G. W. TRAHERN v. THE BOARD OF SUPERVISORS OF SAN JOAQUIN COUNTY

[No. 7,278. Department One.] G. W. TRAHERN v. THE BOARD OF SUPERVISORS OF SAN JOAQUIN COUNTY. Eminent Domain—Condemnation oe Land for Road —^Constitutional Law—Jury Trial. Appeal from a judgment for the plaintiff, in the Superior Court of San Joaquin County. Patterson, J. J. C. Campbell and W. L. Dudley, for Appellants. The Constitution took effect January 1, 1880. The statute under which the Supervisors laid out this road was in force January 1,1880, and the case made by the record presents two questions: 1. Is said statute inconsistent with Section 14 of Article i of the Constitution ? 2. If it is, then is Section 14 of Article i self-executing, or does it require legislative action ? We concede the first point must be held against the appellant. But we claim that the fourteenth Section of Article 1 is not self-executing. The language—“as shall be prescribed by law”—in said section evidently contemplates some act of legislation on the subject, and until that has taken place no damages can Tbe assessed in pursuance of the constitutional provision. (The People etc. v. The Board of Supervisors of Ulster County, 3 Barb. 332; Groves v. Slaughter, 15 Pet. 449.) Terry, McKimie, and Terry, for Respondent. The “ act concerning roads- and highways in the County of San Joaquin,” approved March 18, 1876, ceased to have any validity on the first of January, 1880, when the Constitution took effect. (Constitution, §§ 1 and 12, art. xxii.) It is in conflict with Section 14 of Article i of the Constitution, which is strictly prohibitory, and requires no legislation to enforce it. (McDonald v. Patterson, 54 Cal. 245; Watson v. Trustees of Pleasant Township, 21 Ohio St. 667; Lamb v. Lane, 4 Id. 167; Shaver v. Starrett, Id. 495.) [MAJORITY — The Court:] The Court: On the authority of Weber v. The Supervisors of the County of Santa Clara, supra, 266, judgment affirmed.