souri had held the question to be one for the exercise of legislative discretion, the exercise of which would not be interfered with by the courts. Since our constitution does not make the question a judicial one, the Missouri precedents are in point.

In the case of State v. Co. Ct. of Boone Co. 50 Mo. 317, the court says: "But who is to decide when a general or a special law will answer the best purpose? It strikes me that the rule in reference to general or special laws is laid down as a guide for the legislature, and the legislature is to judge of the necessity of the particular case. The legislature is quite as able to do this as the courts. The legislature must, in the first instance, exercise their discretion as to the necessity of a special instead of a general act. How can the courts control that discretion? If a discretion be conceded at all, in my judgment the courts have no right to control it. It is agreed that there is no discretion in regard to the passage of certain enumerated laws. They are inhibited by the letter of the constitution. When the legislature undertakes to pass these inhibited laws it is the plain duty of the courts to declare them unconstitutional."

The above views appear to us to be both sound and applicable to the phraseology of our constitution. They are affirmed by the subsequent cases of State v. Co. Ct. of New Madrid, 51 Mo. 83, and Hall v. Bray, Id. 288. Similar views upon like constitutional provisions are announced in State v. Hitchcock, 1 Kan. 178, and Gentile v. State, 29 Ind. 409.

Whether a special city charter can be amended by a general law, applicable to the whole state, so as to meet the necessities of a particular case, may be a close question, or such an amendment may, perhaps, be impossible. Certainly the first body to pass upon that question is the legislature. If a general law could not for any reason be made applicable to the case, then a special law is authorized by the constitution itself; and, with the authorities cited, we are disposed to hold that the decision of the question is for the legislature and not for the courts. Had the intention been to make it a judicial question it should have been so expressed in the constitution. Of course, any attempt by the legislature to evade the constitutional inhibitions against special legislation should be promptly thwarted by the courts.

Second. Is that portion of the ordinance, the validity whereof is questioned by this proceeding, in contravention of the constitution of the United States and of the state of Colorado?

The constitutional provisions alleged to be violated are section 1, art. 14, of the amendments to the constitution of the United States, and section 25, art. 2, of the constitution of this state. The former provides: "Nor shall any state deprive any person of life, liberty, or property without due process of law." The latter: "That no person shall be deprived of life, liberty, or property without due process of law." Similar provisions appear in perhaps all state constitutions, and they have been elaborately discussed and considered by the ablest courts of the country, including the supreme court

of the United States. The conclusions reached are uniform upon questions of the nature involved in this case. It is only necessary, therefore, to state the result of the adjudications.

The doctrine of the authorities is that whenever it is sought to deprive a person of his property, or to create a charge against it, preliminary to, or which may be made the basis of, taking it, the owner must have notice of the proceeding, and be afforded an opportunity to be heard as to the correctness of the assessment or charge. It matters not what the character of the proceeding may be, by virtue of which his property is to be taken,-whether administrative, judicial summary, or otherwise,-at some stage of it, and before the property is taken or the charge becomes absolute against either the owner or his property, an opportunity for the correction of wrongs and errors which may have been committed must be given. Otherwise the constitutional guaranties above cited are infringed.

Learned dissertations upon the meaning of the phrase, "due process of law," have been written by judges and law-writers, but as applicable to summary proceedings of the character under consideration, its meaning is comprehended in the foregoing paragraph. If the law authorizing the proceedings provides for nctice to the owner of the property to be affected, and gives him an opportunity to appear at a specified time or place, before a board or tribunal competent to administer proper relief, in order that he may be heard concerning the correctness of the charge before it is made conclusive, the constitutional requirements are satisfied. But when the validity of a law or ordinance is questioned upon the ground that it authorizes the taking of property without such notice or hearing, the objection is not obviated by proof that a hearing has been had, as a matter of form, in the case. Nor does it satisfy the constitutional requirements that the assessment is fair and just. A valid assessment cannot be made under an invalid law or ordinance, and its constitutionality is to be tested not by what has been done under it, but by what it authorizes to be done by virtue of its provisions. This is the doctrine of the following cases, and many others might be cited to the same effect, but reference to them will be found in the cases cited: Stuart v. Palmer, 74 N. Y. 183; Thomas v. Gain, 35 Mich. 155; Davidson v. New Orleans, 96 U. S. 97; Co. of San Mateo v. Southern Pac. R. Co. 8 Sawy. 238; S. C. 13 Fed. Rep. 722.

Testing the "sidewalk ordinance" by the foregoing principles, it is found to be defective, both as to matters of notice and hearing. The only notice given to the owner of property is a notice to construct a sidewalk of a certain kind and dimensions in front of his property, within a specified time, or that the city will cause it to be constructed at his expense; and that if the cost of construction is not repaid within another specified time, the amount, with a certain penalty added, will be placed on the tax-roll as a special assessment against his property, and collected in the same manner as general city taxes

are collected. The notice given to build the sidewalk, or that the city will cause it to be built at the owner's expense, is not the equivalent of the notice referred to in the authorities and contemplated by the constitution. It furnishes no information of the amount of the assessment that will be made, nor does it designate a time, place, or tribunal at or before which a hearing may be had. No such opportunity is afforded at any stage of the proceedings, but the expense of constructing the sidewalk is made an absolute charge against his property, upon which it may be sold to satisfy the same. Until the walk is built, and a certificate therefor issued to the contractor, the owner cannot know what grounds of complaint he may have. The cost of grading may be included; the lumber or materials may not be of the quality and kind required, or the walk may not be made in conformity with the requirements of the ordinance. In this respect the ordinance is clearly defective. In so far, therefore, as the ordinance provides for making the cost of construction a special assessment against the property improved, and for the manner of collecting the same without notice or hearing, we are of opinion that it is in conflict with the state and federal constitution, and for this reason invalid. The demurrer to the complaint should have been overruled. The judgment must be reversed, and the cause remanded.

HELM, J. I concur with the majority of the court in the reasoning and conclusion upon the latter branch of this case, and therefore in the reversal thereof. Upon the subject of local and special legislation I am not at present prepared to accept all the views expressed in the opinion.

(65 Cal. 126)


PEOPLE v. TURCOTT. (No. 10,944.)

Filed March 22, 1884.

The district attorney, in prosecuting a criminal case, may be permitted by the court to avail himself of the assistance of private counsel.

A charge to the jury is not erroneous on account of isolated sentences, if, taken as a whole, it conveys a correct view of the law of the case.

Erroneous instructions give the defendant no ground of complaint, unless prejudicial to his interests.

Irrelevant evidence may be excluded by the court, though not objected to by counsel.

In bank.

S. L. Terry, for appellant.

The Attorney General, for respondent.

Ross, J. The defendant was found guilty of murder in the first degree and sentenced to be hanged. The appeal is from the judg ment. In his behalf it is contended-First, that the court below erred in permitting private counsel to assist the district attorney in the prosecution of the case. The practice of allowing district attorneys to have the assistance of other counsel in the prosecution of criminal cases has existed and been acquiesced in almost since the organization of the state, and this practice seems to have been sanetioned by legislative action. In prescribing the course of the trial the legislature has provided by the second subdivision of section 1093 of the Penal Code, that the district attorney or other counsel for the people must open the cause and offer the evidence in support of the charge, and by section 1095, that if the indictment or information be for an offense punishable with death, two counsel on each side may argue the cause to the jury. We think the point not well taken.

It is next claimed that there was error on the part of the trial court growing out of this circumstance: One Mrs. Morath, during her examination, testified that on the evening of the shooting, and some time after it occurred, she saw a Mrs. McCann and her brother searching in the yard of deceased's residence, and that the brother raised up with a shot-gun in his hand, which was taken from next the fence and near the gate; that this brother picked up the gun in a stooping. position and walked to the back of the house, and two days afterwards she saw a young man named Adams unloading the gun, and that he put it in two pieces. No objection was taken to this evidence by the prosecution, but the court interposed and said that it did not

see the bearing of the testimony upon the case, and that therefore there was no necessity of proceeding further in regard to the gun. To this ruling defendant's counsel noted an exception, but made no response to the suggestion of the court that if he could show wherein the testimony in relation to the gun had any bearing upon the case it would be admitted. In its ruling in this particular there was no error on the part of the court below. In outlining his defense, the counsel for the defendant, in making his opening statement, put the defense upon the ground that at the time of the killing the deceased made a motion with his right hand as if to draw a revolver from his right hip pocket, and the defendant, believing his life to be in danger, thereupon fired the fatal shot; and such was the purport of the defendant's testimony. Under such circumstances the testimony with respect to the gun was wholly foreign to the case.

It remains to consider defendant's objections to the instructions of the court below. Some of these objections need not be remarked. upon. The objection chiefly relied upon by the defendant's counsel relates to the character of evidence the jury were told was required to show circumstances of justification or mitigation, and in this connection it is claimed that the tenth instruction, given at the request of the defendant, is in conflict with certain portions of the charge of the court. We have given to the charge and the instructions careful consideration, and cannot so hold. There are few cases in which isolated sentences may not be taken and so grouped as to present a conflict. But to do this is not permissible. The sentences are to be read in connection with the context and the instructions, as a whole; and if, when so read, it appears that the jury was fairly and correctly instructed in the law governing the case, the judgment ought not to be reversed merely because there may be an apparent conflict between certain isolated sentences. Now, looking at the tenth instruction given at the request of the defendant, it certainly cannot be said that he has any right to complain. It reads:

"The defendant is not required to prove by a preponderance of evidence that the killing of Dietrich was justifiable. If from the evidence offered by the defendant, taken by itself, or in connection with that offered by the prosecution, the jury entertain a reasonable doubt whether or not the killing was done under such circumstances as to constitute it justifiable, then the jury should find the defendant not guilty."

The conflict claimed by counsel is between this instruction and that portion of the charge of the court wherein the jury was instructed that upon a trial for murder, the commission of the homicide being proved, the burden of proving circumstances of mitigation or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justified or excusable; and this he may show by preponderance of evidence merely. Conceding that if this instruction stood alone the word "may" should be

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