Car- penter, 102 Cal. 469, 36 Pac. 836.) This section does not invalidate the provisions of the Political Code making the city of Eureka liable for the expense of work on Humboldt bay outside of the city — that provision having been enacted prior to the new constitution. (Quigg v. Evans, 121 Cal. 546, 53 Pac. 1093.) The general municipal corporation act authorizing the boards of trustees of cities to adopt a revenue system is valid. (Escon- dido V. Escondido L. etc. Co., 8 Cal. App. 435, 97 Pac. 197.) Section 39 of the Wright Irrigation Act, providing that if the trustees of the district fail to levy a tax to pay the bonds of the district, the board of supervisors shall do so, is not un- constitutional. (Nevada Nat. Bank v. Supervisors, 5 Cal. App. 638, 91 Pac. 122.) License taxes. — A license tax graduated according to the amount of the monthly sales of the merchant is valid, since it 389 CONSTITUTION OF 1879. Art. XI, § 12 applies uniformly to all persons in the same category. (Sacra- mento V. Crocker, 16 Cal. 119.) A law imposing upon a person residing in a given section of the state a license as a merchant without reference to his occu- pation would be void. (Ex parte Ah Pong, 19 Cal. 106.) Under this section a municipality may impose a license tax for the purpose of revenue. (In re Guerrero, 69 Cal. 88, 10 Pac. 261.) This section authorizes the imposition by a county of a li- cense tax on the sale of spirituous liquors and the appoint- ment of a suitable person to collect the same. (In re Lawrence, 69 Cal. 608, 11 Pac. 217.) A license imposed by the legislature for carrying on the busi- ness of selling goods, etc., at a fixed place of business, is a "tax" within the meaning of this section, and, being for county purposes, is in violation of this section. (People v. Martin, 60 Cal. 153.) A county ordinance imposing a license tax upon every person engaged in the business of raising, grazing, herding, or pastur- ing sheep, etc., within the county, is authorized by this section. (EI Dorado v. Meiss, 100 Cal. 268, 34 Pac. 716.) The fact that such ordinance applies to nonresidents as well as residents, instead of being an objection to the validity of the tax, is essential to sustain its validity. (El Dorado v. Meiss, 100 Cal. 268, 34 Pac. 716.) A city ordinance regulating liquor licenses, and a section of the city charter giving the citj' a remedy by civil action in any case where a person, required by any ordinance to take out a license and to pay therefor, shall fail to do so, are not in con- flict with this section. (Sacramento v. Dillman, 102 Cal. 107, 36 Pac. 385.) When the right to collect a license tax by suit is limited to instances in which the persons commenced some "business," no action can be maintained to recover a license tax for the sale of intoxicating liquors, since such sale is not a business. (Mer- ced Co. V. Helm, 102 Cal. 159, 36 Pac. 399.) But an ordinance requiring "every person who in any saloon, etc., sells or gives away" any intoxicating liquor to jiay a li- cense tax, should be construed as a tax upon the business. (Ex parte Mansfield, 106 Cal. 400, 39 Pac. 775. Merced Co. v. Art. XI, § 13 CONSTITUTION OF 1879. 390 Helm, 102 Ca]. 150, 36 Pac. 399, distinguished. See, also, Ex parte Senbe, 115 Cal. 629, 47 Pac. 596.) Where a county passed an ordinance requiring a high license tax for tlic sale of intoxicating liquors but fixing no penalty for engaging in the business, the ordinance is not to be regarded as the exercise of the police power, but as a revenue measure. (Merced Co. v. Helm, 102 Cal. 159, 36 Pac. 399.) A county ordinance imposing a license for revenue on the business of liquor dealer is valid, and such license may be collected within cities. (Ex parte Mansfield, 106 Cal. 400, 39 Pac. 775; Ventura Co. v. Clay, 112 Cal. 65, 44 Pac. 488.) This section does not prohibit the legislature from enacting a law preventing counties, cities, etc., from levying and col- lecting a license tax for revenue. (Ex parte Pfirrmau, 134 Cal. 143, 66 Pac. 205.) Powers not to be delegated to special commission, etc. Sec. 13. The legislature shall not delegate to any special commission, private corporation, company, asso- ciation, or individual, any power to make, control, ap- propriate, supervise, or in any way interfere with, any county, city, town, or municipal improvement, money, property, or effects, whether held in trust or otherwise, or to levy taxes or assessments, or perform any munici- pal functions whatever. MUNICIPAL FUNDS.— This section is prospective, and ap- plies only to legislation enacted after its adoption. (Commis- sioners v. Trustees, 71 Cal. 310, 12 Pac. 224.) The legislature may direct a municipality to audit and allow claims against the municipality. (People v. Supervif prs, 11 Cal, 206.) This section equally forbids the legislature from delegating to a municipal corporation power to do what the legislature is itself forbidden from doing by this section. (Yarnell v. Los Angeles, 87 Cal. 603, 25 Pac. 7670 Art. XI, Sec. 13. Insert at Page 390. Sec. 13. The legislature shall not delegate to any special commission, private corporation, company, association or individual any power to make, control, appropriate, supervise or in any way interfere with any county, city, town or municipal improvement, money, proi)erty. or effects, whether held in trust or otherwise, or to levy taxes or assessments or perform any municipal function whatever, except that the legislature shall have power to provide for the super- vision, regulation and conduct, in such manner as it may determine, of the affairs of irrigation districts, reclamation districts or drainage districts, organized or existing under any law of this state. (Amend- ment adopted November 3, 1914.) -J- 391 CONSTITUTION OF 1879. Art. XI, § 13 The legislature has no control over funds of a municipality except to appropriate them for municipal purposes or in satis- faction of some valid claim against the municipality. (Conlin V. Supervisors, 114 Cal. 404, 4(3 Pac. 279, 33 L. R. A. 752.) An act creating a police life and health insurance fund does not create a "special comniistion" within the meaning of this section. (Pennie v. Eeis, 80 Cal. 266, 22 Pae. 176.) Where an act leaves it discretionary with the local legisla- tive body whether or not the improvement shall be made, but provides that, if done, it shall be done by a commission created by the act, it is not in violation of this section. (Lent v. Tillson, 72 Cal. 404, 14 Pac. 71.) An act providing for the commitment of minor criminals to nonsectarian charitable corporations, the expense of mainte- nance to be paid by the county, is not in violation of this section. (Boys' and Girls' Aid Soc. v. Eeis, 71 Cal. 627, 12 Pac. 796.) Where commissioners to open streets are simply made the agents of the municipality, and act under the direction of the city authorities, this section is not violated. (Davies v. Los Angeles, 86 Cal. 37, 24 Pac. 771.) The act of 1891, permitting the organization and creation of sanitary districts, is not in conflict with this section, since such districts do not necessarilj' include municipal corporations. (Woodward v. Fruitvale Sanitary Dist., 99 Cal. 554, 34 Pac. 239.) An ordinance providing that municipal bonds shall be payable outside of the state, at a bank in New York, is in violation of this section. (Los Angeles v. Teed, 112 Cal. 319, 44 Pac. 580.) But a contract by the board of supervisors for the sale of bonds at par, to be made payable at a bank in another county, does not constitute such bank a custodian of county funds, or the agent of either party. (Mack v. Jastro, 126 Cal. 130, 58 Pac. 372.) A statute conferring upon the supervisors power to license individuals to take tolls on a public road, as compensation for keeping the road in repair, is not in violation of this provision. (Blood V. McCarty, 112 Cal. 561, 44 Pae. 1025.) An act allowing county officers to appoint deputies, whose salaries are fixed by the act and made payable out of the Art. XI, § 131/2 CONSTITUTION OF 1879. 392 county treasury, is not in violation of this section. (Tulare Co. V. May, 118 Cal. 303, 50 Pac. 427.) An act permitting the county clerk to make the compensation of the number of deputies he may see fit to appoint a charge upon the county treasury violates this section. (San Francisco V. Brodcrick, 125 Cal. 188, 57 Pac. 887.) The authority given by the Vrooman Act to the contractor to collect the assessment is not a delegation of a municipal function. (Banaz v. Smith, 133 Cal. 102, 65 Pac. 309.) To convey to a mortgagee the statutory powers of the board of trustees of an irrigation district is in violation of this section. (Merchants' Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937.) This provision applies to public or . municipal corporations, such as irrigation districts, as well as to ordinary municipalities or cities. (Merchants' Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937.) The fixing of the boundaries of the territory to be annexed to a city or town is not a municipal function. (People v. On- tario, 148 Cal. 625, 84 Pac. 205.) The initiative and referendum is not in violation of this sec- tion, since the aggregate bodj' of voters cannot be held to be a special commission. (In re Pfahler, 150 Cal. 71, 88 Pac. 270, 11 Ann. Cas. 911.) The object of this section was to emancipate municipal cor- porations from the authority and control formerly exercised over them by the legislature. (In re Pfahler, 150 Cal. 71, 88 Pac. 270, 11 Ann. Cas. 911.) The commission provided for in the act of 1907 to change the boundary between Fresno and Kings counties is not within the prohibition of this section. (Wheeler v. Herbert, 152 Cal. 224, 92 Pac. 353.) Payment of bonds. Sec. 1314. Nothing in this constitution contained shall be construed as prohibiting the state or any county, city and county, city, town, municipality, or other public corporation, issuing bonds under the laws Art. XI, Sec. 13|. Insert at Page 392. Sec, 13^. Any county, city and county, city, town, municipality, irrigation district, or other public cor- poration, issuing bonds under the laws of the state, is hereby authorized and empowered to make said bonds and the interest thereon payable at any place or places within or outside of the United States, and in any money, domestic or foreign, designated in said bonds. (Amendment adopted November 3, 1914.) 893 CONSTITUTION OF 1879. Art. XI, §§ 14, 15 of the state, to make said bonds payable at any place within the United States designated in said bonds. (New section added by amendment adopted November 6, 1906.) Inspection oflScers, appointment of. See. 14. The legislature may , / general and uni- form laws provide for the inspection, measurement and graduation of merchandise, manufactured articles and commodities, and may provide for the appointment of such officers as may be necessary for such inspection, measurement and graduation. (Amendment approved October 10, 1911.) [ORIGINAL SECTION.] Sec. 14. No state office shall be continued or created in any county, city, town or other municipality, for the inspection, measurement or graduation of any merchandise, manufacture, or commodity; but such county, city, town, or municipality may, when authorized by general law, appoint such officers. This section abolished the office of inspector of gas meters created by section 577 et seq. of the Political Code. (Coudict V. Police Court, 59 Cal. 278.) Private property not liable for corporate debt of munic- ipality. Sec. 15. Private property shall not be taken or sold for the payment of the corporate debt of any political or municipal corporation. Art. XI, §§ 16, 161/2 CONSTITUTION OF 1879. 39-1 Moneys, etc., to be deposited with treasurer. Sec. 16. All moneys, assessments, and taxes belong- ing to or collected for the use of any county, city, town, or other public or municipal corporation, coming into the hands of any officer thereof, shall immediately be deposited with the treasurer, or other legal depositary, to the credit of such city, town, or other corporation re- spectively, for the benefit of the funds to which they respectively belong. MUinCIPAL rUNDS.— This section only relates to those officers who rightfully or officially receive money for the county. (San Luis Obispo v. Farnum, 108 Cal. 562, 41 Pac. 445.) The words "legal depositary" do not include a private in- dividual or corporation. (Yarnell v. Los Angeles, 87 Cal. 603, 25 Pac. 767.) An ordinance providing that municipal bonds shall be payable outside of the state, at a bank in New York, is in violation of this provision. (Los Angeles v. Teed, 112 Cal. 319, 44 Pac. 580.) Funds of a school district are not subject to the control of the county. (Pacific etc. Ins. Co. v. San Diego, 112 Cal. 314, 41 Pac. 423, 44 Pac. 571.) A contract by a municipal corporation making the bank which will pay the highest rate of interest a depository of the pniblic moneys of the city is in violation of this section. (Yar- nell v. Los Angeles, 87 Cal. 603, 25 Pac. 767.) It is the duty of the tax collector to pay all taxes collected by him into the county treasury, whether or not the tax is valid. (Craig v. Boone, 146 Cal. 718, 81 Pac. 22.) Deposit of public moneys. Sec. 161^. All moneys belonging to the state, or to any county or municipality within this state, may be deposited in any national bank or banks within this Art. IX, Sec. IGi/s- Insert at Page 394. Sec. l^Yi. All moneys belonging to the state, or to any county or municipality within this state, may be de- posited in any national bank or banks within this state, or in any bank or banks organized under the laws of this state, in such manner and under such conditions as may be provided by law ; provided, that such bank or hanks in Vv'hich such moneys are deposited shall furnish as security for such deposits, bonds of the United States, i)v of this state or of any county, municipality or school district within this state, or of any irrigation district within this state, to be approved by the officer or officers designated by law, to an amount in value of at least ten per cent in excess of the amount of such deposit; and provided, that such bank or banks shall pay a reasonable rate of interest, not less than two per cent per annum on the daily balances therein deposited; and provided, that no deposit shall at any one time exceed fifty j)er cent of the paid-up capital stock of such depository bank or banks ; and provided, further, that no officer shall deposit at one time nioi-e than twenty per cent of such public moneys available for deposit in any bank while there are other (|ualified lianks rciincsting such deposits. (AmendiiKMil adopted Xoveinhei- ."). 11)12.) 395 CONSTITUTION OF 1879. Art. XI, § 16 Vo state, or in any bank or banks organized under the laws of this state, in such manner and under such conditions as may be provided by law ; provided, that such bank or banks in wliich such moneys are deposited shall furnish as security for such deposits, bonds of the United States, or of this state or of any county, municipality or school district within this state, to be approved by the officer or officers designated by law, to an amount in value of at least ten per cent in excess of the amount of such de- posit; and provided, that such bank or banks shall pay a reasonable rate of interest, not less than two per cent per annum on the daily balances therein deposited, and provided, that no deposit shall at any one time exceed fifty per cent of the paid-up capital stock of such de- pository bank or banks, and provided further, that no officer shall deposit at one time more than twenty per cent of such public moneys available for deposit in any bank while there are other qualified banlcs "requesting such deposits. (New section added by amendment adopted November 6, 1906.) DEPOSITS IN BANKS.— Section IGVa of article 11 of the constitution, added by amendment November 6, 190G, providing for tlie deposit in banks of stat'^, county and municipal funds, "in such manner and under such conditions as may be provided by law," does not authorize the legislature to enact a law au- thorizing the officers of a municipality governed by a free- holders' charter to make such deposits of municipal moneys, contrary to the express provision of its charter in that regard (Eothschild v. Bantel, 152 Cal. 5, 91 Pac. 803.) Art. XI, §§ 17, 18 CONSTITUTION OF 1879. 396 Making profit out of public funds a felony. Sec. 17. The making of profit out of county, city, town, or other public money, or using the same for any purpose not authorized by law, by any officer having the possession or control thereof, shall be a felony, and shall be prosecuted and punished as prescribed by law. Restrictions on power to incur indebtedness. Sec. 18. No county, city, town, township, board of education, or school districts, shall incur any indebted- ness or liability in any manner or for any purpose ex- ceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the qualified electors thereof, voting at an election to be held for that purpose, nor unless before or at the time of in- curring such indebtedness provision shall be made for the collection of an annual tax sufficient to pay the in- terest on stich indebtedness as it falls due, and also pro- vision to constitute a sinking fund for the payment of the principal thereof on or before maturity, which shall not exceed forty years from the time of contracting the same; provided, Jiowever, that the city and county of San Francisco may at any time pay the unpaid claims, with interest thereon at the rate of five per cent per annum, for materials furnished to and work done for said city and county during the forty-first, forty-sec- ond, forty-third, forty-fourth, and fiftieth fiscal years, and for unpaid teachers' salaries for the fiftieth fiscal Art. XI, Sec. 18. Insert at Page 396. See. 18. No county, eity, town, township, board of edueation, or school district, shall incur any indebted- ness or liability in any manner or for any purpose exceeding in any year the income and revenue pro- vided for such year, without the assent of two thirds of the qualified electors thereof, voting at an election to be held for that purpose, nor unless before or at the time of incurring such indebtedness provision shall be made for the collection of an annual tax suffi- cient to pay the interest on such indebtedness as it falls due, and also provision to constitute a sinking fund for the payment of the principal thereof on or before maturity, which shall not exceed forty years from the time of contracting the same ; provided, how- ever, that the city and county of San Francisco may at any time pay the unpaid claims, with interest thereon at the rate of five per cent per annum, for materials furnished to and work done for said city and county during the forty-first, forty-second, forty- third, forty-fourth, and fiftieth fiscal years, and for unpaid teachers' salaries for the fiftieth fiscal year, out of the income and revenue of any succeeding year or years, the amount to be paid in full of said claims not to exceed in the aggregate the sum of five hundred thousand dollars, and that no statute of limitations shall apply in any manner to these claims; and i)ro- vided, further, that the city of Vallejo, of Solano county, may pay its existing indebtedness, incurred in the construction of its waterworks, whenever two thirds of the electors thereof, voting at an election held for that purpose, shall so decide, and that no 397 CONSTITUTION OF 1879. Art. XI, § 18 year, out of the income and revenue of any succeeding year or years, the amount to be paid in full of said claims not to exceed in the aggregate the sum of five hundred thousand dollars, and that no statute of limi- tations shall apply in any manner to these claims ; and provided further, that the city of Vallejo, of Solano county, may pay its existing indebtedness, incurred in the construction of its waterworks, whenever two- thirds of the electors thereof, voting at an election held for that purpose, shall so decide, and that no statute of limitations shall apply in any manner. Any in- debtedness or liability incurred contrary to this provi- sion, with the exceptions hereinbefore recited, shall be void. (Amendment adopted November 6, 1900.) By amendment adopted November 6, 1906, the follow- ing was added at the end of this section : The city and county of San Francisco, the city of San Jose and the town of Santa Clara may make pro- vision for a sinking fund, to pay the principal of any indebtedness incurred, or to be hereafter incurred by it, to commence at a time after the incurring of such indebtedness of no more than a period of one-fourth of the time of maturity of such indebtedness, which shall not exceed seventy-five years from the time of con- tracting the same. Any indebtedness incurred con- trary to any provision of this section shall be void. Art. XI, § 18 CONSTITUTION OF 1879. 398 [AMENDMENT OF 1892.] See. 18. No county, city, town, township, board of educa- tion or school district, shall incur any indebtedness or liabilitj', in any manner, or for any purpose, exceeding in any j'ear the income and revenue provided for it for such year without the assent of two-thirds of the qualified electors thereof voting at an election to be held for that purpose, nor unless, before or at the time of incurring such indebtedness, provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also provision to con- stitute a sinking fund for the payment of the principal thereol on or before maturity, which shall not exceed forty years from the time of contracting the same. Any indebtedness or lia- bility incurred contrary to this provision shall be void. (Ratifi- cation declared December 30, 1892.) [ORIGINAL SECTION.] Sec. 18. No county, city, town, township, board of education, or school district, shall incur any indebtedness or liability in any manner or for any purpose, exceeding in any year the income and revenue provided for it for such year, without the assent of two-thirds of the qualified electors thereof voting at an elec- tion to be held for that purpose, nor unless, before or at the time of incurring such indebtedness, provision shall be made for the collection of an annual tax sufficient to pay the interest on such indebtedness as it falls due, and also to constitute a sinking fund for the payment of the principal thereof within twenty years from the time of contracting the same. Any in- debtedness or liability incurred contrary to this provision shall be void. MUNICIPAL INDEBTEDNESS.— This provision is to be naturalh' and reasonaljly construed as providing that all legiti- mate indebtedness of the municipality must not exceed all tho 399 CONSTITUTION OF 1879. Art. XI, § 18 revenues and income provided for that year. (Higgins v. San Diego, 131 Cal. 294, 63 Pac. 470.) It refers only to the acts or contracts of the city and not to liabilities which the law may cast upon her. (McCraken v. San Francisco, 16 Cal. 591; Lewis v. Widber, 99 Cal. 412, 33 Pac. 1128.) It does not apply to the payment of the salary of a public officer, whose office has been created and salary fixed by law. (Lewis v. Widber, 99 Cal. 412, 33 Pac. 1128; Harrison v. Horton, 5 Cal. App. 415, 90 Pac. 716.) It does not apply to the obligation of a city to return money which she has received by mistake or without authority of law. (Argenti v. San Francisco, 16 Cal. 255.) It does not apply to a board of trustees of a free public library of a city. (Eobertson v. Library Trustees, 136 Cal. 403, 69 Pac. 88.) Under this section no indebtedness or liability can be in- curred by a municipality (except in the manner therein pro- vided), exceeding in any year the income and revenue actually received by it. Each year's income and revenue must pay each year's indebtedness and liability, and no indebtedness or lia- bility incurred in any one year can be paid out of the income of any future year. (San Francisco Gas Co. v. Brickwedel, 62 Cal. 641; Schwartz v. Wilson, 75 Cal. 502, 17 Pac. 449; Smith v. Broderick, 107 Cal. 644, 48 Am. St. Eep. 167, 40 Pac. 1033; Weaver v. San Francisco, 111 Cal. 319, 43 Pac. 972; Montague v. English, 119 Cal. 225, 51 Pac. 327.) The fact that the obligation is reduced to judgment and a special tax levied and collected for its pavment does not alter the case. (Smith v. Broderick, 107 Cal. 644, 48 Am. St. Kep. 167, 40 Pac. 1033; Goldsmith v. San Francisco, 115 Cal. 36, 46 Pac. 816.) A creditor of the city does not acquire a right to be paid out of the income for any subsequent year on the ground that the funds were depleted by a large excess in the expenses of a gen- eral election over the estimate made by the supervisors. (Weaver v. San Francisco, 111 Cal. 319, 43 Pac. 972.) The income provided for a county during a given fiscal year must be applied to the payment of the county indebtedness incurred during such year, before the payment of any indebted- Art. XI, § 18 CONSTITUTION OF 1879. 400 ness of a preceding year can be made therefrom. (Shaw v. Statler, 74 Cal. 2.5S, 15 Pac. 833.) Moneys of a previous fiscal year, remaining in the treasury in a subsequent year, are not part of the fund of the subse- quent year, but they 'remain a part of the fund of the previous year, and a claimant of that fund cannot be robbed of his due by a technical transfer. (Bilby v. McKenzie, 112 Cal. 143, 44 Pac. 341.) Where the revenue of one fiscal year has been exhausted, the city officers cannot, for the purpose of providing for the present needs of the municipality during the remainder of the year, incur debts to be met in a subsequent year, except in the man- ner provided in this section. (Bradford v. San Francisco, 112 Cal. 537, 44 Pac. 912.) This section does not prohibit the auditing of demands for salaries, although the aggregate amount of the salaries for a given year would exceed the amount limited by the board of supervisors for the payment of such salaries during that year. (Welch V. Strother, 74 Cal. 413, 16 Pac. 22.) This section does not apply to irrigation districts. (In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. Kep. 106, 28 Pac. 272, 14 L. R. A. 755.) A contract for future annual payments fpr a sewer farm is not a present liability. (McBean v. Fresno, 112 Cal. 159, 53 Am. St. Eep. 191, 44 Pac. 358, 31 L. R. A. 794; Smilie v. Fresno, 112 Cal. 311, 44 Pac. 556; Higgins v. San Diego Water Co., 118 Cal. 524, 45 Pac. 824, 50 Pac. 670.) Sections 4445 to 4449 of the Political Code are not in con- flict with this section, since they only provide for a change in the form of the evidence of the indebtedness, and not for the creation of new indebtedness. (Los Angeles v. Teed, 112 Cal. 319, 44 Pac. 580.) An action by a taxpayer will lie to enjoin the officers of a city from incurring any indebtedness in violation of this provi- sion. (Bradford v. San Francisco, 112 Cal. 537, 44 Pac. 912.) A claim arising under a contract for the burial of the indigent dead is within this provision. (Pacific Undertakers v. Widber, 113 Cal. 201, 45 Pac. 273.) The fact that the indebtedness is incurred for an urgent necessity will not take the case out of this provision. (Buck V. Eureka, 119 Cal. 44, 50 Pac. 1065.) 401 CONSTITUTION OF 1879. Art. XI, § 18 Notwithstancliug this provision, a judgment against a munici- pality should be in form a general judgment, although it and the liability on which it is based can only be paid out of the municipal revenues of the fiscal year in which the liability was incurred. (Buck v. Eurclca, 119 Cal. 44, 50 Pac. 1065.) A judgment upon a claim against a city, although payable only out of the funds of a particular fiscal year, should be gen- eral in form and should not direct out of what funds it should be paid. (Fresno etc. Co. v. McKenzie, 135 Cal. 497, 67 Pac. 900.) A sum payable upon a contingency is not a debt within the meaning of this section, and cannot become such until the contingency happens. (Doland v. Clark, 143 Cal. 176, 76 Pac. 958.) A contract to continue for a series of years, and providing for payments thereunder at different times, is not in violation of this provision. (Doland v. Clark, 143 Cal. 176, 76 Pac. 958.) An implied lit, jility of a city is within the prohibition of this section. (Buck v. Eureka, 124 Cal. 61, 56 Pac. 612.) An implied liability for services rendered by an attorney of the city is incurred when, from time to time, the services were fully rendered, and the city, with knowledge, accepted the bene- fit of them. (Buck v. Eureka, 124 Cal. 61, 56 Pac. 612.) In an action concerning the validity of a municipal obligation, it is error to reject evidence of the condition of the treasury at the time it was incurred. (Buck v. Eureka, 124 Cal. 61, 56 Pac. 612.) Although there may be no money in the fund out of which a liability is payable at the time it is created, still, if at the end of the fiscal year there is money in such fund, it may be applied to such liability, (lliggins v. San Diego, 131 Cal. 294, 63 Pac. 470.) This section only requires the assent of two-thirds of such electors as vote on the proposition of incurring the indebtedness, and not two-thirds of tliose voting at the election. (Ilowland v. Supervisors, 109 Cal. 152, 41 Pac. 864.) The fact that the election is held at the same time and place as the general election does not affect the character of the elec- tion. (Howland v. Supervisors, 109 Cal. 152, 41 Pac. 864.) Constitution — 26 Art. XI, § 18 CONSTITUTION OF 187D. 402 This section docs not require that at the time of the sale or issuance of the bonds, or th-^ incurring of the bonded indebted- ness, a sinking fund or interest tax be levied, but only that pro- vision shall be made for their collection. (Howland v. SuiJer- visors, 109 Cal. 152, 41 Pac. 864.) Where the law provides that "at least two-tliirds of the elec- tors voting at such special election shall be necessary," two- thirds of all persons voting at the election, and not merely two-thirds of those voting upon the proposition, are necessary. (Law V. San Francisco, 144 Cal. 384, 77 Pac. 1014.) An order by the supervisors annexing a school district to a high school district upon terms of agreement which essentially involve the assumption by the school district of a pro rata part of the bonded debt of the high school district, without the vote herein required, is void. (People v. Hauford High School Dis- trict, 148 Cal. 705, 84 Pac. 193.) The objection that the expense of an election under the initia- tive or referendum law might exceed the indebtedness permitted by this section cannot prevail to make such law unconstitutional. (In re Pfahler, 150 Cal. 71, 88 Pac. 270, 11 Ann. Cas. 911.) A board of supervisors cannot during the fiscal year allow claims against the indigent fund in excess of the revenues pro- vided for that year, and then, by a fictitious sale of county prop- erty, and the repurchase thereof after the commencement of the nextfiscal year, draw a warrant on the next year's fund to pay the indebtedness incurred during the previous year. (County of Tehama v. Sisson, 152 Cal. 167, 92 Pac. 64.) The object of this section was to insure that at the time of the general tax levy each year provision would be made for such money as would be necessary to pay interest and principal fall- ing due before the time of the next general tax levy and to make up the necessary sinking fund. (Johnson v. Williams, 153 Cal. 368, 95 Pac. 655.) Courts of ecjuity have power to protect and enforce the will of the people in the issuance of bonds. (Cerini v. De Lone 7 Cal. App. 398, 94 Pac. 582.) The amendment allowing the city and county of San Fran- cisco to pay certain claims against it was permissive only and not compulsory, (Weaver v. San Francisco, 146 Cal. 728, 81 Pac. 119.) As to the sufficiency of the notice of the election, see Los Angeles v. Teed, 112 Cal. 319, 44 Pac. 580. 403 CONSTITUTION OF 1879. Art. XI, § 19 Municipal ownership of public utilities. Sec. 19. Any municipal corporation may establish and operate public Avorks for supplying its inhabitants with light, water, power, heat, transportation, telephone service or other means of communication. Such works may be acquired by original constrviction or by the pur- chase of existing works, including their franchises, or both. Persons or corporations may establish and oper- ate works for supplying the inhabitants with such ser- vices upon such conditions and under such regulations as the municipality may prescribe under its organic law, on condition that the municipal government shall have the right to regulate the charges thereof. A munic- ipal corporation may furnish such services to inhabit- ants outside its boundaries; provided that it shall not furnish any service to the inhabitants of any other mu- nicipality owning or operating works supplying the same service to such inhabitants, without the consent of such other municipality, expressed by ordinance. (Amendment approved October 10, 1911.) [AMENDMENT OF 1885.] Sec. 19. In any city where there are no public works owned and controlled by the municipality for supplying the same with water or artificial light, any individual, or any company duly incorporated for such purpose, under and by authority of the laws of this state, shall, under the direction of the superintend- ent of streets, or other officer in control thereof, and under such general regulations as the municipality may prescribe, for dam- ages and indemnity for damages, have the privilege of using Art. XI, § 19 CONSTITUTION OF 1879. 404 tlie public streets and thoroughfares thereof, and of laying down pipes and conduits therein, and connections therewith, so far as may be necessary for introducing into and supplying such city and its inhabitants either with gaslight, or other illuminating light, or with fresh water for domestic and all other purposes, upon the condition that the municipal government shall have the right to regulate the charges thereof. (Eatification declared February 12, 1885.) [ORIGINAL SECTION.] Sec. 19. No public work or improvement of any description whatsoever shall be done or made, in any city, in, upon or about the streets thereof, or otherwise, the cost and expense of which is made chargeable or may be assessed upon private property by special assessment, unless an estimate of such cost and ex- pense shall be made, and an assessment, in proportion to benefits, on the property to be affected or benefited, shall be levied, col- lected, and paid into the city treasury before such work or im- provement shall be commenced, or any contract for letting or doing the same authorized or performed. In any city where there are no public works owned and controlled by the munici- pality, for supplying the same with water or artificial light, any individual, or any company duly incorporated for such pur- pose under and by authority of the laws of this state, shall, under the direction of the superintendent of streets, or other officer in control thereof, and under such general regulations as the municipality may prescribe for damages and indemnity for damages, have the privilege of using the public streets and thoroughfares thereof, and of laying down pipes and conduits therein, and connections therewith, so far as may be necessary for introducing into and supplying such city and its inhabitants either with gaslight or other illuminating light, or with fresh water for domestic and all other purposes, upon the condition 405 CONSTITUTION OF 1879. Art. XI, § 19 that the municipal government shall have the right to regulate the charges thereof. WATER AND LIGHT.— The word "citv," used in this section, includes "town." (Pereria v. Wallace, 129 Cal. 397, 62 Pac. 61; People V. Stephens, 62 Cal. 209.) The provisions of this section are self-executing. (Denninger V. Eecorder's Court, 145 Cal. 629, 79 Pac. 3G0; Boca etc. R. R. V. Sierra Valley R. R., 2 Cal. App. 546, 84 Pac. 298.) Nothing is required to make the power granted by this pro- vision completely operative except a law for the organization of municipal corporations and prescribing a mode of exercising legislative power. (Denninger v. Eecorder's Court, 145 Cal. 629, 79 Pac. 360.) The power conferred by this section is not independent upon action by the legislature under section 33 of article 4. (Den- ninger v. Recorder's Court, 145 Cal. 629, 79 Pac. 360.) The franchise to lay pipes and conduits or erect poles is real estate and is inseparably annexed to the soil, and has a local situation in the place where the right is exercised. (Stockton Gas etc. Co. v. San Joaquin County, 148 Cal. 313, 83 Pac. 54, 5 L. R. A., N. S., 174, 7 Ann. Cas. 511.) The fact that the gas which furnishes light also serves for cooking and heating does not prevent the legislative authori- ties from fixing the rate thereof. (Denninger v. Recorder's Court, 145 Cal. 638, 79 Pac. 364.) The provision of the act of 1858, requiring water companies to furnish water free of charge to cities and counties, was abro- gated by this section. (Spring Valley W. W. v. San Francisco, 61 Cal. 18.) The board of supervisors has no power to delegate to a com- mission the power to fix the rates to be paid by the county for gas. But where the board afterward ratifies the rates fixed by the commission, the final determination with respect to the rates is exercised by the board, and is valid. (San Francisco Gas Co. V. Dunn, 62 Cal. 580.) This section does not deprive the right to collect rates for water of its character of a franchise. (Spring Valley W. W. v. Schottler, 62 Cal. 69.) Although a contract fixing the price of gas may be void, still if the gas is actually furnished to and used by the municipality, Art. XI, § 19 CONSTITUTION OF 1879. 406 the board may aHow for its payment such sum as it is reason- ably worth. (San Francisco Gas Co. v. Dunn, .62 Cal. 580.) In the absence of an express limitation, a contract by the board as to rates for the term of five years will not be held un- reasonable. (San Francisco Gas Co. v. Dunn, 62 Cal. 580.) The question of what is a reasonable rate is a question of fact. (Redlands etc. Co. v. Eedlands, ]21 Cal. 312, 53 Pac. 791.) The water company is not entitled to be reimbursed from the income derived from the rates for interest upon its indebtedness, nor for depreciation of its plant, aside from the amount requisite for its maintenance and repairs during the year. (Eedlands etc. Co. V. Redlands, 121 Cal. 312, 53 Pac. 791.) The bonded or other indebtedness of the company is not to bo considered; but the fair value of the property which is neces- sarily used in furnishing the water is the basis upon which to determine the amount of revenue, which should be the same whether the works are acquired or constructed by the company with its own resources, or with money borrowed from others. (Eedlands etc. Co. v. Eedlands, 121 Cal. 365, 53 Pac. 843.) The company has no absolute right to receive a given per cent on its capital stock. (Eedlands etc, Co. v. Eedlands, 121 Cal. 365, 53 Pac. 843.) The rights of the public, as well as those of the stockholders, are to be considered; and the public cannot be subjected to un- reasonable rates in order simply that stockholders may have dividends. The company has the right to receive only what, under all the circumstances, is such compensation as will be just to it and to the public. (Eedlands etc. Co. v. Eedlands, 121 Cal. 365, 53 Pac. 843.) An ordinance requiring a special permission to be obtained from the board of supervisors, before streets can be obstructed, is reasonable. (Mutual Electric etc. Co. v, Ashworth, 118 Cal. 1, 50 Pac. 10.) Under this section the city may require special permission from the city before poles can be erected in the streets by an electric light company; and the mere fact that the permission is granted to one company and unjustly refused to another will not entitle the latter to enjoin the city authorities from inter- fering with the erection of such poles — the proper remedy being to compel the granting of the permit by mandamus. (Mutual Electric etc. Co. v. Ashworth, 118 Cal. 1, 50 Pac. 10.) 407 CONSTITUTION OF 1879. Art. XI, § 19 By this section the operation of gas'.vorks is recognized as a lawful business. (In re Smith, 143 Cal. 3G8, 77 Pac. ISO.) A gas company does not forfeit its franchise by supplying gas for cooking and heating as Avell as for lighting purposes which does not subject the streets to any additional burden. (People V. Los Angeles etc. Gas Co., 150 Cal. 557, 89 Pac. 108.) This section only applies to cities in which there are no public works owned and controlled by the city for supplying the same with water. (Colegrove W. Co. v. Hollywood, 151 Cal. 425, 90 Pac. 1053, 13 L. R. A., N. S., 904.) A municipal corporation upon which has devolved the duty of suppl^'ing water to another a:iiuiicipality is a "corporation duly incorporated for such purpose" within the meaning of the consti- tution. (South Pasadena v. Pasadena Land Co., 152 Cal. 579, 93 Pac. 490.) The power of a municipality to acquire and control public utilities is recognized by the constitution in the language "in any city where there are no public works owned and controlled by the municipality for supplying the same with water or arti- ficial light." (Piatt V. City and County of Sau Francisco, 158 Cal. 74, 110 Pac. 304.) The mere fact that a regulation will work irreparable injury to the company and will work inconvenience and deprival of use in tlie manner theretofore enjoyed by the inhabitants of the city sufficiently to show an arbitrary or unreasonable exercise of power. (Merced Falls Gas etc. Co. v. Turner, 2 Cal. App. 720, 84 Pac. 239.) An electric light company by erecting poles by permission of the municipal authorities does not obtain an absolute, inde- feasible right to have the poles remain at the particular spot for all time, and the city authorities have the power by reason- able regulations to compel the company to change their location, (Merced Falls Gas etc. Co. v. Turner, 2 Cab App. 720, 84 Pac. 239.) This section dnos not curtail the power of the municipality in making needful and reasonable regulations touching the use of the streets, but the municipality will not be permitted to en- force regulations which are tantamount to a denial of the right, or are arbitrary, capricious, unreasonable, or prohibitory in their nature or effect. (Merced Falls Gas etc. Co. v. Turner, 2 Cal. App. 720, 84 Pac. 239.) Art. XI, § 19 CONSTITUTION OP 1879. 408 An ordinance requiring persons who desire to lay pipes in the streets to make a verified application for a permit from the superintendent of streets is invalid and is not a regulation for "damages and indemnity for damages." (In re Johnston, 137 Cal. 115, 69 Pac. 973.) A statute requiring municipalities to sell franchises for lay- ing pipes, etc., to the highest bidder is void. (Pereria v. Wal- lace, 129 Cal. 397, 62 Pac. 61.) See, further, as to water rates, note to section 33, article 4, and section 1, article 14. STREET ASSESSMENTS.— The "front-foot" method of as- sessment is valid. (Iladley v. Dague, 130 Cal. 207, 62 Pac. 500; Cohen v. Alameda, 124 Cal. 504, 57 Pac. 377; Chambers v. Sat- terlee, 40 Cal. 497; Emery v. San Francisco Gas Co., 28' Cal. 345; Emery v. Bradford, 29 Cal. 75; Taylor v. Palmer, 31 Cal. 240; Whiting v. Quackenbush, 54 Cal. 306; Whiting v. Town- send, 57 Cal. 515; Lent v. Tillson, 72 Cal. 404, 14 Pac. 71; Jen- nings V. Le Breton, 80 Cal. 8, 21 Pac. 1127; San Francisco Pa v. Co. V. Bates, 134 Cal. 39, 66 Pac. 2; Banaz v. Smith, 133 Cal. 102, 65 Pac. 309.) An assessment for improving a street is a tax, and must be levied with equality and uniformity. (Whiting v. Quackenbush, 54 Cal. 306.) A contract for a street improvement, made before the new constitution went into effect, is not affected by its provisions, and the granting of an extension of time for the performance of the same is not a new contract. (Oakland Pav. Co. v. Barstow, 79 Cal. 45, 21 Pac. 544; Ede v. Cogswell, 79 Cal. 278, 21 Pac. 767; Ede v. Knight, 93 Cal. 159, 28 Pac. 860.) The provisions of this section in its original form were self- executing, and the provisions of the act of 1872, relating to street improvements in San Francisco, and authorizing the super- intendent of streets to execute contracts for such improvements in advance of the levy and collection of the assessment, were inconsistent with it, and ceased to be operative when it went into effect. (McDonald v. Patterson, 54 Cal. 245; Donahue v. Graham, 61 Cal. 276.) The act of 1863, providing for the widening of streets in San Francisco by agreement with the owners, was not in conflict with this section. (San Francisco V. Kiernan, 98 Cal. 614, 33 Pac. 720.) 409 CONSTITUTION OF 1879. Art. XI, § 19 The provision of the charter of San Francisco for making a contract for street work before an assessment had been levied and collected was repealed by this section, and was not revived by the constitutional amendment dispensing with the necessity of such levy and collection. (Thomason v. Ruggles, 69 Cal. 465, 11 Pac. 20; Thomason v. Ashwovth, 73 Cal. 73, 14 Pac. 615.) The arrcndment to this section in 1885 was legally adopted. (Oakland Pav. Co. v. Tompkins, 72 Cal. 5, 1 Am. St. Rep. 17, 12 Pac. 801; Thomason v. Ashwnrth, 73 Cal. 73, 14 Pac. 615; People V. Strother, 67 Cal. 624, 8 Pac. 383; Sacramento P. Co. V. Anderson, 1 Cal. App. 672, 82 Pac. 1069. But see Oakland Pav. Co. V. Hilton, 69 Cal. 479, 11 Pae. 3.) CONSTITUTION OP 1879. 410 'ARTICLE XII. CORPORATIONS. Corporations to be formed under general laws. Dues to be secured by individual liability, etc. Stockholders to be individually liable. Corporations construed. Banking prohibited. Existing charters, when invalid. Charters not to be extended, nor forfeiture remitted. All franchises subject to the right of eminent domain. Restrictions on powers of corporations. Liabilities of franchise under lease or grant. Corporation stock, restriction on issue of. Election of directors — Cumulative or distributive votes. State not to loan its credit nor subscribe to stock of corporations. § 14. Corporations to have office for transaction of business in stocks. § 15. Foreign corporations, conditions. § 16. Corporations, where to be sued. § 17. Transportation companies, rights and liabilities of. § 18. Officers of corporations, restriction as to interests. § 19. Free passes on railroads prohibited to state officials. § 20. Fares and freights to be regulated by government. § 21. Discrimination in charges by carriers forbidden. § 22. Railroad commission, organization of. § 23. Railroad commission, regulation of public utilities. § 24. Legislature to pass laws to enforce this article. § 1 § 2 § 3 § 4 § 5 § 6 § 7, § 8, § 9, § 10 § 11. § 12 § 13 411 CONSTITUTION OF 1879. Art. XII, § 1 Corporations to be formed under general laws. Sec. 1. Corporations may be formed under general laws, but shall not be created by special act. All laws now in force in this state concerning corporations, and all laws that may be hereafter passed pursuant to this section, may be altered from time to time or repealed. CORPORATIONS— What are.— A levee district is not a pri- vate corporation, neither is it a municipal corporation, but it belongs to a class by itself, the creation, organization, and con- trol of which is not limited by the constitution. (People v. Levee Dist. No. 6, 131 Cal. 30, 63 Pac. 676.) Prior to the new constitution, a reclamation district was held to be a public corporation, which could be created by special act. (Reclamation Dist. No. 124 v. Gray, 95 Cal. 601, 30 Pac. 779.) Irrigation districts, with respect to their public functions, are to be classed with public corporations; but with regard to the private rights of the individual land owners, they are to be classed as private corporations. (Merchants' Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937.) This section refers to private corporations, and it has no ap- plication to the creation of public corporations under the control and government of the state, such as state hospitals. (Napa State Hospital v. Dasso, 153 Cal. 698, 96 Pac. 355, 15 Ann. Cas. 910.) A district agricultural association is a public agency of the state, and is a public corporation. (People v. San Joaquin Valley Agricultural Assn., 151 Cal. 797, 91 Pac. 740.) Reclamation districts do not come within the purview of this section. (Keclamation Dist. No. 70 v. Sherman, 11 Cal. App. 399, 105 Pac. 277.) Creation of. — ^The legislature cannot confer upon corporations any powers or grant them any privileges by special act. (San Francisco v. Spring Valley W. W., 48 Cal. 493.) This section does not authorize the legislature to enact general laws under which corporations might extend the terra of their corporate existence. (The Boca Mill Co. v. Curry, 154 Cal. 328, 97 Pac. 1117.) Art. XII, § 1 CONSTITUTION 0? 1879. 412 A corporation sole can be created only by compliance with the provisions of the Civil Code. (Blakeslee v. Hall, 94 Cal. 159, 29 Pac. 623.) This section does not prohibit the assisnment of a francLisa to a legally organized corporation, by persons having the lawful right to exercise and transfer the same — this section referring only to power directly conferred upon corporations by the legis- lature. (People V. Stanford, 77 Cal. 360, 18 Pac. 85, 19 Pac. 693.) A law providing a special method of assessment and collec- tion of taxes against railroads situated in more than one county is not in violation of this section. (People v. Central Pac. E. K. Co., 105 Cal. 576, 38 Pac. 905. People v. Central Pac. R. E. Co., 83 Cal. 393, 23 Pac. 303, overruled.) An act "to establish water rates in the city and county of San Francisco," and a supplemental act, held unconstitutional in 80 far as they attempt to provide a mode of fixing rates to be charged by corporations in San Francisco differing from the mode provided for other corporations by general laws. (San Francisco v. Spring Valley W. W., 53 Cal. 608; Spring Valley W. W. V. Bryant, 52 Cal. 132; San Francisco v. Spring Valley W. W., 48 Cal. 493.) An act which authorizes the board of supervisors of a county to grant certain privileges to a particular corporation is void. (Waterloo etc. Road Co. v. Cole, 51 Cal. 381.) An act which grants to individuals powers and privileges, and provides that the act shall not take effect unless such persons incorporate within a given time, is a grant to the corporation, and void. (San Francisco v. Spring Valley W. W., 48 Cal. 493. California State Tel. Co. v. Alta Tel. Co., 22 Cal. 398, disap- proved.) Under this section the legislature cannot by special act change the name of a corporation, but may by general law provide for such change by the superior court upon application of the in- corporators. (Matter of La Societe Francaise etc., 123 Cal. 525, 56 Pac. 458. See, also, Pacific Bank v. De Ro, 37 Cal. 538.) An act granting to certain individuals the exclusive right to a line of telegraph does not violate this section. (California State Tel. Co. v. Alta Tel Co., 22 Cal. 398. But see San Fran- cisco V. Spring Valley W. W., 48 Cal. 493.) 413 CONSTITUTION OP 1879. Art, XII, § 1 Where a franchise is conferred by the legislature to certain individuals to supply a town with water, and they afterward sell such franchise to a corporation, this section is not violated. (San Luis Water Co. v. Estrada, 117 Cal. 168, 48 Pac, 1075. San Francisco v. Spring Valley W. W,, 48 Cal. 493, distin- guished.) An act conferring the power of appointing boards of exanir iners upon three named societies, which are said to be "existing corporations," held not to be in conflict with this section, as the power is not conferred upon them as corporations — the expres- sion "existing corporations" being merelv descriptio personarum. (Ex parte Frazer, 54 Cal. 94; Ex parte McNulty, 77 Cal. 164, 11 Am. St. Eep. 257, 19 Pac. 237; Ex parte Johnson, 62 Cal. 263.) This provision continued in force section 359 of the Code of Civil Procedure, limiting the time within which an action can be brought to enforce the stockholders' personal liability. (Santa Kosa Nat. Bank v. Barnett, 125 Cal. 407, 58 Pac. 85.) Visitation. — The legislature has what may be termed a visi- torial or supervisorial power over corporations, and may examine into their affairs, with a view to correct corporate abuses. (In re Bunkers, 1 Cal. App. 61, 81 Pac. 748.) Alteration and repeal of charters. — The right to alter and re- peal is not without limit; it must be reasonable. Sheer oppres- sion and wrong cannot be inflicted under the guise of amendment or alteration. (Spring Valley W. W. v. San Francisco, 61 Cal. 3.) The power of the legislature to alter and amend under this section does not authorize the legislature, while the corporation exists, to deprive it of the rights, guaranteed to it by the federal constitution, to due process of law, and to the equal protection of the laws, nor to alter the charter of foreign corporations doing business in this state. (Johnson v. Goodyear Min. Co., 127 Cal. 4, 78 Am. St. Eep. 17, 59 Pac. 304, 47 L. R. A. 338.) A provision in the charter of a water company permitting it to name two out of five commissioners to fix water rates is simply a privilege, and not a contract with the company, and may be repealed at any time. (Spring Valley W. W. v. San Francisco, 61 Cal. 3.) The legislature may, under the reserved power, provide for the consolidation of corporations by a majority vote of the stock- holders, without reference to the will of the dissenting stock- Art. XII, §§ 2, 3 CONSTITUTION OF 1879. 414 holders. (Market Street Ry. Co. v. Hcllnian, 109 Cal. 571, 42 Pac. 225.) Under this provision the people of the state have pov/er t& change the lavi^ as to the li?vbili1.y of stockholders. (McGowan V. McDonald, 111 Cal. 57, 52 Am. St. Kep. 149, 43 Pac. 418.) Dues to be secured by individual liability, etc. Sec. 2. Dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law. Stockholders to be individually liable. Sec. 3. Each stockholder of a corporation, or joint- stock association, shall be individually and personally liable for such proportion of all its debts and liabilities contracted or incurred, during the time he was a stock- holder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock, or shares of the corporation or association. The directors or trustees of corporations and joint-stock associations shall be jointly and severally liable to the creditors and stockholders for all moneys embezzled or misap- propriated by the officers of such corporation or joint- stock association, during the term of office of such di- rector or trustee. Nothing in the preceding paragraph of this section shall be held to apply to any exposition company organ- ized to promote and carry on any international expo- sition or world's fair within the state of California, and the liability of stockholders in any such exposition 415 CONSTITUTION OF 1879. Art. XII, § 3 company shall be and the same is hereby limited to an amount not exceeding the par value of the stock of said corporation subscribed for by such stockholders. (Amendment adopted November 3, 1908.) [ORIGINAL SECTION.] Sec. 3. Each stockholder of a corporation, or joint-stock association, shall be individually and personally liable for such proportion of all its debts and liabilities contracted or incurred, during the time he was a stockholder, as the amount of stock or shares owned by him bears to the whole of the subscribed capital stock, or shares of the corporation or association. The directors or trustees of corporations and joint-stock associations shall be jointly and severally liable to the creditors and stock- holders for all moneys embezzled or misappropriated by the ofRcers of such corporation, or joint-stock association, during the term of office of such director or trustee. STOCEKOLDSRS' LIABILITY— In general. — Under this sec- tion a stockholder cannot be exempted by law from his indi- vidual liability. (McGowan v. McDonald, 111 Cal. 57, 52 Am. St. Rep. 149, 43 Pac. 418.) A somewhat similar provision of the former constitution was held not to be self-executing. (French v. Teschemaker, 24 Cal. 518.) The former constitution left it to the legislature to prescribe the rule by which each stockholder's proportion should be ascer- tained. (Larrabce v. Baldwin, 35 Cal. 155.) Under the former constitution it was held that any one cred- itor, whose debt was sufficient, might collect from one particular Btockholder the entire amount of his liability on all the corporate debts, leaving liim to seek contribution out of his costoekholders. (Larrabee v. Baldwin, 35 Cal. 155.) While it has never been decided whether or not this rule ap- plies under the present constitution, it has been said that "all" the debts means every debt of the company; and therefore any creditor is entitled to sue any stockholder for his proportion of Art. XII, § 3 CONSTITUTION OF 1879. 416 the indebtedness of the company to such creditor, without refer- ence to the other debts of the corporation, .(Morrow v. Superior Court, 64 Cal. 383, 1 Pac. 354.) An act authorizing the formation of corporations, without attaching to the stoclcholders an individual liability would bo. unconstitutional, and the persons organized under such an act would acquire none of the rights of a corporation. (French v. Teschemaker, 24 Cal. 518.) But the creditors of a corporation may waive the personal liability of the stockholders at the time of contracting with the corporation. (French v. Teschemaker, 24 Cal. 518.) A depositor in a savings bank does not waive the personal liability of the stockholders by an unsigned agreement printed in the book of each depositor, nor by a printed release of liabil- ity inserted in the signature-book, to which no special subscrip- tion was made by the depositors. (Wells v. Black, 117 Cal. 157, 59 Am. St. Eep. 162, 48 Pac. 1090, 37 L. R. A. 619.) A by-law of a corporation that the stockholders shall not be personally liable for the debts of the corporation is void. (Wells V. Black, 117 Cal. 157, 59 Am. St. Rep. 162, 48 Pac. 1090, 37 L. R. A. 619.) A law limiting tlie time within which an action can be brought under this section to three years from the creation of the liabil- ity is valid. (Santa Rosa Nat. Bank v. Barnett, 125 Cal. 407, 58 Pac. 85.) An act authorizing a city to subscribe to the stock of a cor- poration, provided the corporation should make it a condition of all contracts entered into by it that the city should not be liable as a stockholder, is not invalid as taking away the liabil- ity fixed by the constitution. (French v. Teschemaker, 24 Cal. 518.) One stockholder may enforce the personal liability of other stockholders in the corporation for a debt due such stockholder from the corporation. (Brown v. Merrill, 107 Cal. 446, 48 Am. St. Rep. 145, 40 Pac. 557; Knowles v. Sandercock, 107 Cal. 629, 40 Pac. 1047.) This provision applies to corporations formed before as well as after the adoption of the new constitution. (McGowan v. McDonald, 111 Cal. 57, 52 Am. St. Rep. 149, 43 Pac. 418.) Under a like provision in the constitution of Kansas it was held that it was enforceable in this state against California 417 CONSTITUTION OF 1879, Art. XII, § 3 stockholders in a Kansas corporation. (Ferguson v, Sherman, 116 Cal. 169, 47 Pac. 1023, 37 L. E. A. 622.) When it attaches. — This section has no application to liabili- ties of stockholders which accrued prior to its adoption. (Har- mon V. Page, 62 Cal. 448.) A subscriber for shares is responsible as a stockholder, al- though he has not paid, for his stock or received a certificate therefor. (Mitchell v. Beckman, 64 Cal. 117, 28 Pac. 110.) A pledgee of stock is not a stockholder within the meaning of this section. (Borland v. Nevada Bank, 99 Cal. 89, 37 Am. St. Eep. 32, 33 Pac. 737.) As to who is a stockholder under this section, see Abbott v. Jack, 136 Cal. 510, 69 Pac. 257. The liability of the stockholder is dependent upon the fact that he is a stockholder at the time the debt is created, and such liability cannot be extended by the corporation by a note given for an indebtedness not created while he was a stock- holder, by suffering a judgment to be recovered on such in- debtednef5s, or in any other manner. (Winona Wagon Co. v. Bull, 108 Cal. 1, 40 Pac. 1077; Larrabee v. Baldwin, 35 Cal. 155; Danielson v. Yoakum, 116 Cal. 382, 48 Pac. 322; Partridge v. Butler, 113 Cal. 326, 45 Pac. 678; Santa Eosa Nat. Bank v, Barnett, 125 Cal. 407, 58 Pac. 85.) The liability of a stockholder in a savings bank accrues at the time of the acceptance of the deposit. (Wells v. Black, 117 Cal. 157, 59 Am. St. Rep. 162, 48 Pac. 1090, 37 L. E. A. 619.) A stockholder in a savings bank is liable for his proportion of a deposit in such bank. (Wells v. Black, 117 Cal. 157, 59 Am. St. Rep. 162, 48 Pac. 1090, 37 L. E. A. 619.) A liability for overdrafts to a bank is created upon the daily balances against the corporation shown by the account. (Santa Eosa Nat. Bank v. Barnett, 125 Cal. 407, 58 Pac. 85.) The liability of a corporation for the services of an attorney is not created until the rendition of the services. (Johnson v. Bank of Lake, 125 Cal. 6, 73 Am. St. Rep. 17, 57 Pac. 664.) Where an accommodation indorser of the note of a corpora- tion pays the same, the debt. is extinguished and the stockhold- er's liability upon the debt comes to an end, and neither under the doctrine of equitable assignment nor of subrogation can it be transferred as a live and subsiiting obligation, but at the Constitutioa — 27 Art. XII, § 3 CONSTITUTION OP 1879. 418 time of payment by the indorspr a new liability springs up against the corporation and its stockholders, a liability upon an implied contract to reimburse what has been expended, includ- ing costs and expenses. (Yule v. Bishop, 133 Cal. 574, 65 Pac. 1094.) Nature of. — An action to recover upon the liability of a stock- holder is an action at law. (Morrow v. Superior Court. 64 Cal. 383, 1 Pac. 354.) A stockholder's liability is a "liability created by law." (Moore v. Boyd, 74 Cal. 167, 15 Pac. 670: Hunt v. Ward, 99 Cal. 612, 37 Am. St. Kep. 87, 34 Pac. 335.) It is also a liability created by statute. (Bank v. Pacific Coast S. S. Co., 103 Cal. 594, 37 Pac. 499.) It is also an obligation arising upon contract. (Dennis v. Superior Court, 91 Cal. 548, 27 Pac. 1031 ; Kennedy v. California Sav. Bank, 97 Cal. 93, 33 Am. St. Eep. 163, 31 Pac. 846.) The liability of a stockholder of a corporation for his pro- portionate share of its debts is created by statute and barred within three years after the cause of action accrues. (Jones v. Goldtree Bros. Co., 142 Cal. 383, 77 Pac. 939.) The obligation of stockholders is direct and primary. They are principal debtors, and not sureties of the corporation, and their liability is not contingent upon a recovery against the corporation, nor is it affected by a suspension or renewal as to the corporation. (Faymonville v. McCollough, 59 Cal. 285; Davidson v. Eankin, 34 Cal. 503; Hyman v. Coleman, 82 Cal. 650, 16 Am. St. Eep. 178, 23 Pac. 62; Mitchell v. Beckman, 64 Cal. 117, 28 Pac. 110.) Stockholders are not jointly and severally liable, but each stockholder is severally liable for his proportion of the indebted- ness, and when he has paid his portion of any debt, or of all the debts of the corporation, he is freed from all liability, and has no cause of action against any other stockholder for money so paid. (Brown v. Meriill, 107 Cal. 446, 48 Am. St. Eep. 145, 40 Pac. 557; Derby v. Stevens, 64 Cal. 287, 30 Pac. 820.) The mere fact that the corporation has pledged to the debtor certain property as security for the debt does not prevent the debtor from suing the stockholders. (Sonoma Valley Bank v. Hill, 59 Cal. 107.) 419 CONSTITUTION OP 1879. Art. XII, § 3 A judgment against the corporation does not extinguish, sus- pend or merge the liability of the stockholders, (Young v. Ifosenbaum, 39 Cal. 646.) Nor does such a judgment prolong the time within which an action may be maintained against the stockholders. (Stillphen V. Ware, 45 Cal. 110.) An action may be maintained against the stockholders, al- though the debt is secured by a mortgage of the corporation which has not been foreclosed. (Knowles v. Sandercock, 107 Cal. 629, 40 Pac. 1047.) Stockholders are liable for interest as well as principal. (Wells, Fargo & Co. v. Enright, 127 Cal. 669, 60 Pac. 439, 49 L. R. A. 647.) , A stockholder of an insolvent bank has no right to share in the dividends of the bank by way of subrogation to the riglits of a creditor to whom he has paid his proportionate share of his claim. (Sacramento Bank v. Pacific Bank, 124 Cal. 147, 71 Am. St. Rep. 36, 56 Pac. 787, 45 L. R. A. 863.) Release of. — Whenever a debt of a corporation is satisfied in part, there is also pro tanto a discharge of the liability of the stockholders. (San Jose Sav. Bank v. Pharis, 58 Cal. 3S0.) Where a creditor of a corporation releases a stockholder from all personal liability, he thereby discharges the corporation and other stockholders to the same extent as the one to whom the release is executed. If the release is for the releasee's propor- tion, the company and other stockholders are only released pro tanto. (Prince v. Lynch, 38 Cal. 528, 99 Am. Dec. 427.) Practice. — A complaint to recover on the stockholder's lia- bility must state the amount of the whole number of shares subscribed for. (Bidwell v. Babcock, 87 Cal. 29, 25 Pac. 752; Roebling's Sons Co. v. Butler, 112 Cal. 677, 45 Pac. 6.) As to the form of the complaint generallv, see Duke v. Hunt- ington, 130 Cal. 272, 62 Pac. 510; Whitehurst v. Stuart, 129 Cal. 194, 61 Pac. 963. The complaint must show affirmatively that the defendant was a stockliolder when the debt was incurred, and a mere allegation that he was a stockholder when the note was executed is in- sufficient. (Case Plow Works v. Montgomery, 115 Cal. 380, 47 Pac. 108.) A complaint in an action against stockholders to recover their proportionate share of the debts of the corporation, which does Art. XII, § 3 CONSTITUTION OP 1879. 420 not aver tlie whole number of shares of the subscribed capital stock, is fatally defective. (San Francisco etc. Agency v. Miller, 4 Cal. App. 291, 87 Pac. 630.) An allegation of the number of shares issued is not sufficient to show the amount subscribed. (San Francisco etc. Agency v. Miller, 4 Cal. App. 291, 87 Pac. 630.) A creditor is not bound to exhaust the remedies against the corporation before proceeding against the stockholder. (Morrow V. Superior Court, 64 Cal. 383, 1 Pac. 354.) The provisions of this section do not oust a court Of equity of jurisdiction to compel stockholders to pay for the benefit of creditors the amount of the capital stock subscribed for by him. (Harmon v. Page, 62 Cal. 448.) Although the liability of the stockholder is that of an original del: '.or, it is proper to plead the debt as that of the corporation. ^Knowles v. Sandercock, 107 Cal. 629, 40 Pac. 1047.) Where one stockholder pays a note of the corporation, and sues the other stockholders for contribution, the superior court has no jurisdiction, if the several amounts asked against each stockholder are less than three hundred dollars. (Myers v. Sierra Valley etc. Co., 122 Cal. 669, 55 Pac. 689.) LIABILITY OF DIRECTORS. — This provision only applies to such misappropriations of moneys as are similar to embezzle-- ment, consisting of the misappropriations of funds intrusted to an officer for a particular purpose, by devoting them to some un- authorized purpose, and does not apply to the payment of an extravagant price for services or materials properly appertain- ing to the business of the corporation. (Fox v. Hale & Norcross etc. Min. Co., 108 Cal. 369, 41 Pac. 308.) Liability must be strictly limited to money misappropriated by the officer. (Hercules Oil Co. v. Hocknell, 5 Cal. App. 702, 91 Pac. 341. An action at law on behalf of one or more of the creditors of a corporation cannot be sustained under the provision as to the liability of directors, but the only proper remedy is a bill in equity where all the creditors are parties, or are represented, and in which there can be an accounting after ascertainment of facts. (Winchester v. Mabury, 122 Cal. 522, 55 Pac. 393.) The provision of this section as to the liability of directors and trustees is self-executing. (Winchester v. Howard, 136 Cal. 452, 89 Am. St. Rep. 153, 69 Pac. 77, 64 Pac. 692.) 421 CONSTITUTION OP 1879. Art. XII, § 4 The proper remedy for the enforcement of this provision against directors and trustees is by bill in equity. (Winchester V. Howard, 136 Cal. 432, 89 Am. St. Rep. 153, 69 Pac. 77, 6i Pae. 692.) This provision is not in violation of the federal constitution. (Winchester v. Howard, 136 Cal. 432, 89 Am. St. Eep. 153, 69 Pac. 77, 64 Pac. 692.) An assignee of a depositor in a bank may maintain an action under this section. (Winchester v. Howard, 136 Cal. 432, 89 Am. St. Rep. 153, 69 Pac. 77, 64 Pac. 692.) Depositors who became such after the misappropriation may maintain the action. (Winchester v. Howard, 136 Cal. 432, 89 Am. St. Eep. 153, 69 Pac. 77, 64 Pac. 692.) The claim of the creditor need not be reduced to judgment before an action is brought under this provision. (Winchester V. Howard, 136 Cal. 432, 89 Am. St. Rep. 153, 69 Pac. 77, 64 Pac. 692.) Nor need he make a specific demand for an accounting before bringing the action. (Winchester v. Howard, 136 Cal. 432, 89 Am. St. Rep. 153, 69 Pac. 77, 64 Pac. 692.) When a creditor brings an action under this section on be- half of himself and all other creditors, he becomes a tnistee for them as to any amount recovered or received in settlement. (Niccolls v. Rice, 147 Cal. 633, 82 Pac. 321.) When a creditor brings an action under this section in his own behalf and in behalf of all other creditors who may join with him, he does not become a trustee as to a creditor who never did join. (Niccolls v. Rice, 147 Cal. 633, 82 Pac. 321.) Corporations construed. Sec. 4. The term corporations, as used in this arti- cle, shall be construed to include all associations and joint-stock companies having any of the powers or privi- leges of corporations not possessed by individuals or partnerships; and all corporations shall have the right to sue and shall be subject to be sued, in all courts, in like cases as natural persons. Art. XII, §§ 5, 6 CONSTITUTION OF 1879. 422 Banking prohibited. Sec. 5. The legislature shall have no power to pass any act granting any charter for banking purposes, but corporations or associations may be formed for such purposes under general laws, and the legislature shall provide for the classification of cities and towns by population for the purpose of regulating the business of banking. No corporation, association, or individual shall issue or put in circulation, as money, anything but the lawful money of the United States. (Amendment adopted November 8, 1910.) [ORIGINAL SECTION.] See. 5. The legislature shall have no power to pass any act granting any charter for banking purposes, but corporations or associations may be formed for such purposes under general laws. No corporation, association, or individual shall issue or put in circulation, as money, anything but the lawful money of the United States. BANKING CORPORATIONS. — A corporation may be formed for the purpose of receiving deposits and loaning money, and if it does not issue paper to circulate as money, it is not a bank, although it is called such. (Bank of Sonoma v. Fairbanks, 52 Cal. 196.) Sections 34 and 35, article 4, of the constitution of 1849 did not prohibit the formation of banking corporations for the pur- pose of deposit and loan, which do not issue paper to circulate as money. (Bank of Martinez v. Hemme etc. Land Co., 105 Cal. 376, 38 Pac. 963.) Existing charters, when invalid. Sec. 6. All existing charters, grants, franchises, special or exclusive privileges, under which an actual 423 CONSTITUTION OF 1879. Art. XII, § 7 and bona fide organization shall not have taken place, and business been commenced in good faith, at the time of the adoption of this constitvition, shall thereafter have no validity. Charters not to be extended, nor forfeiture remitted. Sec. 7. The legislature shall not extend any fran- chise or charter, nor remit the forfeiture of any fran- chise or charter of any quasi-public corporation now existing or which shall hereafter exist under the laws of this state. The term of existence of any other cor- poration now or hereafter existing under the laws of this state, may be extended, at any time prior to the expiration of its corporate existence, for a period not exceeding fifty years from the date of such extension, by the vote or written consent of stockholders repre- senting two-thirds of its capital stock or of two-thirds of the members thereof. A certificate of such vote or consent shall be signed and sworn to by the president and secretary, and by a majority of the directors of the corporation and filed and certified in the manner and upon payment of fees required by law for filing and cer- tifying articles of incorporation, and thereupon the term of the corporation shall be extended for the period specified in such certificate, and such corporation shall thereafter pay all annual or other fees required by law to be paid by corporations. (Amendment adopted November 3, 1908.) Art. XII, §§ 8, 9 CONSTITUTION OF 1879. 424 [ORIGINAL SECTION.] Sec. 7. The legislature shall not extend any franchise or charter, nor remit the forfeiture of any franchise or charter of any corporation now existing, or which shall hereafter exist under the laws of this state. CORPORATE FRAFCHISES.— An act waiving a right to enforce a forfeiture does not "remit the forfeiture," since there is no forfeiture until the sovereignty which created the fran- chise, by proper proceeding in a proper court, procure an ad- judication of forfeiture, and enforce it. (People v. Los Angeles etc. Ry. Co., 91 Cal. 338, 27 Pac. 673.) The amendment of 1907 to section 401, Civil Code, allowing corporations to extend the term of their corporate existence not exceeding fifty years from the date of such extension, is in con- flict with this section. (Boca Mill Co. v. Curry, 154 Cal. 326, 97 Pac. 1117.) All franchises subject to the right of eminent domain. Sec. 8. The exercise of the right of eminent domain shall never be so abridged or construed as to prevent the legislature from taking the property and franchises of incorporated companies and subjecting them to pub- lie use the same as the property of individuals, and the exercise of the police power of the state shall never be so abridged or construed as to permit corporations to conduct their business in such a manner as to in- fringe the rights of individuals or the general well-be- ing of the state. Restrictions on powers of corporations. Sec. 9. No corporation shall engage in any business other than that expressly authorized in its charter, or 425 CONSTITUTION OF 1879. Art. XII, § 10 the law under which it may have been or may hereafter be organized ; nor shall it hold for a longer period than five years any real estate except such as may be neces- sary for carrying on its business. CORPORATE PURPOSES. — A corporation is forbidden to en- gage in any business otlier than is expressly authorized in its charter or the law under which it is organized. To hold stock in another corporation is to engage in the business of such cor- poration. (Knowles v. Sandercock, 107 Cal. 629, 643, 40 Pac. 1047.) This section does not cause property held in violation of it to escheat to the state. (People v. Stockton Sav. etc. Soc, 133 Cal. 611, 85 Am. St. Eep. 225, 65 Pac. 1078.) While this provision is mandatory and prohibitory, it is not so self-executing as to deny the power of the legislature to prescribe penalties for its violation. (People v. Stockton etc. Soc, 133 Cal. 611, 85 Am. St. Rep. 225, 65 Pac. 1078.) The mere fact that a bank is forbidden to take an assignment of a certificate of redemption does not invalidate the assignment in favor of a third person. (Youd v. German Sav. & Loan Soc, 3 Cal. App. 706, 86 Pac 991.) Liabilities of franchise tinder lease or grant. Sec. 10. The legislature shall not pass any laws permitting the leasing or alienation of any franchise, so as to relieve the franchise or property held thereunder from the liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use, or enjoyment of such franchise, or any of its privileges. AIjIENATION of franchises.— This section does not give a personal action against the corporation which owned prop- erty for an injury which has resulted to an employee of a lessee of the owner in the use of the property in the hands of the lessee, but is designed to subject the franchise and property to Art. XII, § 11 CONSTITUTION OF 1879. 426 liability incurred in its occupation, whether the franchise be exercised or the property be used by the original owner or the lessee or grantee. (Lee v. Southern Pac. R. R. Co., 116 Cal. 97, 58 Am. St. Rep. 140, 47 Pac. 932, 38 L. R. A. 71.) The transfer of a franchise by a water company is not pro- hibited by this section, which only forbids the transfer of a franchise "so as to relieve the franchise or property held there- under" from liabilities incurred in its operation. Validity of section 361a, Civil Code, upheld. (South Pasadena v. Pasadena Land etc. Co., 152 Cal. 579, 93 Pac. 490.) Corporation stock, restriction on issue of. Sec. 11. No corporation shall issue stock or bonds, except for money paid, labor done, or property actually received, and all fictitious increase of stock or indebted- ness shall be void. The stock and bonded indebtedness of corporations shall not be increased except in pur- suance of general law, nor without the consent of the persons holding the larger amount in value of the stock, at a meeting called for that purpose, giving sixty days' public notice, as may be provided by law. CORPORATE STOCK.— An increase of the capital stock of a corporation and the issuing of additional shares, to be sold at a price less than the nominal par value of the stock, to supply a fund actually required for the use of the corporation, is not a fictitious issuance. (Stein v. Howard, 65 Cal. 616, 4 Pac. 662.) Non-negotiable notes secured by mortgages executed by a cor- poration do not constitute "bonded indebtedness" within the meaning of this section. (Underhill v. Santa Barbara etc. Imp. Co., 93 Cal. 300, 28 Pac. 1049.) This provision is mandatory and not merely directory. (Na- vajo Min. Co. V. Curry, 147 Cal. 581, 109 Am. St. Rep. 176, 82 Pac. 247.) The requirement of sixty days' notice of stockholders' meeting cannot be waived by the stockholders, and the fact that all the 427 CONSTITUTION OF 1879. Art. XII, § 12 stockholders attended and voted for the increase is immaterial. (Navajo Min. Co. v. Curry, 147 Cal. 581, 109 Am. St. Kep. 176, 82 Pac. 247.) It is legitimate for a corporation to dispose of its stock for full value received in land, property or services. (Turner v. Fidelity Loan Concern, 2 Cal. App. 122, 83 Pac. 62.) When a corporation issues stock for property or services, the presumption is that the transaction was fair until the contrary is shown. (Turner v. Fidelity Loan Concern, 2 Cal. App. 122, 83 Pac. 62.) The issue of stock as fully paid up to the stockholders of a corporation formed to take over partnership assets and hold the same as trustee for the stockholders is not unlawful. (Baldwin V. Miller & Lux, 152 Cal. 454, 92 Pac. 1030.) The procedure provided by the constitution for an increase of the bonded indebtedness of a corporation is not applicable to the original creation of a bonded debt. (Merced Eiver Elec- tric Co. v. Curry, 157 Cal. 727, 109 Pac. 264.) Election of directors — Cumulative or distributive votes. Sec. 12. In all elections for directors or managers of corporations every stockholder shall have the right to vote, in person or by proxy, the number of shares of stock owned by him for as many persons as there are directors or managers to be elected, or to cumulate said shares and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them, on the same principle, among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other manner, except that members of co-operative societies formed for agricultural, mer- cantile, and manufacturing purposes, may vote on all Art. XII, §§ 13, 14 CONSTITUTION OF 1879. 428 questions affecting such societies in manner prescribed by law. DIRECTOHS. — Under this section all the directors must be elected on one ballot. (Wright v. Central etc. Water Co., 67 Cal. 532, 8 Pac. 70.) State not to loan its credit nor subscribe to stock of corporations. Sec. 13. The state shall not in any manner loan its credit, nor shall it subscribe to, or be interested in the stock of any company, association, or corporation. STATE CREDIT.— This section prohibits the loaning of public credit for private purposes under any circumstances. (Stockton etc. R. R, Co. V. Stockton, 41 Cal. 147; Ramsey v. Hoeger, 76 111. 432.) It does not prohibit the appropriation of public funds to aid a corporation in the construction of a railroad to be used for military purposes. (People v. Pacheco, 27 Cal. 175.) Corporations to have office for transaction of business in stocks. Sec. 14. Every corporation other than religious, educational, or benevolent, organized or doing business in this state, shall have and maintain an office or place in this state for the transaction of its business, where transfers of stock shall be made, and in which shall be kept, for inspection by every person having an interest therein, and legislative committees, books in which shall be recorded the amount of capital stock subscribed, and by whom; the names of the owners of its stock, and the 429 CONSTITUTION OF 1879. Art. XII, § 15 amounts owned by them respectively; the amount of stock paid in, and by whom ; the transfers of stock ; the amount of its assets and liabilities, and the names and place of residence of its officers. CORPORATION BOOKS. — A stockholder in a corporation has the right to inspect the books, records and journals of the cor- poration, and this right may be enforced by mandamus. The purpose for which the inspection is desired is immaterial. (John- son V. Langdon, 135 Cal. 624, 87 Am. St. Eep. 156, 67 Pac. 1050.) Mandamus will lie to compel an inspection of corporate books, records and journals. (Gavin v. Pacific Coast M. F. Union, 2 Cal. App. 638, 84 Pac. 270.) A corporation seeking to avoid the right of a stockholder to an inspection on the ground that it is a benevolent or charitable corporation has the burden of showing that it is such a corpora- tion. (Gavin v. Pacific Coast M. F. Union, 2 Cal. App. 638, 84 Pac. 270.) Foreign corporations, conditions. Sec. 15. No corporation organized outside the limits of this state shall be allowed to transact business within this state on more favorable conditions than are pre- scribed by law to similar corporations organized under the laws of this state. FOREIGN CORPORATIONS.— The act of 1880, providing for a penalty for failure of the directors of a domestic mining cor- poration to post weekly reports, etc., is not in violation of this section, and does not relate to the business of the corporation. (Miles V. Woodward, 115 Cal. 308, 46 Pac. 1076.) This section was not designed to limit the powers of the legis- lature when dealing with the organization and government of corporations which are created by its own will and act. (Miles V. Woodward, 115 Cal. 308, 46 Pac. 1070.) The act of 1876, requiring banking corporations to publish and file statements of their assets and liabilities, applies to Art. XII, § 16 CONSTITUTION OF 1879. 430 foreign corporations. (Bank of British North America v. Madi- son, 99 Cal. 125, 133, 33 Pae. 7G2.) As to whether by reason of this section, foreign corporations must comply with section 299 of the Civil Code, query. (Anglo- Calif ornian Bank v. Field, 146 Cal. 644, 80 Pac. 1080.) The sale of a parcel of real estate by a foreign corporation of similar character and purpose to corporations formed under section 593 of the Civil Code, being merely incidental to the main purposes of incorporation, is not the transacting of business, forbidden to foreign corporations on more favorable conditions than are prescribed for domestic corporations. (Conference Free Baptists v. Berkey, 156 Cal. 466, 105 Pac. 411.) This section is not violated by the corporation license tax act of March 29, 1905, as the conditions prescribed upon which cor- porations are allowed to transact business within this state are absolutely the same as to both domestic and foreign corpora- tions. (Kaiser Land & Fruit Co. v. Curry, 155 Cal. 638, 103 Pac. 341.) Corporations, where to be sued. Sec. 16. A corporation or association may be sued in the county where the contract is made or is to be per- formed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases. ACTIONS AGAINST CORPORATIONS.— This section is merelv permissive, and not mandatory. (Fresno Nat. Bank v. Superior Court, 83 Cal. 491, 24 Pac. 157.) It applies to actions of tort as well as matters of contract. (Lewis V. Southern Pac. R. E. Co., 66 Cal. 209, 5 Pac. 79; Tingley V. Times-Mirror Co., 144 Cal. 205, 77 Pac. 918.) It gives to the plaintiff the right to elect either to sue the corporation in the county where the contract is made, or is to be performed, or where the obligation or liability arises, or the breach occurs, or in the county where the principal place 431 CONSTiTUTiON OF 1879. Art. XII, § 16 of business of the corporation is situated. (Trezevant v. Strong Co., 102 Cal. 47, 36 Pac. 395.) An action to recover damages for trespass upon real prop- erty may be brought in the county of the principal place of the corporation defendant. (Miller & Lux v. Kern County Land Co., 134 Cal. 586, 66 Pac. 856.) An action may be commenced against a corporation in the county where the contract was made, or where it was to be per- formed. (Bank of Yolo v. Sperry Flour Co., 141 Cal. 314, 65 L. R. A. 90', 74 Pac. 855.) The right to sue a corporation in the county where the con- tract was made only applies when the corporation is the sole defendant in the case. (Griffin etc. Co. v. Magnolia etc. Co., 107 Cal. 378, 40 Pac. 495.) An associa.tion of persons organized for a particular purpose, although not formerly a corporation, is included in this section. The word "association" does not necessarily mean an associa- tion possessing corporate powers and privileges. (Kendrick v. Diamond etc. Min. Co., 94 Cal. 137, 29 Pac. 324.) Under this section an action for libel may be maintained in the county in which the plaintiff resides, when the newspaper is circulated in that county but published in another. (Brady V. Times-Mirror Co., 106 Cal. 56, 39 Pac. 209; Tingley v. Times- Mirror Co., 144 Cal. 205, 77 Pac. 918.) But where the plaintiff sues other persons than the corpora- tion publishing the paper, he waives the provisions of this sec- tion. (Brady v. Times-Mirror Co., 106 Cal. 56, 39 Pac. 209.) An action against a corporation for leave to redeem real es- tate is properly brought in the county where the real property is situated. (Baker v. Fireman's Fund Ins. Co., 73 Cal. 182, 14 Pac. 686.) In an action against a corporation for damages for breach of contract, the defendant is entitled to a change of place of trial to the county in which its principal place of business is situated, when the county in which the action is brought is not the one in which the contract was made, or was to be performed, or in which the obligation arose, or in which the princijial place of business is situated. (Cohn v. Central Pac. K. R. Co., 71 Cal. 488, 12 Pac. 498.) If this provision should be construed as denying a corporation the right to a change of venue in cases in which a natural per- Art. XII, § 17 CONSTITUTION OF 1879. 432 son is given such right, it would be in violation of the fourteenth amendment to the constitution of the United States. (Grocers' etc. Union v. Kern etc. Co., 150 Cal. 466, 89 Pac. 120.) When it cannot be said from the facts set forth in the com- plaint that the contract involved was made, or was to be per- formed, or that the liability arose or breach occurred in the county where the action was commenced, the corporation is en- titled to a change of venue to the county of its principal place of business. (Krogh v. Pacific Gateway etc. Co., 11 Cal. App. 237, 104 Pac. 698.) When an act of negligence is committed by a corporation, the action may be brought in the county where committed. (Pittman v. Carstenbrook, 11 Cal. App. 224, 104 Pac. 699.) When an action is brought against a foreign corporation and individuals, the action may be transferred to the county of the residence of individuals, although the corporation did not join in the motion for a change of venue. (Pittman v. Carstenbrook, 11 Cal. App. 224, 104 Pac. 699.) A corporation has an absolute right to have an action re- moved to its place of residence, (Eddy v. Houghton, 6 Cal. App. 85, &1 Pac. 397.) This section only applies to domestic corporations, and has no application to foreign corporations. (Waechter v. Atchison etc. Ey. Co., 10 Cal. App. 70, 101 Pac. 41.) Transportation companies, rights and liabilities of. Sec. 17. All railroad, canal, and other transporta- tion companies are declared to be common carriers, and subject to legislative control. Any association or cor- poration, organized for the purpose, under the laws of this state, shall have the right to connect at the state line with railroads of other states. Every railroad company shall have the right with its road to intersect, connect with or cross any other railroad, and shall receive and transport each the other's passengers, tonnage, and cars, without delay or discrimination. 433 CONSTITUTION OF 1879. Art. XII, § 18 EAILItOADS. — The legislature may regulate railroad cross- ings. (Pittsburgh etc, E. E. Co. v. Southwest etc. By. Co., 77 Pa. 173.) It may require railroad companies to ring a bell or sound a whistle at a crossing. (Galena R. R. Co. v. Appleby, 28 111. 283; Galena E. E. Co. v. Loomis, 13 111. 548, 56 Am. Dec. 471.) It may regulate the speed of trains in a city. (Chicago etc. E. R. Co. V. Haggerty, 67 111. 113.) It may require them to erect fences and cattle-guards. (Suy- dam V. Moore, 8 Barb. 358; Waldron v. Eailroad Co., 8 Barb. 390; New Albany etc. Co. v. Tilton, 12 Ind. 3, 74 Am. Dec. 195; Madison etc. E. E. Co. v. Whiteneck, 8 Ind. 217; Ohio etc. E. E. Co. V. McClelland, 25 111. 140; Kansas etc. E. E. Co. v. Mower, 16 Kan. 573; Jones v. G. etc. E. R. Co., 16 Iowa, 6; Indianapolis R. R. Co. V. Kercheval, 16 Ind. 84; Nichols v. Somerset etc. R. R. Co., 43 Me. 356; Winona etc. E. R. Co. v. Waldron, 11 Minn. 515, 83 Am. Dec. 100; Gorman v. Pacific R. R. Co., 26 Mo. 441, 72 Am. Dec. 220; Blair v. M. etc. R. R. Co., 20 Wis. 254; Pennsyl- vania R. E. Co. V. Eiblet, 66 Pa. 164, 5 Am. Eep. 360.) A railroad company can be compelled to exercise its assumed duties and powers. (Madera Ey. Co. v. Eaymond Granite Co., 3 Cal. App. 668, 87 Pac. 27.) This provision is not self -executing in the sense of authorizing the taking of land by a railroad corporation, regardless of its charter powers and of the statute providing for condemnation. (Boca etc. E, E. v. Sierra Valleys E. E., 2 Cal. App. 546, 84 Pac. 298.) Officers of corporations, restriction as to interests. Sec. 18. No president, director, officer, agent, or employee of any railroad or canal company shall be interested, directly or indirectly, in the furnishing of material or supplies to such company, nor in the busi- ness of transportation as a common carrier of freight or passengers over the works owned, leased, controlled, or worked by such company, except such interest in the Constitution — 28 Art. XII, §§ 19, 20 CONSTITUTION OP 1879. 434 business of transportation as lawfully flows from the ownership of stock therein. Free passes on railroads prohibited to state officials. Sec. 19. No railroad or other transportation com- pany shall grant free passes, or passes or tickets at a dis- count, to any person holding any office of honor, trust, or profit in this state; and the acceptance of any such pass or ticket, by a member of the legislature or any public officer, other than railroad commissioner, shall work a forfeiture of his office. RAILROAD PASSES.— As to the nature of a proceeding to re- move an officer for accepting a railroad pass, see People v. Su- perior Court, 114 Cal. 466, 46 Pac. 383. Fares and freights to be regulated by government. Sec. 20. No railroad or other transportation com- pany shall raise any rate of charge for the transporta- tion of freight or passengers or any charge connected therewith or incidental thereto, under any circum- stances whatsoever, except upon a showing before the railroad commission provided for in this constitution, that such increase is justified, and the decision of the said commission upon the showing so made shall not be subject to review by any court except upon the question whether such decision of the commission will result in confiscation of property. (Amendment approved Octo- ber 10, 1911.) 435 CONSTITUTION OF 1879. Art. XII, § 21 [OEIGINAL SECTION".] Sec. 20. No railroad company or other common carrier shall combine or make any contract with the owners of any vessel that leaves port or makes port in this state, or with any com- mon carrier, by which combination or contract the earnings of one doing the carrying are to be shared by the other not doing the carrying. And whenever a railroad corporation shall, for the purpose of competing with any other common carrier, lower its rates for transportation of passengers or freight from one point to another, such reduced rates shall not be again raised or increased from such standard without the consent of the gov- ernmental authority in which shall be vested the power to regu- late fares and freights. COMPETITION. — Where a railroad company lowers its pas- senger rates in order to compete with another road, and after- ward raises them without the consent of the railroad commis- sioners, such commissioners have no jurisdiction to require a restoration of the lower rate. (Edson v. Southern Pac. Co., 133 Cal. 25, 65 Pac. 15.) The object of this provision was to foster legitimate competi- tion by preventing destructive competition. (Edson v. South- ern Pacific E. E. Co., 14.4 Cal. 182, 77 Pac. 894.) Eates are not lowered for the purpose of competing with any other common carrier within the meaning of this section, when they are merely lowered in self-defense to meet a lower de- structive rate first inaugurated by a rival railroad company. (Edson V. Southern Pacific E. E. Co., 144 Cal. 182, 77 Pac. 894.) A railroad lowers its rates within the meaning of this sec- tion by establishing limited tickets at reduced rates which are used by ninety-five per cent of its passengers, although no stop- over privileges are given and liability for baggage is limited, and unlimited tickets are still kept on sale. (Edson v. South- ern Pacific E. E. Co., 144 Cal. 182, 77 Pac. 894.) Discrimination in charges by carriers forbidden. Sec. 21. No discrimination in charges or facilities for transportation shall be made by any railroad or other Art. XII, § 21 CONSTITUTION OP 1879. 436 transportation company between places or persons, or in the facilities for the transportation of the same classes of freight or passengers within this state. It shall be unlawful for any railroad or other transportation com- pany to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property for a shorter than for a longer distance over the same line or route in the same direc- tion, the shorter being included within the longer dis- tance, or to charge any greater compensation as a through rate than the aggregate of the intermediate rates. Provided, however, that upon application to the railroad commission provided for in this constitution such company may, in special cases, after investigation, be authorized by such commission to charge less for longer than for shorter distances for the transportation of persons or property and the railroad commission may from time to time prescribe the extent to which such company may be relieved from the prohibition to charge less for the longer than for the shorter haul. The railroad commission shall have power to authorize the issuance of excursion and commutation tickets at special rates. Nothing herein contained shall be con- strued to prevent the railroad commission from ordering and compelling any railroad or other transportation company to make reparation to any shipper on account of the rates charged to said shipper being excessive or discriminatory, provided no discrimination will result 437 CONSTITUTION OF 1879. Art. XII, § 22 from such reparation. (Amendment approved October 10, 1911.) [ORIGINAL SECTION.] Sec. 21. No discrimination in charges or facilities for transportation shall be made by any railroad or other transpor- tation company between places or persons, or in the facilities for the transportation of the same classes of freight or passen- gers within this state, or coming from or going to any other state. Persons and property transported over any railroad, or by any other transportation company or individual, shall be delivered at any station, landing, or port, at charges not ex- ceeding the charges for the transportation of persons and prop- erty of the same class, in the same direction, to any more dis- tant station, port, or landing. Excursion and commutatioo tickets may be issued at special rates. FREIGHTS AND FARES.— The provision of this section as to excursion or commutation tickets is not intended to modify section 20 of this article; but is simply a qualification of the preceding clause of this section. (Edson v. Southern Pacific E. R. Co., 144 Cal. 182, 77 Pac. 891.) Railroad commission, or^nization of. Sec. 22. There is hereby created a railroad commis- sion which shall consist of five members and which shall be known as the railroad commission of the state of California. The commission shall be appointed by the governor from the state at large; provided, that the legislature, in its discretion, may divide the state into districts for the purpose of such appointments, said dis- tricts to be as nearly equal in population as practica- ble; and provided further that the three commissioners Art. XII, § 22 CONSTITUTION OF 1879. 438 in office at the time this section takes effect shall serve out the term for which they were elected, and that two additional commissioners shall be appointed by the gov- ernor immediately after the adoption of this section, to hold office during the same term. Upon the expiration of said term, the term of office of each commissioner thereafter shall be six years, except the commissioners first appointed hereunder after such expiration, one of whom shall be appointed to hold office until January 1, 1917, two until January 1, 1919, and two until January 1, 1921. Whenever a vacancy in the office of commis- sioner shall occur, the governor shall forthwith appoint a qualified person to fill the same for the unexpired term. Commissioners appointed for regular terms shall, at the beginning of the term for which they are ap- pointed and those appointed to fill vacancies, shall, im- mediately upon their appointment, enter upon the du- ties of their offices. The legislature shall fix the salaries of the commissioners, but pending such action the sal- aries of the commissioners, their officers and employees shall remain as now fixed by law. The legislature shall have the power, by a two-thirds vote of all members elected to each house, to remove any one or more of said commissioners from office for dereliction of duty or corruption or incompetency. All of said commissioners shall be qualified electors of this state, and no person in the employ of or holding any official relation to any person, firm or corporation, which said person, firm or 439 CONSTITUTION OP 1879. Art. Xll, § 22 corporation is subject to regulation by said railroad com- mission and no person owning stock or bonds of any such corporation or who is in any manner pecuniarily interested therein, shall be appointed to or hold the office of railroad commissioner. No vacancy in the com- mission shall impair the right of the remaining commis- sioners to exercise all the powers of the commission. The act of a majority of the commissioners when in ses- sion as a board shall be deemed to be the act of the com- mission; but any investigation, inquiry or hearing which the commission has power to undertake or to hold may be undertaken or held by or before any commis- sioner designated for the purpose by the commission, and every order made by a commissioner so desig- nated, pursuant to such inquiry, investigation or hear- ing, when approved or confirmed by the commission ordered filed in its office, shall be deemed to be the order of the commission. Said commission shall have the power to establish rates of charges for the transportation of passengers and freight by railroads and other transportation companies, and no railroad or other transportation company shall charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or freight, or for any service in connection therewith, between the poijits named in any tariff of rates, established by said commission, than the rates, fares and charges which are specified in such tariff. Art. XII, § 22 CONSTITUTION OF 1879. 440 The commission shall have the further power to examine books, records and papers of all railroad and other transportation companies; to hear and determine com- plaints against railroad and other transportation com- panies ; to issue subpoenas and all necessary process and send for persons and papers ; and the commission and each of the commissioners shall have the power to ad- minister oaths, take testimony and punish for contempt in the same manner and to the same extent as courts of record ; the commission may prescribe a uniform system of accounts to be kept by all railroad and other trans- portation companies. No provision of this constitution shall be construed as a limitation upon the authority of the legislature to con- fer upon the railroad commission additional powers of the same kind or different from those conferred herein which are not inconsistent with the powers conferred upon the railroad commission in this constitution, and the authority of the legislature to confer such additional powers is expressly declared to be plenary and unlimited by any provision of this constitution. The provisions of this section shall not be construed to repeal in whole or in part any existing law not incon- sistent herewith, and the "Railroad Commission Act" of this state approved February 10, 1911, shall be con- strued with reference to this constitutional provision and any other constitutional provision becoming opera- tive concurrently herewith. And the said act shall have 441 CONSTITUTION OF 1879, Art. XII, § 22 the same force and effect as if the same had been passed after the adoption of this provision of the constitution and of all other provisions adopted concurrently here- with, except that the three commissioners referred to in said act shall be held and construed to be the five com- missioners provided for herein. (Amendment ap- proved October 10, 1911.) [OKIGINAL SECTION.] Sec. 22. The state shall be divided into three districts as nearly equal in population as practicable, in each of which one railroad commissioner shall be elected by the qualified electors thereof at the regular gubernatorial elections, whose salary shall be fixed by law, and whose terra of office shall be four years, commencing on the first Monday after the first day of January next succeeding their election. Said commissioners shall be qualified electors of this state and of the district from which they are elected, and shall not be interested in any rail- road corporation, or other transportation company, as stock- holder, creditor, agent, attorney or employee; and the act of a majority of said commissioners shall be deemed the act of said commission. Said commissioners shall have the power, and it shall be their duty, to establish rates of charges for the transportation of passengers and freight by railroad or other transportation companies, and publish the same from time to time, with such changes as they may make; to examine the books, records, and papers of all railroad and other transporta- tion companies, and for this purpose they shall have power to issue subpoenas and all other necessary process; to hear and determine complaints against railroad and other transportation companies, to send for persons and papers, to administer oaths, take testimony, and punish for contempt of their orders and Art. XII, § 22 CONSTITUTION OP 1879. 412 processes, in the same manner and to the same extent as courts of record, and enforce their decisions and correct abuses through the medium of the courts. Said commissioners shall prescribe a uniform system of accounts to be kept by all such corpora- tions and companies. Any railroad corporation or transporta- tion company which shall fail or refuse to conform to such rates as shall be established by such commissioners, or shall charge rates in excess thereof, or shall fail to keep their ac- counts in accordance with the system prescribed by the com- mission, shall be fined not exceeding twenty thousand dollars for each offense, and every officer, agent, or employee of any such corporation or company, who shall demand or receive rates in excess thereof, or who shall in any manner violate the pro- visions of this section, shall be fined not exceeding five thou- sand dollars, or be imprisoned in the county jail not exceeding one year. In all controversies, civil or criminal, the rates of fares and freights established by said commission shall be deemed conclusively just and reasonable, and in any action against such corporation or company for damages sustained by charging excessive rates, the plaintiff, in addition to the actual damage, may, in the discretion of the judge or jury, recover exemplary damages. Said commission shall report to the gov- ernor, annually, their proceedings, and such other facts as may be deemed important. Nothing in this section shall prevent individuals from maintaining actions against any of such com- panies. The legislature may, in addition to any penalties herein prescribed, enforce this article by forfeiture of charter or other- wise, and may confer such further powers on the commissioners as shall be necessary to enable them to perform the duties en- joined on them in this and the foregoing section. The legisla- ture shall have power, by a two-thirds vote of all the members elected to each house, to remove any one or more of said com- missioners from ofiS.ce, for dereliction of duty, or corruption, or Art. XII, Sec. 23. Insert at Page 443. Sec. 23. Every private corporation, and every in- dividual or association of individuals, owning, operat- ing, managing, or controlling any commercial rail- road, interurban railroad, street railroad, canal, pipe line, plant, or equipment, or any part of such railroad, canal, pipe line, plant or equipment within this state, for the transportation or conveyance of passengers, or express matter, or freight of any kind, including crude oil, or for the transmission of telephone or tele- graph messages, or for the production, generation, transmission, delivery or furnishing of heat, light, water or power or for the furnishing of storage or wharfage facilities, either directly or indirectly, to or for the public, and every common carrier, is hereby declared to l)e a public utility subject to such control and regulation by the railroad commission as may be provided by the legislature, and every class of private corporations, individuals, or associations of individuals hereafter declared by the legislature to be public utilities shall likewise be subject to such control and regulation. The railroad commission shall have and exercise such power and jurisdiction to supervise and regulate public utilities, in the State of California, and to fix the rates to be charged for commodities furnished, oi- services rendered by pul)lic utilities as shall be conferred upon it by the legislature, and the right of the legislature to confer powers upon the railroad commission respecting public utitlities is hereby declared to be plenary and to l)e unlimited by any provision of this Constitution. From and after the passage l)y the legislature of laws conferring powers upon the railroad commission respecting pub- lic utilities, all powers respecting such public utilities vested in boards of supervisors, or municipal councils, or other governing bodies of the several counties, cities and counties, cities and towns, in this state, or in any commission created by law and existing at the time of the passage of such laws, shall cease so far as such powers shall conflict with the powers so conferred upon the railroad commission ; provided, however, that this section shall not affect such powers of control over public utilities as relate to the making and en- forcement of local, police, sanitary and other regu- lations, other than the fixing of rates, vested in any city and county or incorporated city or town as, at an election to be held pursuant to law, a majority of the qualified electors of such city and county, or in- corporated city or town, voting thereon, shall vote to retain, and until such election such powers shall continue unimpaired; but if the vote so taken shall not favor the continuation of such powers they shall thereafter vest in the railroad commission as pro- vided by law; and provided, further, that where any such city and county or incorporated city or town shall have elected to continue any of its powers to make and enforce such local, police, sanitary and other regulations, other than the fixing of rates, it may, by vote of a majority of its qualified electors voting thereon, thereafter surrender such powers to the rail- road commission in the manner prescribed by the legislature; and provided, further, that this section shall not affect the right of any city and county or incorporated city or town to grant franchises for pub- lie utilities upon the terms and conditions and in the manner prescribed by law. Nothing in this section shall be construed as a limitation upon any power conferred upon the railroad commission by any pro- vision of this Constitution now existing or adopted concurrently herewith. (Amendment adopted Novem- ber 3, 1914.) 443 CONSTITUTION OF 1879. Art. XII, § 23 incompetency; and whenever, from any cause, a vacancy in office shall occur in said commission, the governor shall fill the same by the appointment of a qualified person thereto, who shall hold office for the residue of the unexpired term, and until his successor shall have been elected and qualified. RAILROAD COMMISSIONERS.— This section should be con- strued to extend the supervision of the commission to all per- sons engaged in the business of transportation, whether as cor- porations, joint-stock companies, partnerships, or individuals. (Moran v. Eoss, 79 Cal. 159, 21 Pac. 547.) This section did not repeal section 490 of the Civil Code, al- though that section refers to section 489 of the same code, which was superseded by this section. (Robinson v. Southern Pac. B. R. Co., 105 Cal. 526, 38 Pac. 94, 722, 28 L. R. A. 773.) A statute may authorize tne appointment of commissioners to determine the duties and obligations of railroad companies. (Portland R. E. Co. v. Railway Co., 46 Me. 69.) The commission has no jurisdiction over a street railroad cor- poration operated in a municipality. (Board of Railroad Commrs. v. Market St. Ry. Co., 132 Cal. 677, 64 Pac. 1065.) The commission has no jurisdiction, upon a complaint that a railroad company lowered its passenger rates in order to com- pete with another road, and afterward raised them without the consent of the commission, to require a restoration of the lower rate. (Edson v. Southern Pac. Co., 133 Cal. 25^ 65 Pac. 15.) Railroad commission, regulation of public utilities. Sec. 23. Every private corporation, and every indi- vidual or association of individuals, owning, operating, managing or controlling any commercial railroad, inter- urban railroad, street railroad, canal, pipe-line, plant, or equipment, or any part of such railroad, canal, pipe- line, plant or equipment within this state, for the trans- portation or conveyance of passengers, or express mat- Art. XII, § 23 CONSTITUTION OF 1879. 444 tor, or freight of any kind, including crude oil, or for the transmission of telephone or telegraph messages, or for the production, generation, transmission, delivery or furnishing of heat, light, water or power or for the fur- nishing of storage or wharfage facilities, either directly or indirectly, to or for the public, and every common car- rier, is hereby declared to be a public utility subject to such control and regulation by the railroad commission as may be provided by the legislature, and every class of private corporations, individuals, or associations of indi- viduals hereafter declared by the legislature to be public utilities shall likewise be subject to such control and regulation. The railroad commission shall have and ex- ercise such power and jurisdiction to supervise and regulate public utilities, in the state of California, and to fix the rates to be charged for commodities furnished, or services rendered by public utilities as shall be con- ferred upon it by the legislature, and the right of the legislature to confer powers upon the railroad commis- sion respecting public utilities is hereby declared to be plenary and to be unlimited by any provision of this constitution. From and after the passage by the legislature of laws conferring powers upon the railroad commission respect- ing public utilities, all powers respecting such public utilities vested in boards of supervisors, or municipal councils, or other governing bodies of the several coun- ties, cities and counties, cities and towns, in this state, or 445 CONSTITUTION OP 1879. Art. XII, § 23 in any commission created by law and existing at the time of the passage of such laws, shall cease so far as such powers shall conflict with the powers so conferred upon the railroad commission; provided, however, that this section shall not affect such powers of control over any public utility vested in any city and county, or in- corporated city or town as, at an election to be held pur- suant to laws to be passed hereafter by the legislature, a majority of the qualified electors voting thereon of such city and county, or incorporated city or town, shall vote to retain, and until such election such powers shall con- tinue Unimpaired ; but if the vote so taken shall not favor the continuation of such powers they shall there- after vest in the railroad commission as provided by law; and provided, further that where any such city and county or incorporated city or town shall have elected to continue any powers respecting public utili- ties, it may, by vote of a majority of its qualified electors voting thereon, thereafter surrender such powers to the railroad commission in the manner to be prescribed by the legislature; or if such municipal corporation shall have surrendered any powers to the railroad commission, it may, by like vote, thereafter reinvest itself with such power. Nothing in this section shall be construed as a limitation upon any power conferred upon the railroad commission by any provision of this constitution now existing or adopted concurrently herewith. (Amend- ment approved October 10, 1911.) Art. XII, § 24 CONSTITUTION OP 1879. 446 [OEIGINAL SECTION.] Sec. 23. Until the legislature shall district the state, the following shall be the railroad districts: The first district shall be composed of the counties of Alpine, Amador, Butte, Cala- veras, Colusa, Del Norte, El Dorado, Humboldt, Lake, Ijassen, Mendocino, Modoc, Napa, Nevada, Placer, Plumas, Sacramento, Shasta, Sierra, Siskiyou, Solano, Sonoma, Sutter, Tehama, Trinity, Yolo, and Yuba, from which one railroad commissioner shall be elected. The second district shall be composed of the counties of Marin, San Francisco, and San Mateo, from which one railroad commissioner shall be elected. The third district shall be composed of the counties of Alameda, Contra Costa, Fresno, Inyo, Kern, Los Angeles, Mariposa, Merced, Mono, Monterey, San Benito, San Bernardino, San Diego, San Joaquin, San Luis Obispo, Santa Barbara, Santa Clara, Santa Cruz, Stanislaus, Tulare, Tuolumne, and Ventura, from which one railroad commissioner shall be elected. Legislature to pass laws to enforce this article. Sec. 24. The legislature shall pass all laws necessary for the enforcement of the provisions of this article. Art. XII, Sec. 23a. Insert at Page 446. Sec. 23a. The railroad commission shall have and exercise such power and jurisdiction as shall be con- ferred upon it by the legislature to fix the just com- pensation to be paid for the taking of any property of a public utility in eminent domain proceedings by the state or any county, city and county, incorporated city or town, or municipal water district, and the right of the legislature to confer such powers upon the railroad commission is hereby declared to be plenary and to be unlimited by any provision of this constitution. All acts of the legislature heretofore adopted, which are in accordance herewith, are hereby confirmed and declared valid. (New section added by amendment adopted November 3', 1914.) Art. XIII, Sec. 1. Insert at Page 447. Section 1. All property in the state except as other- wise in this Constitution provided, not exempt under the laws of the United States, shall be taxed in pro- portion to its value, to be ascertained as provided by law, or as hereinafter provided. The word "prop- erty," as used in this article and section, is hereby declared to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal, and mixed, capable of private ownership; provided, that a mortgage, deed of trust, contract, or other obligation by which a debt is secured when land is pledged as security for the payment thereof, to- gether with the money represented by such debt, shall not be considered property subject to taxation; and further provided, that property used for free public libraries and free museums, growing crops, property used exclusively for public schools, and such as may belong to the United States, this state, or to any county, city and county, or municipal corporation within this state shall be exempt from taxation, ex- cept such lands and the improvements thereon located outside of the county, city and county or municipal corporation owning the same as were subject to taxa- tion at the time of the acquisition of the same by said (ounty, city and county or municipal corporation; provided, that no improvements of any character what- ever constructed by any county, city and county or nnmicipal corporation shall be subject to taxation. All lands or improvements thereon, belonging to any county, city and county or municipal corporation, not exempt from taxation, shall be assessed by the as- sessor of the county, city and county or municipal corporation in which said lands or improvements are located, and said assessment shall be subject to review, equalization and adjustment by the state board of equalization. The legislature may provide, except in the case of credits secured by mortgage or trust deed, for a deduction from credits of debts due to bona fide residents of this state. (Amendment adopted November 3, 1914.) 447 CONSTITUTION OF 1879. Art. XIII, § 1 ARTICLE XIII. EEVENUE AND TAXATION, § 1. Taxation to be in proportion to value. United States army, navy, marine and revenue service. Churches exempt from taxation. Bonds of state and municipalities exempt from taxation. Land and improvements to be separately assessed. Sectionized and unsectionized land, how assessed. Securities, taxable. Contract of borrower to pay tax on loan void. Power of taxation cannot be surrendered. Payment of taxes by installments. Annual statement of property to be given. State board of equalization. Property, where assessed. Personal property to extent of $100 exempt. Income taxes. Poll tax. Young trees and vines exempt from taxation. Laws to be passed by legislature. Taxation for state purposes. Taxation to be in proportion to value. Section 1. All property in the state except as other- wise in this constitution provided, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law, or as hereinafter provided. The woVd "property," as used in this article and section, is hereby declared to include § u § If § If § 2. § 3, § 4. § 5. § 6. § 7. •s 8. § 9. § 10. § lOi, § XL § 12. § 12i § 13. § 14. Art. XIII, § 1 CONSTITUTION OF 1879. 448 moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal, and mixed, capable of private ownership ; provided, th at a mort - gage, deed of trust, contract, or other obligati on b y which a debt is secured when land is pledged as security for the payment thereof, together witli the money rep - rrt-cnted by such debt, shall not be f()iisi(l('red__prape£j;y subject to taxation; and further provided, that prop- erty used for free public libraries and free museums, growing crops, property used exclusively for public schools, and such as may belong to the United States, this state, or to any county or municipal corporation within this state shall be exempt from taxation. The legislature may provide, except in the case of credits secured by mortgage or trust deed, for a deduction from credits of debts due to bona fide residents of this state. (Amendment adopted November 8, 1910.) [AMENDMENT OF 1894.] Section 1. All property in the state, not exempt under the laws of the United States shall be taxed in proportion to its value, to be ascertained as provided by law. The word "prop- erty," as used in this article and section, is hereby declared to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal, and mixed, capable of private ownership; provided that property used for free public libraries and free museums, growing crops, property used ex- clusively for public schools, and such as may belong to the United States, this state, or to any county or municipal cor- poration within this state, shall be exempt from taxation. The 449 CONSTITUTION OF 1879. Art. XITI, § 1 legislature may provide, except in case of credits secured by- mortgage or trust deed, for a deduction from credits of debts due to bona fide residents of tiiis state. (Amendment adopted November 6, 1894.) [ORIGINAL SECTION.] Section 1. All property in the state, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law. The word "prop- erty," as used in this article and section, is hereby declared to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal, and mixed, capable of private ownership; provided, that growing crops, property used exclusively for public schools, and such as may belong to the United States, this state, or to any county or municipal corporation within this state, shall be exempt from taxation. The legislature may provide, except in the case of credits se- cured by mortgage or trust deed, for a deduction from credits of debts due to bona fide residents of this state. TAXATION — Wliat is. — The provisions of this article are limitations upon the power of the legislature, and are mandatory. (People V. McCreery, 34 Cal. 432; People v. Gerke, 35 Cal. 677.) This section is not self-executing, but merely fixes the lia- bility of property to taxation, and the standard upon which it is based, but confides the duty of prescribing the machinery by which to ascertain the value to the legislature. (McHenry v. Downer, 116 Cal. 20, 47 Pac. 779, 45 L. R. A. 737; De Witt v. Hays, 2 Cal. 463, 56 Am. Dec. 352.) To make an outlying school district a part of a city high school district to the extent of making it liable for taxes im- posed by the municipality of which it was not a part and in the election of whose taxing officers it had no voice, would violate the cardinal rule that there shall be no taxation without representation. (Mooney v. Supervisors, 2 Cal. App. 65, 83 Pac. 165.) Constitution — 29 Art. XIII, § 1 CONSTITUTION OF 1879. 450 It is a cardinal principle that there shall be no taxation with- out representation. (Mooney v. Supervisors, 2 Cal. App. 65, 83 Pac. 165.) The power of the legislature in the matter of taxation is un- limited, except as restricted by constitutional provisions, and extends to proceedings for assessments for local improvements upon any basis of apportionment which the legislature may select; and the apportionment does not depend upon any special benefit to the taxpayer. (In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. Kep. 106,''28 Pac. 272, 675, 14 L. E. A. 755.) The provisions of this article have no application to assess- ments for local improvements. (Turlock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379.) This provision only applies to direct taxation on property as such. (People v. Coleman, 4 Cal. 46, 60 Am. Dec. 581.) The taxing power is an incident of sovereignty, the exercise of which belongs exclusively to every state, and attaches alike upon everything which comes within its jurisdiction. (People V. Coleman, 4 Cal. 46, 60 Am. Dec. 581.) A tax is a charge upon persons or property, to raise money for public purposes. It is not founded upon contract and does not establish the relation of debtor and creditor, between the taxpayer and the state. (Perry v. Washburn, 20 Cal. 318.) The words "taxation" and "taxed" relate to such general taxes upon all property as are levied to defray the ordinary expenses of the state, county, town, and municipal governments, and not to assessments levied on lots fronting on a street to pay the expense of its improvement. (Emery v. San Francisco Gas Co., 28 Cal. 345.) The words "taxation" and "assessments" do not have the same signification. (Taylor v. Palmer, 31 Cal. 240.) "Taxation" is the power to impose taxes upon the property of the citizen for the support of the government. (Taylor v. Palmer, 31 Cal. 340; People v. McCreery, 34 Cal. 432.) The rate of taxation for state purposes must be uniform throughout the state. (People v. McCreery, 34 Cal. 432. People V. Coleman, 4 Cal. 46, 60 Am. Dec. 581; High v. Shoe- maker, 22 Cal. 363, overruled.) A charge by the gauger of the port of San Francisco upon wine, for services as gauger, is not a tax. CAddi-^ou y, Sanluier, 19 Cal. 82.) 451 CONSTITUTION OF 1879. Art. XIII, § 1 The provision of the fee bill of 1895, requiring the payment of one dollar for each one thousand dollars in excess of three thousand dollars of the appraised value of an estate imposes a tax, and is in violation of this section in imposing an extra- ordinary tax in addition to the equal and uniform tax to which alone property is liable. (Fatjo v. Pfister, 117 Cal. 83, 48 Pac. 1012.) The act of 1893, imposing a tax of five dollars on every hun- dred dollars of the market value of property collaterally in- herited, bequeathed, or devised, where its value exceeds five hundred dollars, is constitutional. (In re Wilmerdiug, 117 Cal. 281, 49 Pac. 181.) The collateral inheritance tax is not subject to the provision that all property shall be taxed in proportion to its value, as it is in the nature of an excise tax. (In re Wilmerding, 117 Cal. 281, 49 Pac. 181.) Property. — Bonds of foreign corporations are assessable in the state of the owner's domicile. (Estate of Fair, 128 Cal. 607, 61 Pac. 184; Mackay v. San Francisco, 128 Cal. 678, 61 Pac. 382.) A seat in a stock exchange board is not taxable property. (San Francisco v. Anderson, 103 Cal. 69, 42 Am. St. Eep. 98, 36 Pac. 1034.) A mere right of "way for a pipe-line of a water company, en- tirely unconnected with any privilege to take tolls, is not a fran- chise. (Spring Valley W. W. v. Barber, 99 Cal. 36, 33 Pac. 735, 21 L. R. A. 416.) Fruit trees are not growing crops within the moaning of this section, and are subject to taxation. (Cottle v. Spitzer, 65 Cal. 456, 52 Am. Rep. 305, 4 Pac. 435.) Stock of a California corporation, whoFe tangible property is situated in another state, is taxable in this state in the posses- sion of a resident of this stale. (San Francisco v. Flood, 64 Cal. 504, 2 Pac. 264; San Francisco v. Fry, 63 Cal. 470.) Stock in a corporation whofe property is situated out of the state is assessable in this state. The constitution is not to be construed to mean that "stocks" are not to be taxed when they represent property situated out of the state. (Canfield v. County of Los Angeles, 157 Cal. 617, 108 Pac. 705.) The assessment of the stock of a corporation must necessarily include every element of value of its property, including its Art. XIII, § 1 CONSTITUTION OP 1879. 452 goodwill, franchise, and dividend earning power. (Crocker v. Scott, 149 Cal. 575, 87 Pac. 102.) The possessory right to a mining claim is properly assessed as real estate. (Bakersfiekl & Fresno Oil Co. v. Kern County, 144 Cal. 148, 77 Pac. 892.) A vessel registered out of the state, and never here except transiently in the course of her voyages for the purpose of re- ceiving and discharging cargo, is not "in the state" within the meaning of this section, although owned in part by residents of this state. (San Francisco v. Talbot, 63 Cal. 485.) A vessel is taxable at its "home port" as defined in section 4141 of the United States Eevised Statutes. (Olson v. San Francisco, 148 Cal. 80, 113 Am. St. Eep. 191, 82 Pac. 850, 2 L. E. A., N. S., 197, 7 Ann. Cas. 443.) A franchise to collect rates for water is taxable under this section. (Spring Valley W. W. v. Schottler, 62 Cal. 69.) The franchise of a railroad company is property subject to taxation and is not exempt by reason of its being a means or instrument employed by Congress to carry into operation the powers of the general government. (Central Pac. E. E. Co. v. Board of Equalization, 60 Cal. 35.) A franchise merely to be a corporation is property, which is assessable to the corporation. (Bank of California v. San Fran- cisco, 142 Cal. 276, 100 Am. St. Eep. 130, 75 Pac. 832, 64 L. E. A. 918.) As to the proper method of arriving at the value of a franchise to be a corporation for the purpose of taxation, see Bank of California v. San Francisco, 142 Cal. 276, 100 Am. St. Eep. 130, 75 Pac. 832, 64 L. E. A. 918. The creative franchise to be a corporation is taxable. (San Joaquin etc. Co. v. Merced County, 2 Cal. App. 593, 84 Pac. 285.) Franchises are properly subject to taxation. (San Joaquin etc. Co. V. Merced County, 2 Cal. App. 593, 84 Pac. 285.) Checks drawn upon the treasurer of the United States, pay- able on demand, as a mode of paying an obligation of the United States, are taxable as solvent credits. (Hibernia etc. Soc. V. San Francisco, 139 Cal. 205, 96 Am. St. Eep. 100, 72 Pac. 920, 5 L. E. A., N. S., 608.) 453 CONSTITUTION OP 1879. Art. XIII, § 1 The capital or capital stock of a corporation is taxable against the corporation. (San Francisco v. Spring Valley W. W., 54 Cal. 571.) Personal property in the state, owned by nonresidents, and upon which they pay taxes in the state of their domicile, is taxable in this state. (Minturn v. Hays, 2 Cal. 590, 56 Am. Dec. 366.) A municipal corporation has no power to impose a license tax upon a railroad company engaged in interstate commerce, and the mere fact that the tax is imposed on a branch line does not render the tax valid, where the branch is a part of the transcontinental line. (San Bernardino v. Southern Pac. Co., 107 Cal. 524, 40 Pac. 796, 29 L. R. A. 327.) The possession of and claim to public land is property. (People V. Black Diamond etc. Min. Co., 37 Cal. 54; People v. Cohen, 31 Cal. 210.) The word "property" is used in its ordinary and popular sense, and includes not only visible and tangible property, but also choses in action, such as solvent debts secured by mortgage. (People v. Eddy, 43 Cal. 331, 13 Am. Eep. 143; Liek v. Austin, 43 Cal. 590; Savings etc. Soc. v. Austin, 46 Cal. 415; People v. Ashbury, 46 Cal. 523; San Francisco v. La Societe etc., 131 Cal. 612, 63 Pac. 1016. But see Bank of Mendocino v. Chalfant, 51 Cal. 369, 471; People v. Hibernia Bank, 51 Cal. 243, 21 Am. Eep. 704.) This is true although the debts are secured by pledge of property exempt from taxation. (Security Sav. Bank v. San Francisco, 132 Cal. 599, 64 Pac. 898.) Money ia property subject to taxation. (People v. Dunn, 59 Cal. 328.) The holder of solvent credits secured by collateral security of personal property is entitled to have his assessment upon such credits reduced by the amount of his indebtedness to bona fide residents of the state, contracts of security on personal property not being mortgages or deeds of trust within the mean- ing of those words in the clause excepting such credits from the deduction allowed of debts due bona fide residents of the state. (Bank of Willows v. County of Glenn, 155 Cal. 352, 101 Pac. 13.) Art. XIII, § 1 CONSTITUTION OF 1879. 454 Bonds owned by a foreign insurance company doing business in this state and deposited with a banker in pursuance to law are taxable. (People v. Home Tns. Co., 29 Cal. 533.) The estate of a lessee in lands overlying oil-bearing strata, who has the right to the oil produced thereon upon paying a royalty to the lessor, may be separately assessed for purposes of taxa- tion to the lessee, and the remainder of the entire estate in the land may be separately assessed to the lessor. (Graciosa Oil Co. V. Santa Barbara, 155 Cal. 140, 99 Pac. 483, 20 L. E. A., N. S., 211.) Public property. — Public property is not taxable. (Doyle v. Austin, 47 Cal. 353; People v. McCreery, 34 Cal. 432; People v. Doe G. 1,034, 36 Cal. 220.) A railroad corporation cannot claim an exemption of its prop- erty lying within the state from state taxation, because the cor- poration has been subsequently employed by the federal gov- ernment in the carriage of mails, munitions of war, etc. (People V. Central Pac. E. E. Co., 43 Cal. 398.) A railroad company organized under the laws of this state to construct and operate a railroad in this state, which has sub- sequently received from the United States a franchise for the same purpose, may be assessed upon its franchise derived from the state. (People v. Central Pac. E. E. Co., 105 Cal. 576, 38 Pac. 905; Colusa v. Glenn, 124 Cal. 498, 57 Pac. 477. But see People v. Central Pac. E. E. Co., 83 Cal. 393, 23 Pac. 303.) An act exempting school land and lands of the United States from taxation does not render the tax unequal. (High v. Shoe- maker, 22 Cal. 363.) Bonds of the United States are not subject to taxation, (People V. Home Ins. Co., 29 Cal. 533.) The property of a reclamation district is public property ex- empt from taxation. (Eeclamation Dist. No. 551 v. Sacramento, 134 Cal. 477, 66 Pac. 668.) The assessment of a portion of a street is void. (Warren v. San Francisco, 150 Cal. 167, 88 Pac. 712.) A county ordinance imposing a license upon the Southern Pacific Eailroad Company for carrying persons and freight for hire by means of railroad cars in the county, is void as a tax upon the use of the franchise granted by the United States government. Both the fianchise and the use of it are beyond 455 CONSTITUTION OF 1879. Art. XIII, § 1 the taxing power of the state. (San Benito Co. v. Southern Pac. E. R. Co., 77 Cal. .518, 19 Pac. 827.) The Western Union Telegraph Company is one of the instru- ments eniployed by the United States government for carrying into effect its sovereign powers, and a tax upon its franchise is void. (San Francisco v. Western Union Tel. Co., 96 Cal. 140, 31 Pac. 10, 17 L. R. A. 301; Western Union Tel. Co. v. Visalia, 149 Cal. 744, 87 Pac. 1023.) Whether or not a federal franchise has been assessed is a question of fact, and conversations with members of the board of equalization on the subject are not admissible. (People v. Central Pac. E. R. Co., 105 Cal. 576, 38 Pac. 905.) National banks are agencies of the federal government, and are not subject to the taxing power of the state. (McHenry V. Downer, il6 Cal. 20, 47 Pac. 779, 45 L. E. A. 737.) Taxation of property of a national bank, except as permitted by the United States Eevised Statutes, is void. (First Nat. Bank v. San Francisco, 129 Cal. 96, 61 Pac. 778; Miller v. Heil- bron, 58 Cal. 133.) The act of the assessment of the stock of national banks is valid. (Crocker v. Scott, 149 Cal. 575, 87 Pac. 102.) Commerce. — A tax upon every person selling consigned goods from any state in proportion to the amount sold is not an inter- ference with the power of Congress to regulate commerce. (People v. Coleman, 4 Cal. 46, 60 Am. Dec. 581.) An act imposing a tax upon bills of lading for the transporta- tion of gold or silver from any point in this state to any point without the state is in conflict with the provision of the United States constitution forbidding the states to levy any im- posts or duties on imports or exports. (Brumagin v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176.) An act requiring the payment of a ganger for inspecting goods arriving at ports of this state is not in violation of the United States constitution forbidding the state to impose duties on imports. (Addison v. Saulnier, 19 Cal. 82.) An act requiring a shipper to place certain stamps on all tickets sold to persons about to leave the state is in violation of the commerce clause of the United States constituticm, and is void. It is a tax and not a police regulation. (People v. Raymond, 34 Cal. 492.) Art. XIII, § 1 CONSTITUTION OF 1879. 456 Exemptions. — The legislature has no power to exempt any property from taxation. (Maekay v. San Francisco, 113 Cal. 392, 45"Pac. 696; Minturn v. Hays, 2 Cal. 590, 56 Am. Dec. 366; People V. MeCreery, 34 Cal. 432; People v. Black Diamond etc. Min. Co., 37 Cal. 54; Crosby v. Lyon, 37 Cal. 242; People v. Eddy, 43 Cal. 331, 13 Am. Rep. 143; People v. Latham, 52 Cal. 598.) An act authorizing the remission of a tax is void. (Wilson v. Supervisors, 47 Cal. 91.) An act taxing the property of a district for a local improve- ment, which exempts personal property from its operation, is unconstitutional, because not levied on all the property in the district. (People v. Whyler, 41 Cal. 351.) Alfalfa is not included in the exemption of "growing crops." (Miller v. County of Kern, 137 Cal. 516, 70 Pac. 549.) The provisions of the Political Code in regard to road taxes are not in violation of this section because cities and towns are exempted from their operation, since this does not exempt cities and towns from the tax, but compels cities and towns to main- tain their own streets under the street improvement act. (Miller V. County of Kern, 137 Cal. 516, 70 Pac. 549.) The crediting of taxes heretofore paid upon property under an invalid levy does not amount to an exemption from taxa- tion of the property upon which such taxes were paid. (People v. Latham, 52 Cal. 598.) The legislature cannot exempt from taxation a vessel having its legal situs in this state. (Olson v. San Francisco, 148 Cal. 80, 113 Am. St. Rep. 191, 82 Pac. 850, 2 L. R. A., N, S., 197, 7 Ann. Cas. 443.) Double taxation. — The constitution forbids the double taxation of property. (Burke v. Badlam, 57 Cal. 594; Germania Trust Co. V. San Francisco, 128 Cal. 589, 61 Pac. 178; Estate of Fair, 128 Cal. 607, 61 Pac. 184.) Double taxation does not necessarily consist in assessing the same property twice to the same person, but may consist in requiring a double contribution to the same tax on account of the same property, though the assessments are to different per- sons. (Germania Trust Co. v. San Francisco, 128 Cal. 589, 61 Pac. 178; Estate of Fair, 128 Cal. 607, 61 Pac. 184.) 457 CONSTITUTION OF 1879. Art. XIII,. § 1 The inhibition of double taxation only applies to such taxa- tion by the same government. (San Francisco v. Fry, 63 Cal. 470.) Because the same subject matter has been twice taxed, it by no means follows that both taxes are void, but to entitle a party to relief in the courts, it must appear that the tax has been once paid or tendered. (Savings etc. Soc. v. Austin, 46 Cal. 415.) If land subject to a mortgage is taxed, and the debt secured by the mortgage is also taxed, and the tax on the debt is paid by the mortgagee, the mortgagor cannot complain of double tax- ation. (Lick V. Austin, 43 Cal. 590.) The levying a tax upon money at interest, as well as upon the property mortgaged to secure it, does not present a case of double taxation against the mortgagee. (People v. Whartenby, 38 Cal. 461.) It would be assessing the same property twice to assess money on deposit in a savings bank to the bank and also to the de- positor. (Burke v. Badlam, 57 Cal. 594.) It would be assessing the same property twice to assess to a corporation all of its corporate property, and also to assess to each of the stockholders the shares held by them. (Burke v. Badlam, 57 Cal. 594.) A balance of a money account on general deposit in a bank outside of the state, held by a corporation having its principal place of business in this state, is taxable in this state as a solvent credit. (Pacific Coast Sav. Soc. v. San Francisco, 133 Cal. 14, 65 Pac. 16.) It is not double taxation to tax the roadbed and roadway of a railroad, as they are quite different. (San Francisco etc. R. R. Co. V. State Board, 60 Cal. 12.) Where all the property of a corporation has been assessed and it owns none of its capital stock, an assessment of "capital" or "capital stock" is void. (San Francisco v. Spring Valley W. W., 63 Cal. 524.) An attempt to tax a seat in a stock exchange board, in addi- tion to the taxes levied upon all the property of the board, is void as an attempt at double taxation. (San Francisco v. Ander- son, 103 Cal. 69, 42 Am. St. Rep. 98, 36 Pac. 1034.) Since a mortgage is assessed as an interest in the land, to also assess the bonds which the mortgage secures is double taxation. Art. XIII, § 1 CONSTITUTION OF 1879. 458 (Germauia Trust Co. v. San Finncisco, 128 Cal. 589, 61 Pac. 178; Estate of Fair, 128 Cal. 607, 61 Pac. 184.) The lender of money is not subjected to double taxation by reason of the payment of taxes on money loaned by him, and on solvent debts due him over his own indebtedness. (People v. McCreery, 34 Cal. 432.) The legislature may impose a penalty on those who neglect to have their property assessed at the proper time; and a law pro- viding for the double taxation of property which has escaped assessment in the previous year is valid. (Biddle v. Oaks, 59 Cal. 94.) Assessment. — Assessment of property is a function of the exec- utive department of the government; and the judiciary has no power to inquire as to the actual value of property for the pur- pose of taxation, in order to determine whether there has been misrepresentations as to its value. (Clunie v. Siebe, 112 Cal. 593, 44 Pac. 1064.) The provisions of this section are self-executing, and require the assessor to ascertain the value of the property in the manner now provided by law. (Hyatt v. Allen, 54 Cal. 353.) The provision of the former constitution as to the election of assessor and tax collector was held mandatory, and restrained the legislature to a particular mode of providing for such officers. (People v. Kelsey, 34 Cal. 470.) Under the former constitution an assessment not made by an assessor elected by the electors of the district was void. (Will- iams V. Corcoran, 46 Cal. 553.) This section does not require the value of the property to be found after the rate of taxation is fixed. (People v. Latham, 52 Cal. 598.) A tax for school purposes must be based upon an assessment made by an assessor elected by the qualified electors of the school district. (People v. Stockton etc. Co., 49 Cal. 414.) The legislature cannot confer on a state board of equalization of taxes the power to add to or deduct from the assessed value of the property, as fixed by the assessor. (Houghton v. Austin, 47 Cal. 646.) The payment of a tax cannot be resisted on the ground that the property on which it was levied was not assessed at its true value. One whose property is not assessed according to its 459 CONSTITUTION OF 1879. Art. XIII, § 1 true value must apply to the board of eq.ualization for relief. (People V. Whyler, 4l"Cal. 351.) The only mode in which defective assessments may be cured by the legislature is to empower the assessor to correct the same. (People V. Hastings, 34 Cal. 571.) The failure of the assessor to assess certain property, whether by reason of a void statute or by mistake, does not invalidate the assessment. (People v. MeCreery, 34 Cal. 432.) The value of a franchise of a corporation is properly fixed by taking the value of all tangible property of the corporation from the market value of the capital stock. (Spring Valley W. W. v. Schottler, 62 Cal. 69.) A law providing that taxes upon personal property unsecured by real estate shall be collected at the time of the assessment is valid, although other taxes are not payable until several months later. (Khode v. Siebe, 119 Cal. 518, 51 Pac. 869, 39 L. K. A. 342, Van Fleet, J., and Harrison, J., dissenting; Pacific etc. Co. v. Dalton, 119 Cal. 604, 51 Pac. 1072.) Purposes. — The extent to which the power of taxation may be exercised is left unlimited, except by legislative discretion. (Stockton etc. R. R. Co. v. Stockton, 41 Cal. 147; Blanding v. Burr, 13 Cal. 343.) The taxing power, whether it be asserted in the form of gen- eral taxation or of local assessment, cannot be upheld when the purpose in view can be judicially seen to be other than public. (In re Market Street, 49 Cal. 546.) The legislature may recognize a moral obligation as the sole basis for the imposition of taxes. (Beals v. Amador County, 35 Cal. 624.) Taxation cannot be justified for an object or for the benefit of a class in which the taxpayer is directly excluded from par- ticipating. (Hughes V. Ewing, 93 Cal. 414, 28 Pac. 1067.) Licenses. — A license fee or charge for the transaction of any business is not a tax within the meaning of this section. (Santa Barbara v. Stearns, 51 Cal. 499.) A license tax upon the right to carry on a particular trade or business, imposing the same rate or amount on all engaged in the same business regardless of the amount of cajntal em- ployed or profits earned, is a valid exercise of the taxing power, and is not a tax upon property within the meaning of this sec- Art. XIII, § 1 CONSTITUTION OF 1879. 460 tion. (Los Angeles v. L'os Angeles etc. Co., 152 Cal. 705, 93 Pac. 1006.) The constitution does not prohibit the legislature from author- izing municipal corporations to tax occupations for purpose of revenue. An ordinance requiring the annual license of twenty- dollars for each street-car operated upheld, although the cars also ran in an adjoining town. (San Jose v. San Jose etc. E. R. Co., 53 Cal. 475. People v. Coleman, 4 Cal. 46, 60 Am. Dec. 581; Sacramento v. Crocker, 16 Cal. 119; Ex parte Hurl, 49 Cal. 557, approved.) A municipality has no inherent power, by virtue of its exist- ence as a municipality, to impose a license upon a business, but its power in this respect comes from the legislature, and must be found in the organic act, or necessarily inferred from the powers therein expressly granted. (Ex parte Newton, 53 Cal. 571.) An act prohibiting foreigners from working the gold mines, except on condition of paying a certain sum each month for the privilege, imposes a license and not a tax and is valid. (People V. Naglee, 1 Cal. 232, 52 Am. Dec. 312.) This provision applies only to direct taxation upon property, and does not prohibit the legislature from enacting license laws. (People V. Naglee, 1 Cal. 232, 52 Am. Dec. 312.) Assessments. — The word "assessment" represents those local burdens imposed by municipal corporations upon property border- ing upon an improved street, for the purpose of paying the cost of the improvement, and laid with reference to the benefit the property is supposed to receive from the expenditure of the money. (Taylor v. Palmer, 31 Cal. 240.) An assessment is a special and local charge upon property in the immediate vicinity of municipal improvements, predicated upon the theory of benefits, and levied upon land or property specially benefited by such improvements, while a charge im- posed by law upon the assessed value of all property in a dis- trict is a tax, although for a local improvement. (Ilolley v. Orange County, 106 Cal. 420, 39 Pac. 790.) An assessment upon lots adjacent to a street to pay for im- provements made on the street, if held to be a tax, cannot be upheld, because it lacks the constitutional requirement of equal- ity and uniformity. (Creighton v. Monson, 27 Cal. 613. But see Walsh V. Mathews, 29 Cal. 124.) 461 CONSTITUTION OP 1879. Art. XIII, § 1 An assessment by an irrigation district upon the public lands of a city, which are unoccupied and uncultivated lands, sus- ceptible of cultivation by irrigation, and which would be bene- fited thereby, is not a tax within the meaning of this seel ion. (San Diego v. Linda Vista Irr. Dist., 108 Cal. 189, 41 Pac. 291, 35 L. E. A. 33.) An assessment levied by an irrigation district, although refer- able to the power of taxation, is distinct from a tax, and is not subject to the constitutional provisions respecting taxation, and may be levied upon all real property, without deducting there- from any mortgages thereon. (Tregea v. Owens, 94 Cal. 317, 29 Pac. 643.) An assessment for a street improvement upon the front-foot system is an exercise of the power of taxation. (Emery v. San Francisco etc. Co., 28 Cal. 345.) This section does not apply to an assessment for a street im- provement. (Burnett v. Sacramento, 12 Cal. 76, 73 Am. Dec. 518; Dovle v. Austin, 47 Cal. 353,- Hagar v. Supervisors, 47 Cal. 222; Chambers v. Satterlee, 40 Cal. 497.) A charge imposed on all property of a district, to be used in constructing levees to protect the district from overflow, is a tax and not an assessment. (People v. Whyler, 41 Cal. 351; Williams v. Corcoran, 46 Cal. 553; Smith v. Farrelly, 52 Cal. 77.) An "assessment" for a local improvement is a "tax," and, while it need not be assessed on the ad valorem principle, it must be equal and uniform. (People v. Lynch, 51 Cal. 15, 21 Am. Eep. 677.) The fact that a st-atute designates as a "tax" that which in its elements is an "assessment" does not make it a "tax." (Doyle V. Austin, 47 Cal. 353.) The legislature cannot levy an assessment not uniform and equal, nor can it validate an assessment void for want of uni- formitv and equality. (People v. Lynch, 51 Cal. 15, 21 Am. Eep. 677.) An assessment cannot be laid upon lots for street work done under an abortive contract with the municipality. (In re Market Street, 49 Cal. 54G.) The "front-foot" method of assessment is valid. (Oakland etc. Co. V. Eier, 52 Cal. 270; People v. Lynch, 51 Cal. 15, 21 Am. Eep. 677; Walsh v. Mathews, 29 Cal. 123; Iladley v. Dagno, 130 Cal. 207, 62 Pac. 500; Cohen v. Alameda, 124 Cal. 504, 57 Pac. Art. XIII, § 1 CONSTITUTION OF 1879. 462 377; Chambers v. Satterlee, 40 Cal. 497; Emery v. San Francisco etc. Co., 28 Cal. 345; Emcrv v. Bradford, 29 Cal. 75; Taylor v. Palmer, 31 Cal. 240; Whiting v. Qiiackenbush, 54 Cal. 30^; Whit- ing V. Townsend, 57 Cal. 515; Lent v. Tillson, 72 Cal. 404, 14 Pac. 71; Jennings v, Le Breton, 80 Cal. 8, 21 Pac. 1127; San Francisco etc. Co. v. Bates, 134 Cal. 39, C6 Pac. 2; Banaz v. Smith, 133 Cal. 102, 65 Pac. 309.) An act levying the cost of a street improvement upon the ad- jacent property, in accordance with the assessed value of the land, is valid. (Burnett v. Sacramento, 12 Cal. 7G, 73 Am. Dee. 518.) The legislature may provide for a local public improvement for the benefit of a portion of the state, and may tax all land within a limited district, notwithstanding some of the property of the district will not receive any benefit, and some property outside of the district may be incidentally benefited. (In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. Kep. lOG, 28 Pac. 272, 14 L. R. A. 755.) An assessment upon specified property can be supported only upon the ground that the property taxed is benefited by the im- provement. (In re Market Street, 49 Cal. 546.) The fact that levees built to protect the land of a district from overflow injure some of the land instead of benefiting it does not render the tax unequal or void for want of uniformity. (People v. Whylcr, 41 Cal. 351.) A tax levied on the property of a given district, to pay for a local improvement, which is assessed upon the parcels of prop- erty in the district in proportion to the benefit each parcel de- rives from the work, is unconstitutional. Such tax must be levied on all property according to its value. (People v. Whyler, 41 Cal. 351.) An owner may be made personally liable for the expense of a street improvement. (Walsh v. Mathews, 29 Cal. 123. Creigh- ton V. Manson, 27 Cal. 613, overruled.) An act requiring the owner of a lot to keep the street in front of it in repair after it has been planked and graded is valid. (Hart v. Gaven, 12 Cal. 477.) The fact that a town is included within an irrigation district does not invalidate the district, since even though the land is not susceptible of irrigation, it may be benefited by the im- 463 CONSTITUTION OF 1879. Art. Xili, § li^ provement. (In re Madora Irr. Dist., 92 Cal. 296, 27 Am. St. Rep. 106, 28 Pac. 272, 14 L. E. A. 755.) Recovery of taxes. — An action to recover municipal taxes is an action upon a liability created by statute, and is barred in three years; and where it has the force of a judgment, it is barred in five years. (San Diego v. Higgins, 115 (Jal. 170, 46 Pae. 923.) United States army, navy, marine and revenue service. Sec. li/i- The property to the amount of one thou- sand dollars of every resident in this state who has served in the army, navy, marine corps, or revenue marine service of the United States in time of war, and received an honorable discharge therefrom; or lacking such amount of property in his own name, so much of the property of the wife of any such person as shall be neces- sary to equal said amount; and property^ to the amount of one thousand dollars of the widow resident in this state, or if there be no such widow, of the widowed mother resident in this state, of every person who has so served and has died either during his term of service or after receiving honorable discharge from said service; and the property to the amount of one thousand dollars of pensioned widows, fathers, and mothers, resident in this state, of soldiers, sailors, and marines who served in the army, navy, or marine corps, or revenue marine service of the United States, shall be exempt from taxa- tion; provided, that this exemption shall not apply to any person named herein owning property of the value of five thousand dollars or more, or where the wife of Art. XIII, §§ 11/2-2 CONSTITUTION OF 1879. 464 such soldier or sailor owns property of the value of five thousand dollars or more. No exemption shall be made under the provisions of this act of the property of a person who is not a legal resident of the state. (Amend- ment approved October 10, 1911.) Churches exempt from taxation. Sec. 11/2. All buildings, and so much of the real property on which they are situated as may be required for the convenient use and occupation of said buildings, when the same are used solely and exclusively for reli- gious worship, shall be free from taxation; provided, that no building so used which may be rented for re- ligious purposes and rent received by the owner there- for, shall be exempt from taxation. (Amendment adopted November 6, 1900.) Bonds of state and municipalities exempt from taxa- tion. Sec. 1%. All bonds hereafter issued by the state of California, or by any county, city and county, municipal corporation, or district (including school, reclamation, and irrigation districts) within said state, shall be free and exempt from taxation. (Amendment adopted No- vember 4, 1902.) Land and improvements to be separately assessed. Sec. 2. Land, and the improvements thereon, shall be separately assessed. Cultivated and uncultivated Art. XIII, Sec. la. Insert at Pagre 464. See. la. Any educational institution of collegiate grade, within the State of California, not conducted for profit, .shall hold exempt from taxation its build- ings and eciuipment, its grounds within which its l)nildings are located, not exceeding one hundred acres in area, its securities and income used exclu- sively for the purposes of education. (New section added by amendment adopted November 3. 1914.) Art. XIII, Sec. 4. Insert at Page 465. Sec. 4. All vessels of more than fifty tons burden registered at any port in this state and engaged in .the transportation of freight or passengers, shall he exempt from taxation except for state purposes, until and including the first day of January, nineteen hun- dred thirty-five. (New section added by amendment adopted November 3, 1914.) r 465 CONSTITUTION OP 1879. Art. XIII, §§3, 4 land, of the same quality, and similarly situated, shall be assessed at the same value. ASSESSMENT OF LAND.— An assessment of land claimed and occupied by a railroad company as a right of way, together with the track and all superstructures and substructures, without any separate assessment of land and improvement, is void. (California etc. R. R. Co. v. Mecartney, 104 Cal. 616, 38 Pac. 448.) The constitution leaves it to the legislature to define "improve- ments," and alfalfa, not being included in the legislative defini- tion, must be taxed as realty and not as improvements. (Miller V. County of Kern, 137 Cal. 516, 70 Pac. 549.) Sectionized and unsectionized land, how assessed. Sec. 3. Every tract of land containing more than six hundred and forty acres, and which has been sec- tionized by the United States government, shall be as- sessed, for the purposes of taxation, by sections or frac- tions of sections. The legislature shall provide by law for the assessment, in small tracts, of all lands not sec- tionized by the United States government. Securities, taxable. Sec. 4. This section was repealed by amendment adopted November 8, 1910. The section so repealed was as follows : Sec. 4, A mortgage, deed of trust, contract, or other obliga- tion by which a debt is secured, shall, for the purposes of assess- ment and taxation, be deemed and treated as an interest in the property afifected thereby. Except as to railroad and other quasi public corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, con- Coastitutioa — 30 Art. XIII, § 4 CONSTITUTION OF 1879. 466 tract, or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof, in the county, city, or district in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security; if paid by the owner of the security, the tax so levied upon the property affected thereby shall become a part of the debt so secured; if the owner of the property shall pay the tax so levied on such security, it shall constitute a payment thereon, and to the extent of such payment a full discharge thereof; provided, that if any such security or indebtedness shall be paid by any such debtor or debtors, after assessment and before the tax levy, the amount of such levy may likewise be retained by such debtor or debtors, and shall be computed according to the tax levy for the preceding year. ASSESSMENT OF MORTGAGES.— A mortgage as such is not liable to be assessed, but the assessment should be made of the debt which the mortgage was given to secure. (People v. East- man, 25 Cal. 601.) The provisions of this section apply to mortgages executed prior to the adoption of the constitution. (McCoppin v. Mc- Cartney, 60 Cal. 367.) This section has exclusive reference to mortgages, deeds of trust, contracts, or other obligations affecting realty. (Bank of Willows V. County of Glenn, 155 Cal. 352, 101 Pac. 13.) When no tax is assessed against the iuterest of the mortgagee, but the whole tax is assessed against the property and paid by the owner, it cannot be deducted from the mortgage debt. (John Brickell Co. v. Sutro, 11 Cal. App. 460, 105 Pac. 948.) Where a mortgage executed prior to the new constitution made no provision as to who sliould pay the taxes, the mortgagee is made primarily liable for them by this section. (Hay v. Hill, 65 Cal. 383, 4 Pac. 378.) An assessment levied by an irrigation district may be levied upon all lands, without deducting therefrom any mortgages thereon. (Tregea v. Owens, 94 Cal. 317, 29 Pac. 643.) 4671 CONSTITUTION OF 1879. Art. XIII, § 4 This section is to be construed as having reference only to taxation in case of liens upon land, and does not apply to per- sonal property. (Bank of Woodland v. Pierce, 144 Cal. 434, 77 Pac. 1012.) Solvent creditors may be taxed by a city to the owner domi- ciled therein, though secured by a lien upon wheat situated and taxed elsewhere. (Bank of Woodland v. Pierce, 144 Cal. 434, 77 Pac. 1012.) Whether the loan secured by the stocks and bonds is or is not an interest in the "property affected thereby" for the purpose of taxation within the meaning of this section, and conceding that the stocks and bonds may be exempt from taxation, the debt secured thereby for money loaned is not exempt, but may be taxed to the lender. (Savings etc. Soc. v. San Francisco, 131 Cal. 356, 63 Pac. 6G5.) A mortgage is not "real estate," except for the purpose of tax- ation. The mortgagor is still the owner of the land, and it is subject to liens for taxes on personal property owned by the mortgagor. (California etc. Co. v. W^eis, 118 Cal. 489, 50 Pac. 697.) An assessment of a "mortgage upon the folloAving described property, to wit" (describing the mortgaged premises), is an assessment of the land and not merely the mortgage. (Doland V. Mooney, 72 Cal. 34, 13 Pac. 71.) Bonds of a railroad company secured by mortgages of its property within the state are net assessable to the holder of the bonds. (Germania etc. Co. v. San Francisco, 128 Cal. 589, 61 Pac. 178; Estate of Fair, 128 Cal. 007, 61 Pac. 184.) Receipts for taxes on mortgaged lands found in the posses- sion of the deceased mortgagee raise a presumption that the taxes were paid by him, though they are in the name of the mortgagor. (Lloyd v. Davis, 123 Cal. 348, 55 Pac. 1003.) The last clause of this section does not give the mortgagor an exclusive remedy, but, if he fails to retain the money, he may recover it from the mortgagee. (San Gabriel Co. v. Witmer Co., 96 Cal. 623, 29 Pac. 500, 31 Pac. 588, 12 L. R. A. 465.) Where the mortgasor pays the interest on the mortgage he cannot recover it back on the ground that the mortgage pro- vides that the mortgagor shall pay the interest on the mortgage. (Matthews v. Ormerd, 140 Cal. 578, 74 Pac. 136.) Art. XIII, § 5 CONSTITUTION OF 1879. 468 A first mortgagee, having foreclosed his mortgage against a second mortgagee, cannot maintain an action against the latter to recover money paid by him to redeem the property from taxes assessed upon the second mortgage. (Canadian etc. Co. V. Boas, 136 Cal. 419, 69 Pac. 18.) The purchaser under a first mortgage is not a party to the security of the second mortgage within the meaning of this section, and cannot recover a tax paid by him on the second mortgage. (Henry v. Garden City Bank of San Jose, 145 Cal. 54, 78 Pac. 228.) The property of railroad and other quasi public corporations is subject to taxation, without deduction of any mortgage or other like lien thereon. (Central Pac. E. E. Co. v. Board of Equaliza- tion, 60 Cal. 35.) The provision of this section taxing property of quasi public corporations, without deduction of liens thereon, is not in con- flict with the provision of the United States constitution that no state shall "deny any person within its jurisdiction the equal protection of the laws," since that provision does not apply to artificial persons. (Central Pac. E. E. Co. v. Board of Equaliza- tion, 60 Cal. 35.) Contract of borrower to pay tax on loan void. Sec. 5. This section was repealed by amendment adopted November 6, 1906. The section repealed read as follows: Sec. 5. Every contract hereafter made, by which a debtor is obligated to pay any tax or assessment on money loaned, or on any mortgage, deed of trust, or other lien, shall, as to any interest specified therein, and as to such tax or assessment, be null and void. PAYMENT OF TAXES ON MORTGAGES. — This section, only applies to contracts made after its adoption. (Beckman v. Skaggs, 59 Cal. 541.) A provision in a mortgage that the mortgagee "may pay all taxes, etc., upon the property, and the same shall be repaid with 469 CONSTITUTION OP 1879. Art. XIII, § 5 interest tTiereon at the rate of one per cent per month," does not violate this section. (Bank of Ukiah v. Eeed, 131 Cal. 597, 63 Pac. 921.) A contemporaneous agreement betv,'eon the mortgagor and mortgagee that if the mortgagor should present proper official receipts showing the payment of the mortgage tax, he should receive credit of two and one-half per cent upon the mortgage note, is not in violation of this section, as it is not enforceable against the mortgagor, but simply permissive. (Hewitt v. Dean, 91 Cal. 5, 27 Pac. 423.) But where a mortgage provides for interest of one per cent per month, but the mortgagee, by a separate instrument agrees that he will only exact interest amounting to eight per cent per annum and agrees to refund all interest paid over and above this amount after he has paid out of said one per cent per month the mortgage tax, the two instruments must be construed to- gether, and, so construed, they constitute an agreement for eight per cent per annum interest, with the mortgagors paying the tax, and under this section such a contract is void. (Matthews V. Ormerd, 134 Cal. 84, C6 Pac. 67.) A provision in a mortgage that, in case of foreclosure, the mortgagee may include all payments made by him for the taxes on the mortgage, is void, and renders void the mortgage as to the payment of interest; but if the mortgagor pays the interest he cannot recover it back. (ITarralson v. Barrett, 99 Cal. 607, 34 Pac. 342; Garms v. Jensen, 103 Cal. 374, 37 Pac. 337.) Evidence of a parol a^Teement between the parties to the mortgage, whereby the mortgagor undertook to pay the taxes which might be assessed and levied upon the mortgage, is in- admissible. (Daw V. Niles, 104 Cal. 106, 37 Pac. 876; Harral- son v. Tomich, 107 Cal. 627, 40 Pac. 1032; California State Bank V. Webber, 110 Cal. 538, 42 Pac. 1066.) Where a conventional rate of interest is agreed upon, a verbal agreement that if the mortgagor should pay the taxes on the mortgage, a reduction should be allowed upon the agreed inter- est, is not in violation of this provision. (California State Bank V. Webber, 110 Cal. 538, 42 Pac. lOCO.) A contemporaneous agreement by the mortgagor to pay the tax on the mortgage is void. (Burbridge v. Lemmert, 99 Cal. ^93, 32 Pac. 310.) Art. XIII, §§ 6-8 CONSTITUTION OP 1879. 470 The provision of this section for a forfeiture of interest haa no application to a contract by a purchaser to pay taxes on the land; nor does it refer to a possible equitable lien of the pur- chaser for purchase money paid, which could arise, if at all, only when the vendor is in default. (Vance Kcdwood L. Co. v. Durphy, 8 Cal. App. 66i, 97 Pac. 702.) Power of taxation cannot be surrendered. Sec. 6. The power of taxation shall never be surren- dered or suspended by any grant or contract to which the state shall be a party. Payment of taxes by installments. Sec. 7. The legislature shall have the power to pro- vide by law for the payment of all taxes on real prop- erty by installments. Annual statement of property to be given. Sec. 8. The legislature shall by law require each tax- payer in this state to make and deliver to the county assessor, annually, a statement, under oath, setting forth specifically all the real and personal property owned by such taxpayer, or in his possession, or under his control, at twelve o'clock meridian, on the first Monday of March. ASSESSMENT. — A tax must rest upon an assessment made in the mode prescribed by law, by an assessor elected by the quali- fied electors of the district, county, or town in which the prop- erty is taxed. (People v. Hastings, 29 Cal. 449.) An assessment made by an assessor of the city and county of Sacramento is not sufficient basis for the levy of a tax in the city of Sacramento for city purposes. (People v. Hastings, 29 Cai. 449.) 471 CONSTITUTION OP 1879. Art. XIII, § 9 The sheriff, as such, cannot perform the duties of tax col lector. (Latlirop v. Brittain, 30 Cal. 6S0.) The assessment must be made by the assessor, and, if not so made, the legislature cannot supply the defect by a curative act; but, if the assessment is good in substance, any error in mode, form, etc., may be remedied by the legislature. ' (People V, McCreery, 34 Cal. 432.) Although the legislature cannot by law transfer the duties of tax collector from a person elected as such to one not so elected, it may provide for the election of a person as tax collector who may enter upon the discharge of his duties before the expira- tion of the term of a tax collector elected under the law as it previously stood. (Mills v. Sargent, 36 Cal. 379.) The provision of section 3633 of the Political Code, providing for an arbitrary assessment, is not in conflict with this section. (Orena v. Sherman, 61 Cal. 101.) This section only has reference to prospective assessments, and does not supersede a provision of a city charter. (Stockton V. Insurance Co., 73 Cal. 621, 15 Pac. 314.) This section has no application to the assessment of property in incorporated cities for local purposes. (Escondido v. Escon- dido L. etc. Co., 8 Cal. App. 435, 97 Pac. 197.) State board of equalization. Sec. 9. A state board of equalization, consisting of one member from each congressional district in this state, as the same existed in eighteen hundred and sev- enty-nine, shall be elected by the qualified electors of their respective districts, at the general election to be held in the year one thousand eight hundred and eighty- six, and at each gubernatorial election thereafter, whose term of office shall be for four years, whose duty it shall be to equalize the valuation of the taxable property in the several counties of the state for the purposes of tax- ation. The controller of state shall be ex officio a mem- Art. XIII, § 9 CONSTITUTION OF 1879. 472 ber of the board. The boards of supervisors of the sev- eral counties of the state shall constitute boards of equalization for their respective counties, whose duty it shall -be to equalize the valuation of the taxable prop- erty in the county for the purpose of taxation ; provided, such state and county boards of equalization are hereby authorized and empowered, under such rules of notice as the county boards may prescribe as to the county as- sessments, and under such rules of notice as the state board may prescribe as to the action of the state board, to increase or lower the entire assessment-roll, or any assessment contained therein, so as to equalize the as- sessment of the property contained in said assessment- roll and make the assessment conform to the true value in money of the property contained in said roll; pro- vided, that no board of equalization shall raise any mortgage, deed of trust, contract, or other obligation by which a debt is secured, money or solvent credits, above its face value. The present state board of equali- zation shall continue in office until their successors, as herein provided for, shall be elected and shall qualify. The legislature shall have power to redistrict the state into four districts, as nearly equal in population as practicable, and to provide for the election of members of said board of equalization. (Ratification declared February 12, 1885.) 473 CONSTITUTION OF 1879. Art. XIII, § 9 [ORIGINAL SECTION.] Sec. 9. A state board of equalization, consisting of one mem- ber from each congressional district in this state, shall be elected by the qualified electors of their respective districts at the gen- eral election to be held in the year eighteen hundred and seventy-nine, whose term of office, after those first elected, shall be four years, whose duty it shall be to equalize the valuation of the taxable property of the several counties in the state for the purposes of taxation. The controller of state shall be ex officio a member of the board. The boards of supervisors of the several counties of the state shall constitute boards of equalization for their respective counties, whose duty it shall be to equalize the valuation of the taxable property in the county for the purpose of taxation; provided, such state and county boards of equalization are hereby authorized and em- powered, under such rules of notice as the county board may prescribe as to the county assessments, and under such rules of notice as the state board may prescribe, as to the action of the state board, to increase or lower the entire assessment-roll, or any assessment contained therein, so as to equalize the assess- ment of the property contained in said assessment-roll, and make the assessment conform to the true value in money of the prop- erty contained in said roll. [An amendment to this section was voted upon November 6, 1894, but, although it appears in some publications as having been ratified, it was defeated by a vote of 88,605 noes to 86,777 ayes.] BOARD OF EQUALIZATION.— It is within the constitutional power of the legislature to create a state board of equalization. (Savings etc. Soc. v. Austin, 46 Cal. 415.) Section 1666 of the Political Code is unconstitutional, in so far as it delegates to the state board of equalization the right to fix the rate of taxation "after allowing for delinquency in the collection of taxes," because it ia a delegation of legislative Art. XIII, § 9 CONSTITUTION OF 1879. 474 power. (Houghton v. Austin, 47 Cal. 646. Savings etc. Soc. v. Austin, 46 Cal. 415, overruled on this point. See, also, Grimm v. O'Counell, .14 Cal. 522; Wills v. Austin, 53 Cal. 152; Harper v. Eowe, 53 Cal. 233.) The state board of equalization has no power to make a re- assessment and reapportionment of taxes upon a railroad for previous years, if the taxes for such years were originally validly assessed and apportioned. (Colusa County v. Glenn County, 124 Cal. 498, 57 Pac. 477.) Mandamus will not lie to compel the assessor to assess prop- erty in excess of its value, upon the ground that it was greatly undervalued in the previous fiscal year. (Clunie v. Siebe, 112 Cal. 593, 44 Pac. 1064.) As to the notice to be given by the board to the taxpayer, see Allison Eanch etc. Co. v. Nevada Co., 104 Cal. 161, 37 Pac. 875. Section 3861 of the Political Code, requiring the assessor, at the request of the board of equalization, to list and assess prop- erty which he has failed to assess, is not in conflict with this section, since it simply confers an additional power upon the board. (Farmers' etc. Bank v. Board of Equalization, 97 Cal. 318, 32 Pac. 312.) An act authorizing an assessment of taxes, after the time within which the board of supervisors can meet for the purpose of equalization, is violative of this section. (People v. Pitts- burg R. E. Co., 67 Cal. 625, 8 Pac. 381.) The state board of equalization has power to increase or lower the assessment-roll of a county so as to affect taxes for county purposes. (Baldwin v. Ellis, 68 Cal. 495, 9 Pac. 652.) The action of the state board of equalization in raising the assessment-roll of a county under this section operates upon mortgage assessments. (Schroeder v. Grady, 66 Cal. 212, 5 Pac. 81.) The state board of equalization has no power to increase the assessment of money, where the money is already assessed at its face value. (People v. Dunn, 59 Cal. 328.) A refusal of a state board of equalization to reduce an assess- ment does not preclude the board from afterward raising the same assessment. (Central Pac. B. R. Co. v. Placer Co., 46 Cal. 667.) 475 CONSTITUTION OF 1879. Art. XIII, § 9 The board of equalization has no power to strike out from an assessment, made by an assessor, property assessed by him. (People V. Supervisors, 50 Cal. 2S2.) The board of equalization has no power to cancel an assess- ment for taxes placed by the assessor upon the assessment-roll. (People V. Supervisors, 44 Cal. 613.) The board of equalization, in paaiiug on the question whether an assessment is too high or too low, acts in a judicial capacity. (People V. Goldtree, 44 Cal. 323.) A board of equalization acts judicially in raising or lowering an assessment, and has no arbitrary power of assessment or re- assessment. It cannot act without a hearing, upon notice given to the person assessed, nor change £n assessment made by the assessor without evidence adduced authorizing such change. (Oakland v. Southern Pac. B. K. Co., 131 Cal. 226, 63 Pac. 371.) In order to give the board of equalization jurisdiction to in- crease the valuation of property assessed, the filing of a com- plaint is necessary. (People v. Goldtree, 44 Cal. 323.) The state board of equalization cannot delegate to its clerk authority to issue orders prolonging the time of the sessions of the county boards of equalization. (Buswell v. Supervisors, 116 Cal. 351, 48 Pac. 226.) The board of equalization may appoint a committee to take testimony as to the valuation of property. (People v. McCreery, 34 Cal. 432.) The presumption of law is that a board of equalization per- form their duty and correct any inequality in the assessment of taxes. (Guy v. Washburn, 23 Cal. 111.) The proviso to this section is to be read distributively, that is to say, as authorizing the state board to increase or lower the entire assessment-roll of any county, and the county boards to increase or lower the individual assessments of their respec- tive counties. The state board, therefore, has no power to in- crease or lower individual assessments; nor has a county board the power to increase or lower the entire assessment-roll. (Wells, Fargo & Co. v. Board of Equalization, 56 Cal. 194; San Francisco etc. R. R. Co. v. State Board, 60 Cal. 12.) This section docs not make it necessary for a county board, in a return to a writ of certiorari, to set out general rules of notice adopted by the board. (Garretson v. Santa Barbara, 61 Cal. 54.) Art. XIII, § 10 CONSTITUTION OF 1879. 476 Property, where assessed. Sec. 10. All property, except as otherwise in this constitution provided, shall be assessed in the county, city, city and county, town or township, or district in which it is situated, in the manner prescribed by law. (Amendment adopted November 8, 1910. This amend- ment was adopted as a part of the same amendment by which section 14 of this article was added. See note to that section.) [ORIGINAL SECTION.] Sec. 10, All property, except as hereinafter in this secti'in provided, shall be assessed in the county, city, city and county, town, township, or district in which it is situated, in the manner prescribed by law. The franchise, roadway, roadbed, rails and rolling stock of all railroads operated in more than one county in this state shall be assessed by the state board of equaliza- tion, at their actual value, and the same shall be apportioned to the counties, cities and countif>s, cities, towns, townships, and districts in which such railroads are located, in proportion to the number of miles of railway laid in such counties, cities and counties, cities, towns, townships, and districts. SITUS OF PROPERTY. — This section is self-executing. (San Francisco etc. R. R. Co. v. State Board, 60 Cal. 12.) It has no relation to the assessment of the property of rail- road corporations, operated in more than one county. (Central Pac. R. R. Co. V. Board of Equalization, 60 Cal. 35.) Boards of supervisors of the several counties through which run railroads operated in more than one county have no juris- diction to raise or lower the assessment placed upon the property of such roads by the board of equalization. (People v. Sacra- mento County, 59 Cal. 321.) This provision has reference to the permanent situs of the property, as distinguished from the place of temporary sojourn, or transit. (Rosasco v. Tuolumne, 143 Cal. 430, 77 Pac. 148.) 477 CONSTITUTION OF 1879. Art. XIII, § 10 Water ditches for irrigating purposes must be assessed the &18.) This section is self-executing. (Miltimore v. Nofziger Bros. L. Co., 150 Cal. 790, 90 Pac. 114.) The mechanic's lien is created by the constitution. (Gold- tree V. San Diego, 8 Cal. App. 505, 97 Pac. 216.) The mechanic's lien law should be construed so as to be in consonance with the constitutional provision granting the lien. (Los Angeles P. B. Co. v. Higgins, 8 Cal. App. 514, 97 Pac. 414.) This section places mechanics, materialmen, artisans, and laborers in one- class, and the legislature cannot impair their rights by giving one a lien in preference to the other. (Milti- more V. Nofziger Bros. L. Co., 150 Cal. 790, 90 Pac. 114.) The legislature has power to provide that the ovmer shall be liable to materialmen and laborers, unless he executes his con- tract in a certain form, and files it in the recorder's office. (Kellogg v. Howes, 81 Cal. 170, 22 Pac. 509, 6 L. R. A. 588.) This section does not give a lien upon public bnilduigs or property. (Mayrhofer v. Board of Education, 89 Cal. 110, 23 Am. St. Rep. 451, 26 Pac. 646; Glodtree v. San Diego, 8 Cal. App. 505, 97 Pac. 216.) A meclianic's lien can be enforced against a fund in the city treasury to pay for the public work in connection with which the lien is claimed. (Goldtree v. San Diego, 8 Cal. App. 505, 97 Pac. 216.) Sections 1183 to 1199 of the Code of Civil Procedure, not being inconsistent with this section, remained in force after its adop- tion. (Germania Bldg. etc. Assn. v. Wagner, 61 Cal. 349.) The provision of this section respecting mechanics' liens is subordinate to the Declaration of Rights. (Stimson M. Co. v. Braun, 136 Cal. 122, 89 Am. St. Rep. 116, 68 Pac. 481, 57 L. R. A. 726.) Art. XX, § 16 CONSTITUTION OF 1879. 542 The provision of section 1203 of the Code of Civil Procedure requiring contractors for the erection of buildings to secure their contracts by 'bonds is not authorized by this section. (Shaugh- nessy v. American Surety Co., 138 Cal. 543, 69 Pac. 250, 71 Pac. 701.) This section only provides for a lien where the materials have actually been used upon the property upon which the lien is claimed. (Bennett v. Beadly, 142 Cal. 239, 75 Pac. 843.) This section authorizes the legislature to allow counsel fees in actions to foreclose mechanics' liens. (Peckham v. Fox, 1 Cal. App. 307, 82 Pac. 91.) The right of materialmen, artisans, and laborers to have a lien for the full value of labor or materials furnished is solemnly guaranteed by the constitution, and legislation must be sub- ordinate to and in consonance with this provision. (Hampton V. Christensen, 148 Cal. 729, 84 Pac. 200.) This section did not repeal existing statutes providing for the enforcement of liens of mechanics. (Peckham v. Fox, 1 Cal. App. 307, 82 Pac. 91.) The lien law is not unconstitutional because it takes property without due process of law, or abridges the right to contract in respect to one's property. (Stimson Mill Co. v. Nolan, 5 Cal. App. 754, 91 Pac. 262.) A subcontractor is entitled to a lien for labor and materials although he did not personally perform the labor. (Barrett- Hicks Co. V. Glas, 14 Cal. App. 289, 111 Pac. 760.) To construe section 1188 of the Code of Civil Procedure as re- quiring a separate stxtenient of the amount due on each build- ing, when it is impossible to do so, would render nugatory the lien provided for by the constitution. (Southern Cal. L. Co. v. Peters, 3 Cal. App. 478, 86 Pac. 816.) The lien provided for by this section attaches to a building resting upon land in which the person causing the building to be erected has no interest. (Linck v. Meikeljohn, 2 Cal. App. 506, 84 Pae. 309.) Term of office, duration of. Sec. 16. When the term of any officer or commis- sioner is not provided for in this constitution, the term 543 CONSTITUTION OF 1879. Art. XX, § 16 of such officer or commissioner may be declared by law; and, if not so declared, such officer or commissioner shall hold his position as such officer or commissioner during the pleasure of the authority making the appointment ; but in no case shall such term exceed four years; pro- vided, however, that in the case of any officer or em- ployee of any municipality governed under a legally adopted charter, the provisions of such charter with ref- erence to the tenure of office or the dismissal from office of any such officer or employee shall control; and pro- vided, further, that the term of office of any person heretofore or hereafter appointed to hold office or em- ployment during good behavior under civil service laws of the state or of any political division thereof shall not be limited by this section. (Amendment approved Oc- tober 10, 1911.) [AMENDMENT OF 1906.] Sec. 16. "When the term of any officer or commissioner is not provided for in this constitution, the term of such officer or commissioner may be declared by law; and, if not so declared, such officer or commissioner shall hold his position as such officer or commissioner during the pleasure of the authority making the appointment; but in no case shall such term exceed four years; provided, however, that in the case of any officer or employee of any municipality governed under a legally adopted charter, the provisions of such charter with reference to the tenure of office or the dismissal from office of any such officer or employee shall control. (Amendment adopted November 6, 1906.) Art. XX, § 16 CONSTITUTION OF 1879. 544 [ORIGINAL SECTION.] Sec. 16. "When the term of any officer or commissioner is not provided for in this constitution, the term of such officer or com- missioner may be declared by law; and, if not so declared, such officer or commissioner shall hold his position as such officer or commissioner during the pleasure of the authority making the appointment; but in no case shall such term exceed four years. TERM OF OFFICE. — This section being a re-enactment of section 7, article 11, of the former constitution, must be con- strued in the same manner. (People v. Edwards, 93 Cal. 153, 28 Pac. 831.) The word "duration" signifies extent, limit, or time. (People V. Hill, 7 Cal. 97.) A hospital physician of the county is not a public officer. (People V. Wheeler, 136 Cal. 652, 69 Pac. 435.) This section only applies to officers whose term is "not pro- vided for in the constitution" and does not apply to superior judges. (People v. Campbell, 138 Cal. 11, 70 Pac. 918.) "Good behavior" is not a term within the meaning of this section. (Somers v. State, 58 S. D. 584.) "When an ineligible person receives the highest number of votes, there is a vacancy which the board of supervisors has power to fill. (Campbell v. Board of Supervisors, 7 Cal. App. 155, 93 Pac. 1061.) The legislature may direct the time and mode of the election of an officer whose term is prescribed by the constitution, but cannot change the tenure. (People v. Burbank, 12 Cal. 378.) "Where an officer is appointed for two years, he does not hold by the tenure of the approbation of the appointing power. (People V. Eeid, 6 Cal. 288.) An officer appointed to hold for one year, or until his successor should be appointed and qualified, has no fixed term, and he may be removed at any time by the appointing power. (Higgins v. Cole, 100 Cal. 260, 34 Pac. 678.) This section refers to officers of statutory creation as well as to officers mentioned in the constitution itself. (People v. Perry. 79 Cal. 105, 21 Pac. 423.) The commissioners to manage the Yosemite "Valley are officer? of the state within the meaning of this section, and their terms 545 CONSTITUTION OF 1879. Art. XX.. § 16 expired four years after their appointment. (People v. Ash- burner, 55 Cal. 517.) The commissioners of the funded debt of San Francisco were not oflScers. (People v. Middleton, 28 Cal. 603.) The members of the board of health of San Francisco are officers within the meaning of this section, and a statute fixing their term of office at five years is unconstitutional and leaves the duration of the term unfixed and subject to the pleasure of the governor. (People v. Perry, 79 Cal. 105, 21 Pae. 423.) The health inspector of San Francisco is an officer. (Patton V. Board of Health, 127 Cal. 388, 78 Am. St. Kep. 66, 59 Pac. 702.) As to who are officers generally, see Vaughn v. English, 8 Cal. 39; Crawford v. Dunbar, 52 Cal. 36; Farrell v. Sacramento, 85 Cal. 408, 24 Pac. 868; State v. Brandt, 41 Iowa, 593; Somers v. State, 5 S. D. 584, 59 N. W. 962; United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; note, 72 Am. Dec. 179-189; Wright v. Laugenour, .55 Cal. 280; Phelps v. Winchomb, 3 Bulst. 77. The legislature cannot provide that officers appointed by a board shall not be removed without just cause, where the dura- tion of their terms is not fixed. (People v. Hill, 7 Cal. 97; Smith V. Brown, 59 Cal. 672; People v. Shear, 15 Pac. 92; Pat- ton V. Board of Health, 127 Cal. 388, 78 Am. St. Eep. 66, 59 Pac. 702; Sponogle v. Curnow, 136 Cal. 580, 69 Pac. 255.) Policemen appointed without any definite term hold during the pleasure of the appointing power, and may be removed with- out charges, notice or trial. (Farrell v. Police Commissioners, 1 Cal. App. 5, 81 Pac. 674.) As to whether or not the Civil Service provisions of the San Francisco charter are in violation of this provision, see Cahen V. Wells, 132 Cal. 447, 64 Pac. 699. This section must be construed to deny the right of removal in those cases where the tenure is defined by law. (People v. Jewett, 6 Cal. 291.) The constitution docs not prohibit an office created by the legislature from continuing over four years, but merely limits the incumbent's term to four years. (People v. Stratton, 28 Cal. 382.) Constitution — 85 Art. XX, § 17 CONSTITUTION OP 1879. 546 This section does not forbid a holding over until a successor has been chosen and qualified. (People v. Edwards, 93 Cal. 153, 28 Pac. 831.) Where the term of an officer is not fixed by the constitution or by law, and the authority of the power making the appoint- ment has ceased, there is no vacancy in the office, but the officer holds over. (People v. Hammond, 66 Cal. 654, 6 Pac. 741; People V. Gunst, 110 Cal. 447, 42 Pac. 963.) When the charter provides a tribunal with power to remove municipal officers, such method of procedure is exclusive and supersedes the provision of the Penal Code giving jurisdiction to the superior court. (Dinan v. Superior Court, 6 Cal. App. 217, 91 Pac. 806.) The amendment of 1906 was intended to make it clear that the provisions of a freeholders' charter should control in the matter of the dismissal from office of any officer or employee of the municipality. (Craig v. Superior Court, 157 Cal. 481, 108 Pac. 310.) ' Eight hours a legal day's labor. Sec. 17. The time of service of all laborers or work- men or mechanics employed upon any public works of the state of California, or of any county, city and county, city, town, district, township, or any other political subdivision thereof, whether said work is done by con- tract or otherwise, shall be limited and restricted to eight hours in any one calendar day, except in cases of extraordinary emergency caused by fire, flood, or danger to life and property, or except to work upon public, military, or naval works or defenses in time of war, and the legislature shall provide by law that a stipulation to this effect shall be incorporated in all con- Art. XX, Sec. 111. Insert at Page 547. Sec. 17-^. The legislature may, by appropriate legis- lation, provide for the establishment of a minimum wage for women and minors and may provide for the comfort, health, safety and general welfare of any and all employees. No provision of this constitution shall be construed as a limitation upon the authority of the legislature to confer upon any commission now or hereafter created, such power and authority as the legislature may deem requisite to carry out the pro- visions of this section. (Xcav section added by amend- ment adopted November 3, 1914.) 547 CONSTITUTION OF 1879. Art. XX, § 18 tracts for "public work and prescribe proper penalties for the speedy and efficient enforcement of said law. (Amendment adopted November 4, 1902.) [ORIGINAL SECTION.] Sec. 17. Eight hours shall constitute a legal clay's work on all public work. Sex not a disqualification for business. Sec. 18. No person shall, on account of sex, be dis- qualified from entering upon or pursuing any lawful business, vocation, or profession. SEX. — This section is self-executing, and needs no legislation to put it in effect, and imposes a restraint on every law-making power of the state, whether an act of the legislature or an ordi- nance of a municipal corporation. (Matter of Maguire, 57 Cal. 604, 40 Am. Rep. 125.) The word "qualified," as used in this section, is presumed to be used in its natural and ordinary sense. (Matter of Maguire, 57 Cal. 604, 40 Am. Rep. 125; Weill v. Kenfield, 54 Cal. 111.) An ordinance prohibiting the employment of females in dance- halls, etc., is in violation of this section. (Matter of Maguire, 57 Cal. 604, 40 Am. Rep. 125. But see Ex parte Felchlin, 96 Cal. 360, 31 Am. St. Rep. 223, 31 Pac. 2,24.) A city ordinance which fixes the license for the carrying on of a saloon where females are employed, and where intoxicating liquors are sold in less quantities than one quart, at a higher rate than a license for conducting a saloon where females are not employed, is valid. (Ex parte Felchlin, 96 Cal. 360, 31 Am. St. Rep. 223, 31 Pac. 224. Opinion of McKinstry, J., in Matter of Maguire, 57 Cal. 614, approved.) An ordinance providing that no license shall be issued to per- sons engaged in the sale of liquors in dance-halls, or dance- cellars, or in places where musical, theatrical, or other public Art. XX, §§19, 20 constitution op 1879. 543 exhibitions are given, and where females attenrl a^ waitresses, is valid. (Ex parte Hayes, 98 Cal, 555, 33 Pac. 337, 20 L. E. A. 701.) Payment of expenses of convention. Sec. 19. Nothing in this constitution shall prevent the legislature from providing, by law, for the payment of the expenses of the convention framing this consti- tution, including the per diem of the delegates for the full term thereof. Election of officers — Term, when commences. Sec. 20. Elections of the officers provided for by this constitution, except at the election in the year eighteen hundred and seventy-nine, shall be held on the even- numbered years next before the expiration of their respective terms. The terms of such officers shall com- mence on the first Monday after the first day of Jan- uary next following their election. TIME OF ELECTIONS.— This section controls all other pro- visions of the constitution as to when the term of of3Sce of officers elected under it commences. (Merced Bank v. Rosen- thal, 99 Cal. 39, 31 Pac. 849, 33 Pac. 732.) The officers mentioned in this section are not the county, town- ship and municipal officers who are distinctly mentioned in sec- tion 5, article 11, and the duration of whose terms the legislature is expressly directed to fix. (In re Stuart, 53 Cal. 745.) The officers mentioned in this section are the same as those mentioned in section 10, article 22. (Barton v. Kalloch, 56 Cal. 95.) 549 CONSTITUTION OP 1879. Art. XX, § 21 Under this section justices of the peace are to be elected in the even-numbered years. (People v. Eaiisoin, 58 Cal. 558; Bishop V. Oakland, 58 Cal. 572; Jenks v. Oakland, 58 Cal. 576; Coggins V. Sacramento, 59 Cal. 599.) The words "from and after" must be construed to mean "on and after" and the controller's term includes the first Monday. (People V. Nye, 9 Cal. App. 148, 98 Pac. 241.) Laws to remain in force. Sec. 21. The legislature may by appropriate legislation create and enforce a liability on the part of all employ- ers to compensate their employees for any injury in- curred by the said employees in the course of their em- ployment irrespective of the fault of either party. The legislature may provide for the settlement of any dis- putes arising under the legislation contemplated by this section, by arbitration, or by an industrial accident board, by the courts, or by either, any or all of these agencies, anything in this constitution to the contrary notwithstanding. (Amendment api)roved October 10, 1911.x Art. XXI, § 1 CONSTITUTION OP 1879. 550 ARTICLE XXI. BOUNDAEY. Section 1. The boundary of the state of California shall be as follows: Commencing at the point of inter- section of the forty-second degree of north latitude with the one hundred and twentieth degree of longitude west from Greenwich, and running south on the line of said one hundred and twentieth degree of west longi- tude until it intersects the thirty-ninth degree of north latitude; thence running in a straight line, in a south- easterly direction, to the River Colorado, at a point where it intersects the thirty-fifth degree of north lati- tude ; thence down the middle of the channel of said river to the boundary line between the United States and Mexico, as established by the treaty of May thir- tieth, one thousand eight hundred and forty-eight; thence running west and along said boundary line to the Pacific Ocean, and extending therein three English miles; thence running in a northwesterly direction and following the direction of the Pacific Coast to the forty- second degree of north latitude; thence on the line of said forty-second degree of north latitude to the place of beginning. Also, including all the islands, harbors, and bays along and adjacent to the coast. 551 CONSTITUTION OF 1879. Art. XXII, § 1 ARTICLE XXII. SCHEDULE. § 1. Laws to remain in force. § 2. Kecognizances, obligations, etc., unaffected. § 3. Courts, save justices' and police courts, abolished — Trans- fer of records, books, etc. § 4. State printing. § 5. Ballots to be printed. § 6. Registers, poll-books, etc., to be furnished. § 7. Who entitled to vote for constitution, § 8. Canvass of returns of vote. § 9. Computing returns of vote. § 10. Terms of officers first elected. § 11. Laws applicable to judicial system. § 12. Constitution, when to take effect. That no inconvenience may arise from the alterations and amendments in the constitution of this state, and to carry the same into complete effect, it is hereby or- dained and declared : Laws to remain in force. Section 1. That all laws in force at the adoption of this constitution, not inconsistent therewith, shall re- main in full force and effect until altered or repealed by the legislature; and all rights, actions, prosecutions, claims, and contracts of the state, counties, individuals, or bodies corporate, not inconsistent therewith, shall continue to be as valid as if this constitution had not Art. XXII, § 1 CONSTITUTION OF 1879. 552 been adopted. The provisions of all laws which are in- consistent with this constitution shall cease upon the adoption thereof, except that all laws which are incon- sistent with such provisions of this constitution as re- quire legislation to enforce them shall remain in full force until the first day of July, eighteen hundred and eighty, unless sooner altered or repealed by the legis- lature. LAWS CONTINTJED IN FORCE.— The constitution of 1879 (lid not, proprio vigore, repeal or displace all the statutes of the state theretofore in force, but only such as were inconsistent with those provisions of that constitution which do not require legislation to put them in force. (In re Stuart, 53 Cal. 745.) Section 25, article 4, being merely prospective, special laws passed before the adoption of the constitution are not super- seded. (Smith V. McDermott, 93 Cal. 421, 29 Pac. 34.) The provisions of the constitution giving the superior court jurisdiction of special proceedings, not requiring legislation to enforce it, the superior court has jurisdiction, as the successor of the district court, to entertain proceedings under sections 312 and 315 of the Civil Code, although those sections mention the district court. (Wickersham v. Brittan, 93 Cal. 34, 28 Pac. 792, 29 Pac. 51, 15 L. E. A. 106.) A statute giving the district court jurisdiction of a special proceeding is not inconsistent with the constitution, and did not cease upon its adoption. (Wickersham v. Brittan, 93 Cal. 34, 28 Pac. 792, 29 Pac. 51, 15 L. R. A. 106. Fraser v. Alexander, 75 Cal. 147, 16 Pac. 757, overruled.) Section 13, article 11, being only prospective, an act passed prior to the constitution which is inconsistent with it is not superseded. (Commissioners v. Trustees, 71 Cal. 310, 12 Pac. 224.) Sections 1183 to 1199 of the Code of Civil Procedure, not being inconsistent with section 15, article 20, of the constitution, re- mained in force after its adoption. (Germania Bldg. etc. Assn. V. Wagner, 61 Cal. 349.) 553 CONSTITUTION OF 1879. Art. XII Any general law in conflict with the Civil Code and passed subsequent to its adoption supersedes the provisions thereof, and the constitution does not require such a law to be passed as an amendment to the Civil Code in order to affect any rights or powers therein given to corporations. (People v. Bank of San Luis Obispo, 15-1 Cal. 194, 97 Pae. 306.) Section 1033 of the Peual Code is not inconsistent with sec- tion 9, article 1 of the constitution, and was continued in force. (Older v. Superior Court, 157 Cal. 770, 109 Pae. 478.) The law providing for the election of a clerk of the supreme court was not superseded by the constitution. (Gross v. Ken- field, 57 Cal. 626.) Section 1, article 13, which provides that "all property in the state, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law," is self-executing, and requires the assessor to ascer- tain such value in the manner now provided by law. (Hyatt V. Allen, 54 Cal. 353; McDonald v. Patterson, 54 Cal. 245.) The Consolidation Act of the city and county of San Francisco remained in force notwithstanding section 7, article 11, requir- ing two boards of supervisors, since that section required legis- lation to put it in effect. (Desmond v. Dunn, 55 Cal. 242.) The effect of the new constitution in repealing the provision of the act of 1878, declaring how and by whom two of the fire commissioners should be appointed, did not necessarily destroy the two offices, nor affect the validity of the act, but the incum- bents continued to hold after the appointing power was abol- ished. (People v. Newman, 96 Cal. 605, 31 Pae. 564.) Where, at the adoption of the constitution, the Political Code fixed the salary of county superintendent of schools, and in 1878 the legislature passed a special law on the subject to go into effect on the first Monday of March, 1880, the provision of the Political Code remained in force and the special act never went into effect. (Peachy v. Supervisors, 59 Cal. 548; Whiting v. Haggard, 60 Cal. 513.) Where a special act was passed prior to the new constitution, but it was provided that it should not affect the present incum- bent, whose term did not expire until after the constitution went into effect, the act was not superseded by the constitution. (Los Angeles v. Lamb, 61 Cal. 196. Peachy v. Supervisors, 59 Cal. 548, distinguished.) Art. XXII, § 2 CONSTITUTION OF 1879. 554 LAWS SUPERSEDED.— The provision of the charter of San Francisco for the making a contract for street work before an assessment had been levied and collected, being inconsistent with section 19, article 11, of the constitution, was superseded by it. (Thomason v. Buggies, 69 Cal 465, 11 Pac. 20; Oakland Pav. Co. V. Hilton, 69 Cal. 479, 11 Pac. 3; McDonald v. Patter- son, 54 Cal. 245; Donahue v. Graham, 61 Cal. 276.) The act of 1858 providing for the fixing of water rates by a commissioner, being inconsistent with section 1, article 14, of the constitution, was superseded by that section. (Spring Valley W. W. V. San Francisco, 61 Cal. 3.) The provision of the act of 1858, requiring water companies to furnish water free of charge to cities and counties, was abro- gated by this section, because in conflict with section 19, article 11, and section 1, article 14. (Spring Valley W. W. v. San Fran- cisco, 61 Cal. 18.) The provision of the Political Code imposing a license upon the business of selling goods, etc., at a fixed place of business, being in conflict with section 12, article 11, of the constitution, became inoperative upon the adoption of the constitution. (People V. Martin, 60 Cal. 153.) Held, that an ordinance prohibiting the employment of females in dance-halls, etc., being in conflict with section 18, article 20, ceased upon the adoption of the constitution. (Matter of Ma- guire, 57 Cal. 604, 40 Am. Eep. 125.) The act of 1875, which provided that the text-books in use in 1873, 1874, 1875, should be continued in use until otherwise pro- vided by statute, was superseded by section 7, article 9, which provides that the local boards of education should adopt text- books within their respective jurisdictions. (People v Board of Education, 55 Cal. 331.) An act passed before the adoption of the constitution, but which was not to go into effect until a later date, never went into effect. (Speegle v. Joy, 60 Cal. 278.) Recognizances, obligations, etc., unaffected. See. 2. That all recognizances, obligations, and all other instruments entered into or executed before the adoption of this constitution, to this state, or to any sub- 555 CONSTITUTION OP 1879. Art. XXII, § 3 division thereof, or any municipality therein, and all fines, taxes, penalties, and forfeitures due or owing to this state, or any subdivision or municipality thereof, and all writs, prosecutions, actions, and causes of ac- tions, except as herein otherwise provided, shall con- tinue and remain unaffected by the adoption of this constitution. All indictments . or informations which shall have been found, or may hereafter be found, for any crime or offense committed before this constitution takes effect, may be proceeded upon as if no change had taken place, except as otherwise provided in this consti- tution. Courts, save justices' and police courts, abolished^ Transfer of records, books, etc. Sec. 3. All courts now existing, save justices' and police courts, are hereby abolished; and all records, books, papers, and proceedings from such courts, as are abolished by this constitution, shall be transferred on the first day of January, eighteen hundred and eighty, to the courts provided for in this constitution ; and the courts to which the same are thus transferred shall have the same power and jurisdiction over them as if they had been in the first instance commenced, filed, or lodged therein. COURTS. — When a trial was pommenced and the testimony taken by a judge before his term expired under the old con- stitution, and he was re-elected under the new, he may, as a Art. XXII, § 4 CONSTITUTION OP 1879. 556 judge under the new, decide the case on the evidence then taken, without a resubmission. (Seale v. Ford, 29 Cal. 104.) The amendments to the constitution in 18G2 did not ipso facto supersede the existing courts, but such courts continued in exist- ence until the new system should be in a condition to exercise its functions. (In re Oliverez, 21 Cal. 415.) The justices of the peace of the city and county of San Fran- cisco, provided for by the act of 1866, were continued in force by this section, and are not affected by the provisions of the County Government Act. (Kahn v. Sutro, 114 Cal. 31G, 46 Pac. 87, 33 L. E. A. 620. But see People v. Cobb, 133 Cal. 74, 65 Pac. 325.) The superior court of San Francisco is the successor of the municipal criminal court of that city and county. (Ex parte Williams, 87 Cal. 78, 24 Pac. 602, 25 Pac. 248.) An action to abate a nuisance pending in the district court, being held to be an action in equity under the former constitu- tion, is not affected by the adoption of the new constitution. (Learned v. Castle, 67 Cal. 41, 7 Pac. 341.) The superior court of San Francisco acquired jurisdiction of an action pending in the district court of San Francisco to re- cover real estate in Sonoma county. (Gurnee v. Superior Court, 58 Cal. 88; San Francisco Sav. Union v. Abbott, 59 Cal. 400.) It would seem that it M^as intended that the superior judge should succeed to the duty of the county judge in respect to the drawing of jurors. (People v. Gallagher, 55 Cal. 462.) The superior court is the successor of the county court, and may issue all necessary writs to the execution of its judgment. (Ex parte Toland, 54 Cal. 344.) The superior court is the successor of the district court, and may carry into execution a judgment of death rendered by the district court. (People v. Colby, 54 Cal. 184.) State printing. Sec. 4. The superintendent of printing of the state of California shall, at least thirty days before the first Wednesday in May, A. D. eighteen hundred and sev- enty-nine, cause to be printed at the state printing office 557 CONSTITUTION OP 1879. Art. XXII, § 5 in pamphlet form, simply stitched, as many copies of this constitution as there are registered voters in this state, and mail one copy thereof to the postoffice ad- dress of each registered voter; provided, any copies not called for ten days after reaching their delivery office, shall be subject to general distribution by the several postmasters of the state. The governor shall issue his proclamation, giving notice of the election for the adoption or rejection of this constitution, at least thirty days before the said first "Wednesday of May, eighteen hundred and seventy-nine, and the boards of super- visors of the several counties shall cause said proclama- tion to be made public in their respective counties, and general notice of said election to be given at least fif- teen days next before said election. Ballots to be printed. Sec. 5. The superintendent of printing of the state of California shall, at least twenty days before said election, cause to be printed and delivered to the clerk of each county in this state five times the number of properly prepared ballots for said election that there are voters in said respective counties, with the words printed thereon: "For the new constitution." He shall likewise cause to be so printed and delivered to said clerks five times the number of properly prepared ballots for said election that there are voters in said respective counties, with the words printed thereon: Art. XXII, §§ 6,7 CONSTITUTION OF 1879. 558 "Against tlie new constitution." The secretary of state is hereby authorized and required to furnish the superintendent of state printing a sufficient quantity of legal ballot paper, now on hand, to carry out the provisions of this section. Registers, poll-books, etc., to be furnished. Sec. 6. The clerks of the several counties in the state shall, at least five days before said election, cause to be delivered to the inspectors of elections, at each election precinct or polling-place in their respective counties, suitable registers, poll-books, forms of return, and an equal number of the aforesaid ballots, which number, in the aggregate, must be ten times greater than the number of voters, in the said election precincts or polling-places. The returns of the number of votes cast at the presidential election in the year eighteen hundred and seventy-six shall serve as a basis of cal- culation for this and the preceding section; provided, that the duties in this and the preceding section im- posed upon the clerk of the respective counties shall, in the city and county of San Francisco, be performed by the registrar of voters for said city and county. Who entitled to vote for constitution. Sec. 7. Every citizen of the United States, entitled by law to vote for members of the assembly in this state, 559 CONSTITUTION OP 1879. Art. XXIi, §§ 8,0 shall be entitled to vote for the adoption or rejection of this constitution. Canvass of returns of vote. Sec. 8. The officers of the several counties of this state, whose duty it is, under the law, to receive and can- vass the returns from the several precincts of their re- spective counties, as well as of the city and county of San Francisco, shall meet at the usual places of meeting for such purposes on the first Monday after said election. If, at the time of meeting, the returns from each pre- cinct in the county in which the polls were opened have been received, the board must then and there proceed to canvass the returns ; but if all the returns have not been received, the canvass must be postponed from time to time until all the returns are received, or until the sec- ond Monday after said election, when they shall proceed to make out returns of the votes cast for and against the new constitution ; and the proceedings of said boards shall be the same as those prescribed for like boards in the case of an election for governor. Upon the comple- tion of said canvass and returns, the said board shall im- mediately certify the same, in the usual form, to the governor of the state of California. Computing returns of vote. Sec. 9. The governor of the state of California shall, as soon as tlie returns of said election shall be received Art. XXII, § 10 CONSTITUTION OP 1879. 560 by him, or within thirty days after said election, in the presence and with the assistance of the controller, treas- urer, and secretary of state, open and compute all the returns received of votes cast for and against the new constitution. If, by such examination and computa- tion, it is ascertained that a majority of the whole num- ber of votes cast at such election is in favor of such new constitution, the executive of this state shall, by his proclamation, declare such new constitution to be the constitution of the state of California, and that it shall take effect and be in force on the days hereinafter speci- fied. Terms of officers first elected. Sec. 10. In order that future elections in this state shall conform to the requirements of this constitution, the terms of all officers elected at the first election under the same shall be, respectively, one year shorter than the terms as fixed by law or by this constitution; and the successors of all such officers shall be elected at the last election before the expiration of the terms as in this sec- tion provided. The first officers chosen, after the adop- tion of this constitution, shall be elected at the time and in the manner now provided by law. Judicial officers and the superintendent of public instruction shall be elected at the time and in the manner that state officers are elected. 5G1 CONSTITUTION OP 1879. Art. XXII, § 11 ELECTIONS. — Suggested but not decided that it mry have been, and probably was, contemplated by the framers of the constitution that, when the legislature should provide for the election of county, township, and municipal officers, it would re- quire such election to be held in the e,ven-numbered years; but whether the legislature must do so, not decided. (Barton v. Kalloch, 56 Cal. 95.) This section refers only to the officers mentioned in section 20, article 20; that is, only to officers who derive their right to hold office immediately from the constitution; and does not refer to municipal or county ofi&cers. (Barton v. Kalloch, 56 Cal. 95.) Justices of the peace are judicial officers within the meaning of this section, and must be elected at the general election. (McGrew v. Mayor etc. of San Jose, 55 Cal. 611; People v. Ean- som, 58 Cal. 558.) A police judge, though a judicial officer, is also a municipal officer, and is not one of those mentioned in this section. (People V. Henry, 62 Cal. 557.) This section does not require that the term of such judicial officers as the legislature may authorize to be elected shall be uniform throughout the state. (Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620.) Laws applicable to judicial system. Sec. 11. All laws relative to the present judicial system of the state shall be applicable to the judicial system created by this constitution mntil changed by legislation. JUDICIAL SYSTEM. — The several courts of the state con- tinued with their jurisdiction, notwithstanding the adoption of the amendments of 1862, until the organization of the new courts by which they were to be superseded. (Gillis v. Barnett, 38 Cal. 393.) Section 204 of the Code of Civil Procedure as to grand juries was continued in force by this provision of the constitution. (People V. Durrant, 116 Cal. 179, 48 Pac. 75.) Constitution — 36 Art. XXII, § 11 CONSTITUTION OP 1879. 562 The justices of the peace of the city ami county of San Fran- cisco provided for by the act of 1806 were continued in force by this section, and are not affected bj' the County Government Act. (Kahn v. Sutro, 114 Cal. 316, 46 Pac. 87, 33 L. R. A. 620. But see People v. Cobb, 133 Cal. 74, 65 Pac. 325.) The provision of the fee bill of 1876, so far as it provided for the fees to be paid to the clerk of the district court, was a law relating to the judicial system of the state, and was kept in force by the new constitution, and made applicable to the courts organized thereunder. (People v. Hamilton, 103 Cal. 488, 37 Pac. 627.) This section continued in force the provision for the drawing of trial jurors. (People v. Eichards, 1 Cal. App. 566, 82 Pac. 691.) The superior court has jurisdiction, as the successor of the dis- trict court, to entertain proceedings under sections 312 and 315 of the Civil Code, although those sections mention the district court. (Wickersham v. Brittan, 93 Cal. 34, 28 Pac. 792, 29 Pac. 51, 15 L. R. A. 106.) The power of appointing police commissioners, vested in the judges of certain district courts by the act of 1878, was not a judicial power, did not pertain to the judicial system of the state, and did not devolve upon the judges of the superior courts, (Heinlen v. Sullivan, 64 Cal. 378, 1 Pac. 158.) Under this section, the law giving the district court power to fix the compensation of phonographic reporters was continued in force, and made applicable to superior courts. (Ex parte Eeis, 64 Cal. 233, 30 Pac. 806.) Under this section, the law regulating appeals from justices' courts to the county courts applied to appeals to the superior court. (California Fruit etc. Co. v. Superior Court, 60 Cal. 305.) The clerk of the superior court succeeding to a district court has power, without a previous order of the court, to issue an execution upon a judgment of the district court. (Dorn v. Howe, 59 Cal. 129.) The statute providing for the drawing of jurors in the pres- ence of the county judge, clerk and sheriff was not superseded by the constitution, since the superior judge would either sue- 563 CONSTITUTION OF 1879. Art. XXII, § 12 ceed to the duty of the county judge, or, there being no county judge, the presence of the clerk and sheriff would be sufficient. (People V. Gallagher, 55 Cal. 462.) Constitution, when to take effect. Sec. 12. This constitution shall take effect and be in force on and after the fourth day of July, eighteen hundred and seventy-nine, at twelve o'clock meridian, so far as the same relates to the election of all officers, the commencement of their terms of office, and the meet- ing of the legislature. In all other respects, and for all other purposes, this constitution shall take effect on the first day of January, eighteen hundred and eighty, at twelve 'clock meridian. Art. XXIII, § 1 CONSTITUTION OF 1879. 564 ARTICLE XXIII. EECALL OF OFFICERS. Section 1. Every elective public officer of the state of California may be removed from office at any time by the electors entitled to vote for a successor of such in- cumbent, through the procedure and in the manner herein provided for, which procedure shall be known as the recall, and is in addition to any other method of removal provided by law. The procedure hereunder to effect the removal of an incumbent of an elective public office shall be as fol- lows: A petition signed by electors entitled to vote for a successor of the incumbent sought to be removed, equal in number to at least twelve per cent of the entire vote cast at the last preceding election for all candidates for the office which the incumbent sought to be removed occupies (provided that if the officer sought to be re- moved is a state officer who is elected in any political subdivision of the state, said petition shall be signed by electors entitled to vote for a successor to the incum- bent sought to be removed, equal in number to at least twenty per cent of the entire vote cast at the last pre- ceding election for all candidates for the office which the incumbent sought to be removed occupies) demand- ing an election of a successor to the officer named in said petition, shall be addressed to the secretary of state and filed with the clerk, or registrar of voters, of the county 565 CONSTITUTION OP 1879. Art. XXIII, § I or city and county in which the petition was circulated ; provided that if the officer sought to be removed was elected in the state at large such petition shall be cir- culated in not less than five counties of the state, and shall be signed in each of such counties by electors equal in number to not less than one per cent of the entire vote cast, in each of said counties, at said election, as above estimated. Such petition shall contain a general statement of the grounds on which the removal is sought, which statement is intended solely for the information of the electors, and the sufficiency of which shall not be open to review. When such petition is certified as is herein provided to the secretary of state, he shall forthwith submit the said petition, together with a certificate of its sufficiency, to the governor, who shall thereupon order and fix a date for holding the election, not less than sixty days nor more than eighty days from the date of such cer- tificate of the secretary of state. The governor shall make or cause to be made pub- lication of notice for the holding of such election, and officers charged by law with duties concerning elections shall make all arrangements for such election and the same shall be conducted, returned, and the result thereof declared, in all respects as are other state elections. On the official ballot at such election shall be printed, in not more than two hundred words, the reasons set forth in the petition for demanding his recall. And in not more Art. XXIII, § 1 CONSTITUTION OF 1879. 566 than three hundred words there shall also be printed, if desired by him, the officer's justification of his course in office. Proceedings for the recall of any officer shall be deemed to be pending from the date of the filing with any county, or city and county clerk, or registrar of voters, of any recall petition against such officer; and if such officer shall resign at any time subsequent to the filing thereof, the recall election shall be held notwith- standing such resignation, and the vacancy caused by such resignation, or from any other cause, shall be filled as provided by law, but the persons appointed to fill such vacancy shall hold his office only until the person elected at the said recall election shall qualify. Any person may be nominated for the office which is to be filled at any recall election by a petition signed by electors, qualified to vote at such recall election, equal in number to at least one per cent of the total number of votes cast at the last preceding election for all candi- dates for the office which the incumbent sought to be removed occupies. Each such nominating petition shall be filed with the secretary of state not less than twenty- five days before such recall election. There shall be printed on the recall ballot, as to every officer whose recall is to be voted on thereat, the follow- ing question: "Shall (name of person against whom the recall petition is filed) be recalled from the office of (title of the office) ?", following which question shall be the words "Yes" and "No" on separate lines, with a 567 CONSTITUTION OF 1879. Art. XXIII, § 1 blank space at the right of each, in which the voter shall indicate, by stamping a cross (X) , his vote for or against such recall. On such ballots, under each such question, there shall also be printed the names of those persons who have been, nominated as candidates to succeed the person recalled, in ease he shall be removed from office by said recall election ; but no vote cast shall be counted for any candidate for said office unless the voter also voted on said question of the recall of the person sought to be recalled from said office. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office. If a majority of those voting on said question of the recall of any incum- bent from office shall vote "No," said incumbent shall continue in said office. If a majority shall vote "Yes," said incumbent shall thereupon be deemed removed from such office, upon the qualification of his successor. The canvassers shall canvass all votes for candidates for said office and declare the result in like manner as in a regular election. If the vote at any such recall election shall recall the officer, then the candidate who has re- ceived the highest number of votes for the office shall be thereby declared elected for the remainder of the term. In case the person who received the highest number of votes shall fail to qualify within ten days after receiv- ing the certificate of election, the office shall be deemed vacant and shall be filled according to law. Art. XXIII, § 1 CONSTITUTION OF 1879. 568 Any recall petition may be presented in sections, but each section shall contain a full and accurate copy of the title and text of the petition. Each signer shall add to his signature his place of residence, giving the street and number, if such exist. His election precinct shall also appear on the paper after his name. The number of signatures appended to each section shall be at the pleasure of the person soliciting signatures to the same. Any qualified elector of the state shall be competent to solicit such signatures within the county, or city and county, of which he is an elector. Each section of the petition shall bear the name of the county, or city and county in which it is circulated, and only qualified elec- tors of such county or city and county shall be competent to sign such section. Each section shall have attached thereto the affidavit of the person soliciting signatures to the same stating his qualifications and that all the signa- tures to the attached section were made in his presence and that to the best of his knowledge and belief each signature to the section is the genuine signature of the person whose name it purports to be ; and no other affi- davit thereto shall be required. The affidavit of any person soliciting signatures hereunder shall be verified free of charge by any officer authorized to administer an oath. Such petition so verified shall be prima facie evi- dence that the signatures thereto appended are genuine and that the persons signing the same are qualified elec- tors. Unless and until it is otherwise proven upon offi- 569 CONSTITUTION OF 1879. Art. XXIII, § 1 cial investigation, it shall be presumed that the petition presented contains the signatures of the requisite num- ber of electors. Each section of the petition shall be filed with the clerk, or registrar of voters, of the county or city and county in which it was circulated; but all such sections circulated in any county or city and county shall be filed at the same time. Within twenty days after the date of the filing of such petition, the clerk, or registrar of voters, shall finally determine from the records of registration what number of qualified electors have signed the same ; and, if necessary, the board of supervisors shall allow such clerk or registrar additional assistants for the purpose of examining such petition and provide for their compensation. The said clerk or registrar, upon the completion of such examination, shall forthwith attach to such petition his certificate, properly dated, showing the result of such examination, and sub- mit said petition, except as to the signatures appended thereto, to the secretary of state and file a copy of said certificate in his office. Within forty days from the transmission of the said petition and certificate by the clerk or registrar of voters to the secretary of state, a supplemental petition, identical with the original as to the body of the petition but containing supplemental names, may be filed with the clerk or registrar of voters, as aforesaid. The clerk or registrar of voters shall within ten days after the filing of such supplemental petition make like examination thereof as of the original Art. XXIIT, § 1 CONSTITUTION OF 1879. 570 petition, and upon the conclusion of sucli examination shall forthwith attach to such petition his certificate, properly dated, showing the result of such examination, and shall forthwith transmit such supplemental petition, except as to the signatures thereon, together with his said certificate, to the secretary of state. When the secretary of state shall have received from one or more county clerks, or registrars of voters, a peti- tion certified as herein provided to have been signed by the requisite number of qualified electors, he shall forth- with transmit to the county clerk or registrar of voters of every county or city and county in the state a certifi- cate showing such fact; and such clerk or registrar of voters shall thereupon file said certificate for record in his office. A petition shall be deemed to be filed with the secre- tary of state upon the date of the receipt by him of a certificate or certificates showing the said petition to be signed by the requisite number of electors of the state. No recall petition shall be circulated or filed against any officer until he has actually held his office for at least six months ; save and except it may be filed against any member of the state legislature at any time after five days from the convening and organizing of the legisla- ture after his election. If at any recall election the incumbent whose removal is sought is not recalled, he shall be repaid from the state treasury any amount legally expended by him as ex- 571 CONSTITUTION OF 1879. Art. XXIII, § 1 penses of such election, and the legislature shall provide appropriation for such, purpose, and no proceedings for another recall election of such incumbent shall be initi- ated within six months after such election. If the governor is sought to be removed under the pro- visions of this article, the duties herein imposed upon him shall be performed by the lieutenant governor ; and if the secretary of state is sought to be removed, the duties herein imposed upon him shall be performed by the state controller ; and the duties herein imposed upon the clerk or registrar of voters shall be performed by such registrar of voters in all cases where the office of registrar of voters exists. The recall shall also be exercised by the electors of each county, city and county, city and town of the state, with reference to the elective officers thereof, under such procedure as shall be provided by law. Until otherwise provided by law, the legislative body of any such county, city and county, city or town may provide for the manner of exercising such recall powers in such counties, cities and counties, cities and towns, but shall not require any such recall petition to be signed by electors more in number than twenty-five per cent of the entire vote cast at the last preceding election for all can- didates for the office which the incumbent sought to be re- moved occupies. Nothing herein contained shall be construed as affecting or limiting the present or future powers of cities or counties or cities and counties having Art. XXIII, § 1 CONSTITUTION OP 1879. 572 charters adopted under the authority given by the consti- tution. In the submission to the electoi^ of any petition pro- posed under this article all officers shall be guided by the general laws of the state, except as otherwise herein provided. This article is self -executing, but legislation may be enacted to facilitate its operation, but in no way limiting or restricting the provisions of this article or the powers herein reserved. (Amendment approved October 10, 1911.) THE EECALIi.— The fixing of the tenure of ofSee of the officers of a municipality, subject to removal by the body that elected them, is comparatively new in our system of government, and the in- terpretive branch of the law is in rather an undeveloped state. (Good V. Common Council of San Diego, 5 Cal. App. 265.) Whete a municipal charter provides that the holder of any elec- tive office may be removed at any time by the electors qualified to vote for a successor, the charter does not contemplate an ordinary "removal for cause," but by virtue of the charter provisions, every elective officer elected after the provision was adopted holds his office subject to the condition subsequently expressed therein. (Good V. Common Council of the City of San Diego, 5 Cal. App. 265.) The recall pro\'ision is valid. The appellant accepted the trust subject to this power in his constituency, and the duration of his term of office is dependent upon the wish of the majority as ex- pressed at the polls. (Hillginger v, Gillman (Wash.), 105 Pac, 471.) The provision in Statutes (Mass.) 1908, p. 542, c. 574, amending the charter of the city of Haverhill, which requires officers to accept office of uncertain terms, with liability to be recalled at any time without just cause, is not unconstitutional. (Graham v. Eoberts, 85 N. E. 1009.) 573 CONSTITUTION OF 1879. Sisjners "It is contended that the recall provision of the charter" of Dallas "seeks to substitute within the municipality a socialistic and com- munistic system of government in lieu of a republican form of government — we do not concur in this contention. It is neither socialistic, communistic, nor obnoxious to a republican form of government to require an elective officer of a municipal government to submit to the voteTs of the city the issue for their determination •whether he shall longer continue in office." (Bonner v. Bester- ling (Tex.), 137 S. W. 154.) Attest: Edwin F. A. R. Andrews, eTames J. Aj^ers, Clitus Barbour, Edward Barry, James N. Barton, C. J. Beerstecher, Isaac S. Belcher, Peter Bell, Marion Bipgs, E. T. Blackmer, Joseph C. Brown, Saml. B. Burt, Josiah Boucher, James Caples, Aug. H. Chapman, J. M. Charles, John D. Condon, C. W. Cross, J. P. HOGE, President. Smith, Secretary. Hamlet Davis, Jas. E. Dean, P. T. Dowling, Luke D. Doyle, W. L. Dudley, Jonathan M. Dudley, Presley Dunlap, John Eagon, Thomas H. Estey, Henry Edgerton, M. M. Estee, Edward Evey, J. A. Filcher, Simon J. Farrell, Abraham Clark Freeman, Jacob Richard Freud, J. B. Garvey, B. B. Glasscock, Sijniers CONSTITUTION OF 1879. 574 Joseph C. Gorman, W. P. Grace, "William J, Graves, V. A. Gregg, Jno. S. Hager, John B. Hall, Thomas Harrison, Joel A. Harvey, T. D. Heiskell, Conrad Herold, D. W. Herrington, S. G. Hilbom, J. R. W. Hitchcock, J. E. Hale, Volney E. Howard, Sam A. Holmes, W. J. Howard, Wm. Proctor Hughey, W. F. Huestis, G. W. Hunter, Daniel Inman, George A. Johnson, L. F. Jones, Peter J. Joyce, J. M. Kelley, James H. Keyes, John J. Kenny, C. R. Kleine, T. H. Laine, Henry Larkin, R. M. Lampson, R. Lavigne, H. M. La Rue, David Lewis, J. F. Lindow, Jno. Mansfield, Edward Martin, J. West Martin, Rush McComas, John G. MeCallura, Thomas McConnell, John McCoy, Thomas B. McFarland, Hiram Mills, Wm. S. Moffatt, John Fleming McNutt, W. W. Moreland, L. D. Morse, James E. Murphy, Edmund Nason, Thorwald Klaudius Nelson, Henry Neunaber, Chas. C. O'Donnell, George Ohleyer, 'James 'Sullivan, James Martin Porter, 575 CONSTITUTION OF 1879. Signers "William H. Prouty, M. R. C. Pulliam, Clias. F. Reed, Patrick Redely, Jno. M. Rhodes, Jas. S. Reynolds, Horace C. Rolfe, Chas. S. Ringgold, James McM. Shafter, Geo. W. Schell, J. Schomp, Rufus Shoemaker, E. 0. Smith, Benj. Shurtleff, Geo. Venable Smith, H. W. Smith, John C. Stedman, E. P. Soule, D. C. Stevenson, Geo. Steele, Chas. V. Stuart, W. J. Sweasey, Charles Swenson, R. S. Swing, D. S. Terry, S. B. Thompson, F. 0. Townsend, W. J. Tinnin, Daniel Tuttle, P. B. Tully, H. K. Turner, A. P. Vacquerel, "Walter Van Dyke, "Wm. Van Voorhies, Hugh Walker, Jno. "Walker, Byron "Waters, Joseph R. "Weller, J. V. "Webster, John P. West, Patrick M. Wellin, John T. Wickes, Wm. F. White, H. C. Wilson, Jos. W. Winans, N. G. Wyatt. TABLE OF STATUTES DECLARED UNCONSTITUTIONAL IN WHOLE OR IN PART. Statntefl Page Chapter Case 1850 93 33 Caulfield v. Hudson, 3 Cal. 389. 176 71 Burgoyne v. Supervisors, 5 Cal. 9. 205 85 People v. Burbank, 12 Cal. 378. 210 86 Burgoyne v. Supervisors, 5 Cal. 9. 254 103 George v. Eansom, 15 Cal. 322, 76 Am. Dec. 490. 275 119 People v. Tinder, 19 Cal. 539, 81 Am. Dec. 77. 428 142 In re Holdforth, 1 Cal. 438. 1851 9 1 Parsons v. Tuolumne etc. Co., 5 Cal. 43, 63 Am. Dec. 76; Zander v. Coe, 5 Cal. 230. 51 5 Tay v. Hawley, 39 Cal. 93; Exline v. Smith, 5 Cal. 112; Crawford v. Bark Caroline Eeed, 42 Cal. 469. 387 88 Smith v. Morse, 2 Cal. 524. 1852 78 36 State v. Steamship Constitution, 42 Cal. 578, 10 Am. Rep. 303. 162 87 People v. Weils, 2 Cal. 196, 610. 233 146 People v. Rosborough, 14 Cal. 180. 1853 71 51 State v. Steamship Constitution, 42 Cal. 578, 10 Am. Rep. 303. 219 160 Guy v. Hermance, 5 Cal. 73, 63 Am. Dec. 85. 233 167 Hardenburgh v. Kidd, 10 Cal. 402. 1854 84 78 Houston v. Williams, 13 Cal. 24, 73 Am. Dec. 565. 198 128 Dickey v. Hurlburt, 5 Cal. 343. 1855 80 73 Greely v. Townsend, 25 Cal. 604. 145 119 Gillan v. Hutchinson, 16 Cal. 153. 160 131 Stone v. Elkins, 24 Cal. 125. Constitution — 37 (577) Statui tes Page Cliapte 1855 165 138 180 145 299 229 1856 54 47 100 85 110 95 145 125 1857 222 192 1858 32 43 124 171 - 254 288 305 319 322 336 1859 343 315 1862 462 339 539 416 1863 69 70 145 125 549 355 586 395 1864 198 204 431 383 1865- -66 689 528 786 565 824 596 1867- -68 159 181 176 196 316 293 1869- ■70 626 434 1871- ■72 243 204 UNCONSTITUTIONAL STATUTES. 578 Case Eobinson v. Magee, 9 Cal. 81, 70 Am. Dec. 638. People V. Johnson, 6 Cal. 499. Dick's Estate v. Gherke, 6 Cal. 666. Billings V. Hall, 7 Cal. 1. McCauley v. Brooks, 16 Cal. 11. Noiigues V. Douglass, 7 Cal. 65. People V. Woods, 7 Cal. 579; People v. Bond, 10 Cal. 563; Taylor v. Palmer, 31 Cal. 240. People V. Templeton, 12 Cal. 394. McCauley v. Weller, 12 Cal. 500. Ex parte Newman, 9 Cal. 502; contra, Ex parte Andrews, 18 Cal. 678. San Francisco v. Spring Valley W. W., 48 Cal. 493, Brumagim v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176. Grogan v. San Francisco, 18 Cal. 590. People V. McCreery, 34 Cal. 432; People V. Gerke, 35 Cal. 677. Lin Sing v. Washburn, 20 Cal. 534. People V, Eaymond, 34 Cal. 492. People V. Washington, 36 Cal. 658. Crosby v. Lyon, 37 Cal. 242. Bourland v. Hildreth, 26 Cal. 161. Caulfield v. Stevens, 28 Cal. 118. People V. Sanderson, 30 Cal. 160. Day V. Jones, 31 Cal. 261. People V. Kelsey, 34 Cal. 470. People V. McCreery, 34 Cal. 432; People V. Gerke, 35 Cal. 677. Pryor v. Downey, 50 Cal. 388, 19 Am. Rep. 656. Waterloo T. R. Co. v. Cole, 51 Cal. 381. Rose V. Estudillo, 39 Cal. 270. Wilson V. Supervisors, 47 Cal. 91. In re Market St., 49 Cal. 546. Smith V. Brown, 59 Cal. 672; People V. Edwards, 93 Cal. 153, 28 Pao. 831. 579 UNCONSTITUTIONAL STATUTES. Statutes Page Chapter Case 1871-72 415 308 Williams v. Corcoran, 46 Cal. 553. 443 334 Chollar M. Co. v. Wilson, 66 Cal. 374, 5 Pac. 670. 773 536 Savings etc. Soc. v. Austin, 46 Cal. 415. 1873-74 50 54 Young v. Wright, 52 Cal. 407; Sutherland V. Sweem, 53 Cal. 48. 320 453 Weber v. Santa Clara, 59 Cal. 265. 376 273 People v. Townsend, 56 Cal. 633. 434 300 Ex parte Wall, 48 Cal. 279, 17 Am. Rep. 425. 477 331 People v. Pittsburg E. E. Co., 67 Cal. 625, 8 Pac. 381. 588 414 Eeis v Graflf, 51 Cal. 86j Brady v. King, 53 Cal. 44. 691 460 People v. Lynch, 51 Cal. 15, 21 Am. Eep. 677. 746 511 Harper v. Eowe, 53 Cal. 233. 832 595 Harper v. Eowe, 53 Cal. 233. 896 645 People v. Lynch, 51 Cal. 15, 21 Am. Eop. 677. 1875-76 82 114 Spring Valley W. W. v. Bryant, 52 Cal. 132. 140 137 People v. Houston, 54 Cal. 536. 214 190 Hoagland v. Sacramento, 52 Cal. 142. 753 495 Montgomery Avenue Case, 54 Cal. 579. 1877-78 181 138 Knox v. Los Angeles, 58 Cal. 59. 341 282 Fanning v. Scammel, 68 Cal. 428, 9 Pac. 427. 419 317 Schumacher v. Toberman, 56 Cal. 508. 442 333 Purdy v. Sinton, 56 Cal. 133. 777 501 Boorman v. Santa Barbara, 65 Cal. 313, 4 Pac. 31. 1880 1 1 Weill V. Kenfield, 54 Cal. 111. 20 26 San Francisco v. Broderick, 125 Cal. 188, 57 Pac. 887. 55 63 Hutson v. Protection Dist., 79 Cal. 90, 16 Pac. 549, 21 Pac. 435. 67 71 People v. Chapman, 61 Cal. 262. 80 84 Ex parte Westerfield, 55 Cal. 550, 36 Am. Eep. 47. UNCONSTITUTIONAL STATUTES. 580 Statutes Pa^e Chapter Case 1880 ' 119 109 Bixler's Appeal, 59 Cal. 550; Bixler v. Sacramento, 59 Cal. 689. (Decision of Superior Court.) 123 116 In re Ah Chong, 5 Pac. C. L. J. 451. 123 117 Doane v. Weil, 58 Cal. 334; People v. Parks, 58 Cal. 624; Callahan v. Dunn, 78 Cal. 366, 20 Pac. 737. 131 118 Krause v. Durbrow, 127 Cal. 681, 60 Pac. 438. 137 124 Desmond v. Dunn, 55 Cal. 242. 527 244 Leonard v. January, 56 Cal. 1; Dillon v. (Ban.) Bicknell, 116 Cal. Ill, 47 Pac. 937. 1881 15 21 Nickey v. Stearns Ranches Co., 126 Cal. 150, 58 Pac. 459. 51 51 Ex parte Cox, 63 Cal. 21. 54 52 Fitch v. Supervisors, 122 Cal. 285, 54 Pac. 901. 81 71 People v. Chapman, 61 Cal. 262. 1883 54 30 People v. Kewen, 69 Cal. 215, 10 Pac. 393. 93 49 Tulare v. Hevren, 126 Cal. 226, 58 Pac. 530. 370 82 Los Angeles v. Teed, 112 Cal. 319, 44 Pac. 580. 1885 13 15 San Francisco v. Insurance Co., 74 Cal. 113, 5 Am. St. Eep. 425, 15 Pac. 380. 45 39 Western Granite etc. Co. v. Knicker- bocker, 103 Cal. Ill, 37 Pac. 192. 166 154 Miller v. Kister, 68 Cal. 142, 8 Pac. 813; People V. Henshaw, 76 Cal. 436, 18 Pac. 413. 203 157 People v. Kewen, 69 Cal. 215, 10 Pac. 393. 1887 178 169 Dougherty v. Austin, 94 Cal. 601, 28 Pac. 834, 29 Pac. 1092, 16 L. R. A. 161. 1889 3 5 Schaezlein v. Cabaniss, 135 Cal. 466, 87 Am. St. Eep. 122, 67 Pac. 755, 56 L. R. A. 733. 148 138 Farrell v. Board of Trustees, 85 Cal. 408, 24 Pac. 868. 455 5 1 7 182 137 195 146 581 UNCONSTITUTIONAL STATUTES. Statutes Pa^e Chapter Case 1889 212 178 CuUen v. Glendora Water Co., 113 Cal. 503, 39 Pae. 769, 45 Pac. 822. 232 206 San Luis Obispo v. Graves, 84 Cal. 71, 23 Pac. 1032. 302 207 People v. Common Council, 85 Cal. 3G9, 24 Pac. 727; Fisher v. Police Court, 86 Cal. 158, 24 Pac. 1000. People V, Toal, 85 Cal, 333, 24 Pac. 603. 1891 5 7 San Francisco v. Broderick, 125 Cal. 188, 57 Pac. 887. McCabe v. Carpenter, 102 Cal. 469, 36 Pac. 836. Slocum V. Bear Valley Irr. Co., 122 Cal. 555, 68 Am. St. Kep. 68, 55 Pac. 403; Keener v. Eagle etc. Co., 110 Cal. 627, 43 Pac. 14; Aekley v. Black Hawk etc. Co., 112 Cal. 42, 44 Pac. 330. 283 205 Murray v. Colgan, 94 Cal. 435, 29 Pac. 871. 295 216 People v. Johnson, 95 Cal. 471, 31 Pac. 611; Welsh v. Bramlet, 98 Cal. 219, 33 Pac. 66; Bloss v. Lewis, 109 Cal. 493, 41 Pac. 1081. 433 226 Ex parte Giambonini, 117 Cal, 573, 49 Pac. 732. 450 231 Patty V. Colgan, 97 Cal. 251, 31 Pae. 1133, 18 L. E. A. 744. 513 279 Bourn v. Hart, 93 Cal. 321, 127 Am. St. Eep. 203, 28 Pac. 951, 15 L. R. A, 431. 513 280 Conlin v. Supervisors, 99 Cal. 17, 37 Am. St. Rep, 17, 33 Pac. 753, 21 L. E. A. 474. 1893 12 16 Bradley v. Clark, 133 Cal. 196, 65 Pac. 395. 33 21 Ramish v. Hartwell, 126 Cal. 443, 58 Pae. 920. 57 45 Molineux v. State, 109 Cal. 378, 50 Am. St. Eep. 49, 42 Pac. 34. 59 47 Los Angeles v. Teed, 112 Cal. 319, 44 Pac. 580. UNCONSTITUTIONAL STATUTES. 582 Statutes Pa^ Chapter Case 1S93 61 48 Los Angeles v. Hance, 122 Cal. 77, 54 Pac. 3S7. 127 112 Eaiier v. Williams, 118 Cal. 401, 50 Pac. 691. 168 143 People v, Mavkham, 104 Cal. 232, 37 Pac. 9 IS. 175 148 Merehants' Bank v. Eseondido Irr. Dist., 144 Cal. 329, 77 Pac. 937. 229 1S8 Provident etc. Assn. v. Davis, 143 Cal. 253, 76 Pac. 1034. 280 197 Darcy v. Mayor of San Jose, 104 Cal. 642, 38 Pac. 500. 346 234 Hale v. McGettigan. 114 Cal. 112, 45 Pac. 1049; Knight v. Martin, 128 Cal. 245, 60 Pac. 849. 1895 1 2 Dwver v. Parker, 115 Cal. 544, 47 Pac. 372. 14 8 Sixth Dist. Agr. Assn. v. Wright, 154 Cal. 119 97 Pac. 144. 107 115 Tavlo'r v. Mott, 123 Cal. 497, 56 Pac. 256. 164 160 Eauer v. Williams, 118 Cal. 401, 50 Pac. 691. 205 178 Miner v. Justice's Court, 121 Cal. 264, 53 Pac. 795. 207 181 Marsh v. Supervisors, 111 Cal. 368, 43 Pac. 975; Gett v. Supervisors, 111 Cal. 366, 43 Pac. 1122. 238 193 Sullivan v. Gage, 145 Cal. 759, 79 Pac. 537. 246 200 Ex parte Jentzseh, 112 Cal. 468, 44 Pac. 803, 32 L. R. A. 664. 267 207 Fatjo v. Poster, 117 Cal. 83, 48 Pac. 1012; Dwver v. Parker, 115 Cal. 544, 47 Pac. 372; Cooley v. Calaveras Co., 121 Cal. 482, 53 Pac. 1075; Kiernan v. Swan, 131 Cal. 410, 63 Pac. 768; Reid v. Groezinger, 115 Cal. 551, 47 Pac. 374. 341 221 Denman v. Broderiek, 111 Cal. 96, 43 Pac. 516. 348 223 Con'.in v. Supervisors. 114 Cal. 404, 46 Pac. 279, 33 K R. A. 752. Statutes Pajre Chapter 1895 409 12 1897 54 60 72 78 583 UNCONSTITUTIONAL STATUTES. Case Miner v. Justice's Court, 121 Cal. 264, 53 Pac. 795. Popper V. Broderick, 123 Cal. 456, 56 Pac. 53. Popper V. Broderick, 123 Cal. 456, 56 Pac. 53. 75 82 Los Angeles v. Hanee, 122 Cal. 77, 54 Pac. 387. 77 83 Estate of Stanford, 126 Cal. 112, 54 Pac. 259, 58 Pac. 462, 45 L. E. A. 788; Es- tate of Mahouey, 133 Cal. 180, 85 Am,. St. Eep. 155, 65 Pac. 389. Overruled in Estate of Johnson, 139 Cal. 532, 98 Am. St. Eep. 161, 73 Pac. 424. 115 lOG Spier v. Baker, 120 Cal. 370, 52 Pac. 659, 41 L. E. A. 196. 135 107 Pereria v. Wallace, 129 Cal. 397, 62 Pac. 61. 192 132 Popper v. Broderick, 123 Cal. 456, 56 Pac. 53. 231 170 Johnson v. Goodyear Min. Co., 127 Cal. 4, 78 Am. St. Kep. 17, 59 Pac. 304, 47 L. E. A. 338. 304 225 Sixth Dist. Agr. Assn. v. Wright, 154 Cal. 119, 97 Pac. 144. 311 227 Matter of Lambert, 134 Cal. 626, 86 Am. St. Eep. 296, 66 Pac. 851, 55 L. E. A. 856. 452 277 Lougher v. Soto, 129 Cal. 610, 62 Pac. 184; Van Ilarlingen v. Doyle, 134 Cal. 53, 66 Pac. 44, 54 L. E. A. 771; Ex parte Anderson, 134 Cal. 69, 86 Am. St. Eep. 236, 66 Pac. 194; Pratt v. Browne, 135 Cal. 649, 67 Pac. 1082; Ex parte Young, 154 Cal. 317, 97 Pac. 822, 22 L. E. A., N. S., 330. 1899 24 24 People v. Curry, 130 Cal. 82, 62 Pac. 516. 47 46 Britton v. Board of Election Commrs., 129 Cal. 337, 61 Pac. 1115, 51 L. E. A. 115. UNCONSTITUTION.VL STATUTES. 584 S^ntutes Page Chapter Case 1901 56 51 Hewitt v. Board, 148 Cal. 590, 113 Am. St. Eep. 315, 84 Pac, 39, 3 L. R. A., N. S., 896. 117 102 Lewis v. Dunne, 134 Cal. 291, 86 Am. St. Eep. 257, 66 Pac. 478, 55 L. R. A. 833, 332 157 Lewis v. Dunne, 134 Cal. 291, 86 Am. St. Rep. 257, 66 Pac. 478, 55 L. R. A. 833. 433 158 Lewis v. Dunne, 134 Cal. 291, 86 Am. St. Rep. 257, 66 Pac, 478, 55 L. E. A. 833, 685 233 Tucker v. Barnum, 144 Cal, 266, 77 Pac. 919, 1903 14 11 Ex parte Dickey, 144 Cal. 234, 103 Am, St. Rep. 82, 77 Pac. 924, 66 L, R, A, 928, 1 Ann. Cas. 428. 1905 67 69 Ex parte Drexel, 147 Cal. 763, 82 Pac. 429, 2 L. R. A., N. S., 588, 3 Ann. Cas. 878. 224 249 Harrison v, Colgan, 148 Cal, 69, 82 Pac. 674, 338 313 Ex parte Hayden, 147 Cal. 649, 109 Am, St. Eep. 183, 82 Pac. 315. 422 354 Ex parte Sohncke, 148 Cal. 262, 113 Am, St. Rep. 236, 82 Pac. 956, 2 L. R. A., N. S., 813, 7 Ann. Cas. 475. 711 55 Ex parte Sohncke, 148 Cal. 262, 113 Am. St. Rep. 236, 82 Pac. 956, 2 L, R, A,, N. S., 813, 7 Ann. Cas. 475. 140 140 Ex parte Quarg, 149 Cal. 79, 117 Am. St. Rep, 115, 5 L, R, A,, N, S., 183, 9 Ann. Cas. 747. 316 302 Ex parte Dietrech, 149 Cal 104, 84 Pac, 770, 5 L. R. A., N. S., 873, 1907 344 Boca Mill Co. v. Curry, 154 Cal, 326, 97 Pac, 1117. TABLE OF PARALLEL SECTIONS IN CONSTITU- TIONS OF 1849 AND 1879. 1879 1849 1879 1849 Art.. Sec. Art. Sec. Art. Sec. Art. Sec. I 1 I 1 II 4 n 4 2 2 5 6 3 III 1 in 1 4 4 IV 1 IV 1 5 5 2 2 6 6 3 3 6 7 4 4 7 3 4 5 8 5 6 9 9 7 10 10 6 I 14 11 11 6 IV 28 12 12 6 29 12 13 6 Schedule 14 13 8 7 IV 8 14 8 9 15 15 9 10 16 16 10 11 17 17 11 12 18 18 12 13 19 19 13 14 20 20 14 15 21 15 16 22 16 17 23 21 17 18 24 18 19 n 1 II 1 19 20 1 5 20 21 2 2 21 22 8 3 22 23 (585) PARALLEL SECTIONS. 586 1879 1849 1879 1849 Art. Sec. Art. Sec. Art. Sec. Art. Sec. IV 23 IV 24 VI 4 VI 4 24 25 5 6 24 XI 21 5 8 25 IV 26 5 26 27 6 7 27 30 7 28 38 8 29 9 30 10 31 XI 10 11 9 32 12 33 12 34 I 22 13 10 35 14 11 V 1 V 1 15 13 2 2 16 14 3 3 17 15 4 4 18 16 5 5 19 17 6 6 20 18 7 7 21 8 8 22 9 9 23 10 10 24 11 11 vn 1 vn 1 12 12 VIII 1 VIII 1 13 14 1 2 14 15 1 3 15 16 2 16 17 IX 1 IX 2 17 18 2 1 18 19 20 3 4 19 21 5 8 19 Schedule 15 6 20 7 VI 1 VI 1 8 2 2 9 tt 3 3 57 PARALLEL SECTIONS. 1879 1849 1879 1849 Art. Sec. Art. Sec. Art. Sec. Art. Sec. X 1 2 3 4 5 6 XII 12 13 14 15 16 17 ZI 1 2 3 18 19 20 4 XI 4 21 5 5 22 5 9 23 6 24 7 XIII 1 XI 13 8 2 8^ 3 9 4 10 5 11 6 12 7 13 8 14 9 15 10 16 11 17 12 18 IV 37 13 19 XIV 1 xn 1 IV 31 2 2 32 XV 1 3 36 2 4 33 3 5 34 XVI 1 VIII 1 5 35 1 Schedule 16 6 7 XVII 1 2 XI 15 8 3 9 10 XVIII 1 X 1 11 2 2 PARALLEL SECTIONS. 588 1879 1849 1879 1849 Art. Sec. Art. Sec. An. S&c. An. rise XIX 1 XX 19 2 20 Schedule 13 3 XXT 1 XTI 1 4 XXII 1 Schedule 3 XX 1 M 1 2 1 2 2 3 VI 19 3 3 3 Schedule 2 4 6 4 6 5 8 5 6 6 11 6 6 7 12 7 5 8 14 8 9 16 9 7 10 17 8 11 18 9 12 19 10 12 Schedule 4 11 13 XI 20 12 14 10 rv 39 15 11 16 7 13 17 18 TABLE OF CALIFORNIA CITATIONS TO CONSTITUTION OF 1849. [Citations are to California Reports, Vols. 1 to 158, and California Appellate Reports, Tols. 1 to 14.] I-l 1-8 T- ■11 (Con.) II- -2 7 6 12 83 26 255 26 209 9 504 18 251 36 671 18 680 22 316 37 375 II- •3 22 324 23 326 38 703 26 249 23 464 29 256 43 432 32 249 32 250 52 601 II- -4 33 281 33 281 58 61 26 28 38 211 140 93 36 38 671 703 40 41 42 513 168 168 1-15 1-2 22 30 324 189 43 48 50 79 334 403 1 6 53 440 240 207 26 II- -6 186 69 372 51 248 53 45 1-16 III '_■ I 1-3 53 212 22 316 5 19 16 253 53 412 5 112 22 316 59 245 1-17 8 15 66 500 6 13 30 36 65 253 165 389 671 595 10 403 1-4 69 109 372 449 17 20 557 43 9 504 109 622 22 478 17 18 612 680 130 495 24 29 126 452 1-9 30 167 1-5 1-21 33 281 11 226 22 316 32 249 34 46 525 514 1-7 I-ll II-l 47 653 19 541 17 552 5 25 50 403 41 31 24 544 26 178 151 285 (589) CITATIONS. 5i lV-1 IV-23 IV-3 6 V-13 5 21 36 621 24 538 34 536 46 514 106 116 35 166 43 441 47 652 62 461 IV-24 111 62 V-1 6 IV-3 9 347 2 223 26 254 IV-37 10 44 IV-25 31 252 26 253 IV-5 2 299 34 523 34 536 26 253 6 383 47 657 62 569 9 522 48 318 IV-7 10 316 51 24 V-17 8 415 36 622 10 44 144 387 V-1 62 569 IV-8 5 21 34 535 IV-31 V-18 5 46 V-2 15 62 IV-10 22 423 10 44 34 535 37 379 26 253 V-20 62 253 37 540 62 569 15 26 IV-17 48 509 6 660 52 143 V-4 9 522 54 95 34 536 39 541 77 371 V-21 98 53 V-8 9 347 rv-18 109 580 1 535 47 366 34 535 111 66 2 203 119 341 3 505 VI-1 IV-19 6 290 1 145 2 211 IV-3 2 7 523 1 380 22 314 24 538 8 12 5 20 45 218 35 166 20 507 11 85 118 483 62 461 22 314 12 387 111 62 34 541 21 417 IV-20 37 641 22 478 22 314 IV-34 .34 523 52 198 V-1] S4 532 IV-21 105 377 34 536 39 517 10 43 41 131 22 314 rv-35 V-12 1 48 74 52 39 105 378 22 314 52 223 591 CitATlONS. VI-2 VI- 6 VI-8 (Con.) Vl-16 2 5 202 3 389 39 99 12 392 104 4 5 342 95 41 42 131 56 30 38 163 395 5 230 44 125 VI-3 9 87 45 217 VI-17 2 202 10 253 45 679 27 513 8 16 24 65 48 72 55 238 10 46 26 383 51 433 28 121 52 223 VI-18 30 575 53 413 59 191 VI-4 31 144 58 402 1 87 31 339 4Ap. 119 VI-19 1 91 34 688 21 416 1 145 36 28 VI- -9 3 248 42 56 3 389 VIII-1 3 389 51 501 5 279 6 500 9 89 52 491 6 6Q 7 66 10 46 54 288 9 88 13 182 10 253 58 400 15 92 15 454 13 30 64 288 19 572 16 253 25 28 79 484 24 66 23 174 25 95 157 788 24 452 27 206 27 107 28 119 112 167 30 101 VI- -7 42 67 31 144 16 442 53 413 IX- 2 34 33 30 683 157 776 37 244 40 482 40 654 42 56 VI- -10 IX-3 49 140 VI- -8 8 382 48 50 53 55 60 291 191 654 5 5 6 22 104 89 VI- 32 43 -11 299 435 123 IX-4 616 157 4 9 87 10 403 VI- -14 IX-5 20 44 5 232 5 22 VI-I 5 28 119 9 87 1 381 30 575 X-2 3 504 34 689 VI- -15 26 186 11 85 36 27 2 203 12 387 37 161 9 346 X-7 29 485 38 157 12 392 55 524 CITATIONS. 5! XI-1 XI-6 (Con.) XI-13 (Con.) XI-14 5 32 34 541 4 49 153 362 50 572 45 558 12 83 13 350 XI-15 XI-3 XI-7 14 16 14 474 17 20 6 289 22 369 24 640 22 307 7 102 29 451 24 243 22 314 30 683 XI-16 79 113 34 475 58 472 XI-4 128 604 34 657 33 494 lAp. 7 37 246 XI-18 34 532 40 513 2 211 47 656 XI-8 41 354 22 316 48 318 23 182 43 335 50 564 43 434 XI-19 58 61 XI-9 44 326 26 211 121 551 34 533 46 506 47 657 46 556 XII-4 XI-5 51 29 47 92 27 211 33 404 47 648 39 9 XI-10 51 244 XII-31 47 656 27 207 51 52 501 81 61 5 XI-6 XI-13 52 601 8 16 1 252 53 61 23 314 2 592 TABLE OP CALIFORNIA CITATIONS TO CONSTITUTION OF 1879. [Citations axe to California Beports, Vols. 1 to 158, and California Appellate Beports, Vols. 1 to 14.] I-l 1-6 (Con.) I- 8 (Con.) I-ll (Ci on.) 65 35 67 257 9Ap. 283 111 569 112 471 156 737 9 Ap. 543 113 646 128 434 lAp. 199 114 146 133 354 8Ap. 469 I- -9 118 305 133 377 8Ap. 5G6 72 466 119 241 136 125 11 Ap. 575 73 123 122 147 147 650 112 97 126 37 147 763 1-7 139 121 127 7 148 127 64 87 122 139 5 Ap. 8Ap. 9Ap. 266 354 139 589 623 233 250 129 343 149 400 I- ■10 1 134 55 154 322 129 343 136 528 157 774 137 481 158 325 I- 11 138 381 5Ap. 759 59 12 140 487 6Ap. 236 60 65 189 35 143 144 414 269 1-2 68 145 147 334 92 316 1-8 69 151 148 265 56 233 71 631 148 748 1-3 59 245 73 582 149 400 105 606 60 104 76 442 151 334 144 79 65 646 84 76 153 61 108 663 89 523 155 381 1-4 111 612 90 558 155 657 59 13 115 53 91 249 157 55 60 201 152 73 94 603 157 75 79 176 5Ap. 465 104 351 157 158 5Ap. 468 109 334 157 163 1-6 SAp. 219 109 497 1 Ap. 199 54 103 8Ap. 755 111 371 6Ap. 240 Oonstitution — 38 593) CITATIONS. 5ii Ml (C( 3n.) 1-13 (C. 3n.) I- ■15 I-: >1 (C on.) 11 Ap. 407 7Ap. 753 134 661 8. A.p. 535 12 Ap. 405 8Ap. 117 12. A.p. 405 9Ap. 200 I- -16 1-12 5Ap. 649 9 Ap. 11 Ap. 13 Ap. 250 472 545 72 116 146 466 523 624 54 1-22 247 14 Ap. 114 57 609 1-13 t XT I- -17 69 485 65 223 1-14 65 594 83 403 66 102 59 265 67 382 83 494 68 630 66 501 70 155 86 50 69 372 68 65 158 325 92 316 70 18 74 262 115 548 70 177 79 551 I- -19 128 247 82 459 91 456 68 288 129 403 100 153 94 492 105 606 132 219 103 354 94 608 155 546 144 387 104 527 95 223 147 582 107 288 98 262 I- -20 1 9 . Ap. 159 115 61 98 617 144 173 116 250 103 616 1-23 t 127 7 106 284 I- -21 129 347 130 123 109 622 60 189 J.^i/ 133 351 111 563 65 35 136 125 118 287 69 151 1-24 144 56 118 572 73 371 117 123 145 90 126 153 112 471 155 389 146 315 130 495 118 5 155 789 150 34 130 634 129 343 150 550 133 105 134 55 151 204 137 579 137 181 II-l 152 617 137 621 143 414 92 321 154 308 144 212 143 573 117 123 154 322 151 273 148 265 120 374 154 390 154 322 149 400 127 88 1 Ap. 199 155 320 151 334 136 451 2 Ap. 204 157 75 152 233 145 341 5 Ap. 214 lAp. 444 154 330 146 513 5 Ap. 590 2 Ap. 560 156 74 151 603 5 Ap. 750 5 Ap. 730 157 55 152 231 6 Ap. 236 10 Ap. 381 6 Ap 1. 237 7 Ap. 413 595 CITATIONS. II-2 Vi IV- 1 (Con.) IV- •10 IV-22 (Con.) 146 316 139 28 80 213 71 630 151 602 145 686 77 134 152 434 151 803 IV- ■15 84 58 155 780 152 236 54 112 92 55 &- A.p. 159 72 467 106 116 II-4 80 213 121 19 105 462 IV- ■2- 85 336 123 151 7Ap. 553 56 101 100 421 126 118 96 291 121 267 144 684 n-i 3 114 114 145 688 151 800 146 316 130 88 15« 84 154 129 154: 282 144 173 156 504 146 607 IV- -16 8Ap. 531 HI- 1 72 467 SS 643 IV- 3 80 213 IV-24 61 322 55 622 83 494 55 496 68 196 56 100 85 337 57 613 80 234 96 291 121 267 58 635 102 470 114 169 156 501 60 30 106 422 74 41 123 527 IV-4 IV- -18 74 552 126 672 55 622 85 645 80 270 127 159 56 100 108 662 84 228 129 604 96 264 122 293 88 534 140 1 119 438 145 37 93 635 146 607 154 281 147 533 102 31 148 6.31 154 281 102 418. 150 318 IV- -5 114 149 151 43 65 578 IV-20 117 86 155 656 66 29 61 207 120 373 156 501 96 291 73 231 122 79 157 422 145 425 154 281 125 414 1 Ap. 67 2Ap. 55 128 668 11 Ap. 572 IV- -6 129 570 65 577 IV- -21 129 606 IV- -1 96 290 136 445 130 91 56 100 152 233 154 28 132 219 63 21 156 474 133 76 72 466 IV-22 134 478 92 307 IV- -9 61 267 135 652 96 291 146 606 69 77 139 463 CITATIONS. 5! IV- 24 (Con.) IV-25 (Con.) Sub. 3 (Con.) Sub. 13 140 487 140 480 120 304 83 402 141 834 142 195 126 230 142 13 143 414 127 7 Sub. 15 143 258 149 399 lAp. 573 126 117 143 627 150 322 144 387 150 566 Sub, .4 Sub. 17 146 650 151 478 62 465 126 117 150 326 152 231 151 50 154 330 Sub. 6 Sub. 19 154 202 155 381 123 527 100 120 154 388 156 74 118 306 155 113 157 55 Sub. ,7 124 698 155 384 6Ap. 240 114 146 155 658 8Ap. 533 Sub. 20 157 58 11 Ap. 361 Sub. .9 55 495 157 75 11 Ap. 407 55 622 83 402 1. Ap. 64 12 Ap. £27 65 123 2 Ap. 252 12 Ap. 292 84 76 Sub. 23 11. Ap. 306 12 Ap. 291 94 620 67 360 12. Ap. 29 98 224 Sub. 1 109 335 •Sub. 24 rv-25 62 465 111 102 83 402 55 40t) 120 401 113 646 127 7 55 618 121 267 114 410 57 613 118 306 Sub. 27 59 8 Sub. 2 148 748 55 402 60 32 55 551 104 351 61 38 60 81 Sub. 10 124 698 61 267 60 189 60 28 148 384 63 382 62 465 83 402 72 466 67 360 105 583 Sub. 28 73 77 112 471 119 521 62 465 81 499 lAp. 149 124 698 65 123 84 229 65 291 87 79 Sub. 3 Sub. 11 85 413 93 400 62 465 55 622 98 224 105 616 83 402 81 501 111 102 124 696 93 424 100 425 113 646 135 518 100 120 111 102 114 410 137 518 113 512 111 371 118 305 138 381 117 363 124 698 124 693 597 CITATIONS. Sub. 28 (Con.) rv-26 IV-31 ( :Con.') V-1 125 192 68 289 126 118 148 504 132 221 87 89 607 378 138 143 273 331 1 Ap. 64 Sub. 29 104 599 144 692 V-2 62 465 127 118 149 528 56 101 65 123 130 826 151 800 62 569 68 145 146 658 152 735 99 45 85 496 150 241 153 228 114 169 89 523 154 336 154 129 9 Ap. 154 92 606 12 Ap. 647 156 475 103 395 156 504 V-7 104 644 IV- 28 157 527 148 504 113 645 80 213 6 Ap. 747 115 549 8 Ap. 535 V-8 118 306 IV- -29 62 565 126 37 61 267 IV- -32 62 568 144 269 115 532 72 465 66 655 151 800 74 125 93 155 Sub. 33 156 504 77 475 114 170 81 498 80 270 123 309 84 76 IV-30 92 606 127 397 91 249 115 532 93 326 9 Ap. 154 94 100 620 120 156 504 115 121 532 21 V-9 109 497 IV-31 123 498 130 89 111 371 72' 473 138 275 146 607 112 471 74 125 156 504 114 410 77 475 V-14 118 306 80 270 IV- -33 151 240 118 404 83 265 145 633 156 486 119 523 92 606 6 Ap. 262 124 698 93 326 IV- -34 126 230 97 252 94 435 V-15 127 7 99 21 145 771 56 101 127 684 109 380 156 504 62 569 130 134 112 315 114 169 132 221 115 532 IV- ■35 144 269 117 176 86 550 V-1 6 148 148 118 546 146 610 62 569 1. Ap. 573 123 498 lAp. 55 9 Ap. 158 CITATIONS. 5! V-; 17 VI-3 VI-4 (C ;on.) VI- -5 56 101 56 101 149 428 54 186 9 Ap. 154 81 460 149 482 60 103 83 112 149 712 60 152 V- 19 99 45 151 30 60 307 9Ap. 575 VI-4 151 151 203 518 6t) 61 427 71 54 103 152 110 62 41 VI- -1 55 191 152 603 64 444 54 186 60 115 155 66 65 476 62 465 60 654 156 84 65 641 66 4 62 41 157 4 69 204 71 633 65 99 157 773 71 383 78 557 65 382 2Ap. 160 71 555 82 344 65 645 2 Ap. 316 73 183 83 112 67 187 2 Ap. 533 76 184 85 335 79 107 2Ap. 664 78 557 97 216 79 486 2 Ap. 728 80 41 114 330 82 162 3Ap. 238 82 305 119 232 83 426 3 Ap. 645 83 493 120 401 83 112 3Ap. 646 84 120 121 267 94 353 5Ap. 548 87 231 140 12 95 646 5 Ap. 678 92 50 143 246 100 120 6 Ap. 114 93 463 151 468 108 663 7Ap. 3 94 355 153 165 110 39 7Ap. 221 94 397 155 386 120 569 7Ap, 257 100 120 156 480 122 534 7Ap. 567 103 120 157 419 138 429 7Ap. 658 104 203 158 448 142 628 8 Ap. 434 110 264 3 Ap. 645 146 138 8Ap. 490 117 381 6 Ap. 739 147 265 8 Ap. 755 122 119 11 Ap. 361 147 347 9Ap. 210 123 695 148 70 9 Ap. 218 130 98 VI- -2 148 742 10 Ap. 567 133 59 81 460 148 773 11 Ap. 27 134 588 82 599 149 292 11 Ap. 298 138 70 83 112 149 296 11 Ap. 385 138 154 83 494 149 309 12 Ap. 122 140 133 95 43 149 324 13 Ap. 391 144 773 148 177 149 351 13 Ap. 736 149 793 10. Ap. 457 149 456 14 Ap. 624 150 46S 598 599 CITATIONS. VI-5 (Con.) ' VI-8 VI-1.') VI-20 130 573 158 448 103 413 6Ap. 771 122 288 VI-16 153 167 Vl-9 80 222 86 29 VI-21 104 234 VI-17 ^^ ^^^ ''cap. foi 'I ~ 'I' ,.^i-2\,, i 138 37 80 221 VI-11 148 70 55 611 9Ap. 578 VI-24 150 481 152 568 153 598 154 97 154 98 154 464 154 519 155 73 155 386 156 85 156 480 156 491 157 788 lAp. 181 1 Ap. 227 4Ap. 720 6Ap. 476 It) Ap. 457 11 Ap. 362 12 Ap. 486 13 Ap. 274 VI- ■6 55 266 56 101 86 28 99 44 104 234 133 455 135 653 138 15 139 477 146 10 6 Ap. 300 9Ap. 165 10 Ap. 211 60 103 62 514 VI-29 80 222 60 152 VI-18 7Ap. 228 60 427 118 483 80 40 154 281 90 502 114 331 yr ,Q VI-34 III III 55 238 80 222 III 534 f. Ill VII-1 130 98 f^ ill 12 Ap. 298 133 76 143 246 IX-1 118 120 121 22 4 An 720 "" ^"" ^24 699 l^l^ tVc. 97 453 151 802 151 469 158 448 6 Ap. 739 VI-13 78 560 85 336 1^^ ^^« IX-3 97 216 149 41 ^g jq2 120 401 156 727 j^^ 333 151 469 4Ap. 96 ^^^ 5g^ 11 Ap. 361 ^4Ap. 218 ^23 308 VI-14 11 Ap. 467 IX-4 56 101 11 Ap. 553 70 157 VI-7 94 47 13 Ap. 367 97 431 55 266 103 491 13 Ap. 636 104 658 133 455 155 814 14 Ap. 101 143 331 VI- 19 55 238 65 261 65 431 65 569 86 33 88 270 88 426 96 181 97 453 115 14 129 509 130 8 133 398 149 41 156 727 4 Ap. 96 4 Ap. 218 10 Ap. 491 11 Ap. 467 11 Ap. 553 13 Ap. 367 13 Ap. 636 14 Ap. 101 IX-2 87 396 CITATIONS. (JU IX- -5 IX-12 XI-4 (Con.") XT- 5(C on.) 55 334 56 101 114 561 115 548 55 490 118 308 118 308 97 431 IX- -18 118 404 118 404 104 350 5Ap. 419 129 574 125 192 117 523 X-1 134 70 128 247 124 134 698 65 63 490 154 330 129 131 574 550 141 376 X-4 XI-5 134 70 148 384 61 264 53 748 135 650 148 753 Xi-1 56 58 103 90 136 136 376 655 IX- -6 56 103 58 569 141 429 55* 334 61 277 60 514 141 726 97 431 114 320 61 277 144 269 104 63 114 561 65 123 148 747 117 523 129 574 65 288 153 168 118 119 134 70 66 4 154 330 124 698 8. A-p. 679 73 77 157 160 134 65 76 95 157 421 141 375 Xi-2 81 500 3. A.p. 182 148 388 61 22/ i 84 75 3. Ap. 274 152 517 71 313 88 531 4 Ap. 119 lX-7 61 XI-3 277 94 95 603 332 5 5 Ap. Ap. 467 679 55 333 97 331 95 473 117 522 117 196 98 222 XI- 6 153 778 134 522 98 228 55 246 55 IX- -8 334 152 154 228 330 100 103 104 273 394 130 58 60 61 566 81 277 71 630 XI-4 105 626 61 319 56 103 106 197 64 242 IX-9 61 277 109 334 66 5 55 334 65 123 109 497 69 470 66 508 73 77 111 103 73 76 69 216 84 70 111 370 73 312 104 658 94 624 111 569 73 622 123 619 98 224 113 516 74 26 109 334 113 645 74 125 IX- -11 109 496 114 327 76 446 104 658 114 320 114 561 81 497 t)01 " CITATIONS. XI-6 (Con.) XI-6 (Con.) XI-7 (Con.) XI- -8(C on.) 82 341 148 629 84 306 138 131 85 346 148 752 91 590 141 207 86 41 150 82 111 103 142 300 87 92 151 470 114 320 143 556 87 606 151 652 126 409 143 560 91 249 152 7 129 574 143 569 92 316 152 230 145 175 94 74 152 594 X] :-8 145 291 94 621 153 165 55 253 145 742 95 111 154 225 55 613 147 530 99 560 154 331 56 104 148 133 102 304 155 381 60 81 150 74 104 275 155 610 61 277 151 467 104 644 155 788 61 231 152 9 111 103 157 418 69 477 153 164 114 147 157 716 73 82 155 608 114 321 158 85 79 176 157 147 115 514 1 Ap. 633 82 342 158 78 118 403 3 Ap. 274 85 335 4 Ap. 238 123 459 4 Ap. 238 85 345 € Ap. 219 123 603 5 Ap. 578 86 40 8 Ap. 235 126 386 5 Ap. 581 87 606 9 Ap. 781 127 666 6 Ap. 223 92 612 10 Ap. 384 129 514 8 Ap. 55 97 593 131 33 9 Ap. 781 105 624 xi-8y2 132 381 10 Ap. 468 114 147 120 399 132 442 11 Ap. 361 114 364 126 406 133 104 11 Ap. 406 115 516 128 462 135 519 12 Ap. 529 119 233 132 441 138 131 13 Ap. 277 121 265 135 514 138 152 13 Ap. 583 121 553 136 586 141 207 13 Ap. 774 123 605 145 53 ]42 515 126 390 145 742 143 553 XI- ■7 128 463 148 133 143 567 55 247 129 574 151 470 144 391 56 104 130 89 153 164 145 634 58 566 131 264 157 419 145 688 60 81 132 375 157 484 147 535 61 37 133 104 3. Ap. 719 U8 382 61 277 134 52 6. A.p. 224 CITATIONS. 6( XI- 81 (Con.) XI-11 (Con.) XI -11 (Con.) XT-12 (C on.) 6 Ap. 738 65 35 145 631 92 319 13 Ap. 773 65 270 147 334 97 218 66 450 149 761 99 560 XI- -9 67 103 150 80 100 272 61 277 68 296 152 470 102 111 62 563 69 eo 154 322 102 471 62 566 69 151 154 682 104 644 81 590 72 115 155 117 112 70 85 596 73 77 158 745 117 86 87 396 73 148 1 Ap. 184 121 551 92 319 73 371 2 Ap. 722 124 696 94 603 73 633 5 Ap. 499 129 604 95 473 74 23 5 Ap. 597 134 148 98 221 84 305 6 Ap. 10 143 567 104 644 87 165 8 Ap. 297 144 333 109 508 90 620 8 Ap. 443 150 90 114 123 91 590 8 Ap. 565 154 335 118 309 94 391 8 Ap. 679 5Ap. 648 118 362 96 356 9 Ap. 74 8 Ap. 439 129 527 96 608 9 Ap. 781 136 65 98 556 10 Ap. 604 XI-13 138 16 98 684 11 Ap. 514 55 618 144 277 99 560 12 Ap. 259 59 96 145 197 102 489 12 Ap. 326 60 32 155 754 103 114 61 277 157 157 104 644 XI- -12 64 507 8 Ap, 22 105 616 58 644 71 312 8 Ap. 44 106 283 60 32 71 313 11 Ap. 578 108 327 60 155 71 631 14 Ap. 664 109 321 61 277 80 270 112 70 62 643 86 48 XI-: LO 124 348 65 270 87 607 61 277 129 574 66 451 97 219 92 319 131 466 69 90 99 560 104 644 134 70 69 610 112 329 134 111 71 313 112 564 XI-: 11 134 145 73 77 118 308 57 607 139 183 73 371 125 193 61 277 140 230 74 117 126 134 €1 375 143 371 87 €07 133 103 603 CITATIONS. XI-13 (Con.) XI-18 (Con.) XI-19 (Con.) XII- 2 144 333 74 417 93 161 62 460 148 631 75 505 98 618 125 410 150 82 92 342 118 5 152 234 97 219 118 483 XII- 3 99 413 118 584 62 461 XI- -14 107 648 129 402 97 95 55 618 109 153 137 118 108 425 59 279 111 322 142 287 111 63 61 277 112 163 143 371 116 384 73 77 112 313 145 632 122 523 87 607 ]12 326 148 315 124 150 112 540 150 558 125 410 XI- -15 113 2tJ2 151 428 136 437 61 277 118 530 152 586 142 384 119 44 153 27 147 640 XT- -16 119 227 155 651 154 353 61 277 124 67 158 82 154 782 87 607 131 397 1 Ap. 673 4Ap. 292 92 319 135 500 2 Ap. 560 5Ap. 705 97 219 136 405 2Ap. 722 12 Ap. 695 103 493 143 179 13 Ap. 27 108 565 144 395 112 315 146 730 XI-21 XII-4 112 329 148 709 72 389 153 703 113 211 150 86 XII- -5 146 719 152 172 73 77 XI- 152 161/2 8 153 7Ap. 374 412 xn- 61 73 -1 38 77 154 XII- 331 -7 XI -17 XI-19 83 413 91 340 61 277 54 246 92 316 121 19 87 608 61 24 123 527 154 328 97 219 61 277 125 412 155 650 113 211 62 108 131 33 XII- -9 136 445 62 232 153 702 107 643 69 466 154 331 133 612 XI -18 69 482 155 652 3Ap. 710 61 277 72 6 157 598 i 62 642 73 75 1 Ap. 67 XII-: 10 74 259 92 342 11 Ap. 404 72 466 CITATIONSi 6U XII-10 (Con.) XII-16 (Con.) XII-22 (Con.) XIII-1 (Con.) 116 100 102 48 105 544 2 Ap. 68 152 586 106 58 132 678 2Ap. 595 154 274 107 380 133 26 134 587 142 225 XTII- -2 XII- 11 136 439 104 621 59 331 141 315 XII- 23 137 525 65 617 144 205 142 225 149 87 73 77 150 468 93 308 151 159 XIIl-1 XIII- -4 135 585 4Ap. 370 56 202 59 543 147 582 6 A p. 87 57 600 60 58 152 457 10 Ap. 72 59 336 66 213 154 75 11 Ap. 226 62 108 72 36 157 729 11 Ap. 239 65 457 91 11 2Ap, , 130 12 Ap. 227 66 603 96 625 97 220 99 609 XII- 12 XII-17 97 324 118 492 67 535 132 685 108 192 123 355 93 418 2Ap. 560 111 86 128 592 XII- 14 3Ap. 683 113 397 128 610 116 23 131 361 135 1 o cr 584 /JO tr XII-18 119 521 134 86 135 625 132 686 128 592 144 435 2 Ap, , 639 128 612 145 55 13 Ap 27 XII-19 131 613 153 615 XII- 15 132 686 132 268 155 353 99 J.tJ 133 145 639 132 600 11 Ap. 463 115 311 134 478 146 651 xn-20 1 137 518 XIII- -5 155 657 132 686 139 210 59 544 156 468 133 26 142 225 91 11 158 281 144 184 142 284 96 626 148 85 99 608 XII- 16 xn-21 149 583 103 376 66 209 109 322 152 767 110 541 71 488 132 686 153 778 131 604 73 183 144 193 155 146 8Ap. 670 83 493 155 353 94 137 XII-22 f 155 650 XIII -8 98 167 79 163 157 621 56 20G 605 CITATIONS. XIII-S (Con.) xni-12% XIV-2 (Con.) XVIII- -1 61 103 137 524 129 441 66 633 73 623 2Ap. 600 69 468 8Ap. 439 xni- 13 72 6 A 56 202 XV-: 2 •80 213 xm- -9 83 402 132 106 102 117 56 102 XV- 3 1 Ap. 677 56 195 XIV- -1 152 735 11 Ap. 727 59 329 60 169 153 46 61 55 61 4 XIX-1 67 625 61 25 XVI- 1 84 2.30 97 324 62 232 144 694 126 674 74 573 148 502 147 651 xin- 56 -10 201 82 90 303 640 XVII- 111 156 11 Ap. 12 Ap. -1 487 369 727 359 XX-1 59 325 100 125 102 119 60 60 62 28 58 565 107 112 118 225 433 565 154 XX-3 281 63 469 122 286 XVII- -2 133 200 64 483 129 441 88 455 151 804 83 401 130 313 96 118 155 791 105 591 142 287 1 Ap. 150 125 499 139 434 3 Ap. 245 XX-4 128 593 144 593 1 80 234 137 515 150 89 XVII -3 85 416 137 660 151 57 55 103 110 451 142 223 152 588 65 13 143 432 152 729 68 508 XX-5 148 317 157 89 71 321 93 400 149 84 2Ap. 187 72 240 153 54 2Ap. 413 88 455 XX-6 158 439 2 Ap. 417 89 44 1 Ap. 144 2Ap. 595 8 Ap. 169 90 47 8Ap. 510 5Ap. 648 96 118 14 Ap. 474 XIV -2 146 543 XX-8 61 38 148 496 147 515 XIII- -12 62 108 148 714 104 63 62 233 158 616 XX-9 135 517 82 304 lAp. 150 58 472 148 248 118 579 3Ap. 244 113 139 CITATIONS. G( XX-9 (C Ion.) XX-16 XXII-1 XXII -3 138 553 55 524 53 747 54 186 3Ap. 747 66 655 54 247 54 346 XX-10 154 281 79 82 113 495 55 55 249 334 55 58 463 90 85 416 57 627 60 307 XX-11 120 154 XX-13 143 375 281 549 93 100 155 264 60 60 155 278 60 66 515 2t)4 110 127 132 136 451 392 450 581 60 61 61 61 514 4 32 279 114 XXII- 155 331 •9 734 7Ap. 152 136 654 61 353 XXII- -10 X^ 138 16 67 382 55 611 XX-15 145 471 69 467 56 99 61 353 157 483 69 485 57 626 89 111 1 Ap. 7 71 312 60 307 98 151 6Ap. 222 75 153 62 557 107 623 XX-17 93 40 62 566 136 125 151 804 93 424 114 333 138 545 XU^ (J\J^ 114 563 142 242 XX-18 119 428 XXII- 11 148 737 57 605 121 551 64 235 150 792 60 82 152 736 64 378 1 Ap. 308 96 361 154 200 93 40 2Ap. 507 98 556 154 339 103 491 3Ap. 480 157 779 114 331 5Ap. 759 XX-20 1 Ap. 64 116 195 8Ap. 508 53 747 12 Ap. 291 1 Ap. 574 8Ap. 518 62 565 13 Ap. 624 10 Ap. 92 96 291 XXII- -12 13 Ap. 624 99 44 XXII- -2 56 99 14 Ap. 302 9 Ap. 163 60 515 57 627 APPENDIX. (607) CONSTITUTION OF THE STATE OF CALIFORNIA. Adopted by the Convention, October 10, 1849; Ratified by the People, November 13, 1849 ; Proclaimed, December 20, 1849 ; and Amended in 1857, 1862, and 1871. PREAMBLE. "We, the people of California, grateful to Almiglity God for our freedom, in order to secure its blessings, do establish this constitution. ARTICLE I. DECLAEATION OF EIGHTS. Section 1. All men are by nature free and independ- ent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing, and protecting property, and pur- suing and obtaining safety and happiness. Constitution — 39 (609) Art. I, §§2-6 CONSTITUTION OP 1849. 610 Sec. 2. All political power is. inherent in the people. Grovernment 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 re- quire it. Sec. 3. The right of trial by jury shall be secured to all, and shall 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. Sec. 4. The free exercise and enjoyment of religious profession and worship, without discrimination or pref- erence, 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. Sec. 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. Sec. 6. Excessive bail shall not be required, nor exces- sive fines imposed; nor shall cruel or unusual punish- ments be inflicted; nor shall witnesses ba unreasonably detained. 611 CONSTITUTION OF 1849. Art. I, §§ 7-9 Sec. 7. All persons shall be bailable by sufficient sure- ties, unless for capital offenses when the proof is evident or the presumption great. Sec. 8. No person shall be held to answer for a capital or otherwise infamous crime (except in cases of im- peachment, and in cases of militia when in actual ser- vice, 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 ap- pear 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- cess of law ; nor shall private property be taken for pub- lie use without just compensation. Sec. 9. Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions on indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as ]i])el- ous is true, and was published with good motives and Art. I, §§ 10-16 CONSTITUTION OF 1849. 612 for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. Sec. 10. The people shall have the right freely to assemble together to consult for the common good, to instruct their representatives, and to petition the legisla- ture for redress of grievances. Sec. 11. All laws of a general nature shall have a uniform operation. Sec. 12. The military shall be subordinate to the civil power. No standing army shall be kept up by this stat€ in time of peace ; and, in time of war, no appropriation for a standing army shall be for a longer time than two years. Sec. 13. No soldier shall, in time of peace, be quar- tered in any house without the consent of the owner; nor in time of war, except in the manner to be prescribed by law. Sec. 14. Representation shall be apportioned accord- ing to population. Sec. 15. No person shall be imprisoned for debt in any civil action, on mesne or final process, unless in cases of fraud; and no person shall be imprisoned for a militia fine in time of peace. Sec. 16. No bill of attainder, ex post facto law, or law impairing the obligation of contracts, shall ever be passed. 613 CONSTITUTION OF 1849. Art. I, §§ 17-22 Sec. 17. Foreigners who are or who may hereafter "become bona tide residents of this state, shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of property, as native-born citizens. Sec. 18. Neither slavery nor involuntary servitude, unless for the punishment of crime, shall ever be toler- ated in this state. Sec. 19. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated ; and no war- rant shall issue, but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized. Sec. 20. Treason against the state shall consist only in levying war against it, adhering to its enemies, or giving them aid and comfort. No person shall be con- victed of treason, unless on the evidence of two witnesses to the same overt act, or confession in open court. Sec. 21. This enumeration of rights shall not be con- strued to impair or deny others retained by the people. Sec. 22. The legislature shall have no power to make an appropriation, for any purpose whatever, for a longer period than two years. (Added by amendment, ratified September 6, 1871.) Art. II, §§1-3 CONSTITUTION OF 1849. 614 ARTICLE II. EIGHT OF SUFFRAGE. Section 1. Every Avhite male citizen of the United States, and every white male citizen of Mexico who shall have elected to become a citizen of the United States, under the treaty of peace exchanged and ratified at Queretaro, on the thirtieth day of May, eighteen hundred and forty-eight, of the age of twenty-one years, who shall have been a resident of the state six months next preceding the election, and the county or district in which he claims his vote thirty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law; provided, that nothing herein contained shall be construed to prevent the legislature, by a two-thirds concurrent vote, from admitting to the right of suffrage Indians, or the descendants of Indians, in such special cases as such a proportion of the legisla- tive body may deem just and proper. Sec. 2. Electors shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest on the days of election, during their attendance at such election, going to and returning therefrom. Sec. 3. No elector shall be obliged to perform militia duty on the day of election, except in time of war or public danger. 615 CONSTITUTION OF 1849. Art. Ill, § 1 Sec. 4. For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this state or of the United States, or of the high seas; nor while a student at any seminary of learning; nor while kept at any almshouse, or other asylum, at public expense; nor while confined in any public prison. Sec. 5. No idiot or insane person, or person convicted of any infamous crime, shall be entitled to the privilege of an elector. Sec. 6. All elections by the people shall be by ballot. ARTICLE III. DISTRIBUTION OF POWERS. Section 1. The powers of the government of the state of California shall be divided into three separate de- partments: The legislative, the executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases hereinafter expressly directed or permitted. Art, IV, §§1-3 CONSTITUTION OF 1849. 616 ARTICLE IV. LEGISLATIVE DEPAETMENT. Section 1. The legislative power of this state shall be vested in a senate and assembly, which shall be desig- nated the legislature of the state of California, and the enacting clause of every law shall be as follows: "The People of the State of California, represented in Senate and Assembly, do enact as follows." Sec. 2. The sessions of the legislature shall be bien- nial, and shall commence on the first Monday of Decem- ber next ensuing the election of its members, unless the governor of the state shall, in the interim, convene the legislature by proclamation. No session shall continue longer than one hundred and twenty days. (Amended 1862. The original provided for annual sessions, begin- \ ning on first Monday of January.) Sec. 3. The members of the assembly shall be chosen biennially, by the qualified electors of their respective districts, on the first Wednesday in September, unless otherwise ordered by the legislature, and their term of office shall be two years. (Amendment ratified Septem- ber 3, 1862. The original provided for annual elections on the first Tuesday after the first Monday in Novem- ber.) 617 CONSTITUTION OF 1849. Art. IV, §§ 4-7 Sec. 4. Senators and members of assembly shall be duly qualified electors in the respective counties and districts which they represent. Sec. 5. Senators shall be chosen for the term of four years, at the same time and places as members of the assembly ; and no person shall be a member of the senate or assembly who has not been a citizen and inhabitant of the state and of the county or district for which he shall be chosen one year next before his election. (Amend- ment ratified September 3, 1862. Original made term of two years, and residence in county or district of six months.) > Sec. 6. The number of senators shall not be less than one-third, nor more than one-half, of that of the mem- bers of the assembly; and at the first session of the legislature after this section takes effect, the senators shall be divided by lot, as equally as may be, into two classes. The seats of the senators of the first class shall be vacated at the expiration of the second year, so that one-half shall be chosen biennially. (Amendment rati- fied September 3, 1862. Original provided for annual election.) Sec. 7. When the number of senators is increased, they shall be apportioned by lot, so as to keep the two classes as nearly equal in number as possible. Art. IV, §§ 8-13 CONSTITUTION OF 1849. 618 Sec. 8. Each house shall choose its own officers, and judge of the qualifications, elections, and returns of its own members. Sec. 9. A majority of each house shall constitute a quorum to do business; but a smaller number may ad- journ from day to day, and may compel the attendance of absent members, in such manner and under such penalties as each house may provide. Sec. 10. Each house shall determine the rules of its own proceedings, and may, with the concurrence of two- thirds of all the members elected, expel a member. Sec. 11. Each house shall keep a journal of its own proceedings, and publish the same ; and the yeas and nays of the members of either house on any question shall, at the desire of any three members present, be entered on the journal. Sec. 12. Members of the legislature shall, in all cases except treason, felony, and breach of the peace, be privi- leged from arrest, and shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session. Sec. 13. When vacancies occur in either house, the governor, or the person exercising the functions of the governor, shall issue writs of election to fill such vacan- ci'is. 619 CONSTITUTION OF 1849. Art. IV, §§ 14-18 Sec. 14. The doors of each house shall be open, ex- cept on such occasions as, in the opinion of the house, may require secrecy. Sec. 15. Neither house shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which they may be sitting. Sec. 16. Any bill may originate in either house of the legislature, and all bills passed by one house may be amended in the other. Sec. 17. Every bill which may have passed the legis- lature shall, before it becomes a law, be presented to the governor. If he approve it, he shall sign it, but if not he shall return it, with his objections, to the house in which it originated, which shall enter the same upon the journal, and proceed to reconsider it. If, after such reconsideration, it again pass both houses by yeas and nays, by a majority of two-thirds of the members of each house present, it shall become a law, notwithstand- ing the governor's objections. If any bill shall not be returned within ten days after it shall have been pre- sented to him (Sundays excepted), the same shall be a law, in like manner as if he had signed it, unless the legislature, by adjournment, prevent such return. Sec. 18. The assembly shall have the sole power of impeachment, and all impeachments shall be tried by the senate. When sitting for that purpose, the senators shall be upon oath or affirmation ; and no person shall be Art. IV, §§ 19-21 CONSTITUTION OF 1849. 620 convicted without the concurrence of two-thirds of the members present. Sec. 19. The governor, lieutenant-governor, secretary of state, controller, treasurer, attorney general, surveyor general, justices of the supreme court, and judges of the district courts, shall be liable to impeachment for any misdemeanor in office ; but judgment in such cases shall extend only to removal from office and disqualification to hold any office of honor, trust, or profit under the state ; but the party convicted or acquitted shall, nevertheless, be liable to indictment, trial, and punishment according to law. All other civil officers shall be tried for misde- meanors in office in such a manner as the legislature may provide. Sec. 20. No senator or member of assembly shall, during the term for which he shall have been elected, be appointed to any civil office of profit under this state which shall have been created or the emoluments of which shall have been increased during such term, except such offices as may be filled by election by the people. Sec. 21. No person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this state; provided, that officers in the militia to which there is attached no annual salary, or local officers and postmasters, whose compensation does not exceed five hundred dollars per annum, shall not be deemed lucrative. 621 CONSTITUTION OF 1849. Art. IV, §§ 22-27 Sec. 22. No person who shall be convicted of the embezzlement or defalcation of the public funds of this state shall ever be eligible to any office of honor, trust, or profit under this state; and the legislature shall, as soon as practicable, pass a law providing for the punish- ment of such embezzlement or defalcation as a felony. Sec. 23. No money shall be drawn from the treasury but in consequence of appropriations made by law. An accurate statement of the receipts and expenditures of the public moneys shall be attached to and published with the laws at every regular session of the legislature. See. 24. The members of the legislature shall receive for their services a compensation to be fixed by law, and paid out of the public treasury; but no increase of the compensation shall take effect during the term for which the members of either house shall have been elected. Sec. 25. Every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title; and no law shall be revised or amended by reference to its title ; but in such case the act revised or section amended shall be re-enacted and published at' length. Sec. 26. No divorce shall be granted by the legisla- ture. Sec. 27. No lottery shall be authorized by this state, nor shall the sale of lottery tickets be allowed. Art. IV, §§ 28-30 constitution of 1849. " 622 See. 28. The enumeration of the inhabitants of this state shall be taken, under the direction of the legisla- ture, in the year one thousand eight hundred and fifty- two and one thousand eight hundred and fifty-five, and at the end of every ten years thereafter; and these enumerations, together with the census that may be taken under the direction of the Congress of the United States, in the year one thousand eight hundred and fifty and every subsequent ten years, shall serve as the basis of representation in both houses of the legislature. Sec. 29. The number of senators and members of assembly shall, at the first session of the legislature holden after the enumerations herein provided for are made, be fixed by the legislature, and apportioned among the several counties and districts to be established by law, according to the number of white inhabitants. The number of members of assembly shall not be less than twenty-four, nor more than thirty-six, until the number of inhabitants within this state shall amount to one hundred thousand; and, after that period, in such ratio •that the whole number of members of assembly shall never be less than thirty nor more than eighty. Sec. 30. When a congressional, senatorial, or assem- bly district shall be composed of two or more counties, it shall not be separated by any county belonging to another district. No county shall be divided in forming a congressional, senatorial, or assembly district *so as to 623 Constitution of 1849. Art. IV, §§ 31-34 attach one portion of a county to another county; but the legislature may divide each county into as many congressional, senatorial, or assembly districts as such county may by apportionment be entitled to. (Words following the * were added by amendment ratified Sep- tember 3, 1862.) Sec. 31. Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes. All general laws and special acts passed pursuant to this section may be altered from time to time, or repealed. Sec. 32. Dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law. Sec. 33. The term corporations, as used in this article, shall be construed to include all associations and joint-stoek companies having any of the powers or privileges of corporations not possessed by individuals or partnerships. And all corporations shall have the right to sue and shall be subject to be sued in all courts, in like cases as natural persons. Sec. 34. The legislature shall have no power to pass any act granting any charter for banking purposes, but associations may be formed, under general laws, for the deposit of gold and silver; but no such associations shall make, issue, or put in circulation any bill, check, ticket, Art. IV, §§ 35-39 constitution of 18^9. 624 certificate, promissory note, or other paper, or the paper of any bank, to circulate as money. Sec. 35. The legislature of this state shall prohibit by law any person or persons, a.ssociation, company, or corporation from exercising the privileges of banking or creating paper to circulate as money. Sec. 36. Each stockholder of a corporation or joint- stock association shall be individually and personally liable for his proportion of all its debts and liabilities. Sec. 37. It shall be the duty of the legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assess- ment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debts by such municipal corporations. Sec. 38. In all elections by the legislature the mem- bers thereof shall vote viva voce, and the votes shall be entered on the journal. Sec. 39. In order that no inconvenience may result to the public service from the taking effect of the amend- ments proposed to article 4 by the legislature of eighteen hundred and sixty-one, no officer shall be suspended or superseded thereby until the election and qualification of the several officers provided for in said amendments. (New section ratified September 3, 1862.) 625 CONSTITUTION OF 1849. Art. V, §§1-4 ARTICLE V. EXECUTIVE DEPARTMENT. Section 1. The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled the Governor of the State of California. 1 Sec. 2. The governor shall be elected by the qualified electors, at the time and places of voting for members of the assembly, and shall hold his office four years from and after the first Monday in December subsequent to his election, and until his successor is elected and quali- fied. (Amendment ratified September 3, 1862. Orig- inal provided for term of two years.) Sec. 3. No person shall be eligible to the office of governor (except at the first election) who has not been a citizen of the United States and a resident of this state two years next preceding the election, and attained the age of twenty-five years at the time of said election. Sec. 4. The returns of every election for governor shall be sealed up and transmitted to the seat of govern- ment, directed to the speaker of the assembly, who shall, during the first week of the session, open and publish them in presence of both houses of the legislature. The person having the highest number of votes shall be gov- ernor; but, in case any two or more have an equal and the highest number of votes, the legislature shall, by Constitution — 40 Art. V,§§ 5-11 CONSTITUTION OF 181:9. 626 joint vote of both houses, choose one of said persons so having an equal and the highest number of votes, for governor. Sec. 5. The governor shall be commander in chief of the militia, the army, and navy of this state. Sec. 6. He shall transact all executive business with the officers of government, civil and military, and may require information in writing from the officers of the executive department, upon any subject relating to the duties of their respective offices. Sec. 7. He shall see that the laws are faithfully exe- cuted. Sec. 8. When any office shall, from any cause, become vacant, and no mode is provided by the constitution and law for filling such vacancy, the governor shall have power to fill such vacancy by granting a commission, which shall expire at the end of the next session of the legislature, or at the next election by the people. Sec. 9. He may, on extraordinary occasions, con- vene the legislature by proclamation, and shall state to both houses, when assembled, the purpose for which they shall have been convened. Sec. 10. He shall communicate by message to the legislature, at every session, the condition of the state. and recommend such matters as he shall deem expedient Sec. 11. In case of a disagreement between the two houses with respect to the time of adjournment, the gov- 627 CONSTITUTION OF 1849. Art. V,§§ 12-14 ernor shall have power to adjourn the legislature to such time as he may think proper; provided, it be not beyond the time fixed for the meeting of the next legis- lature. Sec. 12. No person shall, while holding any office under the United States, or this state, exercise the office of governor, except as hereinafter expressly provided. Sec. 13. The governor shall have the power to grant reprieves and pardons after conviction, for all offenses, except treason and cases of impeachment, upon such con- ditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason, he shall have the power to suspend the execution of the sentence until the case shall be reported to the legislature at its next meet- ing, when the legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. He shall communicate to the legislature, at the beginning of every session, every case of reprieve or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the pardon or reprieve. See. 14. There shall be a seal of this state, which shall be kept by the governor, and used by him officially and shall be called "The Great Seal of the State of Cali- fornia." Art. V, §§ 15-17 CONSTITUTION OF 1819. 628 Sec. 15. All grants and commissions shall be in the name and by the authority of the people of the state of California, sealed with the great seal of the sta-te, signed by the governor, and countersigned by the secretary of state. See. 16. A lieutenant-governor shall be elected at the same time and places, and in the same manner as the governor; and his term of office, and his qualifications of eligibility, shall also be the same. He shall be presi- dent of the senate, but shall only have a casting vote therein. If, during a vacancy of the office of governor, the lieutenant-governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of his office, or be absent from the state, the president of the senate shall act as governor until the vacancy be filled or the disability shall cease. Sec. 17. In case of the impeachment of the governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the lieutenant-governor for the residue of the term, or until the disability shall cease. But when the governor shall, with the consent of the legislature, be out of the state in time of war, at the head of any military force thereof, he shall continue commander in chief of all the military force of the state. G29 CONSTITUTION OF 1849. Art. V, §§ 18, 19 Sec, 18. A secretary of state, a controller, a treas- urer, an attorney general, and a surveyor general shall be elected at the same time and places, and in the same manner as the governor and lieutenant-governor, and whose term of office shall be the same as the governor. (Amendment ratified September 3, 1862.) [ORIGINAL SECTION.] Sec. 18. A secretary of state, a controller, a treasurer, an attorney general and surveyor general shall be chosen in the manner provided in this constitution; and the term of office and eligibility of each shall be the same as are prescribed for the governor and lieutenant-governor. Sec. 19. The secretary of state shall keep a fair record of the official acts of the legislative and executive departments of the government, and shall, when re- quired, lay the same, and all matters relative thereto, before either branch of the legislature, and shall perform such other duties as may be assigned him by law ; and in order that no inconvenience may result to the public service from the taking efi'ect of the amendments pro- posed to said article 5 by the legislature of eighteen hundred and sixty-one, no officer shall be superseded or suspended thereby, until the election and qualification of the several officers provided for in said amendments. / (Amendment ratified September 3, 1862. Original pro- vided for appointment of secretary of state by the gov- \ ernor.) Art. VI, §§1,2 CONSTITUTION OP 1849. 630 Sec. 20. The controller, treasurer, attorney general, and surveyor general, shall be chosen by joint vote of the two houses of the legislature at their first session under this constitution, and thereafter shall be elected at the same time and places, and in the same manner, as the governor and lieutenant-governor. Sec. 21. The governor, lieutenant-governor, secretary of state, controller, treasurer, attorney general, and sur- veyor general, shall each, at stated times during their continuance in office, receive for their services a compen- sation, which shall not be increased or diminished during the term for which they shall have been elected; but neither of these officers shall receive for his own use any fees for the performance of his official duties. ARTICLE VI. [Before it was revised by amendments ratified Septem- ber 3, 1862. For revision, see page 634.] JUDICIAL DEPARTMENT. Section 1. The judicial power of this state shall be vested in a supreme court, in district courts, in county courts and in justices of the peace. The legislature may also establish such municipal and other inferior courts as may be deemed necessary. Sec. 2. The supreme court shall consist of a chief justice and two associate justices, any two of whom shall constitute a quorum. 631 CONSTITUTION OF 18^9. Art. VI, §§ 3-5 See. 3. The justices of the supreme court shall be elected at the general election, by the qualified electors of the state, and shall hold their office for the term of six years from the first day of January, next after their election ; provided, that the legislature shall, at its first meeting, elect a chief justice and two associate justices of the supreme court, by joint vote of both houses, and so classify them that one shall go out of office every two years. After the first election, the senior justice in commission shall be the chief justice. Sec. 4. The supreme court shall have appellate juris- diction in all cases when the matter in dispute exceeds two hundred dollars, when the legality of any tax, toll, or impost, or municipal fine is in question, and in all criminal cases amounting to felony, on questions of law alone. And the said court, and each of the justices thereof, as well as all district and county judges, shall have power to issue writs of habeas corpus at'the instance of any person held in actual custody. They shall also have power to issue all other writs and process necessary to the exercise of their appellate jurisdiction and shall be conservators of the peace throughout the state. Sec. 5. The state shall be divided by the first legis- lature into a convenient number of districts, subject to such alteration from time to time as the public good may require, for each of which a district judge shall be ap- pointed by the joint vote of the legislature, at its first Art. VI, §§6-8 CONSTITUTION OP 1849. 632 meeting, who shall hold his office for two years from the first day of January next after his election ; after which said judges shall be elected by the qualified electors of Iheir respective districts, at the general election, and shall hold their office for the term of six years. See. 6. The district courts shall have original juris- diction, in law and equity, in all civil cases where the amount in dispute exceeds two hundred dollars, exclusive of interest. In all criminal cases not otherwise pro- vided for, and in all issues of fact joined in the probate courts, their jurisdiction shall be unlimited. Sec. 7. The legislature shall provide for the election, by the people, of a clerk of the supreme court, and county clerks, district attorneys, sheriffs, coroners and other necessary officers ; and shall fix by law their duties and compensation. County clerks shall be ex officio clerks of the district courts in and for their respective counties. Sec. 8. There shall be elected in each of the organ- ized counties of this state one county judge, who shall hold his office for four years. He shall hold the county court and perform the duties of surrogate or probate judge. The county judge, with two justices of the peace, to be designated according to law, shall hold courts of sessions, with such criminal jurisdiction as the legislature shall prescribe, and he shall perform such other duties as shall be required by law. 633 CONSTITUTION OP 1849. Art. VI, §§9-14 See. 9. The county courts shall have such jurisdic- tion, in cases arising in justices' courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdiction, except in such special cases. Sec. 10. The times and places of holding the terms of the supreme court, and the general and special terms of the district courts within the several districts, shall be provided for by law. Sec. 11. No judicial officer, except a justice of the peace, shall receive to his own use, any fees or perquisites of office. Sec. 12. The legislature shall provide for the speedy publication of all statute laws, and of such judicial de- cisions as it may deem expedient; and all laws and judicial decisions shall be free for publication by any person. Sec. 13. Tribunals for conciliation may be estab- lished with such powers and duties as may be prescribed by law ; but such tribunals shall have no power to render judgment to be obligatory on the parties, except they voluntarily submit their matters in difference, and agree to abide the judgment, or assent thereto in the presence of such tribunal, in such cases as shall be pre- scribed by law. Sec. 14. The legislature shall determine the number of justices of the peace to be elected in each county, city, town, and incorporated village of the state, and fix by law Art. VI, §§ 1, 2 CONSTITUTION OP 1849. 634. their powers, duties and responsibilities. It sliall also determine in what cases appeals may be made from justices' courts to the county court. Sec. 15. The justices of the supreme court and judges of the district courts shall severally, at stated times during their continuance in office, receive for their services a compensation to be paid out of the treasury. Sec. 16. The justices of the supreme court and dis- trict judges shall be ineligible to any other office during the term for which they shall have been elected. Sec. 17. Judges shall not charge juries with respect to matters of fact, but may state the testimony and de- clare the law. ARTICLE VI. [As revised by amendments ratified September 3, 1862.] JUDICIAL DEPAETMENT. Section 1. The judicial power of this state shall be vested in a supreme court, in district courts, in county courts, in probate courts, and in justices of the peace, and in such recorders' and other inferior courts as the legislature may establish in any incorporated city or town. (1862.) Sec. 2. The supreme court shall consist of a chief justice and four associate justices. The presence of three justices shall be necessary for the transaction of business, excepting such business as may be done at 635 CONSTITUTION OF 1849. Art. VI, §§3, t chambers, and the concurrence of three justices shall be necessary to pronounce a judgment. (1862.) See. 3. The justices of the supreme court shall be elected by the qualified electors of the state at special elections to be provided by law, at which elections no officer other than judicial shall be elected, except a su- perintendent of public instruction. The first election for justices of the supreme court shall be held in the year eighteen hundred and sixty-three. The justices shall hold their offices for the term of ten years from the first day of January next after their election, except those elected at the first election, who, at their first meet- ing, shall so classify themselves by lot that one justice shall go out of office every two years. The justice hav- ing the shortest term to serve shall be the chief justice. (1862.) See. 4. The supreme court shall have appellate ju- risdiction in all cases in equity; also in all cases at law which involve the title oi" possession of real estate, or the legality of any tax, impost, assessment, toll, or mu- nicipal fine, or in which the demand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars ; also in all cases arising in the probate courts; and also in all criminal cases amounting to felony, on questions of law alone. The court shall also have power to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and also all writs neees- Art. VI, §§ 5, 6 CONSTITUTION OP 184:9. 636 sary or proper to the complete exercise of its appellate .iurisdietion. Each of the justices shall have power to issue writs of habeas corpus to any part of the state, upon petition on behalf of any person held in actual cus- tody, and make such writs returnable before himself, or the supreme court, or before any district court, or an}^ county court in the state, or before any judge of said courts. (1862.) Sec. 5. The state shall be divided, by the legislature of eighteen hundred and sixty-three, into fourteen judi- cial districts, subject to such alteration, from time to time, by a two-thirds vote of all the members elected to both houses, as the public good may require, in each of which there shall be a district court, and for each of which a judge shall be elected by the qualified electors of the district at the special judicial elections to be held as provided for the election of justices of the supreme court, by section three of this article. The district judges shall hold their offices for the term of six years from the first day of January next after their election. The legislature shall have no power to grant leave of ab- sence to a judicial officer; and any such officer who shall absent himself from the state for upward of thirty con- secutive days shall be deemed to have forfeited his of- fice. (1862.) Sec. 6. The district courts shall have original juris- diction in all cases in equity; also, in all cases at law 637 CONSTITUTION OF 1849. Art. VI, §§ 7, 8 which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the de- mand, exclusive of interest or the value of the property in controversy, amounts to three hundred dollars; and also in all criminal cases not otherwise provided for. The district courts and their judges shall have power to issue writs of habeas corpus, on petition by or on behalf of any person held in actual custody, in their respective districts. (1862.) Sec. 7. There shall be in each of the organized coun- ties of the state a county court, for each of which a county judge shall be elected by the qualified electors of the county, at the special judicial election to be held as provided for the election of justices of the supreme court by section three of this article. The county judges shall hold their offices for the term of four years from the first day of January next after their election. Said courts shall also have power to issue naturalization pa- pers. In the city and county of San Francisco the leg- islature may separate the office of probate judge from that of county judge, and may provide for the election of a probate judge, who shall hold his office for the term of four years. (1862.) Sec. 8. The county court shall have original jurisdic- tion of actions of forcible entry and detainer, of pro- ceedings in insolvency, of actions to prevent or abate a Art. VI, §§ 9, 10 CONSTITUTION OF 1849. 638 nuisance, and of all such special cases and proceedings as are not otherwise provided for; and also such crimi- nal jurisdiction as the legislature may prescribe; they shall also have appellate jurisdiction in all eases arising in courts held by justices of the peace and recorders, and in such inferior courts as may be established in pur- suance of section one of this article, in their respective counties. The county judges shall also hold, in their several counties, probate court, and perform such duties as probate judges as may be prescribed by law. The county courts and their judges shall also have power to issue writs of habeas corpus, on petition by or on behalf of any person in actual custody in their respective coun- ties. (1862.) Sec. 9. The legislature shall determine the number of justices of the peace to be elected in each city and town- ship of the state, and fix by law their powers, duties, and responsibilities; provided, such powers shall not in any case trench upon the jurisdiction of the several courts of record. The supreme court, the district courts, county courts, the probate courts, and such other courts as the legislature shall prescribe, shall be courts of rec- ord. (1862.) Sec. 10. The legislature shall fix by law the jurisdic- tion of any recorder's or other inferior municipal court which may be established in pursuance of section one of 639 CONSTITUTION OF 1849. Art. VI, §§ 11-14 this article, and shall fix by law the powers, duties, and responsibilities of the judges thereof. (1862.) Sec. 11. The legislature shall provide for the election of a clerk of the supreme court, county clerks, district attorneys, sheriffs, and other necessary officers, and shall fix by law their duties and compensation. County clerks shall be ex officio clerks of the courts of record in and for their respective counties. The legislature may also provide for the appointment by the several district courts of one or more commissioners in the several counties of their respective districts, with authority to perform chamber business of the judges of the district courts and county courts, and also to take depositions, and to perform such other business connected with the administration of justice as may be prescribed by law. (1862.) Sec. 12, The times and places of holding the terms of the several courts of record shall be provided for by law. (1862.) Sec. 13. No judicial officer, except justices of the peace, recorders, and commissioners shall receive to his own use any fees or perquisites of office. (1862.) Sec. 14. The legislature shall provide for the speedy publication of such opinions of the supreme court as it may deem expedient ; and all opinions shall be free for publication by any person. (1862.) Art. VI, §§ 15-19 CONSTITUTION OF 1849. 640 Sec. 15. The justices of the supreme court, district judges, and county judges, shall severally, at stated times during their continuance in office, receive for their services a compensation, which shall not be increased or diminished, during the term for which they shall have been elected ; provided, that county judges shall be paid out of the county treasury of their respective counties. (1862.) See. 16. The justices of the supreme court, and the district judges, and the county judges, shall be ineligible to any other office than a judicial office during the term for which they shall have been elected. (1862.) Sec. 17. Judges shall not charge juries with respect to matters of fact, but may state the testimony and de- clare the law. (1862.) Sec. 18. The style of all process shall be: *'The People of the State of California," and all prosecutions shall be conducted in their name and by their authority. (1862.) Sec. 19. In order that no inconvenience may result to the public service from the taking effect of the amend- ments proposed to said article 6, by the legislature of eighteen hundred and sixty-one, no officer shall be su- perseded thereby, nor shall the organization of the sev- eral courts be changed thereby, until the election and qualification of the several officers provided for in said amendment. (1862.) 641 CONSTITUTION OF 1S49. Art. VIII, § 1 ARTICLE VII. MILITIA. Section 1. The learislatnre shall provide by law for organizing and disciplining the militia, in such manner as they shall deem expedient, not incompatible with the constitution and laws of the United States. Sec. 2. Officers of the militia shall be elected or ap- pointed in such manner as the legislature shall from time to time direct, and shall be commissioned by the gov- ernor. Sec. 3. The governor shall have power to call forth the militia to execute the laws of the state, to suppress insurrections, and repel invasions. ARTICLE VIIL STATE DEBTS. Section 1. The legislature shall not in any manner create any debt or debts, liability or liabilities, which shall, singly or in the aggregate with any previous debts or liabilities, exceed the sum of three hundred thousand dollars, except in case of war, to repel invasion, or sup- press insurrection, unless the same sluill be authorized by some law for some single object or work, to be dis- tinctly specified therein, which law shall provide ways and means, exclusive of loans, for the payment of the Constitution— 41 Art. IX, § 1 CONSTITUTION OF 1849. 642 interest of such debt or liability as it falls due, and also to pay and discharge the principal of such debt or lia- bility within twenty years from the time of the contract- ing thereof, and shall be irrepealable until the principal and interest thereon shall be paid and discharged; but no such law shall take effect until, at a general election, it shall have been submitted to the people and have received a majority of all the votes cast for and against it at such election ; and all money raised by authority of such law shall be applied only to the specific object therein stated, or to the payment of the debt thereby created ; and such law shall be published in at least one newspaper in each judicial district, if one be published therein, throughout the state, for three months next pre- ceding the election at which it is submitted to the people. ARTICLE IX. • EDUCATION. Section 1. A superintendent of public instruction shall, at the special election for judicial officers to be held in the year eighteen hundred and sixty-three, and every four years thereafter, at such special elections, be elected by the qualified voters of the state, and shall enter upon the duties of his office on the first day of De- 'cember next after his election. (Amendment ratified September 3, 1862. Original provided for term of three ears and election at the general election.) 643 CONSTITUTION OF 1849. Art. IX, §§2-4 Sec. 2. The legislature shall encourage, by all suita- ble means, the promotion of intellectual, scientific, moral, and agricultural improvement. The proceeds of all lands that may be granted by the United States to this state for the support of schools, which may be sold or disposed of, and the five hundred thousand acres of land granted to the new states, under an act of Congress distributing the proceeds of the public lands among the several states of the Union, approved A. D. one thou- sand eight hundred and forty-one, and all estates of de- ceased persons who may have died without leaving a will or heir, and also such per cent as may be granted by Congress on the sale of lands in this state, shall be and remain a perpetual fund, the interest of which, together with all the rents of the unsold lands, and such other means as the legislature may provide, shall be inviola- bly appropriated to the support of common schools throughout the state. Sec. 3. The legislature shall provide for a system of common schools, by which a school shall be kept up and supported in each district at least three months in every year; and any school district neglecting to keep up and support such a school may be deprived of its proportion of the interest of the public fund during such neglect. Sec. 4. The legislature shall take measures for tho protection, improvement, or other disposition of such lands as have been or may hereafter be reserved or Art. X, § 1 CONSTITUTION OF 1849. 644 granted by the United States, or any person or persons, to this state, for the use of a university ; and the funds accruing from the rents or sale of such lands, or from any other source, for the purpose aforesaid, shall be and remain a permanent fund, the interest of which shall be applied tq_the support of said university, with such branches as the public convenience maj demand, for the promotion of literature, the arts and sciences, as may be authorized by the terms of such grant. And it shall be the duty of the legislature, as soon as may be, to provide effectual means for the improvement and permanent se- curity of the funds of said university. ARTICLE X. MODE OF AMENDING AND REVISING THE CONSTITU- TION. Section 1. Any amendment or amendments to this constitution may be proposed in the senate or assembly ; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed * amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and re- ferred to the legislature then next to be chosen, and shall be published for three months next preceding the time of making such choice. And if, in the legislature next chosen as aforesaid, such proposed amendment or amend- ments shall be agreed to by a majority of all the mem- 645 CONSTITUTION OF 1849. Art. X, § 2 bers elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people, in such manner and at such time as the legislature shall prescribe; and if the people shall approve and ratify such amendment or amend- ments, by a majority of the electors qualified to vote for members of the legislature voting thereon, such amend- ment or amendments shall become part of the constitu- tion. Sec. 2. And if at any time two-thirds of the senate and assembly shall think it necessary to revise and change this entire constitution, they shall recommend to the electors at the next election for members of the leg- islature to vote for or against a convention ; and if it shall appear that a majority of the electors voting at such election have voted in favor of calling a convention, the legislature shall, at its next session, provide by law for calling a convention, to be holden within six months after the passage of such law ; and such convention shall con- sist of a number of members not less than that of both branches of the legislature. The constitution that may have been agreed upon and adopted by such convention shall be submitted to the people, at a special election to be provided for by law, for their ratification or rejec- tion. Each voter shall express his opinion by depositing in the ballot box a ticket, whereon shall be written or printed the words "For the new constitution," or "Against the new constitution." The returns of such Art. XI, §§ 1, 2 CONSTITUTION OF 1849. 646 election shall, in such manner as the convention shall direct, be certified to the executive of the state, who shall call to hds assistance the controller, treasurer, and secre- tary of state, and compare the votes so certified to him. If, by such examination, it be ascertained that a ma- jority of the whole number of votes cast at such election be in favor of such new constitution, the executive of this state shall, by his proclamation, declare such new constitution to be the constitution of the state of Cali- fornia. (Amendment ratified November 4, 1856.) AETICLE XI. MISCELLANEOUS PROVISIONS. Section 1. The first session of the legislature shall be held at the Pueblo de San Jose, which place shall be the permanent seat of government until removed by law; provided, however, that two-thirds of all the members elected to each house of the legislature shall concur in the passage of such law. See. 2, Any citizen of this state who shall, after the adoption of this constitution, fight a duel with deadly weapons, or send or accept a challenge to fight a duel with deadly weapons, either within this state or out of it, or who shall act as second or knowingly aid or assist in any manner those thus offending, shall not be allowed to hold any office of profit or to enjoy the right of suffrage under this constitution. 647 CONSTITUTION OF 1849. Art. XI, §§ 3-7 Sec. 3. Members of the legislature and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation : "I do solemnly swear (or affirm, as the case may be) that I will support the constitution of the United States and the constitution of the state of California, and that I will faithfully discharge the duties of the office of , according to the best of my ability. ' ' And no other oath, declaration, or test shall be re- quired as a qualification for any office or public trust. Sec. 4. The legislature shall establish a system of county and town governments, which shall be as nearly uniform as practicable throughout the state. Sec. 5. The legislature shall have the power to pro- vide for the election of a board of supervisors in each county, and these supervisors shall jointly and individ- ually perform such duties as may be prescribed by law. Sec. 6. All officers whose election or appointment is not provided for by this constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct. See. 7. When the duration of any office is not pro- vided for by this constitution, it may be declared by law; and if not so declared, such office shall be held during Art. XI, §§ 8-13 CONSTITUTION OF 1849. 648 the pleasure of the authority making the appointment ; nor shall the duration of any office not fixed by this con- stitution ever exceed four years. Sec. 8. The fiscal year shall commence on the first day of July. Sec. 9. Bach county, town, city, and incorporated village shall make provision for the support of its own officers, subject to such restrictions and regulations as the legislature may prescribe. See. 10. The credit of the state shall not in any man- ner be given or loaned to or in aid of any individual, association, or corporation ; nor shall the state, directly or indirectly, become a stockholder in any association or corporation. Sec. 11. Suits may be brought against the state in such manner and in such courts as shall be directed hy law. See. 12. No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect. Sec. 13. Taxation shall be equal and uniform through- out the state. All property in this state shall be taxed in proportion to its value, to be ascertained as directed by law ; but assessors and collectors of town, county, and state taxes shall be elected by the qualified electors of the district, county, or town in which the property taxed for state, county, or town purposes is situated. 649 CONSTITUTION OF 1849. Art. XI, §§ 14-18 Sec. 14. All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise, or descent, shall be her separate property, and laws shall be passed more clearly defining the rights of the wife in relation as well to her separate property as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property. Sec. 15. The legislature shall protect by law from forced sale a certain portion of the homestead and other property of all heads of families. Sec. 16. No perpetuities shall be allowed except for eleemosynary purposes. Sec. 17. Every person shall be disqualified from hold- ing any office of profit in this state who shall have been convicted of having been given or offered a bribe to pro- cure his election or appointment. Sec. 18. Laws shall be made to exclude from office, serving on juries and from the right of suffrage, those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes. The privilege of free suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties all undue in- fluence thereon from power, bribery, tumult, or other im- proper practice. Art. XII, § 1 CONSTITUTION OF 1849. 650 Sec. 19. Absence from this state on business of the state or of the United States shall not affect the ques- tion of residence of any person. Sec. 20. A plurality of the votes given at any election shall constitute a choice, where not otherwise directed in this constitution. Sec. 21. All laws, decrees, regulations, and piovisions which from their nature require publication shall be pub- lished in English and Spanish. ARTICLE XII. BOUNDAEY. Section 1. The boundary of the state of California shall be as follows: Commencing at the point of intersection of forty-sec- ond degree of north latitude with the one hundred twen- tieth degree of longitude west from Greenwich, and running south on the line of said one hundred twentieth degree of west longitude until it intersects the thirty- ninth degree of north latitude ; thence running in a straight line in a southeasterly direction to the River Colorado, at a point where it intersects the thirty-fifth degree of north latitude ; thence down the middle of the channel of said river to the boundary line between the United States and Mexico, as established by the treaty of May thirtieth, one thousand eight hundred and forty- eight; thence running west and along said boundary 651 CONSTITUTION OF 1849. Schedule, §§ 1-4 line, to the Pacific Ocean, and extending therein three English miles; thence, running in a northwesterly direc- tion and following the direction of the Pacific Coast, to the forty-second degree of north latitude ; thence, on the line of said forty-second degree of north latitude, to the place of beginning. Also all the islands, harbors, and bays along and adjacent to the coast. SCHEDULE. Section 1. All rights, prosecutions, claims, and con- tracts, as well of individuals as of bodies corporate, and all laws in force at the time of the adoption of this consti- tution and not inconsistent therewith, until altered or re- pealed by the legislature, shall continue as if the same had not been adopted. Sec. 2. The legislature shall provide for the removal of all causes which may be pending when this constitu- tion goes into effect to courts created by the same. Sec. 3. In order that no inconvenience may result to the public service from the taking effect of this constitu- tion, no office shall be superseded thereby nor the laws relative to the duties of the several officers be changed until the entering into office of the new officers to be ap- pointed under this constitution. Sec. 4. The provisions of this constitution concerning the term of residence necessary to enable persons to hold certain offices therein mentioned, shall not be held to Schedule, §§ 5, 6 constitution of 1849. 652 apply to officers chosen by the people at the first elec- tion, or by the legislature at its first session. Sec. 5. Every citizen of California declared a legal voter by this constitution, and every citizen of the United States a resident of this state on the day of election, shall be entitled to vote at the first general election under this constitution, and on the question of the adoption thereof. Sec. 6. This constitution shall be submitted to the people for their ratification or rejection at the general election to be held on Tuesday, the thirteenth day of November next. The executive of the existing govern- ment of California is hereby requested to issue a proc- lamation to the people, directing the prefects of the several districts, or, in case of vacancy, the subprefects or senior judge of first instance, to cause such election to be held on the day aforesaid in their respective districts. The election shall be conducted in the manner which was prescribed for the election of delegates to this convention, except that the prefects, subprefects, or senior judge of first instance ordering such election in each district shall have power to designate any additional number of places for opening the polls, and that in every place of holding the election a regular poll list shall be kept by the judges and inspectors of election. It shall also be the duty of these judges and inspectors of election, on the day afore- said, to receive the votes of the electors qualified to vote at such election. Each voter shall express his opinion 653 CONSTITUTION OP 1849. Schedule, § 6 by depositing in the ballot box a ticket whereon shall be written or printed "For the constitution," or "Against the constitution," or some such words as will distinctly convey the intention of the voter. These judges and in- spectors shall also receive the votes for the several offi- cers to be voted for at the said general election, as herein provided. At the close of the election the judges and inspectors shall carefully count each ballot, and forthwith make duplicate returns thereof to the prefect, subprefeet or senior judge of first instance, as the case may be, of their respective districts; and said prefect, subprefeet, or senior judge of first instance shall trans- mit one of the same, by the most safe and rapid convey- ance, to the secretary of state. Upon the receipt of said returns, or on the tenth day of December next, if the returns be not sooner received, it shall be the duty of a board of canvassers, to consist of the secretary of state, one of the judges of the superior court, the prefect, judge of first instance, and an alcalde of the district of Mont- erey, or any three of the aforementioned officers, in the presence of all who shall choose to attend, to compare the votes given at said election, and to immediately pub- lish an abstract of the same in one or more of the news- papers of California. And the executive will also, imme- diately after ascertaining that the constitution has been ratified by the people, make proclamation of the fact; and thenceforth this constitution shall be ordained and established as the constitution of California. Schedule, §§ 7-11 constitution op 1849, 654 Sec. 7. If this constitution shall be ratified by the people of California, the executive of the existing govern- ment is hereby requested, immediately after the same shall be ascertained, in the manner herein directed, to cause a fair copy thereof to be forwarded to the Presi- dent of the United States, in order that he may lay it be- fore the Congress of the United States, Sec. 8. At the general election aforesaid, viz.: the thirteenth day of November next, there shall be elected a governor, lieutenant-governor, membere of the legisla- ture, and also two members of Congress, Sec. 9. If this constitution shall be ratified by the peo- ple of California, the legislature shall assemble at the seat of government on the fifteenth day of December next ; and in order to complete the organization of that body the senate shall elect a president pro tempore, un- til the lieutenant-governor shall be installed into office. Sec. 10. On the organization of the legislature, it shall be the duty of the secretary of state to lay before each house a copy of the abstract made by the board of canvassers, and, if called for, the original returns of election, in order that each house may judge of the cor- rectness of the report of said board of canvassers. Sec. 11. The legislature, at its first session, shall elect such officers as may be ordered by this constitu- tion to be elected by that body, and within four days after its organization, proeeed to elect two senators to 655 CONSTITUTION OF 1849. Schedule, §§ 12-14 the Congress of the United States. But no law passed by this legislature shall take effect until signed by the governor after his installation into office. See. 12. The senators and representatives of the Congress of the United States elected by the legislature and people of California, as herein directed, shall be furnished with certified copies of this constitution, when ratified, which they shall lay before the Congress of the United States, requesting, in the name of the people of California, the admission of the state of Cali- fornia into the American Union. Sec. 13. All officers of this state, other than members of the legislature, shall be installed into office on the fifteenth day of December next, or as soon thereafter as practicable. Sec. 14. Until the legislature shall divide the state into counties and senatorial and assembly districts, as directed by this constitution, the following shall be the apportionment of the two houses of the legislature, viz. : The districts of San Diego and Los Angeles shall jointly elect two senators ; the districts of Santa Barbara and San Luis Obispo shall jointly elect one s enator; the district of Monterey one senator; the district of S_an , Jose, one senator; the district of San Francisco, two senators; the district of Sonoma, one senator; the district of Sacramento, four senators; and the district of San Joaquin, four senators. And the district of San Schedule, §§ 15, 16 constitution of 1849. 656 Diego shall elect one member of the assembly ; the dis- trict of Los Angeles, two members of assembly; the dis- trict of Santa Barbara, two members of assembly; the district of San Luis Obispo one member of assembly ; the district of IMonterey, two members of assembly; the district of San Jose, three members of assembly ; the district of San Francisco, five members of assembly; the district of Sonoma, two members of assembly; the district of Sacramento, nine members of assembly ; the district of San Joaquin, nine members of assembly. Sec. 15. Until the legislature shall otherwise direct, in accordance with the provisions of this constitution, the salary of the governor shall be ten thousand dol- lars per annum; and the salary of the lieutenant-gov- ernor shall be double the pay of a state senator; and the pay of members of the legislature shall be sixteen dollars per diem while in attendance, and sixteen dol- lars for every twenty miles traveled by the usual route from their residences to the place of holding the ses- sion of the legislature, and in returning therefrom. And the legislature shall fix the salaries of all officers other than those elected by the people at the first election. Sec. 16. The limitation of the powers of the legis- lature contained in article 8 of this constitution shall not extend to the first legislature elected under the same, which is hereby authorized to negotiate for such 657 CONSTITUTION OF 1849. Signers amount as may be necessary to pay the expenses of the state government. ^ SEMPLE, President, and Delegate from Benicia. Wm, G. Marcy, Secretary. Joseph Aram, Ch. T. Botts, Elam Brown, Elisha 0. Crosby, Jose M. Covarubias, >^Stephen C. Foster, i^^m. M. Gwin, ^ Edw. Gilbert, Henry Hill, J. D. Hoppe, Jovseph Hobson, Julian Hanks, H. W. Halleck, L. W. Hastings, Pablo Be La Guerra, Lewis Dent, Kimball H. Dimmick, A. J. Ellis, Jose An to Carrillo, Pacific us Ord, Miguel D. Pedrorena, M. M. McCarver, Antonia Ma. Pico, Jacinto Rodriguez, Hugh Reid, J. A. Sutter, Jacob R. Snyder, Winfield Scott Sherwood, J. McHenry Hollinsworth, William E. Shannon, Jas. McHall Jones, ^ Thomas 0. Larkin, Francis J. Lippitt, Benj. S. Lippincott, Benj. F. Moore, Rodman M. Price, ^ Jno. McDougall, Man 'I Dominguez, Myron Norton, Constitution^-42 >rce, the same shall be paid for at an eijuitable price. All churches, hospitjils, schools, colleges, libraries, and other establishments for charitable and K^ueficeut xnirp<>ses, shall be respected, and tUl persons connected with the same prv^tecte^l in the discharge of their duties and the pursuit of their voca- tions. 2. In orvlor that the fate of prisvMiers of war may l>e alleviattHl. all such practices as those of sending them into distajit, inclement, or unwholesome districts, or crowding them into ch^se and no:xious places, shall be .studiously avoidiHl. They shall not be contincil in dun- geons, prison-shi}\s. or prisons: nor be put in ir\>ns. or Knind. or otherwise n^straineii in the use of their litv.Vs. The otVicers shall enjoy liberty OTt their parv>hrs. within wnvenient districts, and have i^Mufortable quarters: and the connuon soldiers shall W disiH>si\l in cantonments, Art. XXII TREATY OF GUADALUPE HIDALGO. 716 open and extensive enough, for air and exercise, and lodged in barracks as roomy and good as are provided by the party in whose power they are, for its own troops. But if any officer shall break his parole by leaving the district so assigned him, or any other prisoner shall es- cape from the limits of his cantonment, after they shall have been designated to him, such individuals, officer, or other prisoner, shall forfeit so much of the benefit of this article as provides for his liberty on parole or in canton- ment. And if any officer so breaking his parole, or any common soldier so escaping from the limits assigned him, shall afterwards be found in arms, previously to his being regularly exchanged, the person so offending shall be dealt with according to the established laws of war. The officers shall be daily furnished by the party in whose power they are, with as many rations, and of the same articles, as are allowed, either in kind or by commu- tation, to officers of equal rank in its own army ; and all others shall be daily furnished with such ration as is allowed to a common soldier in its own service : the value of all which supplies shall, at the close of the war, or at periods to be agreed upon between the respective commanders, be paid by the other party, on a mutual ad- justment of accounts for the subsistence of prisoners; and such accounts shall not be mingled with or set off against any others, nor the balance due on them be with- held, as a compensation or reprisal for any cause what- ever, real or pretended. Each party shall be allowed to 717 TREATY OF GUADALUPE HIDALGO. Art. XXIII keep a commissary of prisoners, appointed by itself, with every cantonment of prisoners, in possession of the other ; which commissary shall see the prisoners as often as he pleases; shall be allowed to receive, exempt from all duties or taxes, and to distribute, whatever comforts may be sent to them by their friends ; and shall be free to transmit his reports in open letters to the party by whom he is employed. And it is declared that neither the pretense that war dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending the solemn cove- nant contained in this article. On the contrary, the state of war is precisely that for which it is provided ; and during which its stipulations are to be as sacredly ob- served as the most acknowledged obligations under the law of nature or nations. ARTICLE XXIII. This treaty shall be ratified by the President of the United States of America, by and with the advice and consent of the Senate thereof; and by the President of the Mexican Republic, with the previous approbation of its General Congress; and the ratifications shall be ex- changed in the city of Washington, or at the seat of government of Mexico, in four months from the date of the signature hereof, or sooner if practicable. In faith whereof, we, the respective plenipotentiaries. have signed this treaty of peace, friendship, limits, ^nd Art. XXIII TREATY OF GUADALUPE HIDALGO. 718 settlement; and have hereunto affixed our seals respec- tively. Done in quintuplicate lat the city of Guadalupe Hidalgo, on the second day of February in the year of our Lord one thousand eight hundred and forty-eight. N. P. TRIST, [l. s.] LUIS G. CUEVAS, [l. s.] BERNARDO COUTO, [l. s.] MIGL. ATRISTAN, [l. s.] And whereas the said treaty, as amended, has been duly ratified on both parts, and the respective ratifica- tions of the same were exchanged at Queretaro on the thirtieth day of May last, by Ambrose H. Sevier and Nathan Clifford, Commissioners on the part of the Gov- ernment of the United States, and by Senor Don Luis de la Rosa, Minister of Relations of the Mexican Repub- lic, on the part of that Government : Now, therefore, be it known, that I, James K. Polk, President of the United States of America, have caused the said Treaty to be made public, to the end that the same and every clause and article thereof may be ob- served and fulfilled with good faith by the United States and the citizens thereof. In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. Done at the city of Washington, this fourth day of July, one thousand eight hundred and forty-eight, and 719 TREATY OF GUADALUPE HIDALGO. of the Independence of the United States the seventy- third. [L. s.] JAMES K. POLK. By the President: James Buchanan, Secretary of State. ARTICLES REFERRED TO IN THE FIFTEENTH ARTICLE OF THE PRECEDING TREATY. First and Fifth Articles of the unratified Convention between the United States and the Mexican Bepuhlic of the 20th Nov. 1843. ARTICLE L All claims of citizens of the Mexican Republic against the government of the United States which shall be presented in the manner and time hereinafter expressed, and all claims of citizens of the United States against the government of the Mexican Republic, which for whatever cause were not submitted to, nor considered nor finally decided by, the commission, nor by the arbiter appointed by the convention of 1839, and which shall be presented in the manner and time hereinafter speci- fied, shall be referred to four commissioners, who shall form a board, and shall be appointed in the following manner, that is to say : Two commissioners shall be ap- pointed by the President of the Mexican Republic, and TREATY OP GUADALUPE HIDALGO. 720 the other two by the President of the United States, with the approbation and consent of the senate. The said commissioners, thus appointed, shall, in presence of each other, take an. oath to examine and decide impartially the claims submitted to them, and which may lawfully be considered, according to the proofs which shall be presented, the principles of right and justice, the law of nations, and the treaties between the two republics. ARTICLE V. All claims of citizens of the United States against the government of the Mexican Republic, which were con- sidered by the commissioners, and referred to the um- pire appointed under the convention of the eleventh April, 1839, and which were not decided by him, shall be referred to, and decided by, the umpire to be ap- pointed, as provided by this convention, on the points submitted to the umpire under the late convention, and his decision shall be final and conclusive. It is also agreed, that, if the respective commissioners shall deem it expedient, they may submit to the said arbiter new ar^ments upon the said claims. INDEX. OoMtitution — i6 (^21) INDEX. [Eeferences are to articles, sections, and pages, respectively.] ABANDONED CHILDREN— state may provide for. Art. 4, Sec, 22, p. 137. ABSENCE — of governor, duties devolve on lieutenant-governor, 5, 16, p. 191. of chief justice, selection pro tempore, 6, 2, p. 200. of judge from state, 6, 3, p. 201. of judicial officer when a forfeiture of office, 6, 9, p. 253. of citizen, on public business not to affect residence, 20, 12, p. 539. ACCOUNT — of receipts and expenditures to be published, 4, 22, p. 134. ACCOUNTABILITY— of municipal officers, 11, 5, p. 303. ACCUSED— rights of, 1, 13, p. 23. ACQUISITION OF PROPERTY— rights of aliens, 1, 17, p. 61. ACT OF LEGISLATURE— to embrace but one subject, 4, 24, p. 141. ACTION — corporations may sue and be sued, 12, 4, p. 421. where may be sued, 12, 14, p. 428. limitation of, special legislation prohibited, 4, 25, p. 151. real where to be commenced, 6, 5, p. 228. against transportation companies for excessive charges, 12, 22, p. 437. unaffected by adoption of constitution, 22, 2, p. 554. ADJOURNMENT OF LEGISLATURE— for want of quorum, 4, 8, p. 120. restriction on right of, 4, 14, p. 123. loss of per diem by, 4, 14, p. 123. effect of on pa'-nage of bills, 4, 16, p. 125. power of governor on disagreement, 5, 11, p. 188. (723) 724 INDEX. ADJUSTMENT OF POPULATION— in legislative districts, Art. 4, Sec. C, p. 117. ADMISSION TO UNIVERSITY— 9, 9, p. 288. ADOPTION OF CHILDREN— special legislation prohibited, 4, 25, p. 153. AFFIDAVIT — required of justice or judge on drawing salary, 6, 24, p. 272. to sustain issue of warrants, 1, 19, p. 63. AFFIRMATION— See Oath. AGED PERSONS — state may provide for support of, 4, 22, p. 133. AGENT — when not to receive extra compensation, 4, 32, p. 176. of transportation comi>any, restrictions as to interests, 12, 18, p. 433. AGREEMENT FOR EXTRA COMPENSATION— to public offi- cials, void, 4, 32, p. 176. AGRICULTURAL COLLEGE— provisions regarding, 9, 9, p. 288. AGRICULTURAL SOCIETY— how to elect officers, 12, 11, p. 426. AID FROM PUBLIC FUNDS— to private institutions prohibited, 4, 22, p. 133. to religious sects prohibited, 4, 30, p. 171. ALAMEDA — two superior court judges to be elected, 6, 6, p. 248. salary of judge of superior court, 6, 17, p. 264. ALIENATION OF FRANCHISE— not to relieve from liability, 12, 10, p. 425. ALIENS DETRIMENTAL TO STATE— protection from, 19, 1, p. 528. foreigners ineligible to citizenship declared dangerous, 19, 4, p. 530. their immigration to be discouraged, 19, 4, p. 530. provision for their removal, 19, 4, p. 530. AMENDATORY ACTS— title to, 4, 24, p. 141. AMENDMENTS TO BILLS— how made, 4, 15, p. 124. to be printed, 4, 15, p. 124. to laws, how enacted, 4, 24, p. 141. to city charter, how made, 11, 8, p. 336. INDEX. 725 AMENDMENTS TO CONSTITUTION— may be proposed in. either house, Art. 18, Sec. 1, p. 525. two-thirds vote required, 18, 1, p. 525. to be submitted to vote of people, 18, 1, p. 525. several, to be voted on separately, 18, 1, p. 525. if ratified by majority, part of constitution, 18, 1, p. 525. AMERICAN UNION— state part of, 1, 3, p. 7. APPEAL— district courts of, 6, 4, p. 206. APPELLATE JURISDICTION— of supreme court, 6, 4, p. 205. of superior court, 6, 5, p. 228. APPOINTiMENT AND REMOVAL— of board of prison directors, 10, 1, p. 293. of warden and clerk, 10, 3, p. 294. of subordinate officers and employees, 10, 3, p. 294. . of inspection officers, by municipal corporations, 11, 14, p. 393. to be according to legislative direction, 20, 4, p. 535. APPORTIONMENT— of members of legislature, 4, 6, p. 117. of business of superior courts, 6, 7, p. 248. of railroad values on assessment, 13, 10, p. 476. APPROPRIATION BILL — governor may veto separate items of, 4, 16, p. 126. duty of governor as to, 4, 16, p. 126. ■what lill to contain, 4, 29, p. 171. what prohibited, 4, 30, p. 128. for specific purpose to contain but one item, 4, 34, p. 171. APPROPRIATION— of water, 14, 1, p. 508. APPROPRIATIONS — to eleemosynary institutions, pro rata to counties, cities, and towns, 4, 22, p. 133. for private corporations and institutions, 4, 22, p. 133. restriction on powers of legislature, 4, 22, p. 133. for support of orphans, etc., 4, 22, p. 133. by legislature and local governments, restriction on, 4, 30, p. 171. ARCHIVES — all laws, official writings, and proceedings to be pre- served, 4, 24, p. 142. ARMY — standing not to be kept, 1, 12, p. 23. exemption from taxation, 13, 1%, p. 463. 726 INDEX. AEEEST — members of legislature privileged from, Art. 4, Sec. 11, p. 122. privilege of electors from, 2, 2, p. 73. ARTinCIAL LIGHT— right of cities to regulate charges, 11, 19, p. 403. . ARTISANS — secured by lien on property, 20, 15, p. 540. legislation to provide for enforcement of, 20, 15, p. 504. ASIATIC COOLIE ISM— a form of slavery, 19, 4, p. 530. forever prohibited, 19, 4, p. 398. ASSEMBLAGES OF PEOPLE— guaranty as to, 1, 10, p. 17. ASSEMBLY — legislative power vested in, 4, 2, p. 113. members, when and how chosen, 4, 3, p. 115. term of office, 4, 6, p. 117. number of members, 4, 5, p. 116. districts to be formed, 4, G, p. 117. vacancies, how filled, 4, 12, p. 123. to have sole power of impeachment, 4, 17, p. 128. compensation of, 4, 23, p. 140. attachment of district to form congressional district, 4, 27, p. 170. district not to be divided, 4, 27, p. 170. ASSEMBLY DISTRICTS— organization of, 4, 6, p. 117. each to choose one member, 4, 6, p. 117. to be numbered from one to eighty, 4, 6, p. 117. ASSESSMENT — appellate jurisdiction of supreme court, 6, 4, p. 205. original jurisdiction of superior courts, 6, 5, p. 227. under township organization, 11, 4, p. 301. of municipal taxes, 11, 12, p. 386. for street improvements, 11, 19, p. 403. to be in proportion to benefits, 11, 19, p. 403. of lands for taxes, 13, 2, p. 464. of lands sectionized and not sectionized, 13, 3, p. 465. mortgages, deeds of trust, etc., deemed property, 13, 4, p. 465. of securities how made, 13, 4, p. 405. of railroads, 13, 14, p. 465. equalization of, 13, 9, p. 471. property, where and how assessed, 13, 10, p. 476. of railroad franchises, 13, 10, p. 176. apportionment of railroad values, 13, 10, p. 476. INDEX. 727 ASSESSMENT — securities, to whom assessed, Art. 13, Sec. 4, p. 465. •where to be made, 13, 10, p. 476. of taxes to be under general laws, 4, 25, p. 151. for income tax, 13, 11, p. 479. See Taxation. ASSETS — of corporations to be entered on books, 12, 14, p. 428. ASSIGNMENT OF JUSTICES— to departments of supreme court, 6, 2, p. 200. ASSOCIATE JUSTICES— subject to impeachment, 4, 18, p. 129. to be assigned to departments of supreme court, 6, 2, p. 200. competent to sit in either, 6, 2, p. 200. may freely interchange, 6, 2, p. 200. three necessary to transact business, 6, 2, p. 200. may act in chambers, 6, 2, p. 200. four may order hearing in bank, 6, 2, p. 201. when concurrence of four necessary to judgment, 6, 2, p. 201. to select one to preside, 6, 2, p. 201. when to select chief justice pro tempore, 6, 2, p. 201. time and place of election, 6, 3, p. 204. term of office, 6, 3, p. 204. those first elected to classify themselves, 6, 3, p. 204. two to be elected every four years, 6, 3, p. 204. appointment by governor in case of vacancy, 6, 3, p. 204. ASSOCIATION — no appropriations if not under state control, 4, 22, p. 133. cannot acquire rights, etc., by special legislation, 4, 25, p. 152. included in term "corporations," 12, 4, p. 421. where may be sued, 12, 16, p. 430. subject to assessment for income tax, 13, 11, p. 479. ASYLUMS — not under state control, not entitled to appropria- tions, 4, 22, p. 133. ATTACHES OF LEGISLATURE— compensation of, 4, 23, p. 140 ATTAINDER, BILLS OF— prohibited, 1, 16, p. 54. ATTORNEY GENERAL— subject to impeachment, 4, 18, p. 129. mode and time of election, 5, 17, p. 191. term of office, 5, 17, p. 191. duties of oflire, 5, 17, p. 191. compensation of, 5, 19, p. 193. 728 INDEX. AYES AND NOES — on urgency for passage of bill, Art. 4- Sec. 15, p. 124, to be taken on each bill separately, 4, 15, p. 124. when to be entered on journal, 4, 10, p. 121. on removal of justices or judges, to be entered on journal, 6, 10, p. 254. on proposed amendment to constitution, 18, 1, p. 525. and to be entered on journal, 18, 1, p. 525. BAIL — allowed on sufficient sureties, 1, 6, p. 9. except in capital offenses, etc., 1, 6, p. 9. excessive not to be required, 1, 6, p. 9. BALLOTS— all elections to be by ballot, 2, 5, p. 78. for election of new constitution to be distributed, 22, 5, p. 557. BANKING — restriction on power of legislature, 12, 5, p. 422. corporations may be formed under general laws, 12, 5, p. 422. only lawful money of United States to be circulated, 12, 5, p. 422. BASIS — of representation, 4, 6, p. 117. BIENNIAL — sessions of legislature, 4, 2, p. 116. BILLS — limitation of time for introduction of, 4, 2, p. 114. now to be put on their passage, 4, 15, p. 124. when passed to be submitted to governor, 4, 16, p. 125. power of governor to sign or disapprove, 4, 16, p. 125, when to become a law, 4, 16, p. 125. passage over veto, 4, 16, p. 125. making appropriation to contain but one item, 4, 34, p. 178. BILLS OF ATTAINDER— prohibited, 1, 16, p. 54. BOARD OP CANVASSERS— on new constitution, duty of, 22, 8, p. 559. BOARD OF EDUCATION— to adopt text books, 9, 7, p. 284. to control examination of teachers, 9, 7, p. 284. and grant teachers' certificates, 9, 7, p. 284. restriction as to power to incur debt, 11, 18, p. 396. BOARD OF EQUALIZATION— to be elected, 13, 9, p, 471. term of office and duties of, 13, 9, p. 471. controller, a member ex officio, 13, 9, p. 471, authority of board, 13, 9, p. 471. supervisors to constitute county boards, 13, 9, p. 471. INDEX. 729 BOARD OP FEEEHOLDEES— election and qualification of, Art. 11, Sec. 8, p. 336. duties of, 11, 8, p. 336. to prepare charter, 11, 8, p. 336. to prepare county charters, 11, 7^2, P- 323. BOARD OF SUPERVISOES— when to adopt text-books, 9, 7, p. 284. duty and authority as to teachers, 9, 7, p. 284. election and appointment of, 11, 5, p. 2S1. certain cities to have two boards, 11, 7, p. 320. election, term, and classification of, 11, 7, p. 320. to be a board of equalization, 13, 9, p. 471. to fix water rates, 14, 1, p. 508. BONDS— place of payment of, 11, 13^2, p. 392. exempt from taxation, 13, 1%, p. 464. taxable, 13, 1, p. 447. BONDS OF CORPORATIONS— not to be issued except for money, labor, or property, 12, 11, p. 426. when may be increased, 12, 11, p. 426. BOOKS OF RECORD— to be kept by corporations, 12, 14, p. 428. what to be entered on, 12, 14, p. 428. railroad commissioners to prescribe form for accounts, 12, 22, p. 437. BOUNDARY OF STATE— 21, 1, p. 550. BREACH OF THE PEACE— no privilege from arrest, 4, 11, p. 122. BRIBERY— conviction for disfranchises, 20, 11, p. 538. a disqualification for office, 20, 11, p. 538. compulsory testimony in cases of, 4, 35, p. 179. BRIDGES — special legislation prohibited, 4, 25, p. 151. BUSINESS— sex not a disqualification, 20, 18, p. 547. BUTTE COUNTY— salary of judge of superior court, 6, 17, p. 263. CALIFORNIA ACADEMY OF SCIENCES— property of exempt from taxation, 9, 12, p. 291. CALIFORNIA SCHOOL OF MECHANICAL ARTS— property of exempt from taxation, 9, 11, p. 291. 730 INDEX. CANAL COMPANIES— are common carriers', Art. 12, Sec. 17, p, 432. oflicera of not to be interested in certain contracts, 12, 18, p. 433. CAPITAL OFFENSES— when not bailable, 1, 6, p. 9. CAPITAL STOCK OF CORPOEATIONS— subject to legislative control, 4, 26, p. 167. to be entered on books, 12, 14, p. 428. CAPITATION TAX— legislature may provide for a poll tax, 13, 12, p. 479. or for income taxes, 13, 11, p. 479. CEMETERIES— special legislation prohibited, 4, 25, p. 151. CENSUS — the basis of adjustment of legislative districts, 4, 6, p. 117. CERTIORARI— jurisdiction of supreme court, 6, 4, p. 206. or superior court, 6, 5, p. 228. CHAMBERS — justice of supreme court may act in, 6, 2, p. 200. judges of superior courts may act in, 6, 14, p. 262. CHANGE OF COUNTY SEAT— to be by general laws alone, 4, 25, p. 152. CHANGE OF NAMES— special legislation prohibited, 4, 25, p. 151. CHANGE OF PLACE OF TRIAL— in libel cases, 1, 9, p. 16. in railroad cases, 12, 16, p. 430. CHANGE OF VENUE — special acts prohibited, 4, 25, p. 151. CHARGE TO JURY— 6, 19, p. 266. CHARTER^ — cannot be granted by special act, 4, 25, p. 152. for banking purposes prohibited, 12, 5, p. 422. but corporations may form under general laws, 12, 5, p. 422. invalid for want of organization under, 12, 6, p. 422. not to be extended, 12, 7, p. 423. nor forfeiture remitted, 12, 7, p. 423. business restricted to terms in, 12, 9, p. 424. CHARTER OF MUNICIPAL CORPORATION— how obtained, 11, 8, p. 336. when and how framed, 11, 8, p. 336. board of freeholders may prepare, 11, 8, p. 336. copy to be deposited with secretary of state, 11, 8, p. 336. and a copy to be recorded, 11, 8, p. 336. INDEX. 731 CHAHTER OF MUNICIPAL CORPORATION— judicial notice to be taken, Art. 11, Sec. 8, p. 336. may be amended, 11, 8, p. 336. approval of three-fifths of voters necessary, 11, 8, p. 336. how presented to voters, 11, 8, p. 336. may contain what, 11, 8%, p. 360. CHIEF JUSTICE— subject to impeachment, 4, 18, p. 129. authority and duties of, 6, 2, p. 200. time and place of election, 6, 3, p. 204. CHIEF MAGISTRATE— styled governor of California, 5, 1, p. 182. CHILDREN — adoption and legitimation of, 4, 25, p. 153. CHINESE— excluded from right of suffrage, 2, 1, p. 69. legislature to provide for protection against, 19, 1, p. 528. to impose conditions on their residence, 19, 1, p. 528. to provide for their removal from the state, 19, 1, p. 528. corporations prohibited from employing, 19, 2, p. 529. municipal corporations prohibited from employing, 19, 3, p. 530. not to be employed on public works, 19, 3, p. 530. penalty to be prescribed for importing coolies, 19, 4, p. 530 their immigration to be discouraged, 19, 4, p. 530. power to be delegated to cities and towns for their roraoval, 19, 4, p. 530. provisions to prohibit their introduction, 19, 4, p. 530. and to provide for protection against evils of their pres- ence, 19, 4, p. 530. legislature to enforce constitutional provisions, 19, 4, p. 530. flllURCH — appropriations to, prohibited, 4, 30, p. 171. ( rriES — to share in appropriations to oq)hans, etc., 4, 22, p. 133. riTTZENS— rights of, 1, 9, p. 16. jirivileges and immunities of, 1, 21, p. 64. right of suffrage, 2, 1, p. 69. not to be deprived of life, liberty, etc., without due process of law, 1, 13, p. 23. CITIZENSHIP— under Treaty of Queretaro, 2, 1, p. 69. lost, cannot bo restored by special act, 4, 25, p. 152. ''32 INDEX. CITY— may be divided into congressional districts, Art. 4, Sec. 27, p. 170. officers to be governed by general laws only, 4, 25, p. 151. what appropriations prohibited, 4, 30, p. 171. mode of framing charter, 11, 8, p. 336. board of freeholders, when may frame charter, 11, 8, p. 336. charter, to be published, 11, 8, p. 336. to be submitted to vote, 11, 8, p. 336. if ratified to be submitted to legislature, 11, 8, p. 336. if approved, it becomes the charter, 11, 8, p. 336. protection from alien paupers, 19, 1, p. 396, CITY AND COUNTY— right to share in appropriations grantina aid, 4, 22, p. 133. & s not to be divided in forming congressional district, 4, 27, p. 170. restriction on appropriations, 4, 30, p. 171. governments may be merged and consolidated, 11, 7, p. 320. CITY, COUNTY, OE TOWNSHIP— right to share in appropria- tions to institutions, 4, 22, p. 133. prohibited from aiding religious sect or creed, 4, 30, p. 171. prohibited from loaning or giving its credit, 4, 31, p. 172. inferior courts may be established in, 6, 1, p. 197, a subdivision of state, 11, 1, p. 297. may organize under general laws, 11, 6, p. 310, compensation of officers of, 11, 9, p. 369. not to be released from share of taxes, 11, 10, p. 371. commutation of taxes prohibited, 11, 10, p. 371. may enforce local police and sanitary regulations. 11 11. p. 372. ' } > legislature may vest power of taxation in, 11, 12, p. 3S6. to appoint inspection officers, 11, 14, p. 393. money collected to be paid into treasury, 11, 16, p. 394. restriction as to incurring indebtedness, 11, 18, p. 396. liabilities of, when void, 11, 18, p. 396. to regulate water rates, 14, 1, p. 508. penalty for neglect, 14, 1, p. 508. to be protected from alien paupers, etc., 19, 1, p. 528. to have power to remove the same, 19, 4, p. 530. provisions for prohibiting their introduction, 19, 4, p. 530. CITY COUNCIIr— to fix water rates, 14, 1, p. 508. INDEX. 733 CIVIL ACTIONS— three-fourths of jury may decide, Art. 1, Sec. 7, p. 11. jury may be waived, 1, 7, p. 11. imprisonment in, 1, 15, p. 53. CIVIL OFFICEES— trial of, for misdemeanor, 4, 18, p. 129. CLAIMS AGAINST STATE OR LOCAL GOVERNMENT— not to be allowed, 4, 32, p. 176. CLASSIFICATION— of justices of supreme court, 6, 3, p. 204. of counties, 11, 5, p. 303. of senators at election of 1882, 4, 5, p. 116. of municipal corporations, 11, 6, p. 310. of state prison directors, 10, 1, p. 293. of superior judges in San Francisco, 6, 6, p. 248. of supervisors, 11, 7, p. 320. CLERICAL OFFICERS— salary of, 5, 19, p. 193. CLERICAL SERVICES— limitation of compensation, 5, 19, p. 193. CLERK — of supreme court, to be appointed, 6, 21, p. 270. county clerk to be ex officio clerk of courts of record, 6, 14, p. 261. of state prison, appointment by board, 10, 3, p. 294. powers and duties of, to be defined, 10, 5, p. 295. of county, duty on election for new constitution, 22, 6, p. 558. COGSWELL POLYTECHNICAL COLLEGE— exemption of, from taxation, 9, 13, p. 292. COLLECTION OF TAXES— to be governed by general laws, 4, 25, p. 151. of municipal taxes, 11, 12, p. 386. COLLEGE — appropriation, when prohibited, 4, 30, p. 171. COLLEGE OF AGRICULTURE- to be supported and main- tained, 9, 9, p. 288. fund for to be inviolate, 9, 9, p. 288. COMBINATIONS — between transportation companies prohib- ited, 12, 20, 434. COMMANDER-IN-CHIEF— of militia, 5, 5, p. 184. governor to continue as, 5, 16, p. 190. 734 INDEX. COMMISSIONERS— to be elected or appointed, Art. 20, Sec. 4, p. 535. term of office of, 20, 16, p. 542. COMMISSIONS— to be sealed and signed by governor, 5. 14, p. 189. ' y > to militia officer to be signed by governor, 8, 1, p. 276. COMMITMENT— for offenses, 1, 8, p. 14. COMMON CARRIERS— railroads, canals, and transportation companies are, 12, 17, p. 432. subject to legislative control, 12, 17, p. 432. when not to combine to share earnings, 12, 20, p. 434. rates lowered cannot be raised without consent of govern- ment, 12, 20, p. 434. discriminating rates prohibited, 12, 21, p. 435. charges at way stations, 12, 21, p. 435. excursion and commutation tickets may be at special rates, 12, 21, p. 435. See Railroad Companies. COMMON SCHOOLS— not subject to local or special acts, 4, 25, p. 151. source and origin of funds, 9, 4, p. 280. legislature to provide for system of, 9, 5, p. 281. system to include primary and grammar schools, 9, 6, p. 282. funds to be applied exclusively thereto, 9, 6, p. 2S2. no sectarian doctrine to be taught, 9, 8, p. 233. COMMUNICATION OF GOVERNOR— to legislature, 5, 10, p. 145. COMMUTATION OF SENTENCE— power of governor, 7, 1, p. 287. COMMUTATION OF TAXES PROHIBITED— 11, 10, p. 371. COMPENSATION — to be first made on taking property for pub- lic use, 1, 14, p. 42. of members of legislature, 4, 23, p. 140. in case of adjournment, 4, 14, p. 123. extra cannot be granted, 4, 32, p. 176. of state officers not to be diminished or increased, 5, 19 p. 193. of clerk of supreme court, 6, 21, p. 270. to justices and judges, 6, 17, p. 263. of justices to be paid by state, 6, 17, p. 263. half salary of judges to be paid by state, 6, 17, p. 263. INDEX. 735 COMPENSATIO^r— and half by counties, Art. 6, Sec. 17, p. 2G3. of board of state prison directors, 10, 4, p. 294. of county officers, ]1, 5, p. 303. of county, city and town officers, not to be increased, 11, 9, p. 369. COMPULSOEY PEOCESS— accused entitled to procure wit- nesses, 1, 13, p. 23. on failure of supervisors to fix water rates, 14, 1, p. 508. CONCUEEENCE NECESSAEY TO JUDGMENT IN SUPREME COURT— 6, 2, p. 200. CONDEMNATION TO PUBLIC USE— See Eminent Domain. CONDITION OF STATE— governor to communicate to legis- lature, 5, 10, p. 188. CONDITIONS IMPOSED ON FOREIGN CORPORATIONS— 12, 15, p. 429. CONFESSION IN OPEN COURT— effect of, 1, 20, p. 63. CONGRESSIONAL DISTRICTS— how formed, 4, 27, p. 170. of contiguous assembly districts, 4, 27, p. 170. assembly district not to be divided, 4, 27, p. 170. CONSOLIDATION OF MUNICIPAL GOVERNMENTS— to be under general laws, 11, 7, p. 320. provisions applicable, 11, 7, p. 320. two boards of supervisors to be elected, 11, 7, p. 320. CONSTABLE — local and special acts prohibited, 4, 25, p. 151. CONSTITUTION— of California of 1849, p. 609. of California of 1879, p. 1. of the United States, p. 659. the supreme law, 1, 3, p. 7. provisions mandatory and prohibitory, 1, 22, p. 66. mode of amending, 18, 1, p. 525. mode of revision, 18, 2, p. 526. when it takes effect, 22, 12, p. 563. submission to vote of people, 22, 2, p. 554. CONTAGIOUS DISEASES— protection from, 19, 1, p. 528. CONTINGENT EXPENSES— of legislature, 4, 23, p. 140. CONTRACTOR — when not to receive extra compensation, 4, 32, p. 176. 73& INDEX. CONTRACTS— obligations of not to be impaired. Art. 1. Sec. 16, p. 54. taxation of, 13, 4, p. 465. existing not to be affected, 22, 1, p. 551. for sale of stocks on margin, void, 4, 26, p. 167. to pay tax on loan or its security, void, 13, 5, p. 468. for coolie labor, void, 19, 4, p. 530. of marriage, validity of, 20, 7, p. 537. CONTROLLER— subject to impeachment, 4, 18, p. 129. how chosen, 5, 17, p. 191. term of office, 5, 17, p. 191. compensation of, 5, 19, p. 193. a member ex officio of board of equalization, 13, 9, p. 471. to canvass returns of election on revision, 18, 2, p. 526. CONVENTION FOR REVISION— how and when formed, 18, 2, p. 526. ' of what to consist, 18, 2, p. 526. delegates, when to meet, 18, 2, p. 526. constitution to be submitted to vote, 18, 2, p. 526. return and proceedings thereon, 18, 2, p. 526. executive to declare result, 18, 2, p. 526. majority required to ratify, 18, 2, p. 526. proclamation of governor, 18, 2, p. 526. legislature may provide for expenses of, 20, 19, p. 548. CONVICTION — for crime deprives privilege of an elector, 2, 1, p. 69. two-thirds of senate to concur on, 4, 17, p. 128. for embezzlement to disqualify for office, 4, 21, p. 132. for lobbying, disfranchises, 4, 35, p. 179. for offering bribe for election disqualifies for office, 20, 10, p. 538. for bribery and forgery disfranchises, 20, 11, p. 538. so for malfeasance in office and for other high crimes 20, 11, p. 538. reprieve and pardon after, 7, 1, p. 174. CONVICT LABOR— to be regulated by legislature, 10, 6, p. 295. excluded from right to office, 4, 21, p. 132. not to be let out by contract, 10, 6, p. 295. CONVICTS— deprived of right to vote, 2, 1, p. 69. cannot be restored to citizenship by special actj 4, 25, p. 151. INDEX. 737 COOLIE LABOR— contracts for void, Art. 19, Sec. 4, p. 530. COOLIEISM— a form of slavery, prohibited, 19, 4, p. 530. CO-OPERATIVE SOCIETIES— elections of officers, 12, 12, p. 427. CORPORATIONS — conditions precedent to appropriation of right of way, 1, 14, p. 42. when not to receive state appropriations, 4, 22, p. 133. cannot acquire rights by special legislation, 4, 25, p. 151. liability of cannot be released by special act, 4, 25, p. 151. sale of stock to be controlled by legislature, 4, 26, p. 167. state cannot subscribe for stock of, 4, 31, p. 172. rates of charges to be regulated, 4, 33, p. 178. cannot select persons to regulate charges for services and materials furnished, 4, 33, p. 178. to be formed under general laws, 12, 1, p. 411. laws creating may be altered or repealed, 12, 1, p. 411. dues to be secured by individual liability, 12, 2, p. 414. stockholder's liability, 12, 3, p. 414. to promote international expositions, 12, 3, p. 414. term includes associations and joint-stock companies, 12, 4, p. 421. may sue and be sued, 12, 4, p. 421. where may be sued, 12, 16, p. 430. for banking purposes prohibited, 12, 5, p. 422. cannot circulate any but lawful money of the United States, 12, 5, p. 422. certain existing charters and franchises avoided, 12, 6, p. 422. existing charters not to be extended, 12, 7, p. 423. nor can their forfeiture be remitted, 12, 7, p. 423. not to injure rights of individuals or welfare of state, 12, 8, p. 424. to be subject to right of eminent domain, 12, 8, p. 424. police power over, not to be abridged, 12, 8, p. 424. limited to business authorized in charter, 12, 9, p. 424. restriction on tenure of real estate, 12, 9, p. 424. not relieved from liability by lease or alienation, 12, 10, p. 425. indebtedness not to bo increased under special act, 12, 11, p. 426. Constitution — 47 738 INDEX. CORPORATIOXS— restriction on issue of stock or bonds, Art. 12, See. 11, p. 426. notice required on increase of stock, 12, 11, p. 426. voting at elections by stockholders, 12, 12, p. 427. cumulative vote allowed, 12, 12, p. 427. or distributive vote, 12, 12, p. 427. exception as to co-operative societies, 12, 12, p. 427. state not to give or loan its credit to, 12, 13, p. 428. nor to subscribe to stock of, 12, 13, p. 428. to have office within state, 12, 14, p. 428. religious and benevolent societies excepted, 12, 14, p. 428. books, etc., to be open to inspection, 12, 14, p. 428. to contain certain entries, 12, 14, p. 428. foreign corporations not to be favored, 12, 15, p. 429. where may be sued, 12, 16, p. 430. place of trial may be changed, 12, 16, p. 430. rights and liabilities of transportation companies, 12, 17, p. 432. officers of, restrictions on, 12, 18, p. 433, free passes to officials prohibited, 12, 19, p. 434. fares and freights to be regulated, 12, 20, p. 434. discrimination in charges forbidden, 12, 21, p. 435. forfeiture of franchise for illegal water rates, 14, 1, p. 508. not to exclude right of way in harbors, 15, 2, p. 515. may be assessed for income tax, 13, 11, p. 479. prohibited from employing Chinese, 19, 2, p. 529. penalty for introduction of coolie labor, 19, 4, p. 530. See Railroad Companies; Transportation Companies. CORRUPTING LEGISLATORS— a felony, 4, 35, p. 179. compulsory testimony in cases ot, 4, 35, p. 179. COUNTY — right to share in appropriations, 4, 22, p. 133. place of voting on organization, 4, 25, p. 151. not to be divided in forming congressional district, 4, 27, p. 170. what appropriations by prohibited, 4, 30, p. 171. prohibited from loaning or giving its credit, 4, 31, p. 172. a subdivision of the state, 11, 1, p. 297. new counties, organization of, 11, 3, p. 298. liability for debts, on enlargement of, 11, 3, p. 298. governments of counties to be uniform, 11, 4, p. 301. organization under townships, 11, 4, p. 301. INDEX. . 739 CX)UNTY — legislature to establish system of governments, Art. 11, Sec. 4, p. 301. boards of supervisors for, 11, 5, p. 303. municipal corporations controlled by general laws, 11, 6, p. 310. city and county governments, 11, 7, p. 320. compensation of officers of, 11, 9, p. 369. not to be released from state taxes, 11, 10, p. 371. may make local, police, and sanitary regulations, 11, 11, p. 372. power to levy taxes, 11, 12, p. 386. powers not to be delegated, 11, 13, p. 390. to appoint local inspection officers, 11, 14, p. 393. private property not liable for debts of, 11, 15, p. 393. moneys collected to be paid into treasury, 11, 16, p. 394. making profit out of public funds a felony, 11, 17, p. 396. restriction on power to incur debts, 11, 18, p. 396. provision to be made for payment of debts, 11, 18, p. 396. liabilities, when void, 11, 18, p. 396. property of exempt from taxation, 13, 1, p. 447. protection from alien paupers, etc., 19, 1, p. 528. COUNTY AND TOWNSHIP— business to be governed by gen- eral laws, 4, 25, p. 151. COUNTY BOARDS OF EQUALIZATION— how constituted and duties of, 13, 9, p. 471. COUNTY CLERKS— ex officio clerks of courts of record, 6, 14, p. 262. election and appointment of, 11, 5, p. 303. duties as to new constitution, 22, 6, p. 558. COUNTY GOVERNMENTS— as existing, recognized, 11, 1, p. 297. legislature to establish system of, 11, 4, p. 301. freeholders' charters for, 11, 71/2, p. 323. COUNTY OFFICERS— to be regulated by general laws, 4, 25, p. 151. legislature to provide for election of, 11, 5, p. 303. to pay county moneys into treasury, 11, 16, p. 39-1. making profit thereon, or using the same, a felony, 11, 16, p. 391. duties as to return of votes on new constitution, 22, 8j p. 336. 740 INDEX. COUNTY SEATS— cannot be changed by special legislation, Art. 4, Sec. 25, p. 152. proceedings for removal of, 11, 2, p. 297. two-thirds vote required, 11, 2, p. 297. proposition can be made but once in four years, 11. 2. p. 297. > ' } i- COUNTY SUPERINTENDENTS— election and qualification of. 9, 3, p. 279. when to adopt text-books, 9, 7, p. 284. COURT COMMISSIONERS— legislature may provide for, 6, 14, p. 261. and authorize to act at chambers, 6, 14, p. 261. to take depositions, etc., 6, 14, p. 261. allowed fees and perquisites, 6, 15, p. 262. COURT OF IMPEACHMENT— 6, 1, p. 196. COURTS — practice to be governed by general laws, 4, 25, p. 151. inferior, legislature may establish, 6, 1, p. 196. except justices of the peace and police courts abolished, 22, 3, p. 555. records, books, etc., to be transferred to new courts, 22, 3, p. 555. power and jurisdiction of new courts, 22, 3, p. 555. COURTS OF RECORD— what are, 6, 12, p. 260. county clerks as clerks of, 6, 14, p. 261. judge of not to practice law, 6, 22, p. 272. CREDIT OF STATE— local and special legislation prohibited, 4, 25, p. 151. not to be loaned, 4, 31, p. 172; 12, 13, p. 428, not to be given nor loaned, 12, 13, p. 428. CREDITS— taxable, 13, 1, p. 41. CREED — appropriations prohibited, 4, 30, p. 17L CRIME — offenses, how prosecuted, 1, 8, p. 14. impeachment of civil officers, 4, 18, p. 129. right of trial by jury, 1, 7, p. 11. rights of party accused, 1, 13, p. 23. deprivation of right of suffrage on conviction for, 2, 1, p. 69 laws to be made to exclude from office, juries, etc., persona convicted, 20, 11, p. 538. existing prosecutions for not affected, 22, 2, p. 554. INDEX. 741 CEnilNAL CASES — appellate jurisdiction of supreme court, Art. 6, Sec. 4, p. 205. orig-inal jurisdiction of superior court, 6, 5, p. 227. CRIMINAL PEOSECUTION— rights of accused, 1, 13, p. 23. CRUEL AND UNUSUAL PUNISHMENTS— prohibited, 1, 6, p. 9. CULTIVATED LANDS— and uncultivated, how assessed, 13, 2, p. 464. CUMULATIVE VOTE— may be cast by stockholder, 12, 12, p. 427. DAMAGE — not to be done for public use without compensa- tion, 1, 14, p. 42. DAMAGES — recoverable for excessive charges for fares and freights, 12, 22, p. 437. DAY'S WORK — on public worlis eight hours, 20, 17, p. 546. DEATH — of governor, lieutenant-governor to act, 5, 16, p. 190. DEBTS — to be deducted from credits in assessments, unless due to foreign creditor, 13, 1, p. 47. See State Indebtedness. DEBTS OF STATE— limitation to creation of, 16, 1, p. 517. DECLARATION OF RIGHTS, 1, 1, p. 3. DEEDS — cannot be validated by special legislation, 4, 25, p. 152. of trust, taxation of, 13, 4, p. 465. DEFALCATION— in office a disqualification, 4, 21, p. 132. DELEGATES — to convention for revision of constitution, IS, 2, p. 526. legislature may provide for payment of, 20, 19, p. 548. DELEGATION OF POWERS— of taxation to municipal corpo- rations, 11, 12, p. 386. to remove Chinese, 19, 4, p. 530. DENOMINATIONAL SCHOOLS— to receive no public moneys, 9, 8, p. 287. DEPARTMENTS— of government, 3, 1, p. 79. of supreme court, 6, 2, p. 200. each empowered to hear and determine, 6, 2, p. 200. 742 INDEX. DEPARTMENTS — tliree justices necessary to transact busi- ness, Art. 6, Sec. 2, p. 200. their concurrence necessary to judgment, 6, 2, p. 200. judgment not final till expiration of thirty days, 6, 2, p. 200. DEPOSITIONS— legislature to provide for taking, 1, 13, p. 23. DEPRIVING OF LIFE, LIBERTY OR PROPERTY— 1, 13, p. 23. DESCENT— special legislation prohibited, 4, 25, p. 153. DIFFUSION OF KNOWLEDGE— to be encouraged, 9, 1, p. 278. DIRECTORS OF CORPORATIONS— mode of election of, 12, 12, p. 427. right of stockholders to cumulate votes, 12, 12, p. 427. jointly and severally liable for embezzlement of employees, 12, 3, p. 414. DISABILITY — for office on conviction for embezzlement or defalcation, 4, 21, p. 132. of governor, lieutenant-governor to act, 5, 16, p. 190. by dueling, 20, 2, p. 401. laws to be passed to exclude convicted persons from office, juries, etc., 20, 11, p. 538. DISAPPROVAL OF BILLS— by governor, 4, 16, p. 125. DISCRIMINATION— in fares and freights prohibited, 12, 21, p. 435. DISFRANCHISEMENT— of legislator for accepting reward or bribe, 4, 35, p. 179, for dueling, 20, 2, p. 533. DISQUALIFICATION— of members of legislature for offenses, 4, 19, p. 130. of certain officers to hold office, 4, 20, p. 131. by embezzlement and defalcation, 4, 21, p. 132. on conviction for offering bribes, 20, 10, p. 538. by offering bribe to voters, 20, 10, p. 538. eex, as to business pursuits not to create, 20, 18, p. 547. of members of corporations for certain offices, 4, 33, p. 178. by receiving bribe, 4, 35, p. 179. of lieutenant-governor for other offices, 5, 15, p. 190. DISTRIBUTION OF POWERS— of government, 3, 1, p. 79. DISTRIBUTIVE VOTE— on election of officers of corporations, 12, 12, p. 427. INDEX. 743 DISTRICT ATTORNEYS— legislature to provide for election of, Art. 11, Sec. 5, p. 303. DISTRICT COURTS— See Superior Courts. DISTRICT COURTS OF APPEAL— invested with judicial power, 6, 1, p. 196. formation of districts, 6, 4, p. 205. sessions of, 6, 4, p. 205. jurisdiction of, 6, 4, p. 205. removal of causes from, 6, 4, p. 205. transfer from one district to another, 6, 4, p. 205. election of judges, 6, 4, p. 205. presiding justice, 6, 4, p. 205. appointment of judge pro tempore, 6, 4, p. 205. dismissal of appeals to, ti, 4, p. 205. statutes applicable to, 6, 4, p. 205. rules of, 6, 4, p. 205. DISTRICTING STATE— for representation, 4, 6, p. 117. for railroad purposes, 12, 22, p. 437. DIVISION OF COUNTY— congressional districts, 4, 27, p. 170. DIVORCES— special legislation prohibited, 4, 25, p. 151. original jurisdiction of superior eourl^, 6, 5, p. 227. DONATION — in aid of religious institutions prohibited, 4, 30, p. 171. DUE PROCESS OF LAW— what is, 1, 13, p. 32. DUELING— disfranchisement for, 20, 2, p. 533. DUES — from corporation to be secured by law, 12, 2, p. 414, individual liability of stockholders, 12, 3, p. 414. liability of trustees, 12, 3, p. 414. liability of taxation, 13, 1, p. 447. DUTIES — of departments to be distinct, 3, 1, p. 79. of state officers, 5, 18, p. 193. of clerk of sujjreme court, C, 14, p. 261. of railroad commissioners, 12, 22, p. 437. of boards of equalization, 13, 9, p. 471. EDUCATION — diffusion of knowledge to be encouraged, 9, 1, p. 278. 8U]ierintcndent of public instruction, 9, 2, p. 279. county superintendents, 9, 3, p. 279. 744 INDEX. EDUCATION— seliool funds, how appHed, Art. 9, Sec. 4, p. 280. common school system, 9, 5, p. 281. system, what to include, 9, 6, p. 282. who to adopt text-books, 9, 7, p. 284. sectarianism prohibited, 9, 8, p. 287. university fund, 9, 9, p. 2S8. See Common Schools; University. ELEEMOSYNAEY INSTITUTIONS ALONE CAN ENJOY PERPETUITIES— 20, 9, p. 471. ELECTION OFFICEKS— to be governed by general laws only, 4, 25, p. 15L ELECTIONS— who may vote at, 2, 1, p. 69. who not entitled to vote, 2, 1, p. 69. privilege from arrest on days of, 2, 2, p. 73. exemption from militia duty, 2, 3, p. 77. residence, how lost, 2, 4, p. 77. to be by ballot, 2, 5, p. 78. of members of legislature, 4, 3, p. 116. of county officers, local acts prohibited, 4, 25, p. 151. and place of voting to be regulated by general laws, 4, 25, p. 151. by legislature to be viva voce, 4, 28, p. 171. each house to judge of election and return of its members, 4, 7, p. 119. to be conducted under general laws, 4, 25, p. 151. of governor, when and how, 5, 2, p. 183. of lieutenant-governor, 5, 15, p. 190. of state officers, 5, 17, p. 191. of justices of supreme court, 6, 3, p. 204. of judges of superior court, 6, 6, p. 248. of superintendent of public instruction, 9, 2, p. 279. of supervisors of consolidated city governments, 11, 7, p. 320. term and classification of, 11, 7, p. 284. for ratification of city charter, 11, 8, p. 336. of amendment to charter, 11, 8, p. 341. of officers of agricultural society, 12, 11, p. 427. of directors and trustees of corporations, 12, 12, p. 427. cumulative vote by stockholders, 12, 12, p. 427. or distributive vote, 12, 12, p. 427. manner of voting of co-operative societies, 12, 12, p. 427. INDEX. 745 ELECTIONS— of railroad commissioners, Art. 12, Sec. 22, p. 437. of state board of equalization, 13, 9, p. 471. to be held on creation of state debt, 16, 1, p. 517. on amendment to constitution, 18, 1, p. 525. on revision of constitution, IS, 2, p. 52C. of oflicers created by legislation, 20, 4, p. 535. ofifciirg bribe for a disqualification for ofSce, 20, 10, p. 538. to be regulated by laws, 20, 11, p. 538. plurality vote constitutes a choice, 20, 13, p. 539. for state officers, what years to be held, 20, 20, p. 548. time and manner of elections of judicial and school officers, 22, 10, p. 560. ELECTOR — property qualification not to be required, 1, 24, p. 67. who disqualified to vote, 2, 1, p. 69. privilege from arrest, 2, 2, p. 73. from militia duty, 2, 3, p. 77. residence, how not lost, 2, 4, p. 77. ELIGIBILITY— of member of legislative body, 4, 4, p. 116. for office of governor, 5, 3, p. 183. of lieutenant-governor, 5, 15, p. 190. for judicial offices, 6, 23, p. 272. for railroad commissioner, 12, 22, p. 437. EMBEZZLEMENT— to deprive of privilege of elector, 2, 1, p. 69. a disqualification to office, 4, 21, p. 132. a felony, 4, 21, p. 132. directors and trustees liable for, 12, 3, p. 414. EMINENT DOMAIN — exercise of powers, 1, 14, p. 42. compensation to be first secured, 1, 14, p. 42. damage to property, a taking, 1, 14, p. 42. corporations subject to right of, 12, 8, p. 424. right of, not to be abridged on grants of corporate fran- chise, 12, 8, p. 424. franchises subject to right of, 12, 8, p. 424. right extends to all frontages on navigable waters, 15, 1, p. 515. EMPLOYMENT — corporations prohibited from employing Chi- nese, 19, 2, p. 529. Chinese not to be employed on public works, 19, 3, p. 530. 746 INDEX. ENACTING CLAUSE— of statutes, Art. 4, Sec. 1, p. 86. ENDOWMENT— of university, 9, 9, p. 288. ENGLISH — the sole language for publication of public writings, etc., 4, 24, p. 141. ENJOYMENT OF PKOPERTY— rights of foreigners, 1, 17, p. 6L ENUMERATION OF RIGHTS— not to affect others reserved, 1, 23, p. 67. EQUITY — appellate jurisdiction of supreme court, 6, 4, p. 205. original jurisdiction in superior court, 6, 5, p. 227. ESTATES OF DECEASED— local and special acts prohibited, 4, 25, p. 132. when to go into school funds, 9, 4, p. 280. EVENING SCHOOLS— may be established, 9, 6, p. 282. EVIDENCE^in cases of libel, 1, 9, p. 16. what necessary to convict of treason, 1, 20, p. 63. in cases of bribery and corrupt solicitation, 4, 35, p. 179. EXAMINATION OF TEACHERS— under control of local boards, 9, 7, p. 284. EXCESSIVE BAIL OR FINES— cannot be required nor im- posed, 1, 6, p. 9. EXCLUSIVE RIGHTS— cannot be granted by special statute, 4," 25, p. 152. EXCURSION AND COMMUTATION TICKETS— at special rates, 12, 21, p. 435. EXECUTIVE— a department of government, 5, 1, p. 182. power vested in governor, 5, 1, p. 182. business of, 5, 6, p. 184. to see laws executed, 5, 7, p. 184. to fill vacancies in office, 5, 8, p. 184. state officers, election and term of, 5, 17, p. 192. compensation of, 5, 19, p. 193. proceedings to be published in English only, 4, 24, p. 141. secretary of state to keep records of, 5, IS, p. 193. duty of on return of election on revision of constitution, 18, 2, p. 526. See Governor. EXECUTIVE OFFICER— oath to be taken by, 20, 3, p. 534. INDEX. 747 EXEMPLARY DAMAGES— on extortion in charge of fares and fre"ights, Art. 12, Sec. 22, p. 437. EXEMPTIONS — from taxation, special acts prohibited, 4, 25, p. 151. •what property is, 13, 1, p. 447. property used for religious worship, 13, 1^^, p. 464. property of Leland Stanford Junior University, 9, 10, p. 289. property of California School of Mechanical Arts, 9, 11, p. 291. fruit and nut-bearing trees, 13, 12%, p. 480. from poll tax, who is, 13, 12, p. 479. of executive officer from process, 5, 6, p. 181. of homestead from forced sale, 17, 1, p. 521. EXPENDITURES— to be published with the laws, 4, 22, p. 133. EXPENSES OF CONSTITUTIONAL CONVENTION— provi- sion for, 20, 19, p. 548. EX POST FACTO LAWS— prohibited, 1, 16, p. 54. EXPULSION OF MEMBER— power of legislature, 4, 9, p. 121. EXTENSION OF TIME FOR COLLECTION OF TAX— special acts prohibited, 4, 25, p. 153. EXTINGUISHMENT OF DEBT OR LIABILITY— special acta prohibited, 4, 25, p. 152. EXTORTION— in fares and freights, penalty for, 12, 22, p. 437. EXTRA COMPENSATION TO PUBLIC OFFICERS PROHIB- ITED— 4, 32, p. 176. EXTRA SESSIONS OF LEGISLATURE— how convened, 4, 2, p. 113. on extraordinary occasions, 5, 9, p. 188. FARES AND FREIGHTS — power to regulate in government, 12, 20, p. 434. when lowered cannot be raised without its consent, 12, 20, p. 434. discrimination in charges prohibited, 12, 21, p. 435. exception as to certain tickets, 12, 21, p. 435. to be regulated by a commission, 12, 22, p. 437. to be published from time to time, 12, 22, p. 437. damages for excessive charges, 12, 22, p. 437. See Railroad Commission. 748 INDEX. FEDERAL CONSTITUTION-the supreme law, Art. 1, Sec 3 p. 7. ) > > distinguished from state constitution, p. vii. FEDERAL OFFICER— not eligible to state civil office, 4, 20, not eligible to office of governor, 5, 12, p. 189. FEES AND PERQUISITES OF OFFICE ABOLISHED— 5 19 p. 193. ' ' prohibited to judicial officers, 6, 15, p. 262. exception, justices of peace and court commissioners. 6 15. p. 262. ' ' * FEES AND SALARIES— local and special legislation prohib- ited, 4, 25, p. 151. FELONY— lobbying declared to be, 4, 35, p. 179. embezzlement of public funds, 4, 21, p. 132. public officers using or making profit out of public moneys, 11, 17, p. 396. legislator influenced by promise of reward, 4, 35, p. 179. original jurisdiction of superior court, 6, 5, p. 227. FERRIES — cannot be chartered or licensed by special acts 4 25, p. 163. ' ' FICTITIOUS INCREASE OF STOCK ISSUE— void, 12. 11. p. 426. ' ' * FINES — excessive not to be imposed, 1, 6, p. 9. cannot be remitted by special legislation, 4, 25, p. 153. imposed for excessive charge for fares and freights. 12. 22. p. 437. ^ > , , already due not affected by adoption of new constitution. 22, 2, p. 554. ' FISCAL YEAR— to commence on 1st of July, 20, 5, p. 536. FISH — right to on public lands, 1, 25, p. 68. FISH AND GAME DISTRICTS— 4, 251/0, p. 167. FLAGS — authorized, to be carried by militia, 8, 2, p. 276. FORCIBLE ENTRY AND DETAINER— appellate jurisdiction in, 6, 4, p. 205. original jurisdiction, 6, 5, p. 227. concurrent jurisdiction of justices of the peace, 6, 11, p. 255. INDEX. 749 rOEEIGN CORPOKATION— not to be favored, Art. 12, See. 15, p. 429. FOREIGNERS— rights of enjoyment of property, 1, 17, p. 61. presence of certain, to be discouraged, 19, 4, p. 530. FORFEITURE — cannot be remitted by special acts, 4, 25, p. 153. of franchise by water companies, 14, 1, p. 508. of oflice for taking free passes on railroads, 12, 19, p. 434. of railroad franchise, legislature may provide for, 12, 22, p. 437. of existing franchises not to be remitted, 12, 7, p. 423. FORGERY — conviction for, a disfranchisement, 20, 11, p. 538. FORM— of oath of office, 20, 3, p. 534. FRANCHISE — exclusive privileges, special legislation prohib- ited, 4, 25, p. 152. those not fully organized and in business valid, 12, 6, p. 422. not to be extended, 12, 7, p. 423. nor forfeitures remitted, 12, 7, p. 423. subject to right of eminent domain, 12, 8, p. 424. lease or alienation not to relieve from liability, 12, 10, p. 425. as property liable to taxation, 13, 1, p. 447. power of taxation not to be surrendered in grant of, 13, 6, p. 470. legislature may provide for forfeiture of, 12, 22, p. 437. taxable, 13, 1, p. 447. assessment of for taxes, 13, 10, p. 476. water rights, when forfeited, 14, 1, p. 508. right to compensation for water supply a franchise, 14, 2, p. 513. FRAUD — as ground for imprisonment for debt, 1, 15, p. 53. FREE AND INDEPENDENT— all men are, 1, 1, p. 3. FREE ASSEMBLAGES— guaranteed, 1, 10, p. 17. FREE NAVIGATION— in harbors, 15, 2, p. 515. over tide lands, 15, 3, p. 515. FREE PASSES — on railroads, prohibitions as to, 12, 19, p. 434. acceptance to work forfeiture of office, 12, 19, p. 434. FREE SCHOOLS— to be kept up in each district, 9, 5, p. 281. for six months in the year at least, 9, 5, p. 281. 750 INDEX. FEEE SUFFRAGE— privilege to be protected by law, Art. 20, Sec. 11, p. 538. FREEDOM AND INDEPENDENCE— declaration of, 1, 1, p. 3. FREEDOM OF SPEECH AND OF THE PRESS— to be pre- served, 1, 9, p. 16. FREEHOLDERS— See Board of Freeholders. FRONTAGES ON NAVIGABLE WATERS— power of state over, 1.5, 1-3, p. 515. FRUIT AND NUT-BEARING TREES— exempt from taxation, 13, 12%, p. 480. GAS AND WATER— right of cities to regulate charges, 11, 19, p. 403. GAS CORPORATIONS— legislation to regulate charges, 4, 33, p. 178. right to introduce light in cities, 11, 19, p. 403. right of cities to regulate charges, 11, 19, p. 403. may use streets for laying down pipes, 11, 19, p. 403. GENERAL APPROPRIATION BILL— restrictions as to, 4, 20, p. 171. GENERAL LAWS — to have a uniform operation, 1, 11, p. 18. what are, p. 310. GIFT ENTERPRISES— prohibited, 4, 26, p. 167. GOVERNMENT— purpose of institution of, 1, 2, p. 6. right to alter or reform, 1, 2, p. 6. powers, how distributed, 3, 1, p. 79. GOVERNOR — may convene legislature by proclamation, 4, 2, p. 113. to issue writs of election to fill vacancy in legislature, 4, 12, p. 123. to approve all laws, 4, 16, p. 125. may veto separate items in appropriation bill, 4, 16, p. 125. duty on return of bill with objections, 4, 16, p. 125. subject to impeachment, 4, 18, p. 129. supreme executive power, vested in, 5, 1, p. 182. when and how elected, 5, 2, p. 183. term of office, 5, 2, p. 1S3. eligibility and qualification to office, 5, 3, p. 183. GOVERNOR— return of election of, Art. 5, Sec. 4, p. 183. when legislature to elect, 5, 4, p. 183. commander-in-chief of militia, 5, 5, p. 184. to transact all executive business, 5, 6, p. 184. may require information from officers, 5, 6, p. 184. to see that laws are executed, 5, 7, p. 184. when to fill vacancy in office, 5, 8, p. 184. when may convene legislature by proclamation, 5, 9, p. 188. to communicate to legislature at every session, 5, 10, p. 188. to adjourn legislature in certain contingencies, 5, 11, p. 188. disability to hold other office, 5, 12, p. 189. to keep seal of state, 5, 1.3, p. 189. to seal and sign public grants and commissions, 5, 14, p. 189. who to act in case of impeachment, 5, 16, p. 190. absence not to affect right as commander-in-chief, 5, 16, p. 190. compensation of, 5, 19, p. 193. ineligible for United States senator during term, 5, 20, p. 195. to fill vacancy in justices of supreme court, 6, 3, p. 202. term of appointee, 6, 3, p. 202. to fill vacancy in superior judgeship, 6, 6, p. 246. may recommend removal of judicial officer, 6, 10, p. 254. to grant reprieves, pardons, etc., 7, 1, p. 174. duty in cases of treason, 7, 1, p. 174. to communicate such grants to legislature, 7, 1, p. 174. restriction on pardoning power, 7, 1, p. 174. to commission officers of militia, 8, 1, p. 276. may call out militia to execute laws, 8, 1, p. 276. to appoint board of prison directors, 10, 1, p. 293. when may remove them, 10, 1, p. 293. to fill vacancy in railroad commission, 12, 22, p. 427. to canvass returns on revision of constitution, 18, 2, p. 526. to give notice of election for adoption of new constitution, 22, 4, p. 556. duty on return of vote thereon, 22, 9, p. 559. GRAND JURY — to be drawn at least once a year, 1, 8, p. 14. local and special legislation prohibited, 4, 25, p. 151. GRANTS — prohibited to institutions not under state control, 4, 22, p. 133. of rights and privileges, special acts prohibited, 4, 25, p. 151. in and of religious institutions prohibited, 4, 30, p. 131. 752 INDEX. GRANTS — to be sealed and signed by governor, Art. 5, Sec. 14, p. 189. existing grants, when invalid, 12, 6, p. 422. not to be extended, 12, 7, p. 423. power of taxation not to be surrendered, 13, 6, p. 470. of land, restriction as to, 17, 3, p. 522. GRAVEYARDS — special legislation prohibited, 4, 25, p. 151. GREAT SEAL OF STATE— 5, 13, p. 189. GROWING CROPS— exempted from taxation, 13, 1, p. 447. HABEAS CORPUS — privilege of writ not to be suspended, ex- cept, 1, 5, p. 9. justice may issue, returnable in his discretion, 6, 4, p. 205. judges of superior court may issue, 6, 5, p. 227. HARBOR — frontages on navigable waters, power of state over, 15, 1, p. 515. subject to right of eminent domain, 15, 1, p. 515. obstnietions to navigation prohibited, 15, 2, p. 515. frontages withheld from grant or sale, 15, 3, p. 515. HEALTH — legislature to provide for a state board of health, 20, 14, p. 540. HIGH CRIMES— impeachment for, 4, 18, p. 129. conviction for, a disfranchisement, 20, 11, p. 538. HIGH SCHOOLS— may be established by legislature, 9, 6, p. 282. HIGHWAYS — local and special legislation prohibited, 4, 25, p. 151. state highways, 4, 36, p. 181. HOMESTEAD— exemption from forced sale, 17, 1, p. 521. HOSPITALS — not under state control, appropriations prohibited, 4, 22, p. 133. HOUSES OF LEGISLATION— in certain cities, 11, 7, p. 320. HUSBAND AND WIFE — separate property to each secured, 20, 8, p. 537. HYPOTHECATION BY MINOR— special legislation prohibited, 4, 25, p. 152. INDEX. ,753 IDIOT — cannot be an elector, Art. 2, Sec. 1, p. 69, exempt from poll tax, 13, 12, p. 479. IMMIGRATION OF CHINESE— to be discouraged, 19, 4, p. 530. IMMUNITIES— of citizens, 1, 21, p. 64. to corporations special legislation prohibited, 4, 25, p. 152. soldiers not to be quartered on citizens, 1, 12, p. 23. from being twice put in jeopardy, 1, 13, p. 23. from loss or damage to property, 1, 14, p. 42. from imprisonment for debt, 1, 15, p. 53. of members of legislature from arrest, 4, 11, p. 122. IMPAIRING — obligation of contract, laws prohibited, 1, 16, p. 54. IMPANELING JURIES— special and local acts prohibited, 4, 25, p. 151. grand jury to be drawn at least once a year, 1, 8, p. 14. IMPEACHMENT— assembly, sole power of, 4, 17, p. 128. trial by senate, 4, 17, p. 128. state officers subject to, 4, 18, p. 129. senate as court of, 6, 1, p. 196. lieutenant-governor, when to act as governor, 5, 16, p. 190. IMPOSTS — appellate jurisdiction of supreme court, 6, 4, p. 205. original jurisdiction of superior court, 6, 5, p. 227. IMPRISONMENT— for debt not allowed, except, 1, 15, p. 53. of railroad official for excessive charges, 12, 22, p. 437. IMPROVEMENTS— of city streets, 11, 19, p. 403. INALIENABLE RIGHTS— 1, 1, p. 3. INCOME TAXES— legislature may provide for, 13, 11, p. 499. INCREASE IN PER DIEM AND MILEAGE OF LEGISLA- TORS PROHIBITED— 4, 23, p. 140. INDEBTEDNESS OF CORPORATIONS— special acts for relief prohibited, 4, 25, p. 152. of municipal corporations, provisions for payment of, 11, 18, p. 396. •when void, 11, 18, p. 396. of state, restriction on power of legislature, 16, 1, p. 517. Constitution — 18 754 INDEX. INDICTMENT— offenses may be prosecuted by, Art. 1, Sec. 8, p. 14. for libel, where to be tried, 1, 9, p. 16. pending unaffected by adoption of new constitution, 22, 2, p. 554. INDIGENT PERSONS— state care over, 4, 22, p. 133. INELIGIBILITY— to office of governor, 5, 12, p. 189. of governor for United States senate, 5, 20, p. 195. INFECTIOUS DISEASES— protection from, 19, 1, p. 528. INFERIOR COURTS— may be established by legislation, 6, 1, p. 196. jurisdiction to be fixed by law, 6, 13, p. 261. powers, duties, and responsibilities, 6, 13, p. 261. INFORMATION— offenses may be prosecuted by, 1, 8, p. 14. for libel, where to be tried, 1, 9, p. 16. pending, unaffected by adoption of new constitution, 22, 2, p. 554. from state officers to executive department, 5, 6, p. 184. INHERITANCE— rights of foreigners, 1, 17, p. 61. INITIATIVE — power to initiate legislation reserved, 4, 1, p. 86. INJUNCTION — may be served on holidays and nonjudicial days, 6, 5, p. 227. INJURY TO PROPERTY— compensation to be made, 1, 14, p. 42. INSANE PERSONS— cannot be electors, 2, 1, p. 69. exempt from poll tax, 13, 12, p. 479. INSOLVENCY — appellate jurisdiction in supreme court, 6, 4, p. 205. original jurisdiction in superior courts, 6, 5, p. 227. INSPECTION OFFICERS— to be appointed by municipalities, 11, 14, p. 393. INSTALLMENTS— payment of taxes in, 13, 7, p. 470. INSTITUTIONS NOT UNDER STATE CONTROLr-appropria- tions prohibited, 4, 22, p. 133. INSTRUCTIONS— certain improper, 6, 19, p. 266. certain proper, 6, 19, p. 266. INSTRUMENTS — cannot be validated by special acts, 4, 25, p. 152. INDEX. 755 INSUERECTIONS — power of governor to suppress, Art. 8, Sec. 1, p. 276. authority to contract debts, 16, 1, p. 517. INTELLECTUAL IMPROVEMENT— to be encouraged, 9, 1, p. 278. INTEREST— to be regulated by general laws only, 4, 25, p. 152. on state debt, provision to be made for, 16, 1, p. 517. INTERPRETATION— of state constitution, p. vii. of terms in, p. vii. INVASION — suspension of writ of habeas corpus, 1, 5, p. 9. power of governor to repel, 8, 1, p. 276. authority to contract debts, 16, 1, p. 517. INVOLUNTARY SERVITUDE PROHIBITED— 1, 18, p. 61. ISSUANCE— of corporation stock, 12, 11, p. 426. ITEMS — in general appropriation bill, 4, 29, p. 171. JEOPARDY — no person to be twice put in, 1, 13, p. 23. JOINT AND SEVERAL— liability of stockholders, 12, 3, p. 414. JOINT-STOCK COMPANIES— included in term "corporation," 12, 4, p. 421. liability of stockholders, 12, 3, p. 414. may be assessed for income taxes, 13, 11, p. 479. JOURNAL — each house to keep, 4, 10, p. 121. ayes and noes on final passage of bills, 4, 15, p. 124. disapproval of governor to be entered on, 4, 16, p. 125. votes on elections to be entered on, 4, 28, p. 171. ayes and noes on removal of justices, etc., to be entered, 6, 10, p. 254. on proposed amendments to be entered, 18, 1, p. 525. JUDGES — of superior court subject to impeachment, 4, 18, p. 129. to be elected for each superior court, 6, 0, p. 248. may apportion business among themselves, 6, 7, p. 251. may hold court in any county, 6, 8, p. 251. pro tempore, when may try case, 6, 8, p. 251. legislature may grant leave of absence, 6, 9, p. 253. numler of may he incrcasel, 6, 9, p. 253. may be removed by legislature, 6, 10, p. 254. cause to be entered on journal, 6, 10, p. 254. 756 INDEX. JUDGES — of inferior courts, powers, duties, and responsibil- ities, Art. 6, Sec. 13, p. 261. not to receive fees or perquisites, 6, 15, p. 262. compensation of, 6, 17, p. 263. ineligible to other office during term, 6, 18, p. 266. not to charge juries as to matters of fact, 6, 19, p. 266, prohibited from practicing law, 6, 22, p. 272. who ineligible to office of, 6, 23, p. 272. affidavits on drawing salary, 6, 24, p. 272. JUDGMENT — on impeachment, extent of, 4, 18, p. 129. not to bar trial according to law, 4, 18, p. 129. concurrence of supreme justices necessary, 6, 2, p. 200. vacated by order for rehearing in bank, 6, 2, p. 200. when final, 6, 2, p. 200. concurrence of four justices, when necessary, 6, 2, p. 200. all decisions to be in writing, 6, 2, p. 200. of superior court, effect of, 6, 6, p. 248. JUDICIAL — a department of government, 3, 1, p. 79. powers, where vested, 6, 1, p. 196. supreme court, organization of, 6, 2, p. 200. election of justices, 6, 3, p. 204. jurisdiction of supreme court, 6, 4, p. 205. jurisdiction of superior court, 6, 5, p. 227. superior court, how constituted, 6, 6, p. 248. apportionment of business among judges, 6, 7, p. 249. judges may hold court in other county, 6, 8, p. 251. legislature may grant leave of absence, 6, 9, p. 253. may be removed from office, 6, 10, p. 254. justices of the peace for cities and townships, 6, 2, p. 200. what are courts of record, 6, 12, p. 260. jurisdiction of inferior courts, 6, 13, p. 261. clerks and court commissioners, 6, 14, p. 261. fees and perquisites, to whom forbidden, 6, 15, p. 262. supreme court opinions to be published, 6, 16, p. 263. compensation of justices and judges, 6, 17, p. 263. justices and judges ineligible to other office, 6, IS, p. 266. judges not to charge jury on matters of fact, 6, 19, p. 266. style of process, 6, 20, p. 270. reporter of supreme court to be appointed, 6, 21, p. 270. judges not to practice law, 6, 22, p. 272. INDEX. 757 JUDICIAL — eligibility of justices and jiulges, Art. 6, Sec. 23, p. 272. condition precedent to drawing salary, 6, 24, p. 272. JUDICIAL DECISIONS— publication of, 6, 16, p. 263. JUDICIAL NOTICE— to be taken of corporation charters, 11, 8, p. 336. JUDICIAL OFFICER— absence, when a forfeiture of office, 6, 9, p. 253. removal of, 6, 10, p. 254. prohibited from receiving fees and perquisites, 6, 15, p. 262. oath to be taken by, 20, 3, p. 534. JUDICIAL POWER— where vested, 6, 1, p. 196. of railroad commissioners, 12, 22, p. 437. JUDICIAL PROCEEDINGS— to be published in English only, 4, 24, p. 141. JURIES — local and special legislation prohibited, 4, 25, p. 151. not to be charged as to matters of fact, 6, 19, p. 266. JURISDICTION — of inferior courts, local and special acts pro- hibited, 4, 25, p. 151. of supreme court, 6, 4, p. 205. of superior court, 6, 5, p. 227. of justices' courts, 6, 11, p. 255. of courts under new constitution in cases transferred, 22, 3, p. 555. JUROR — no religious restriction, 1, 4, p. 7. exclusion, for bribery, forgery, etc., 20, 11, p. 538. JURY — in civil ca^es and misdemeanors number may be agreed on, 1, 7, p. 11, right of trial by, secured, 1, 7, p. 11. trial by, may be waived by consent, 1, 7, p. 11. three-fourths may render verdict, 1, 7, p. 11. to determine law and fact in libel cases, 1, 9, p. 16. to ascertain compensation on condemnation, 1, 14, p. 42. not to be charged as to matters of fact, 6, 19, p. 266. See Trial by Jury. JUSTICES AND .lUDGES — may be removed by concurrent resolu- tion, 6, 10, p. 254. causes of removal to be entered on journal, 6, 10, p, 254. ayes and noes to be entered, 6, 10, p. 254. ineligible to other office, 6, 18, p. 266. 758 INDEX. JUSTICES AND JUDGES— who eligible to office of, Art. 6, Sec. 23, p. 266. compensation of, 6, 17, p. 263. not to draw salary, unless, etc., 6, 24, p. 272. JUSTICES OF THE PEACE— local and special legislation pro- hibited, 4, 25, p. 151. invested with judicial powers, 6, 1, p. 196. number to be fixed by legislature, 6, 11, p. 255. concurrent jurisdiction in forcible entry and detainer, 6, 11, p. 255. and in foreclosure of liens in certain cases, 6, 11, p. 255. allowed fees and perquisites, 6, 15, p. 262. courts not abolished by new constitution, 22, 3, p. 555. JUSTICES OF SUPKEME COURT— powers and duties of, 6, 2, p. 200. election of, 6, 3, p. 204. authority to issue writs, 6, 4, p. 205. removal from office, 6, 10, p. 254. compensation of, 6, 17, p. 263. ineligible to other office during term, 6, 18, p. 266. to appoint reporter, 6, 21, p. 270. not to practice law, 6, 22, p. 272. who not eligible to office of, 6, 23, p. 272. affidavit to be taken on drawing salary, 6, 24, p. 272. LABOR — Hens secured on property, 20, 15, p. 540. eight hours to constitute a day's work on public works, 20, 17, p. 546. LAND AND HOMESTEAD EXEMPTION— 17, 1, p. 521. LAND MONOPOLY TO BE DISCOURAGED— 17, 2, p. 522. LANDS — to be assessed separate from improvements, 13, 2, p. 464. of same quality and similarly situated to be assessed at the same value, 13, 2, p. 464. sectionized, how assessed, 13, 3, p. 465. not sectionized, legislature to provide for, 13, 3, p. 465. fronting on harbor, estuary, bay, etc., withheld from sale, 15, 3, p. 515. INDEX. 759 LANDS — liolding large tracts uncultivated is against public policy, Art. 17, Sec. 2, p. 522. belonging to state to be granted to actual settlers only, 17, 3, p. 522. LANGUAGE — laws, official writings, etc., to be preserved and pub- lished in English only, 4, 24, p. 141. LAWS — to have uniform operation, 1, 11, p. 18. bills of attainder and ex post facto laws prohibited., 1, 16, p. 54. or law impairing obligations of contract, 1, 16, p. 54. enacting clau?e, 4, 1, p. SG. to be passed by bill only, 4, 15, p. 124. a majority of members necessary to pass, 4, 15, p. 124. must be presented to governor for approval, 4, 16, p. 125. how passed over governor's veto, 4, 16, p. 125. how become laws without approval, 4, 16, p. 125. to be accompanied by statement of receipts and expenditures, 4, 22, p. 133. governor to see them faithfully executed, 5, 7, p. 184. to embrace but one object, etc., 4, 24, p. 141. how revised and amended, 4, 24, p. 141. to be published in English only, 4, 24, p. 141. local and special acts on enumerated subjects prohibited, 4, 25, p. 151. creating municipal corporations may be altered or repealed, 11, 6, p. 310. existing, what to remain in force, 22, 1, p. 551. relating to judicial system in force till changed by legislature, 22, 1, p. 551. LEASE OF FRANCPIISE— not to relieve from liability, 12, 10, p. 425. LEAVE OF ABSENCE— to judicial officers, 6, 9, p. 253. LEGAL DAY'S WORK— 20, 17, p. 546. LEGAL HOLIDAYS — certain writs may be served on, 6, 5, p. 227. LEGALIZING OFFICIAL ACTS— by special laws prohibited, 4. 25, p. 152. LEGISLATIVE ACT— to embrace but one subject, 4, 24, p. 141. See Legislature; Laws. 7G0 INDEX. LEGISLATIVE COMMITTEE— right to inspect books of cor- poration, Art. 12, Sec. 14, p. 428. LEGISLATIVE DEPARTMENT— 3, 1, p. 79. power vested in, 4, 1, p. 86. records to be kept by secretary of state, 5, 19, p. 193. See Legislature. LEGISLATIVE GRANTS— power of taxation cannot be sur- rendered in, 13, 6, p. 470. LEGISLATIVE POWER— exercise of, p. 470. delegation of, p. 470. See Legislature. LEGISLATIVE PROCEEDINGS— on proposed amendments, 18, 1, p. 521. on proceedings to revise, 18, 2, p. 522. to be published in English only, 4, 24, p. 141. LEGISLATURE — to provide for taking depositions. 1, 13, p. 23. power to revoke special privileges and immunities, 1, 21, p. 64. a department of government, 3, 1, p. 71. of what composed, 4, 1, p. 86. power vested in senate and assembly, 4, 1, p. 86. limitation of time for introduction of bills, 4, 2, p. 114. sessions to be biennial, 4, 2, p. 114. members, when and how elected, 4, 3, p. 115. term of office, 4, 4, p. 116. senators, when and how chosen, 4, 4, p. IIG. senate, of what composed, 4, 5, p. 116. number of senators and of representatives, 4, 5, p. IIG. senatorial and assembly districts, 4, 6, p. 117. each house to choose its officers, 4, 7, p. 119. and judge of election of its members, 4, 7, p. 119. majority to constitute a quorum, 4, 8, p. 120. each house to determine rules of proceedings, 4, 9, p. 121. two-thirds required to expel a member, 4, 9, p. 121. to keep and publish a journal, 4, 10, p. 121. members to be privileged from arrest, 4, 11, p. 122. vacancies, how filled, 4, 12, p. 123. sessions to be open, 4, 13, p. 123. adjournments, restriction on powers, 4, 14, p. 123. laws, how passed, 4, 15, p. 124. INDEX. 761 LEGISLATURE— impeachment and trial bj, Art. 4, Sec. 17, p. 128. disqualification of member to hold certain offices, 4, 19, p. 130. ■what officers not eligible to membership, 4, 20, p. 131. to provide punishment of embezzlement and defalcation, 4, 21, p. 132. to what institutions aid may be granted, 4, 22, p. 133. moneys, how drawn from treasury, 4, 22, p. 133. per diem and mileage to members, 4, 23, p. 140. officer, attaches and employees, 4, 23a, p. 141, acts to embrace but one subject, 4, 24, p. 141. proceedings to be published in English only, 4, 24, p. 141. local or special laws not to be passed, 4, 25, p. 151. no power to authorize lotteries or gift enterprises, 4, 26, p. 167. vote on elections to be viva voce, 4, 28, p. 171. general appropriation bill, what to contain, 4, 29, p. 171. appropriations not to be made for sectarian purposes, 4, 30, p. 171. credit of state or subdivisions of state not to be given or lent, 4, 31, p. 172. extra compensation for past services prohibited, 4, 32, p. 176. to regulate telegraph and gas companies, 4, 33, p. 178. to regulate storage and wharfage charges, 4, 33, p. 178. special appropriation bills, what to contain, 4, 34, p. 178. lobbying prohibited, declared a felony, 4, 35, p. 179. •when to choose governor, 5, 4, p. 183. when governor may convene by proclamation, 5, 9, p. 188, power when so convened, 5, 9, p. 188. adjournment by governor, 5, 11, p. 188. secretary of state to keep records of, 5, 18, p. 193. may abolish office of surveyor general, 5, 19, p. 193. power to fix compensation of state officers, 5, 19, p. 193. may establish inferior courts, 6, 1, p. 196. cannot grant leave of al)sence to judicial officer, 6, 9, p. 253. may increase or diminish numlier of judges, 6, 9, p. 253. may remove justice or judge, 6, 10. p. 254. two-thirds vote required, 6, 10, p. 254. to determine number of justices of the peace, 6, 11, p. 255. may prescribe other courts as courts of record, 6, 12, p. 260. may fix jurisdiction of inferior courts, 6, 13, p. 261. to provide for election of supreme court clerk, 6, 14, p. 261, 7G2 INDEX. LEGISLATURE — and fix duties and compensation, Art. 6, Sec 14, p. 261. may prov'de for appointment of court commissioners, 6, 14, p, 261. to provide for publishing opinions of supreme court, 6, 16, p. 263. authority on conviction for treason, 7, 1, p. 174. restriction on power, 7, 1, p. 174. to provide for organization and disciplining militia, 8, 1, p. 276. to encourage diffusion of knowledge and' intelligence, 9, 1, p. 278. may authorize counties to unite in election of school superin- tendent, 9, 3, p. 279. to provide system of common schools, 9, 5, p. 281. may establish high schools, normal schools, etc., 9, 6, p. 282. duty as to university funds, 9, 9, p. 288. to classify board of prison directors, 10, 1, p. 293. and prescribe their duties, 10, 2, p. 294. to regulate reformatory institutions, 10, 2, p. 294. to direct auditing expenses of board, 10, 4, p. 294. to pass laws regulating their powers, 10, 5, p. 295. to define powers and duties of clerk of state prison, 10, 5, p. 295. to provide for convict labor, 10, 6, p. 295. to establish system of county governments, 11, 4, p. 301. to provide for election of county officers under general laws, 11, 5, p. 303. and township and municipal officers, 11, 5, p. 303. to prescribe their duties and term of office, 11, 5, p. 303. and for their strict accountability, 11, 5, p. 303. may levy taxes on municipal corporations, 11, 12. p. 386. cannot delegate power to commissions, corporations, etc., 11, 13, p. S90. to provide for punishment for use of public funds, 11, 17, p. 396. cannot grant charter for banking, 12, 5, p. 422. not to extend franchise or remit forfeiture, 12, 7, p. 423. not to relieve corporation from liability, 12, 10, p. 425. vested with power to regulate fares and freights, 12, 20, p. 434. INDEX. 763 LEGTSLATTJR'E — may prescribe penalty for extra eliarges, Art. 12, Sec. 22, p. 437. may remove railroad commissioner, 12, 22, p. 437. may fill vacancy in commission, 12, 22, p. 437. may enforce forfeiture of charter for excessive charges of fares and freights, 12, 23, p. 443. to pass laws to enforce provisions concerning corporations, 12, 24, p. 445. may provide for deduction of debts on assessment, 13, 1, p. 447. to provide for assessment of lands in small tracts, 13, 3, p. 465. not to surrender power of taxation, 13, 6, p. 470. may provide for payment by installments, 13, 6, p. 470. may require annual statement under oath, 13, 6, p. 470. may provide for income taxes, 13, 11, p. 479. may provide for a poll tax, 13, 12, p. 479. to carry out taxation provisions, 13, 13, p. 480. to fix penalty for failure to fix water rates, 14, 1, p. 508'. to regulate sale and rent of water, 14, 1, p. 508. to provide against obstructions to navigation, 15, 2, p. 515. restriction on power to create debt, 16, 1, p. 517. to protect homesteads, 17, 1, p. 521. to discourage land monopoly, 17, 2, p. 522. to regulate grants of state lands, 17, 3, p. 522. to protect from alien paupers, etc., 19, 1, p. 528. to provide for their removal, 19, 1, p. 528. to pass police regulations, 19, 1, p. 528. to enforce provisions against Chinese, 19, 2, p. 529. to discourage immigration of certain foreigners, 19, 4, p. 530. to enforce removal of Chinese, 19, 4, p. 530. to prescribe penalties for introduction of coolies, 19, 4, p. 530. to delegate power to remove Chinese, 19, 4, p. 530. legislators to take and subscribe oath, 20, 3, p. 534. to direct appointment or election of certain officers, 20, 4, p. 535. to direct bringing suits against state, 20, 0, p. 536. to regulate elections by general laws, 20, 11, p. 538. to provide for institution of state board of health, 20, 14, p. 540. 764 INDEX. LEGISLATURE — to provide for enforcement of liens of mechanics, etc., Art. 20, Sec. 15, p. 540. may provide for expenses of convention, 20, 19, p. 548. LEGITIMATION OF CHILDREN — special legislation pro- hibited, 4, 25, p. 151, LELAND STANFORD .JUNIOR UNIVERSITY— property of exempt from taxation, 9, 10, p. 290. trusts for confirmed, 9, 10, p. 290. LIABILITY — not to be released by special legislation, 4. 25, p. 151. > > J of stockholders of corporations, 12, 3, p. 414. of franchise not to be released, 12, 10, p. 425. of corporation, where may be sued, 12, 16, p. 430. LIBEL — criminal prosecutions for, 1, 9, p. 16. places of trial, 1, 9, p. 16. evidence in cases of, 1, 9, p. 16. jury to judge of law and fact, 1, 9, p. 16. LIBERTY AND PROPERTY— protection of, 1, 13, p. 23, LIBERTY OF CONSCIENCE SECURED— 1, 4, p. 7, licentiousness not excused, 1, 4, p. 7. LIBERTY OF SPEECH— not to be restrained, 1, 9, p. 16. LICENSE — cannot be granted by special legislation, 4, 25, p. J.U J.. LICENSE REGULATIONS— p. 372. LICK SCHOOL — See California School of Mechanical Arts. LIENS — cannot be created by special legislation, 4, 25, p. 151. on property, created by taxation, 13, 4, p. 465. jurisdiction of superior courts, 6, 5, p. 227. jurisdiction of justices of the peace, 6, 2, p. 200, of mechanics, materialmen, etc., 20, 15, p, 540. LIEUTENANT-GOVERNOR— liable to impeachment, 4 18. p, 129. wheti and how to be elected, 5, 15, p. 190. term of office, 5, 15, p. 190. to be president of the senate, 5, 15, p. 190. disqualification for other office, 5, 15, p. 190. INDEX. 765 LIEUTENANT-GOVERNOE— when to act as governor, Art. 5, Sec. 16, p. 190. compensation of^ 5, 19, p. 193. LIFE, LIBERTY, AND PROPERTY— inalienable rights, 1, 1, p. 3. not to be deprived of without due process of law, 1, 13, p. 23. LIMITATION OF ACTIONS— special legislation prohibited, 4, 25, p. 151. LOBBYING— a felony, 4, 35, p. 179. what constitutes, 4, 35, p.. 179. LOCAL LEGISLATION— on certain matters, prohibited, 4, 25, p. 151. in all cases where general laws may be made applicable, 4, 25, p. 151. LOCAL POLICE AND SANITARY LAWS— counties and cities to enact, 11, 11, p. 372, LOS ANGELES— two superior judges for, 6, 6, p. 248. salary of superior judge, 6, 17, p. 263. LOTTERIES— prohibited, 4, 26, p. 167. LUCRATIVE OFFICE— defined, 4, 20, p. 131. MAJORITY — special statute cannot declare person of age, 4, 25, p. 151. of legislature to constitute a quorum, 4, 8, p. 120. necessary to j)ass a bill, 4, 15, p. 124. MALFEASANCE IN OFFICE— conviction for, a disfranchise- ment, 20, 11, p. 538. excludes from office, juries, etc., 20, 11, p. 538. MANAGERS— of corporations, how elected, 12, 12, p. 427. MANDAMUS — supreme court may issue, 6, 4, p. 205. original jurisdiction in superior court, 6, 5, p. 227. MANDATORY — character of provisions in new constitution, I, 22, p. 66. MANUFACTURING SOCIETY— manner of electing officers, 12, II, p. 426. MARGIN CONTRACTS— for stock, void, 4, 26, p. 167. 766 INDEX, MAERIAGE — conformity to religious forms not required, Art. 20, Sec. 7, p. 537. separate property of husband and wife, 20, 8, p. 537. original jurisdiction in annulment of, 6, 5, p. 227. MATERIALMEN — secured by Hen on property, 20, 15, p. 540. MAYOR — to fill vacancy in board of supervisors, 11, 7, p. 320, to certify copy of city charter, 11, 8, p. 336. MECHANIC ARTS— to be supported, etc., 9, 9, p. 288. MECHANICS — secured by lien on property, 20, 15, p. 540. legislature to provide for enforcement of, 20, 15, p. 540. MEMBERS OF ASSEAIBLY— vk'hen and how elected, 4, 3, p. 115. term of office, 4, 3, p. 115. qualifications of, 4, 4, p. 116. how and when elected, 4, 5, p. 116. to be privileged from arrest, 4, 11, p. 122. for what offices disqualified, 4, 19, p. 130. per diem and mileage, 4, 23, p. 140. influenced by promise of reward guilty of felony, 4, 35, p. 179. not to receive free pass on railroad, 12, 19, p. 434. to take and subscribe oath, 20, 3, p. 534. MEMBERS OF LEGISLATURE— limitation of pay of, 4, 2, p. 114. to be privileged from arrest, 4, 11, p. 122. for what offices disqualified, 4, 19, p. 130. restriction as to power to adjourn, 4, 14, p. 123. to vote viva voce, 4, 28, p. 171. MERCANTILE SOCIETIES— manner of electing officers, 12, 11, p. 426. MESSAGE— of governor to legislature, 5, 10, p. 188. MILEAGE — to members of legislature, 4, 2,3, p. 140. MILITARY — subordinate to civil power, 1, 12, p. 23. standing army not to be kept in time of j^eace, 1, 12, p. 23. See Militia. MILITIA — no imprisonment for fines, 1, 15, p. 53. organization and discipline of, 8, 1, p. 276. restriction as to carrying banners or flags, 8, 2, p. 276. officer, when not eligible to civil office, 4, 20, p. 131. INDEX. 767 MILITIA — governor to be commander-in-cliief, Art. 5, Sec. 5, p. 184. to sign and seal commissions, 5, 14, p. 189. power of governor to call out, 8, 1, p. 276. governor to remain in command of, 5, 16, p. 190. exemption of electors from duty in, 2, 3, p. 77. MINOES — cannot be affected by special statute, 4, 25, p. 151. as to property of, 4, 25, p. 151. MISAPPROPRIATION— of public moneys, to disfranchise, 2, 1, p. 69. MISCELLANEOUS SUBJECTS— 20, 1, p. 532. MISDEMEANOR — in office, provisions to be made for punish- ment of, 4, 18, p. 129. local and special legislation prohibited, 4, 25, p. 151. original jurisdiction in superior courts, 6, 5, p. 227. MONEY — how and when drawn from treasury, 4, 22, p. 133. in treasury cannot be refunded under special act, 4, 25, p. 15L paid on stock bought on margin recoverable back, 4, 26, p. 167. in hands of municipal officers to be paid into treasury, 11, 16, p. 394. officers using or making profit guilty of a felony, 11, 17, p. 396. corporation can issue nothing but lawful money of United States, 12, 5, p. 422. liable to taxation, 13, 1, p. 447. to be applied to payment of state debt, 16, 1, p. 517. deposit of, 11, 161/2, p. 394. MONGOLIANS— See Chinese. MORTGAGES— taxation of, 13, 4, p. 465. how taxed, 13, 4, p. 465. contract of debtor to pay tax void, 13, 5, p. 468. MUNICIPAL AFFAIRS— what are, 11, 6, p. 470. MUNICIPAL CORPORATION— prohibited from aiding sect or creed, 4, 30, p. 171. prohibited from loaning or giving its credit, 4, 31, p. 172. shall not be created by special acts, 11, 6, p. 310. to be organized and classified by general laws, 11, 6, p. 310. and subject to control of general laws, 11, 6, p. 310. 768 INDEX. MUNICIPAL CORPOEATION— charter of city, liow obtained, Art. 11, Sec. 8, p. 336. not to be relieved from proper share of taxes, 11, 10, p. 371. power to assess and levy taxes, 11, 12, p. 386. authority as to improvements, 11, 13, p. 390. authority to appoint inspection officers, 11, 14, p. 393. private property not to be taken for debts of, 11, 15, p. 393. monej'S to be deposited with treasurer, 11, 16, p. 394. . use of same by official a felony, 11, 17, p. 396. property of exempt from taxation, 13, 1, p. 447. prohibited from employing Chinese, 19, 3, p. 530. MUNICIPAL DEBTS— liability of new counties, 11, 3, p. 298. private property not to be taken for, 11, 15, p. 393. restriction on power to incur, 11, 18, p. 396. MUNICIPAL FINE — appellate jurisdiction of supreme court, 6, 4, p. 205. original jurisdiction of superior court, 6, 5, p. 227. MUNICIPAL OFFICERS— election or appointment of, 11, 5, p. 303. compensation not to be increased during term, 11, 9, p. 3G9. term not to be extended, 11, 9, p. 369. to pay moneys into the treasury, 11, 16, p. 394. MUNICIPAL TAXES— power delegated to municipality, 11, 12, p. 388. NAMES — change of, special legislation prohibited, 4, 25, p. 151. NATURALIZATION— power of superior court, 6, 5, p. 227. NAVIGABLE WATERS — harbor frontages as, 15, 1, p. 515. to be protected, 15, 1, p. 515. NAVIGATION— freedom of to be secured, 15, 2, p. 515. NEGLECT — of supervisors to fix water rates, penalty for, 14, 1, p. 508. rights of parties interested, 14, 1, p. 508. NEVADA — salary of superior judge, 6, 17, p. 263. NEW COUNTIES — restrictions on formation of, 11, 3, p. 298. NONJUDICIAL DAYS—certain writs served on, 6, 5, p. 227. INDEX. 769 NORMAL SCHOOL — may be established by legislature, Art. 9, See. 6, p. 282. NOTICE — of meeting for increase of corporate stock, 12, 11, p. 4r26. NUISANCES — appellate jurisdiction of supreme court, 6, 4, p. 205. original jurisdiction of superior court, 6, 5, p. 227. OATH OF OFFICE— member of legislature to take, 20, 3, p. 534. form of oath of office, 20, 3, p. 534. executive and judicial officers to take, 20, 3, p. 534. OATH OR AFFIDAVIT— to sustain issue of warrants, 1, 19, p. 63. of senators on trial by impeachment, 4, 17, p. 128. to be taken by justices and judges on drawing salary, G, 24, p. 272. form of oath of office, 20, 3, p. 534. OBLIGATIONS— of contract not to be impaired, 1, 16, p. 54. existing, unaffected by adoption of new constitution, 22, 2, p. 554. OFFENSES — to be prosecuted by indictment or information, 1, 8, p. 14. no person to be put twice in jeopardy, 1, 3, p. 7. right of trial by jury secured, 1, 7, p. 11. impeachment of officer for, 4, 18, p. 129. power of governor to grant pardon for, 7, 1, p. 174. OFFICE OF CORPORATION— to be maintained in state, 12, 14, p. 428. OFFICES — property qualification not necessary, 1, 24, p. 67. disqualification in certain cases, 4, 19, p. 130. who ineligible for, 4, 20, p. 131. embezzlement and defalcation to disqualify for, 4, 21, p. 132. cannot bo created by special legislation, 4, 25, p. 151. vacancy, when filled by governor, 5, 8, p. 184. to be maintained by corporation, 12, 14, p. 428. forfeiture for acceptance of free passes, 12, 19, p. 434. Constitution — 49 770 INDEX. OFFICES— oath of office, form of, Art. 20, Sec. 3, p. 534. no declaration or test required, 20, 3, p. 534. created by law, bow filled, 20, 4, p. 535. offering bribe to procure election a disqualification, 20, 10, p. 538. exclusion from for bribery, forgery, etc., 20, 11, p, 538. term of when not herein declared, 20, 16, p. 542. terms of, when to commence, 20, 20, p. 548. hereafter created to be subject to legislative direction, 20, 4, p. 535. OFFICER — fees and salaries, special legislation prohibited, 4, 25, p. 151. not to be allowed extra compensation, 4, 32, p. 176. to regulate rates of charges of corporations, 4, 33, p. 178. who impeachable, 4, 18, p. 129. of departments to furnish information to executive, 5, 6, p. 184. of United States not eligible for governor, 5, 12, p. 189. of militia elected and appointed pursuant to law, 8, 1, p. 276. to be commissioned by governor, 8, 1, p. 276. of citv, county, or town, term of office and compensation, 11, 9, p. 369. using or making profit out of public money a felony, 11, 17, p. 396. of corporation, residence to be entered in books, 12, 14, p. 428. not to be interested in furnishing supplies, etc., 12, 18, p. 433. of state, acceptance of free passes a forfeiture of office, 12, 19, p. 434. or corporation, fined and imprisoned for extortion, 12, 22, p. 437. executive and judicial, to take oath of office, 20, 3, p. 534. for offices hereafter created to be elected or appointed, 20, 4, p. 535. when to hold office at pleasure of appointing power, 20, 16, p. 542. term not to exceed four years, 20, 16, p. 542. term of, when to commence, 20, 20, p. 548. tenn of at first election, 22, 10, p. 538. INDEX. 771 OFFICIAL ACTS — cannot be validated by special acts, Art. 4, Sec. 25, p. 151. record to be kept, 5, 18, p. 193. OFFICIAL OATH— 20, 3, p. 534. OPINIONS OF SUPEEME COURT— to be published, 6, 16, p. 263. free for publication by anyone, 6, 16, p. 263. ORDINANCE— to fix water rates, 14, 1, p. 508. ORGANIZATION— of supreme court, 6, 2, p. 200. of superior court, 6, 6, p. 248. of municipal corporations, 11, 6, p. 310. ORIGINAL JURISDICTION— of superior court, 6, 5, p. 227. ORPHANS — state may provide for support of, 4, 22, p. 133. PANAMA-PACIFIC INTERNATIONAL EXPOSITION — amendments to San Francisco charter in aid of, 11, 8a, p. 365. municipal bonds for, 11, 8a, p. 365. use of Golden Gate Park for, 11, 8a, p. 365. use of school lands for, 11, 8a, p. 365. use of public streets for, 11, 8a, p. 365. state bonds for, 4, 22, p. 365. commission, 4, 22, p. 365. PARDON — power of governor to grant, 7, 1, p. 274.- restriction on power, 7, 1, p. 174. PARKS — special legislation prohibited, 4, 25, p. 151. PARTIES — corporations may sue and be sued, 12, 4, p. 421. PASSAGE OF BILLS— mode of, 4, 15, p. 124. when bill becomes a law, 4, 16, p. 125. PAUPERS— exemption from poll taxes, 13, 12, p. 479. PAYMENT OF TAX— by installments, 13, 7, p. 470. PEACE AND SAFETY— to be secured, 1, 4, p. 7. PENALTIES — cannot be remitted by special legislation, 4, 25, p. 151. for absence of member of legislature, 4, 8, p. 120. on transportation companies for excessive charges, 12, 22, p. 437. 772 INDEX. PENALTIES — ^legislature may prescribe additional, Art. 12, Sec. 22, p. 437. of supervisors for neglect to fix water rates, 14, 1, p. 508. for unduly influencing elections, 20, 11, p. 538. PEOPLE — political power inherent in, 1, 2, p. 6. right of free assemblage and petition, 1, 10, p. 17. right of security from searches and seizures, 1, 19, p. 63. rights not impaired by enumeration in constitution, 1, 23, p. 67. style of process in name of, 6, 20, p. 270. PER DIEM— of legislators, 4, 23, p. 140. of lieutenant-governor, 5, 19, p. 193. of delegates, legislature may provide for, 20, 19, p. 548. PERJUEY — disqualification on conviction for, 4, 19, p. 130. to exclude from office, jury, and right of suffrage, 20, 11, p. 538. PERPETUITIES— prohibited, except for certain purposes, 20, 9, p. 15L PERSONAL AND PROPERTY RIGHTS— security of, 1, 13, p. 23. PERSONAL PROPERTY— exemption of, from taxation, 13, lOVo, p. 479. PETITION— right of secured, 1, 10, p. 17. PLACE OF TRIAL— in libel cases, 1, 9, p. 16. may be changed, 1, 9, p. 16. of real actions, 6, 5, p. 227. in suits affecting corporations, 12, 16, p. 430. PLACES OF VOTING— to be fixed by general laws, except, 4, 25, p. 151. PLURALITY VOTE— constitutes a choice, 20, 13, p. 539. POLICE COURTS— not abolished by new constitution, 22, 3, p. 534. POLICE JUDGES — local and special legislation prohibited, 4, 25, p. 151. POLICE LAWS— legislature to pass, 19, 1, p. 528. POLICE POWERS — of state, p. 100. corporations subject to exercise of, 12, 8, p. 424, INDEX. 773 POLICE REGULATIONS— county, city, or town, may enforce, Art. 11, Sec. 11, p. 372. POLITICAL CORPORATION— prohibited to give or lend credit, 4, 31, p. 172. POLITICAL POWERS— inherent in people, 1, 2, p. 6. POLITICAL SUBDIVISION— not to subscribe to corporation stock, 4, 31, p. 172. POLL TAXES— legislature may provide for, 13, 12, p. 479. to be paid into school fund, 13, 12, p. 479. POPULAR ASSEMBLIES— rights of citizens, 1, 10, p. 17. POSSESSION OF PROPERTY— rights of foreigners, 1, 17, p. 6L POSTMASTER— when may hold civil oflSce, 4, 20, p. 131. POWER OF TAXATION— not to be surrendered m grant, 13, 6, p. 470. POWERS OF GOVERNMENT— how distributed, 3, 1, p. 79. legislative, where vested, 4, 1, p. 86. executive, where vested, 5, 1, p. 182. judicial, where vested, 6, 1, p. 196. pardoning power, 7, 1, p. 174. militia, 8, 1, p. 276. / municipal corporations, 11, 16, p. 394. PRACTICE IN COURTS— local and special legislation prohib- ited, 4, 25, p. 151. PREAMBLE — to constitution, 1, 1, p. 3. PRESIDENT OF SENATE— rt^ho is, 5, 15, p. 190. pro tempore, when to act as governor, 5, 15, p. 190. PRESIDING JUDGE— to be chosen, 6, 6, p. 248. duties of, 6, 6, p. 248. PRESS — liberty of, secured, 1, 9, p. 16. PRIMARY ELECTIONS— provision for, 2, 2y-, p. 73. PRINCIPAL PLACE OF BUSINESS— of corporations to be maintained, 12, 14, p. 428. PRINTING— bills to be printed, 4, 15, p. 124. PRISON DIRECTORS — See State Prison Directors. 774 INDEX. PRIVILEGE — from arrest, of members of legislature, Art. 4, Sec. 11, p. 122. of electors on election day, 2, 2, p. 73. PRIVILEGES AND IMMUNITIES— of citizens, 1, 21, p. 64. cannot be granted by special act, 4, 25, p. 151. reservation of power in legislature to revoke or repeal, 1, 21, p. 64. See Immunities. PROBATE MATTERS — ^appellate jurisdiction in supreme court, 6, 4, p. 205. original jurisdiction in superior court, 6, 5, p. 227. PROCESS— privilege of member of legislature from, 4, 11, p. 122. of supreme court, 6, 4, p. 205. of superior courts, extent of, 6, 5, p. 227. style of, 6, 20, p. 270. power of railroad commissioners to issue, 12, 22, p. 'IC?. to compel fixing of water rates, 14, 1, p. 508. PROCLAMATION — for special session of legislature, 5, 9, p. 188. on revision of constitution, 18, 2, p. 526. on computation of votes on new constitution, 22, 9, p. 559. PROFESSION — sex not to disqualify from pursuit of, 20, 18, p. 547. PROHIBITION — jurisdiction of supreme court, 6, 4, p. 205. of superior courts, 6, 5, p. 227. certain writs may be served on holidays and nonjudicial days, 6, 5, p. 227. of introduction of Chinese, 19, 4, p. 530. PROHIBITORY — provisions of constitution, when, 1, 22, p. 66. PROMOTION — ^of intellectual improvement, 9, 1, p. 278. PROPERTY — right to acquire, possess, and defend, 1, 1, p. 3. persons not to be deprived of without due process of law, 1, 13, p. 23. not to be taken or injured for public use, etc., 1, 14, p. 42. cannot be exempted by special legislation, 4, 25, p. 151. liability to taxation, what includes, 13, 1, p. 447. PROPERTY QUALIFICATION — not to be required to vote or hold office, 1, 24, p. 67. INDEX. 775 PROSECUTIONS— to be conducted in name of people, Art. 6, Sec. 20, p. 270. existing unaffected by adoption of new constitution, 22, 2, p. 554. right of trial by jury secured, 1, 7, p. 11. rights of party accused, 1, 13, p. 23. PEOTECTION — from alien paupers, criminals, etc., 19, 1, p. 528. PROVISIONS OF CONSTITUTION— mandatory and prohib- itory, 1, 22, p. 66. See Constitution; State Constitutions. . PUBLIC DEBTS— private property not to be taken for, 11, 15, p. 393. PUBLIC FUNDS — statement of receipts and expenses to be published, 4, 22, p. 133. to be deposited with treasurer, 11, 16, p. 394. making profit on, or using, a felony, 11, 17, p. 396. PUBLIC GRANTS — power to tax not to be surrendered or sus- pended, 13, 6, p. 470. PUBLIC GROUNDS— special legislation prohibited, 4, 25, p. 131. PUBLIC IMPROVEMENTS— in cities, how to be made, 11, 19, p. 403. PUBLIC LANDS— right to fish on, 1, 25, p. 68. suitable for cultivation, 17, 3, p. 522. PUBLIC OFFICERS — when not to receive extra compensation, . 4, 32, p. 176. PUBLIC SAFETY — suspension of writ of habeas corpus, 1, 5, p. 9. PUBLIC SCHOOLS — legislature to provide a system of, 9, 5, p. 281. what to include, 9, 6, p. 282. property exempt from taxation, 13, 1, p. 447. PUBLIC USE— in eminent domain defined, p. 43. legislative discretion, p. 43. water rights declared for, 14, 1, p. 42. PUBLIC UTILITIES — regulation of by railroad commission, 12, 23, p. 443. 776 INDEX. PUBLIC WOEKS — on streets of city, provisions concernine. Art. 11, Sec. 19, p. 403. ^ Chinese prohibited from employment on, 19, 3, p. 530. eight hours to constitute a day's worlc, 20, 17, p. 546. PUBLICATION — of proceedings of each house, 4, 10, p. 121. of receipts and expenditures at each session, 4, 22, p. 133. of all laws and official writings to be in English. 4, 24, p. 141. > > > f of judicial decisions, 6, 16, p. 263. of proposed city charter, 11, 8, p. 336. of rates of fares and freights, 12, 22, p. 437. of proposed amendments to constitution, 18, 1, p. 525. PUNISHMENTS— cruel and unusual, prohibited, 1, 6, p. 9. for extortion in rates of fares and freights, 12, 22, p. 437. QUALIFICATION— of voters, 2, 1, p. 69. property not essential to, 1, 24, p. 67. of members of legislature, 4, 4, p. 116. each house to judge of, 4, 7, p. 119. of governor, 5, 3, p. 183. of lieutenant-governor, 5, 15, p. 190. of justices of supreme court, 6, 23, p. 272. of judges of superior courts, 6, 23, p. 272. declaration or test not required, 20, 3, p. 534. for office of public trust, 20, 3, p. 534. for office of county commissioner, 12, 22, p. 437. QUARTERING OF SOLDIERS— provisions concerning, 1 12. p. 23. ' ' QUORUM — majority of house to constitute, 4, 8, p. 120. less may adjourn and compel attendance, 4, 8, p. 120. QUO WARRANTO— power of superior court, 6, 5, p. 227. RAILROAD COMMISSIONERS— use of free passes on rail- roads, 12, 19, p. 434. to be appointed, 12, 22, p. 437. salary and term of office, 12, 22, p. 437. qualification of, 12, 22, p. 439. not to be interested in any transportation company, 12 22 p. 437. INDEX. 777 RAILROAD COMMISSIONEES — as stockholder, creditor, agent, or employee, Art. 12, Sec. 22, p. 437. powers and duties of, 12, 22, p. 437. to prescribe uniform system of keeping accounts, 12, 22, p. 437. to fix rates of fares and freight, 12, 22, p. 437. and publish the same from time to time, 12, 22, p. 437. rates fixed by them to be deemed fair and reasonable, 12, 22, p. 437. to examine books, etc., of transportation companies, 12, 22, p. 437. to hear and determine complaints, 12, 22, p. 437. to enforce decisions and correct abuses, 12, 22, p. 437. to report to governor annually, 12, 22, p. 437. legislature may confer further powers, 12, 22, p. 434. or may remove one or more of them, 12, 22, p. 437. vacancies may be filed by governor, 12, 22, p. 437. appointee, term of office of, 12, 22, p. 437. first election of districts allotted, 12, 23, p. 443. RAILROAD COMPANIES— may connect at state line with foreign corporations, 12, 17, p. 432. may intersect, connect, or cross other railroads, 12, 17. p. 452. delay and discrimination prohibited, 12, 17, p. 432. officer, agent, or employee not to be interested in furn'sliing with materials and supplies, 12, 18, p. 433. nor when leased, 12, 18, p. 433. not to grant free passes to state officials, 12, 19, p. 434. or passes or tickets at a discount, 12, 19, p. 434. not to combine with carriers to share earnings in certain cases, 12, 20, p. 434. rates when lowered cannot be raised without consent of government, 12, 20, p. 434. government to regulate fares and freights, 12, 20, p. 434. no discrimination between places or persons, 12, 21, p. 435. fares and freights to any station not to exceed those to a more distant station, 12, 21, p. 435. excursion and commutation tickets at special rates, 12, 21, p. 435. state to be divided into three railroad districts, 12, 22, p. 437. 778 INDEX. EAILEOAD COMPANIES— and commissioners elected for each, Art. 12, Sec. 22, p. 441. fine for failure to comply with regulations of commission- ers, 12, 22, p. 437. fine and imprisonment of officers of company, 12, 22, p. 437. exemplary damages for excessive charges, 12, 22, p. 437. temporary districts, 12, 23, p. 443. legislature to enforce provisions, 12, 24, p, 445. property of, how assessed, 13, 10, p. 476. apportionment of values, 13, 10, p. 476. RAILROAD DISTRICTS— state to be divided into three, 12, 22, p. 437. temporary allotment, 12, 23, p. 443. RAILROADS — how assessed for taxation, 13, 14, p. 480. RATES OF CHARGES— by corporations, regulation of, 4, 33, p. 178. on railroads, provisions concerning, 12, 20, p. 434. to be fixed by railroad commissioners, 12, 22, p. 437. REAL ACTIONS — where to be brought, 6, 5, p. 227. REAL ESTATE — restriction on tenure by corporation, 12, 9, p. 424. REBELLION OR INVASION— suspension of habeas corpus, 1, 5, p. 9. power of governor to suppress or repel, 8, 1, p. 276. RECALL— 23, 1, p. 564. RECEIPTS AND EXPENDITURES— to be published with laws, 4, 22, p. 133. RECESS OF LEGISLATURE— restriction, payment of mem- bers, 4, 14, p. 123. RECOGNIZANCES — obligations, etc., unaffected by adoption of new constitution, 22, 2, p. 554. RECOMMENDATIONS— to be made by governor at every session, 5, 10, p. 188, RECORD — of official acts to be kept by secretary of state, 5, 18, p. 193. to be kept by railroad companies, 12, 22, p. 437. RECORDER OF DEEDS— duty as to city charters, 11, 8, p. 336. REDRESS OF GRIEVANCES— right of petition, 1, 10, p. 17. REFERENDUM — reference of laws to the people, 4, 1, p. 86. INDEX. 779 REFORMATORY INSTITUTIONS— legislature to prescribe rules, Art. 10, Sec. 2, p. 294. REGISTRAR — of voters, in San Francisco, duty of, 22. 6, p. 558. REGULATION — of court practice, special legislation prohib- ited, 4, 25, p. 151. of rates of telegraph, gas, etc., companies, 4, 33, p. 178. of fares and freights on railroads, 12, 22, p. 437. RELATION— of state to American Union, 1, 3, p. 7. RELEASE OF DEBT OR OBLIGATION— special legislation prohibited, 4, 25, p. 151. RELIGION — free exercise of secured, 1, 4, p. 7. test of not to apply to witness or juror, 1, 4, p. 7. aid to private corporations and institutions prohibited, 4, 22, p. 133. aid to sect and creed prohibited, 4, 30, p. 171. RELIGIOUS FREEDOM— guaranteed, 1, 4, p. 7. RELIGIOUS SECT— appropriations prohibited, 4, 30, p. 171. RELIGIOUS TEST— not required of witness or juror, 1, 4, p. 7. RELIGIOUS WORSHIP— property used for, exempt from taxation, 13, 1%, p. 464. REMEDIES — when cannot be impaired, p. 54. REMOVAL— of judicial officer, 6, 10, p. 254. of Chinese from cities or towns, 19, 4, p. 530. of supreme court reporter, 6, 21, p. 270. of presiding judge in San Francisco, 6, 6, p. 248. REPORTER OF SUPREME COURT— appointment of, 6, 21, p. 270. salary and term of office, 6, 21, p. 270. REPRESENTATION— in legislature, 4, 6, p. 117, REPRIEVES — power of governor to grant, 7, 1, p. 274. RESERVED RIGHTS- of the people, 1, 23, p. 67. RESIDENCE — for purpose of voting, what not to affect, 2, 4, p. 77. not affected by absence on public business, 20, 12, p. 539. RESIGNATION— of governor, who to act, 5, 16, p. 190. 780 INDEX. EETEOSPECTIVE STATUTES— validity of, p. 54. EETURN— of bill by governor, 4, 16, p. 125. RETURNS OF ELECTION— for governor, 5, 4, p. 183. on revision of constitution, 18, 2, p. 526. REVENUE AND TAXATION— 13, 1, p. 447. property to be taxed in proportion to its value, 13, 1, p. 447. property to include money, credits, bonds, etc., 13, 1, p. 447. what property exempt, 13, 1, p. 447. deduction from credits of debts due residents of state, 13, 1, p. 447. lands and improvements to be separately assessed, 13, 2, p. 464. lands similarly situated and of equal value to be assessed •at same value, 13, 2, p. 464. to be assessed by sections and fractions of sections, 13, 3, p. 465. mortgage, deed of trust, etc., deemed an interest in prop- erty, 13, 4, p. 465. exceptions in favor of railroad and other quasi corpora- tions, 13, 4, p. 465. tax a lien on property and securities, 13, 4, p. 465. if paid by owner of security, becomes part of debt, 13, 4, p. 465. if paid by owner, to be deducted from secured debt, 13, 4, p. 465. contracts by debtor to pay tax on the security void, 13, 5, p. 468. power to tax not to be surrendered or suspended, 13, 6, p. 470. legislature may provide for payment by installments, 13, 7, p. 470. See Assessment; Taxation. REVISION OF CONSTITUTION— 18, 1, p. 525. two-thirds vote of each house necessary to command, 18, 2, p. 526. convention for revision, when to be elected, 18, 2, p. 526. of what to consist, 18, 2, p. 526. delegates, when to meet, 18, 2, p. 526. result to be submitted to vote of people, 18, 2, p. 526. INDEX. 781 REVISIOlSr OF CONSTITUTION — returns and proceedings thereon, Art. 18, Sec. 2, p. 526. executive to declare result, 18, 2, p. 526. majority of votes required to ratify, 18, 2, p. 526. EIGHT — inalienable, 1, 1, p. 3. of witnesses, 1, 6, p. 9. to bail, 1, 6, p. 9. right of free assemblage, 1, 10, p. 17. of accused in criminal proceedings, 1, 13, p. 23. of foreign residents, 1, 17, p. 61. of security from search and seizure, 1, 19, p. 63. enumeration not to impair others retained, 1, 23, p. 67. right of suffrage, 2, 1, p. 69. Chinese excluded from, 2, 1, p. 69. privilege of electors, 2, 2, p. 73. from military duty, 2, 3, p. 77. EIGHT OF WAY— appropriation of, 1, 14, p. 42. on navigable waters not to be obstructed, 15, 2, p. 515. EOADS — local and special legislation prohibited, 4, 25, p. 151. EULES OF PEOCEEDING— each house to regulate, 4, 9, p. 121. SABBATH — power to regulate observance of, 1, 1, p. 3. SACEAMENTO— the seat of government, 20, 1, p. 532. two superior judges to be elected, 6, 6, p. 248. salary of, 6, 17, p. 263. SAFETY AND HAPPINESS— right to pursue, 1, 1, p. 3. SALAEIES — of officers, special legislation prohibited, 4, 25, p. 151. of governor, 5, 19, p. 193. of certain officers to be fixed by legislature, 5, 19, p. 193. of justices of supreme court, 6, 17, p. 263. to be paid by state, 6, 17, p. 263. of judges of superior court, 6, 17, p. 263. half to be paid by state and half by county, 6, 17, p. 263. of reporter of supreme court, 6, 21, p. 270. of justices and judges, conditions precedent to drawing of, 6, 24, p. 272. of superintendents of public instruction, 9, 2, p. 279. of railroad commissioners, 12, 22, p. 437. 782 INDEX. SaN FRANCISCO — to have twelve superior judges, Art. 6, Sec. 6, p. 248. one to be chosen to preside, 6, 6, p. 248. salary of, 6, 17, p. 2G3. sessions of superior courts, 6, 6, p. 248. bonded indebtedness of, 11, 18, p. 396. SANITARY REGULATIONS— city, county, or town may en- force, 11, 11, p. 372. SAN JOAQUIN — to have two superior judges, 6, 6, p. 248. salary of, 6, 17, p. 263. SAN JOSE— bonded indebtedness of, 11, 18, p. 396. SANTA CLARA — to have two superior judges, 6, 6, p. 248. salary of, 6, 17, p. 263. bonded indebtedness of, 11, 18, p. 396. SCHOOL DISTRICT— officers cannot be regulated by special laws, 4, 25, p. 151. prohibited from aiding religious sect or creed, 4, 30, p. 171. restriction as to incurring indebtedness, 11, 18, p. 396. SCHOOL FUNDS— proceeds of land sold, etc., to constitute, 9, 4, p. 280. applied exclusively to primary and grammar schools, 9, 6, p. 282. poll tax to be paid into, 13, 12, p. 479. SCHOOL LANDS— sale of, 9, 4, p. 280. SCIENTIFIC IMPROVEMENT— to be promoted, 9, 1, p. 278. SEAL OF STATE— in custody of governor, 5, 13, p. 189. SEARCHES AND SEIZURES— unreasonable prohibited, 1, 19, p. 63. warrant to issue only on probable cause, 1, 19, p. 63. SEAT OF GOV-ERNMENT— at Sacramento, 20, 1, p 532. provision for change of, 20, 1, p. 532. SECRETARY OF STATE— subject to impeachment, 4, 18, p. 129. to countersign grants and commissions, 5, 14, p. 189. mode and time of election of, 5, 17, p. 191. term of office, 5, 17, p. 191. to keep record of official acts, 5, 18, p. 1*93. duties of, 5, 18, p. 193. tNDE^. 783 SECRETARY OF STATE — compensation for services, Art, 5, Sec. 19, p. 193. duty as to city charters, 11, 8, p. 336. to canvass returns on revision of constitution, 18, 2, p. 526. to furnish paper for ballots for new constitution, 22, 5, p. 557. SECTARIAN INFLUENCES— university excluded from, 9, 9, p. 288. SECTARIAN PURPOSES— appropriations prohibited, 4, 30, p. 171. SECTARIAN SCHOOLS— to receive no public aid, 9, 8, p. 287. SECURITIES— taxation of, 13, 4, p. 465, how assessed, 13, 4, p. 465. contract of debtor to pay tax void, 13, 5, p. 468. SECURITY — from unreasonable searches and seizures, 1, 19, p. 63. SEIZURES — unreasonable prohibited, 1, 19, p. 63. SENATE — legislative powers vested in, 4, 1, p. 86. number of members of, 4, 5, p. 116. a court of impeachment, 6, 1, p. 196. may remove justices or judges, 6, 10, p. 254. SENATOR OF UNITED STATES— governor disqualified for, 5, 20, p. 195. SENATORIAL AND ASSEMBLY DISTRICTS— division of state, 4, 6, p. 117. SENATORS— when and how chosen, 4, 4, p. 116. term of office, 4, 4, p. 116, number of, 4, 5, p. 116. allotment of, 4, 5, p. 110. to try all inipeacliments, 6, 1, p. 196. to be on oath, 4, 17, p. 128. for what offices disqualified, 4, 19, p. 130. to be under oath or affirmation, 6, 1, p. 196. SENTENCE — power of governor to suspend execution of, 7, 1, p. 274. SEPARATE PROPERTY— of husband and wife, 20, 8, p. 537. SERVANT OF STATE — not to receive extra compensation, 4, 32, p. 176. 78-4 INDEX. SESSIOISrS OF LEGISLATURE— when to commence, Art. 4, Sec. 2, p. 114. limitation of, 4, 2, p. 114. to be open, except, 4, 13, p. 123. of superior courts, 6, 7, p. 249. of superior courts in San Francisco, 6, 6, p. 248. SEX — not to disqualify for pursuit of lawful business, 20, 18, p. 547. not to disqualify for admission into colleges, 20, 18, p. 547. not to debar from admission to university, 9, 9, p. 288. SHARES OF STOCK— contracts for sale on margin void, 4, 26, p. 167. legislature may regulate purchase and sale of, 4, 26, p. 167. SHERIFF — legislature to provide for election of, 11, 5, p. 303. SINKING FUND — to be created to meet interest and debts, 11, 18, p. 396. SLAVERY— prohibited, 1, 18, p. 6L coolieism declared a form of, 19, 4, p. 530. SOLDIERS — not to be quartered in time of peace, 1, 12, p. 23. SONOMA — two superior judges to be elected, 6, 6, p. 248. salary of judges, 6, 17, p. 263. SPEAKER OF ASSEMBLY— duty on election returns for gov- ernor, 5, 4, p. 183. SPECIAL ACTS — prohibited in certain cases, 4, 25, p. 151. SPECIAL ASSESSMENTS— for city improvements, 11, 19, p. 403. SPECIAL COMMISSION— powers not to be delegated to, 11, 13, p. 390. SPECIAL LEGISLATION— in certain matters prohibited, 4, 25, p. 151. prohibited where general laws apply, 4, 25, p. 151. SPECIAL PEIVILEGES AND IMMUNITIES— restriction on grant, 1, 21, p. 64. when validity to cease, 12, 6, p. 422. SPECIAL RIGHTS — cannot be granted by special acts, 4, 25, p. 151. SPECIAL SESSIONS— of legiplature, how convened, 5, 9, p. 188. power to act in, 5, 9, p. 188. INDEX. ' 785 SPECIAL STATUTE— not to create municipal corporation, Art. 11, Sec. 6, p. 310. SPEECH— liberty of secured, 1, 9, p. 16. STANDING AKMY— not to be kept in time of peace, 1, 12, p. 23. STATE— a part of the Union, 1, 3, p. 7. police powers, of, 4, 1, p. 86. subdivision into senatorial and assembly districts, 4, 6, p. 117, authority over institutions supported by state aid, 4, 22, p. 133. prohibited to subscribe for corporation stock, 4, 31, p. 172. not to loan its credit, 12, 13, p. 428. nor subscribe for corporation stock, 12, ]3, p. 428. to be divided into three railroad districts, 12, 22, p. 437. property of exempt from taxation, 13, 1, p. 447. to replace university fund, 9, 9, p. 288. counties as subdivisions of, 11, 1, p. 297. division into railroad districts, 12, 22, p. 437. control of water rights, 14, 1, p. 508. suits against, 20, 6, p. 536. boundary of, 21, p. 550. STATE BOARD OF EQUALIZATION— constitution of, 13, 9, p. 471. election, qualification, and term of office, 13, 9, p. 471. duties of oflBce, 13, 9, p. 471. to assess railroads and their property, 13, 10, p. 476. STATE BOARD OF HEALTH— legislature to provide for, 20, 14, p. 540. STATE CONSTITUTIONS— defined, p. vii. interpretation and construction, p. vii. construction of terms, p. vii. provisions, mandatory and prohibitory, 1, 22, p. 66. STATE CONTRACTS— power of taxation not to be surrendered, 13, 6, p. 470. STATE INDEBTEDNESS— restriction on power of legislature, 16, 1, p. 517. limit to aggregate debt, 16, 1, p. 517. provisions to be made to pay interest, 16, 1, p. 517. as well as for principal, 16, 1, p. 517. provisions as to laws creating debts, 16, 1, p. 517. Congtitution — 50 786 INDEX. STATE INSTITUTIONS AND PUBLIC BUILDINGS— alone en- titled to appropriations, Art. 10, Sec. 1, p. 293. STATE LANDS— to be granted only to actual settlers, 17, 3, p. 522. > > > If parcels not to exceed three hundred and twenty acres, 17, 3. p. 522. STATE OFFICERS— suhject to impeachment, 4, 18, p. 129. election and term of office, 5, 17, p. 191. compensation of, 5, 19, p. 193. not to accept free passes on railroads, 12, 19, p. 403. STATE PRISON DIRECTORS— board of, 10, 1, p. 293. of whom to consist, 10, 1, p 293. term of office, 10, 1, p. 293. classification of, 10, 1, p. 293. term of appointee to vacancy, 10, 1, p. 293. to have charge of state prison, 10, 2, p. 294. duties of, 10, 2, p. 294. to appoint warden and clerk, 10, 3, p. 294. or remove them for cause, 10, 3, p. 294. no compensation other than expenses incurred, 10, 4, p. 294. powers and duties to be regulated by law, 10, 5, p. 295. convict labor to be regulated, 10, 6, p. 295. STATE SCHOOL TAX— to be applied exclusively to primary and grammar schools, 9, 6, p. 282, STATE TAXES — municipal corporations not to be released, 11, 10, p. 371. See Revenue and Taxation. STATEMENT OF RECEIPTS AND EXPENDITURES TO BE PUBLISHED— 4, 22, p. 133. of taxable property to be made, 13, 8, p. 470. STATUTES — enacting clause of, 4, 1, p. 86. validity of, p. xi. in part invalid, p. xv. power to declare unconstitutional, p. x. creating state debts, provisions in, 16, 1, p. 517. constitutionality of, p. xiv. STOCK BOARD— legislature to control sales of stock, 4, 26, p. 167. STOCK EXCHANGE— to be subject to control of legislature, 4, 26, p. 167. INDEX. 787 STOCK MAEKET— legislature to control sales of stocks, Art. 4, Sec. 26, p. 167. STOCK OR BONDS — of corporation, restriction on issue, 12, 11, p. 426. fictitious increase void, 12, 11, p. 426. STOCK OF CORPORATIONS— state prohibited from subscribing for, 4, 31, p. 172. not to be issued except for money, labor, etc., 12, 11, p. 426. fictitious increase to bf "oid, 12, 11, p. 426. state not to be interested in, 12, 13, p. 428. office to be maintained for transfer of, 12, 14, p. 428. subject to assessment for taxation, 13, 1, p. 447. STOCKHOLDER — incompetent to appointment to regulate charges, 4, 33, p. 178. individual and personal liability of, 12, 3, p. 414. in international exposition corporation, 12, 3, p. 414. rights on voting for managers or directors, 12, 12, p. 427. to have free access to books, etc., of corporation, 12, 14, p. 428. subscription to be kept in books, 12, 14, p. 428. STOCKS— taxable, 13, 1, p. 447. STORAGE — charges to be regulated by legislature, 4, 33, p. 178. STREET ASSESSMENTS— pp. 11, 19, p. 404. STREETS — proceedings for improvement of, 11, 19, p. 403. estimate of costs and expenses, 11, 19, p. 403. assessment in proportion to benefits, 11, 19, p. 403. to be first collected and paid into treasury, 11, 19, p. 403. may be used by gas and water companies, 11, 19, p. 403. municipality to regulate rates for gas and water, 11, 19, p. 403. STREETS AND ALLEYS— local and special legislation prohib- ited, 4, 25, p. 151, STUDENT — absence not to prejudice right to vote, 2, 4, p. 77. STYLE— of process, 6, 20, p. 270. SUB,JECT OF ACT— to be embraced in title, 4, 24, p. 141. SUBSCRIPTION— to stock to be entered on books, 12, 14, p. 428. 788 INDEX. SUCCESSION— special legislation prohibited, Art. 4, Sec. 25, p. 151. SUFFRAGE— right to, who entitled, 2, 1, p. 69. who prohibited, 2, 1, p. G9. privilege of electors, 2, 2, p. 73. persons convicted of crimes disqualified from, 20, 11, p. 538. freedom of, to be protected, 20, 11, p. 538. SUITS AGAINST STATE— subject to direction of law, 20, 6, p. 536. SUNDAY LAWS— power of state to enact, p. 6. SUPERINTENDENT OF PRINTING— to furnish copies of new constitution, 22, 4, p. 556. to furnish ballots for, to county clerks, 22, 5, p. 557. GUPERINTENDENT OF PUBLIC INSTRUCTION— an execu- tive officer, 9, 3, p. 279. to be elected, 9, 3, p. 279. when elected, 22, 10, p. 560. salary, when to enter on office, 9, 2, p. 279. CUPERINTENDENT OF SCHOOLS— for county, election of, 9, 3, p. 279. two or more counties may unite, 9, 3, p. 279. SUPERINTENDENT OF STREETS— control of use of streets, 11, 19, p. 403. SUPERIOR COURT— invested with judicial power, 6, 1, p. 196. appellate jurisdiction of, 6, 5, p. 227. jurisdiction of, 6, 5, p. 227. power of naturalization, 6, 5, p. 227. appellate jurisdiction from justice's court, 6, 5, p. 227. always open, certain days excepted, 6, 5, p. 227. may issue writs, 6, 5, p. 227. for each county, 6, 6, p. 248. judges may apportion business, 6, 7, p. 249. judges of different counties may interchange, 6, 8, p. 251. provision for judge pro tempore, 6, 8, p. 251. judge pro tempore to be a member of the bar, 6, 8, p. 251. to be a court of record, 6, 12, p. 260. to appoint commissioners, 6, 14, p. 261. salary of, when payable, 6, 17, p. 263. judges not eligible for other office, 6, 23, p. 272. not to practice la.w, 6, 22, p. 272. DTDEX. 789 SUPEEVISOES— legislature to provide for election of, Art. 11, Sec. 5, p. 303. classification of, 11, 7, p. 371. constitute county boards of equalization, 13, 9, p. 471. duties and authority of, 13, 9, p. 471. duty as to common schools, 9, 7, p. 284. as to examination of teachers, 9, 7, p. 284. to fix water rates, 14, 1, p. 508. compulsory process on failure, 14, 1, p. 508. SUPREME COURT— invested with judicial powers, 6, 1, p. 19G. to consist of chief justice and six justices, 6, 2, p. 200. may sit in departments or in bank, 6, 2, p. 200. to be always open, 6, 2, p. 200. to be divided into departments one and two, 6, 2, p. 200. justices to be assigned, 6, 2, p. 200. competent to sit in either department, 6, 2, p. 200. may freely interchange, 6, 2, p. 200. each dejartment to hear and determine causes, 6, 2, p. 200. three justices necessary to act, 6, 2, p. 200. justice may act at chambers, 6, 2, p. 200. concurrence of three necessary to judgment 6, 2, p. 200. chief justice to apportion business, 6, 2, p. 200. may order question heard in bank, 6, 2, p. 200. either before or after judgment, 6, 2, p. 200. order to be made within thirty days, 6, 2, p. 200. and concurred in by two justices, 6, 2, p. 200. its effect is to vacate judgment, 6, 2, p. 200. four justices may order hearing in bank, 6, 2, p. 200. judgment final if order not made in time, 6, 2, p. 200. judgment by department not final till thirty days, 6, 2, p. 200. unless approved by chief justice and two justices, 6, 2, p. 200. chief justice may convene court in bank at any time, 6, 2, p. 200. to preside, 6, 2, p. 200. concurrence of four necessary for judgment, 6, 2, p. 200. if four do not concur all qualified must sit, 6, 2, p. 200. and concurrence of four necessary to judgment, 6, 2, p. 200, decisions in all cases to be in writing, 6, 2, p. 200. and grounds to be set forth 6, 2, p. 200. chief justice may preside in either department, 6, 2, p. 200. justices assi.£rnpd +/> twl-j',* one to preside, 6, 2, p. 200. 790 INDEX. SUPEEME COURT— when may select chief justice, Art. 6, Sec. 2, p. 200. when chief justice and justices to be elected, 6, 3, p. 204. term of office, 6, 3, p. 204. justices first elected to classify by lot, 6, 3, p. 204. 60 as to vacate two seats every four years, 6, 3, p. 204. entry of classification on minutes, 6, 3, p. 204. and to be filed with secretary of state, 6, 3, p. 204. in case of vacancy governor to appoint, 6, 3, p. 204. first election under new constitution, 6, 3, p. 204. opinions to be published, 6, 16, p. 263. SUPREME COURT COMMISSION— 6, 25, p. 273. SURVEYOR GENERAL— subject to impeachment, 4, 18, p. 129. mode and time of election, 5, 17, p. 191. compensation of, 5, 19, p. 193. legislature may abolish office, 5, 19, p. 193. SUTTER — a superior judge to be elected, 6, 6, p. 248. salary of judge, 6, 17, p. 263. TAX — appellate jurisdiction of supreme court, 6, 4, p. 205. original jurisdiction of superior court, 6, 5, p. 227. commutation of prohibited, 11, 10, p. 371. assessment and collection by municipal corporations, 11 12, p. 386. TAXATION — local and special legislation prohibited, 4, 25, p. 151. property cannot be exempted by special acts, 4, 25, p. 151. assessment of revenue under township organization, 11, 4, p. 301. for municipal purposes, restriction of legislature, 11, 12, p. 386. municipal corporations may be invested with powers of, 11, 12, p. 386. to be in proportion to values, 13, 1, p. 447. United States army, etc., 13, 1^/4, p. 463. churches exempt, 13 1%, p. 464. bonds, exempt, 13, 1%, p. 464. what property taxable, p. 449. valuation of property, p. 449. for public improvements, p. 460. assessment according to value, p. 449. exemption from, p. 456. INDEX. 791 TAXATION— licenses, p. 459. land and improvements to hs separately assessed, 13, 2, p. 464, of seetionized and unsectionized lands, 13, 3, p. 465. securities taxable, 13, 4, p. 465. a lien on property and securities, 13, 4, p. 465. contract to pay tax on loan void, 13, 5, p. 468. power of, cannot be surrendered in grant or contract, 13, 6, p. 470. payment by installments, 13, 7, p. 470. Bworn statement to be given annually, 13, 8, p. 470. of property held at a certain day and hour, 13, 8, p. 470. state board of equalization to be elected, 13, 9, p. 471. county board of equalization, who constitute, 13, 9, p. 471. duties of board, 13, 9, p. 471. property, where assessed, 13, 10, p. 476. state board to assess property of railroads in more than one county, 13, 10, p. 476. and apportion amount among the counties, 13, 10, p. 476. in proportion to number of miles in each, 13, 10, p. 476. income taxes may be assessed, 13, 11, p. 479. annual poll tax may be levied, 13, 12, p. 479. legislature to carry out constitutional provisions, 13, 13, p. 480. of railroads, etc., 13, 14, subd. a, p. 481. of insurance companies, 13, 14, subd. b, p. 483. of banks, 13, 14, subd. c, p. 484. of franchises, 13, 14, subd. d, p. 486. for public schools, 13, 14, subd. e, p. 487. for the state university, 13, 14, subd. e, p. 487. when due, etc., 13, 14, subd. f, p. 487. DO injunction against, 13, 14, subd. g, p. 489. recovery of taxes, 13, 14, subd. g, p. 489. See Assessment ; Revenue and Taxation. TAXPAYER — statement, when to be made, 13, 8, p. 470. TEACHERS — examination under control of local boards, 9, 7, p. 284. certificates on examination, 1, 7, p. 284. TECHNICAL SCHOOLS— may be established, 9, 6, p. 282. TELEGRAPH COMPANIES— legislature may regulate charges, 4, 33, p. 178. TEN DAYS — after session given for approval of bill, 4, 10, p. 125. 792 INDEX. TEEM OF OFFICE— of assemblymen, Art. 4, Sec. 3, p. 115. of senators, 4, 4, p. 116. of governor, 5, 2, p. 1S3. of lieutenant-governor, 5, 15, p. l&O. of state officers, 5, 17, p. 191. of justices of supreme court, 6, 3, p. 204, of judges of superior courts, 6, 6, p. 248. of superintendent of public instruction, 9, 2, p. 279. of county superintendent of schools, 9, 3, p. 279. of state prison directors, 10, 1, p. 293. of county officers, 11, 5, p. 303. of city, county, and township officers, 11, 9, p. 372. of county officers not to be extended, 11, 9, p. 273. of railroad commissioners, 12, 20, p. 434. of state board of equalization, 13, 9, p. 471. not herein provided to be declared by law, 20, 16, p. 542. not to exceed four years under statute, 20, 16, p. 542. when to commence, 20, 20, p. 548. at first election, 20, 20, p. 548. TEST — not required as a qualification for office, 20, 3, p. 534. TESTIMONY— on prosecution for lobbying, 4, 35, p. 179. TEXT-BOOKS— shall be adopted by local boards, 9, 7, p. 284. not to be changed within four years, 9, 7, p. 284. THREE-FIFTHS VOTE— required to amend city charter, 11, 8, p. 336. THREE-FOURTHS OF JURY— may render verdict, 1, 7, p. 11. TICKETS — in lottery, sale of prohibited, 4, 26, p. 167. on transportation lines not to be given at a discount, 12, 19, p. 434. free tickets prohibited to state officers, 12, 19, p. 434. exception as to railroad commissioners, 12, 21, p. 435. TIDE LANDS — owners of not to exclude right of way over waters adjoining, 15, 2, p. 515. within two miles of cities or towns to be withheld from sale or grant, 15, 3, p. 515. TITLE OF ACT— to express the subject, 4, 24, p. 141. TOLLS — appellate jurisdiction of supreme court, 6, 4, p. 205. original jurisdiction of superior court, 6, 5, p. 227. TORTS — imprisonment for, 1, 15, p. 53. TOWN COUNCIL — to fix water rates annually, 14, 1, p. 508. INDEX. i793 TOWN GOVERNMENTS— Art. 11, See. 6, p. 310. TOWN PLATS— special legislation prohibited, 4, 25, p. 151. TOWNS — may make police or sanitary regulations, 11, 11, p. 372. legislature may vest power of taxation in, 11, 12, p. 386. to appoint inspection officers, 11, 14, p. 393. money collected to be paid into treasury, 11, 16, p. 394. restriction on power to incur debts, 11, 18, p. 396. provisions to be made for payment, 11, 18, p. 396. liabilities of, when void, 11, 18, p. 396. may protect themselves from alien paupers, 19, 1, p. 528. may remove Chinese, 19, 4, p. 530. TOWNSHIP OFFICERS— to be governed by general laws only, 4, 25, p. 151. TOWNSHIPS — prohibited from giving or loaning credit, 4, 31, p. 172. & , , > legislature to provide for organization of, by general laws, 11, 4, p. 301. assessment and collection of revenue, 11, 4, p. 301. election and appointment of officers, 11, 5, p. 303. may make police and sanitary regulations, 11, 11, p. 372. power of taxation may be delegated to, 11, 12, p. 386. TRANSFER — of corporation stock, where to be made, 12, 14, p. 428. TRANSMISSION— of property rights of foreigner, 1, 17, p. 61. TRANSPORTATION COMPANIES— are common carriers, 12, 17, p. 432. right to connect with companies at state line, 12, 17, p. 432, delay or discrimination prohibited, 12, 17, p. 432. supplies or materials not to be furnished by officer or agent of company, 12, 18, p. 433. not to grant free passes to state officials, 12, 19, p. 434. acceptance of such a forfeiture of office, 12, 19, p. 434. exception as to railroad commissioners, 12, 19, p. 434. combination between prohibited, 12, 20, p. 434. fares and freights once lowered cannot be raised without consent of government, 12, 20, p. 434. 794 INDEX. TRANSPORTATION' COMPANIES— government has power to regulate fares aud ireights, Art. 12, Sec. liU, p. 4o4. discrimination as to persons and places prohibited, 12, 21, p. 435. charges to way stations not to exceed charges to stations beyond, 12, 21, p. 435. excursion and commutation tickets may be at special rates, 12, 21, p. 435. state to be divided into three districts, 12, 22, p. 437. a railroad commission to be elected, 12, 22, p. 437. salary and term of office, 12, 22, p. 437. qualification and disqualification for the office, 12, 22, p. 437. act of majority to be the act of all, 12, 22, p. 437. powers and duties of commission, 12, 22, p. 437. power to fix rates of fares and freights, 12, 22, p. 437. rates fixed deemed fair and reasonable, 12, 22, p. 437. penalty for failure to conform to rates as fixed, 12, 22, p. 437. imprisonment of officer, agent, etc., 12, 22, p. 437. exemplary damages recoverable, 12, 22, p. 437. TREASON— in what consists, 1, 20, p. 63. evidence necessary to convict of, 1, 20, p. 63. reprieve and pardon in case of, 7, 1, p. 274. TREASURER— subject to impeachment, 4, 18, p. 129. refunding moneys, special legislation prohibited, 4, 25, p. 151. mode and time of election, 5, 17, p. 191. term of office, 5, 17, p. 191. compensation of, 5, 19, p. 193. to canvass returns on revision of constitution, 18, 2, p. 526. TREASURY — money, when and how drawn, 4, 32, p. 176. members of legislature to be paid out of, 4, 23, p. 140. special statute cannot authorize refunding of money, 4, 25, p. 151. TREATY— of Guadalupe Hidalgo, p. 691. TRIAL BY JURY— right to, 1, 7, p. 11. three-fourths may render verdict, 1, 7, p. 11. right to jury may be waived by consent, 1, 7, p. 11. in criminal cases not felonies, 1, 7, p. 11. INDEX. 795 TEIAL BY JURY — no person to be twice in jeopardy of same offense, Art. 1, Sec. 13, p. 23. nor compelled to be witness against himself, 1, 13, p. 23. TRIAL FOR LIBEL— evidence in, 1, 9, p. 16. TRIAL OF IMPEACHMENT— 4, 17, p. 128. TRUSTEES — of corporations and companies, liable for em- bezzlement, 12, 3, p. 414. TWO-TIJIRDS VOTE— required to pass bill over veto, 4, 16, p. 125. for conviction on impeachment, 4, 17, p. 128. for increasing or diminishing number of judges, 6, 9, p. 253. for removal of justices and judges, 6, 10, p. 254. for removal of county seat, 11, 2, p. 297. on proposed amendments to constitution, 18, 1, p. 525. on revision of constitution, 18, 2, p. 526. UNAUTHORIZED AGREEMENT— null and void, 4, 32, p. 176. UNCULTIVATED LANDS— at what value assessed, 13, 2, p. 464. UNDUE INFLUENCE— on elections prohibited, 20, II, p. 538. UNIFORM OPERATION OF GENERAL LAWS— 1, 11, p. 18. UNITED STATES— official incompetent to hold state office, 4, 20, p. 131. property exempt from taxation, 13, 1, p. 447. UNITED STATES CONSTITUTION— p. 659. UNITED STATES SENATOR— governor ineligible to office of, 5, 20, p. 195. UNIVERSITY— appropriations, when prohibited, 4, 30, p. 171. to constitute a public trust, 9, 9, p. 288 organization and government of, 9, 9, p. 288. legislative control over, 9, 9, p. 288. to be independent of political and sectarian control, 9, 9, p. 288. fund, how appropriated, 9, 9, p. 288. sex not to debar admission to, 9, 9, p. 288. USE OF STREETS — by gas and water companies, 11, 19, p. 403. conditions of, 11, 19, p. 403. 796 INDEX. VACANCY— in legislature, how fillea, Art. 4, Sec. 12, p. 123. in office, when filled by governor, 5, 8, p. 1 84. in office of governor, how filled, 5, 15, p. 190. to fill vacancy in justices of supreme court, 6, 3, p. 204. in superior court, 6, 6, p. 248. of state prison directors, how filled, 10, 1, p. 293. in board of supervisors, by whom filled, 11, 7, p. 320. in office of railroad commission, 12, 22, p. 437. VALIDATING ACTS— of deeds, wills, etc., by special legislation, prohibited, 4, 25, p. 151. VALIDITY— of statutes, p. xi. when in part invalid, p. xv. See Statutes. VENUE — special acts to change prohibited, 4, 25, p. 151. VETO — power of governor, 4, 16, p. 125. two-thirds of members elected may pass bill over, 4, 16, p. 125. VIVA VOCE— elections by legislature to be, 4, 28, p. 171. YOCATION— sex not to disqualify from following, 20, 18, p. 547. VOTE — property qualification not to be required, 1, 24, p. 67. qualification for right to, 2, 1, p. 69. to be by ballot, 2, 5, p. 78. on election by legislature to be viva voce, 4, 28, p. 171. and entered on journal, 4, 28, p. 171. on removal of county seat, 11, 2, p. 297. two-thirds required, 11, 2, p. 297. on organization of county governments, 11, 4, p. 301. on city charter, how taken, 11, 8, p. 336. three-fifths required, 11, 8, p. 336. corporations may cumulate or distribute, 12, 12, p. 427. to be taken on creation of state debt, 16, 1, p. 517. VOTE — on proposed amendment to constitution, 18, 1, p. 525. on revision of constitution, 18, 2, p. 526. VOTERS — property qualification not required, 1, 24, p. 67. who are and who are not, 2, 1, p. 69. privilege from arrest, 2, 2, p. 73. exemption from militia duty, 2, 3, p. 77. residence, test of, 2, 4, p. 77. persons convicted of certain crimes disfranchised, 20, 11, p. 538. VOTING MACHINES— use of, 2, 6, p. 78. INDEX. 797 WAIVER— of right to trial by jury, Art. 1, Sec. 7, p. 11. WARDE?sr OF STATE PRISON— appointment of, 10, 3, p. 294. power to appoint officers and employees, 10, 3, p. 294. duties to be defined by legislature, 10, 5, p. 295. WARRANTS— of arrest, issuance of, I, 19, p. 63. WATER — right to introduce into cities, etc., 11, 19, p. 403. WATER AND WATER RIGHTS— 14, 1, p. 508. appropriation declared a public use, 14, 1, p. 508. subject to regulation and control of state, 14, 1, p. 508. rates to be fixed by supervisors annually, 14, 1, p. 508. order, when to take effect, 14, 1, p. 508. peremptory process on failure to fix rates, 14, 1, p. 508. forfeiture of franchise for collecting other than established rates, 14, 1, p. 508. right to collect rates a franchise, 14, 2, p. 514. to be exercised under authority of law, 14, 2, p. 514. WATER COMPANIES— in cities, right to regulate charges, 11, 19, p. 403. • WATER FRANCHISE— when liable to forfeiture, 14, 1, p. 508. WATER RATES — in cities and towns, to be fixed annually by supervisors, 14, 1, p. 508. forfeiture for excessive charges, 14, 1, p. 508. WATER WORKS— ground of forfeiture, 14, 1, p. 508. WATERING STOCKS— by fictitious increase, void, 12, 11, p. 426. WHARFAGE — charges to be regulated by legislation, 4, 33, p. 178. WIFE— separate property of, 20, 8, p. 537. WILLS — cannot be validated by special acts, 4, 25, p. 151. WITNESS — no religious restrictions, 1, 4, p. 7. not to be unreasonably detained, 1, 6, j). 9. nor confined with criminals, 1, 6, p. 9. deposition of in criminal cases, 1, 13, p. 23. right of accused to have, 1, 13, p. 23. no person to be compelled to testify against himself, 1, 13, p. 23. concurrence necessary in treason, 1, 20, p. 63, 798 INDEX. WRITS — appellate jurisdiction of supreme court, Art. 6, Sec. 4, p. 205. where returnable, b, 4, p. 205. original jurisdiction of superior court, 6, 5, p. 227. unaffected by adoption of new constitution, 22, 2, p. 554. YEAS AND NAYS— to be taken on final passage of bills, 4, 15, p. 124. to be entered on minutes, 4, 1.5, p. 124. to be taken on vote on proposed amendments, 18, 1, p. 525. YUBA — a superior judge to be elected, 6, 6, p. 248. salary of judge, 6, 17, p. 263. ^ REGIONALLIBRARVWUTJ^^ UCSOUTHrW k/ ..J