Constitution of California of 1849

CONSTITUTION OF CALIFORNIA—1849^[1][2]

We, the people of California, grateful to Almighty God for our freedom in order to secure its blessings, do establish this Constitution.

Article I
declaration of rights

Section 1. All men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness.

Sec. 2. All political power is inherent to 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.

Sec. 3. The right of trial by jury shall be secured to all, and remain inviolate forever; but 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 preference, 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 case of rebellion or invasion, the public safety may require its suspension.

Sec. 6. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishments be inflicted, nor shall witnesses be unreasonably detained.

Sec. 7. All persons shall be bailable by sufficient sureties, unless for capital offences, 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 impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace, and in cases of petit larceny under the regulation of the legislature,) unless on presentment or indictment of a grand jury; and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offence; 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 process of law; nor shall private property be taken for public 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 libellous 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 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 legislature 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 State 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 quartered 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 according 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.

Sec. 17. Foreigners who are, or who may hereafter become bona-fide 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 crimes, shall ever be tolerated 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 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.

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 convicted 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 construed to impair or deny others retained by the people.

Article II

right of suffrage

Section 1. Every white 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 30th day of May, 1848, 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 legislative 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 the 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.

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 of 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 privileges of an elector.

Sec. 6. All elections by the people shall be by ballot.

Article III

distribution of powers

The powers of the government of the State of California shall be divided into three separate departments—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.

Article IV

legislative department

Section 1. The legislative power of this State shall be vested in a senate and assembly, which shall be designated “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 annual, and shall commence on the first Monday of January next ensuing the election of its members, unless the governor of the State shall in the interim convene the legislature by proclamation.

Sec. 3. The members of the assembly shall be chosen annually, by the qualified voters of their respective districts, on the Tuesday next after the first Monday in November, unless otherwise ordered by the Legislature, and their term of office shall be one year.

Sec. 4. Senators and members of the 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 two years, at the same time and places as members of assembly; and no person shall be a member of the senate or assembly who has not been a citizen and inhabitant of the State one year, and of the county or district for which he shall be chosen six months next before his election.

Sec. 6. The number of senators shall not be less than one-third nor more than one-half of that of the members of assembly; and at the first sesstion of the legislature after this constitution 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 first year, so that one-half shall be chosen annually.

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.

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 adjourn 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 privileged from arrest; and they 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 vacancies.

Sec. 14. The doors of each house shall be open, except 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 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 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, notwithstanding the governor’s objections. If any bill shall not be returned within ten days after it shall have been presented 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 convicted, without the concurrence of two-thirds of the members present.

Sec. 19. The governor, lieutenant-governor, secretary of state, comptroller, 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 misdemeanor in office, in such 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 office as may be filled by elections 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.

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 punishment 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.

Sec. 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 reenacted and published at length.

Sec. 26. No divorce shall be granted by the legislature.

Sec. 27. No lottery shall be authorized by this State, nor shall the sale of lottery-tickets be allowed.

Sec. 28. The enumeration of the inhabitants of this State shall be taken, under the direction of the legislature, 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, at 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 assembly district shall be composed of two or more counties, it shall not be separated by any county belonging to another district; and no county shall be divided in forming a congressional, senatorial, or assembly district.

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-stock 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 association shall make, issue, or put in circulation any bill, check, ticket, 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, association, 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, assessment, 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 members thereof shall vote viva voce, and the votes shall be entered on the journal.

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.

Sec. 2. The governor shall be elected by the qualified electors, at the time and places of voting for members of assembly, and shall hold his office two years from the time of his installation, and until his successor shall be qualified.

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 government, 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 governor; but in case any two or more have an equal and the highest number of votes, the legislature shall, by a 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 executed.

Sec. 8. When any office shall, from any cause become vacant, and no mode is provided by the constitution and laws 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, convene 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 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 Legislature.

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 offences except treason and cases of impeachment, upon such conditions, 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 meeting, 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, at its date, and the date of the pardon or reprieve.

Sec. 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 California.”

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 State, signed by the Governor, and countersigned by the Secretary of State.

Sec. 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 President 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 the 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, and at the head of any military force thereof, he shall continue commander-in-chief of the military force of the State.

Sec. 18. A secretary of State, a Comptroller, 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 be appointed by the Governor by and with the advice and consent of the Senate. He shall keep a fair record of the official acts of the Legislative and executive departments of the Government, and shall, when required, lay the same, and all matters relative thereto, before either branch of the legislature, and shall perform such other duties as shall be assigned him by law.

Sec. 20. The comptroller, 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, comptroller, treasurer, attorney-general, and surveyor-general shall each 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; but neither of these officers shall receive for his own use any fees for the performance of his official duties.

Article VI

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.

Sec. 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 1st 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 a 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 jurisdiction 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 or 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 legislature 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 appointed by the joint vote of the legislature, at its 1st meeting, who shall hold his office for two years from the 1st day of January next after his election; after which said judges shall be elected by the qualified electors of their respective districts, at the general election, and shall hold their office for the term of six years.

Sec. 6. The district courts shall have original jurisdiction 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 provided 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 organized 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.

Sec. 9. The county courts shall have such jurisdiction 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 decisions 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 established, 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 prescribed 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 their powers, duties, and responsibilities. It shall 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 court, shall severally, at stated times during their continuance in office, receive for their services a compensation, to be paid out of the treasury, which shall not be increased or diminished during the term for which they shall have been elected. The county judges shall also severally, at stated times, receive for their services a compensation to be paid out of the county treasury of their respective counties, which shall not be increased or diminished during the term for which they shall have been elected.

Sec. 16. The justices of the supreme court and district 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 declare the law.

Sec. 18. The style of all process shall be, “The People of the State of California;” all the prosecutions shall be conducted in the name and by the authority of the same.

Article VII

militia

Section 1. The legislature 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 appointed, in such a manner as the legislature shall from time to time direct, and shall be commissioned by the governor.

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 VIII

state debts

The legislature shall not in any manner create any debt or debts, lability 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 suppress insurrection, unless the same shall be authorized by some law for some single object or work, to be distinctly specified therein, which law shall provide ways and means, exclusive of loans, for the payment of the interest of such debt or liability, as it falls due, and also pay and discharge the principal of such debt or liability within twenty years from the time of the contracting 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 preceding the election at which it is submitted to the people.

Article IX

education

Section 1. The legislature shall provide for the election, by the people, of a superintendent of public instruction, who shall hold his office for three years, and whose duties shall be prescribed by law, and who shall receive such compensation as the legislature may direct.

Sec. 2. The legislature shall encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement. The proceeds of all land 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. 1841, and all estate of deceased 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 inviolably 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 district neglecting to keep 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 the protection, improvement, or other disposition of such lands as have been, or may hereafter be reserved or granted by the United States or any person or persons, to the State for the use of the 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 to the support of said university, with such branches as the public convenience may 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 security of the funds of said university.

Article X

mode of amending and revising the constitution

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 referred 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 amendments shall be agreed to by a majority of all the members 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 amendments by a majority of the electors qualified to vote for members of the legislature, voting thereon, such amendment or amendments, shall become part of the Constitution.

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 legislature, to vote for or against the 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 consist of a number of members not less than that of both branches of the legislature.

Article 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.

Sec. 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.

Sec. 3. Members of the legislature, and all officers, executive and judicial, except such inferior officers and 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 required 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 power to provide for the election of a board of supervisors in each county; and these supervisors shall jointly and individually 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.

Sec. 7. When the duration of any office is not provided for by this Constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment; nor shall the duration of any office not fixed by this constitution ever exceed four years.

Sec. 8. The fiscal year shall commence on the 1st day of July.

Sec. 9. Each 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.

Sec. 10. The credit of the State shall not, in any manner, 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 by law.

Sec. 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 throughout 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.

Sec. 14. All property, both real and personal, of the wife, owned or claimed by marriage, and that acquired afterwards 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 holding any office of profit in this State who shall have been convicted of having given or offered a bribe to procure 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 influence thereon from power, bribery, tumult, or other improper practice.

Sec. 19. Absence from the State on business of the State or of the United States shall not affect the question of residence of any person.

Sec. 20. A plurality of the votes given at an election shall constitute a choice, where not otherwise directed in this constitution.

Sec. 21. All laws, decrees, regulations, and provisions, which from their nature require publication, shall be published in English and Spanish.

Article XII

boundary

The boundary of the State of California shall be as follows:

Commencing at the point of intersection of 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 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 30, 1848; 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 all the islands, harbors, and bays along and adjacent to the Pacific coast.

Schedule

Section 1. All rights, prosecutions, claims, and contracts, as well of individuals as of bodies-corporate, and all laws in force at the time of the adoption of this constitution, and not inconsistent therewith, until altered or repealed 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 constitution 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 constitution, 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 appointed 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 apply to officers chosen by the people at the first election, 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 13th day of November next. The executive of the existing government of California is hereby requested to issue a proclamation to the people, directing the prefects of the several districts, or in case of vacancy, the sub-prefects, or senior judge of first instance, to cause such election to be held, the day aforesaid, in the respective districts. The election shall be conducted in the manner which was prescribed for the election of delegates to this convention, except-that the prefect, sub-prefect, 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 aforesaid, to receive the votes of the electors qualified to vote at such election. Each voter shall express his opinion, 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 inspectors shall also receive the votes for the several officers to be voted for at the said election as herein provided. At the dose of the election, the judges and inspectors shall carefully count each ballot, and forthwith make duplicate returns thereof to the prefect, sub-prefect, or senior judge of first instance, as the case may be, of their respective districts; and said prefect, sub-prefect, or senior judge of first instance shall transmit one of the same, by the most safe and rapid conveyance, to the secretary of state. Upon the receipt of said returns, or on the 10th 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 Monterey, 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 publish an abstract of the same in one or more of the newspapers of California. And the executive will also immediately 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.

Sec. 7. If this constitution shall be ratified by the people of California, the executive of the existing government 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 President of the United States, in order that he may lay it before 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, members of the legislature, and also two members of Congress.

Sec. 9. If this constitution shall be ratified by the people 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, until 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 correctness 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 constitution, to be elected by that body, and within four days after its organization, proceed to elect two Senators to 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.

Sec. 12. The Senators and Representatives to 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 California into the American Union.

Sec. 13. All officers of this State, other than members of the legislature, shall be installed into office on the 15th 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 in 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 senator; the district of Monterey, one senator; the district of San 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 Diego shall elect one member of assembly; the district of Los Angeles, two members of assembly; the district of Santa Barbara, two members of assembly; the district of San Luis Obispo, one member of assembly; the district of Monterey, 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; and 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 dollars per annum; and the salary of the lieutenant-governor 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 dollars for every twenty miles travel by the usual route from their residences to the place of holding the session 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 legislature, contained in article eighth of this constitution, shall not extend to the first legislature elected under the same, which is hereby authorized to negotiate for such amount as may be necessary to pay the expenses of the State government.

R. Semple, President.

Wm. G. Marcy, Secretary.

AMENDMENTS TO THE CONSTITUTION OF 1849^[3]

(Ratified September 3, 1862)

Strike out the following-named sections and in lieu thereof insert:

Art. IV. Sec. 2. The sessions of the Legislature shall be biennial, and shall commence on the first Monday of December 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.

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.

Sec. 5. Senators shall be chosen for the term of four years, at the same time and places as members of 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.

Sec. 6. The number of Senators shall not be less than one third, nor more than one-half, of the members 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.

Sec. 30, When a Congressional, Senatorial, or Assembly 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 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.

Sec. 39. In order that no inconvenience may result to the public service from the taking effect of the amendments proposed to Article Four 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.

Art. V. Sec. 2. The Governor shall be elected by the qualified electors, at the time and places for 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 qualified.

Sec. 18. A secretary of state, a comptroller, a treasurer, 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.

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 required, 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 effect of the amendments proposed to said article five by the legislature of 1861, no officer shall be superseded or suspended thereby, until the election and qualification of the several officers provided for in said amendments.

Art. VI. 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.

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 chambers, and the concurrence of three justices shall be necessary to pronounce a judgment.

Sec. 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 superintendent of public instruction. The first election for justices of the supreme court shall be held in the year 1863. The justices shall hold their offices for the term of ten years from the 1st day of January next after their election, except those elected at the first election, who, at their first meeting, shall so classify themselves by lot that one justice shall go out of office every two years. The justice having the shortest term to serve shall be the chief justice.

Sec. 4. The supreme court shall have appellate jurisdiction in all cases in equity; 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 all cases arising in the probate courts; and also, in all criminal cases amounting to felony, oh questions of law alone. The court shall also have power to issue writs of mandamus, certiorari, prohibition, and habeas corpus, and also all 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 on behalf of any person held in actual custody, and may make such writs returnable before himself, or the supreme court, or before any district court, or any county court in the State, or before any judge of said courts.

Sec. 5. The State shall be divided by the legislature of 1863 into fourteen judicial 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 district 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 1st day of January next after their election. The legislature shall have no power to grant leave of absence to a judicial officer, and any such officer who shall absent himself from the State for upwards of thirty consecutive days shall be deemed to have forfeited his office.

Sec. 6. The district courts shall have original jurisdiction in all cases in equity; also, 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 demand, 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.

Sec. 7. There shall be in each of the organized counties 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 elections 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-papers. In the city and county of San Francisco, the legislature 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.

Sec. 8. The county courts shall have original jurisdiction of actions of forcible entry and detainer, of proceedings in insolvency, of actions to prevent or abate a nuisance, and of all such special cases and proceedings as are not otherwise provided for; and also such criminal jurisdiction as the legislature may prescribe; they shall also have appellate jurisdiction in all cases arising in courts held by justices of the peace and recorders, and in such inferior courts as may be established, in pursuance of section one of this article, in their respective counties. The county judges shall also hold in their several counties probate courts, 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 counties.

Sec. 9. The legislature shall determine the number of justices of the peace to be elected in each city and township 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 record.

Sec. 10. The legislature shall fix by law the jurisdiction of any recorder’s or other inferior municipal court 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.

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.

Sec. 12. The times and places of holding the terms of the several courts of record shall be provided for by law.

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.

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.

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.

Sec. 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.

Sec. 17. Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.

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.

Sec. 19. In order that no inconvenience may result to the public service from the taking effect of the amendments proposed to said article six by the legislature of 1861, no officer shall be superseded thereby, nor shall the organization of the several courts be changed thereby, until the election and qualification of the several officers provided for in said amendments.

Art. IX. Section 1. A superintendent of public instruction shall, at the special election for judicial officers to be held in the year 1863, 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 1st day of December next after his election.

Art. X. Sec. 2. And if at any time two-thirds of the senate and assembly shall think it necessary to revise or change this entire constitution, they shall recommend to the electors, at the next election for members of the legislature, 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 consist 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 rejection; 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 election shall, in such manner as the convention shall direct, be certified to the executive of the State, who shall call to his assistance the comptroller, treasurer, and secretary of state, and compare the votes so certified to him. If by such examination it be ascertained that a majority 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 California.

(Ratified in 1871^[4])

Art. I. Sec. 22. The legislature shall have no power to make an appropriation, for any purpose whatever, for a longer period than two years.

1. Verified from “The Debates in the Convention of California on the Formation of the State Constitution in September and October, 1849.” Reported by J. Ross Browne, Washington. Printed by John T. Towers, 1850. Appendix, pp. III-XL. Also by the Laws of California, 1849-1879. Also by the text printed in Vol. I, pp. 5-11, of “The Debates and Proceedings of the California State Constitutional Convention of 1878–9.”
2. This convention was framed by a convention called by General Riley, U.S.A., as provisional governor, which met at Monterey September 1, 1849, and adjourned October 13, 1849. The constitution submitted by them to the people was ratified November 13, 1849, receiving 12,061 votes against 811 votes.
3. These amendments, prepared by the legislature in 1861, approved by the legislature of 1862, and ratified by the people.
4. This amendment was proposed by the legislature in 1866, approved by the legislature in 1868, and ratified by the people in 1871.