cluded in but lower than that charged in the indictment is an acquittal of and a bar to a second trial for any degree of the crime higher than that convicted of: State v. Steeves, 29 Or. 107, 43 Pac. 947. WITNESS AGAINST ONE'S SELF.Evidence of statements made by an accused at a preliminary hearing cannot be introduced at a trial where it is not shown that they were voluntarily made, and after the accused had been informed of his rights: State v. Andrews, 35 Or. 391, 58 Pac. 765. When, however, an accused offers himself as a witness, this section does not prevent, on cross-examination for the purpose of impeaching him, questions as to whether the accused has not made contradictory statements at other times: State v. Bartmess, 33 Or. 121, 54 Pac. 167. § 13. Treatment of Persons Under Arrest. No person arrested or confined in jail shall be treated with unnecessary rigor. $ 14. Bail. Offenses, except murder and treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable when the proof is evident or the presumption strong. § 15. Punishment of Crime. Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice. $ 16. Excessive Bail and Fines Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense. In all criminal cases whatever, the jury shall have the right to determine the law and the facts, under the direction of the court, as to the law, and the right of new trial, as in civil cases. Power of Jury in Criminal Prosecutions. It is the duty of the court under this section to give certain instructions and a failure to do so, even when not requested by the accused, is a violation of its duty which § 17. Trial by Jury in Civil Case. will reverse the judgment: State v. Cody, 18 Or. 521, 23 Pac. 891. The authority of this decision is much weakened by that of State v. Foot You, 24 Or. 70, 32 Pac. 1031. In all civil cases, the right of trial by jury shall remain inviolate. RIGHT OF TRIAL BY JURY.-This section merely secures to suitors the right of trial by jury in those cases in which it was demandable at common-law. The following statutes are. therefore, constitutional: § 161, authorizing a trial in certain cases by referee: Tribou v. Strowbridge, 7 Or. 158; McDonald v. American Mtg. Co., 17 Or. 634, 21 Pac. 883; Trummer v. Konrad, 32 Or. 56, 51 Pac. 447; § 185, authorizing the court in certain cases in the default of a party to assess the damages: Deane v. Willamette Bridge Co., 22 Or. 169, 29 Pac. 440; the statute authorizing the county court upon complaint of any person aggrieved, to assess and determine the damages to such person caused by the establishment of a county road: Kendall v. Test, 8 Or. 145; §§ 518 to 522, authorizing a court of equity to try and determine controversies in respect to disputed boundaries: King V. Brigham, 23 Or. 275, 31 Pac. 601. If a cause is referred against the objection of a party and it is not such a cause as is authorized to be referred, the proceedings are void as depriving the party of the right of trial by jury: Mitchell v. Flax Assn., 38 Or. 505, 63 Pac. 881. The power of a court of equity to grant relief after it has obtained jurisdiction for some purpose is not affected by this section; hence it may assess and award damages for an injury at the same time it abates a nuisance: Fleischner v. Investment Co., 25 Or. 130, 35 Pac. 174. A jury is demandable in equity suits only in those cases in which it was demandable as of right at common-law: Raymond v. Flavel, 27 Or. 230, 40 Pac. 158. For a general enumeration of such cases see the opinion in that case. If the jury fail to find on an issue submitted to them, the court has no power to make a special finding on that issue: Cox v. Alexander, 30 Or. 444, 46 Pac. 794. The inability of a person to gain a jury trial in a municipal court is not a deprivation of any right secured by this section: Wong v. City of Astoria, 13 Or. 545, 11 Pac. 295. A defendant whose negligence is to be determined in an action for personal injuries is entitled to the verdict of a jury though there may be no conflict in the testimony: Shobert v. May, 40 Or. - 66 Pac. 466. $ 18. Private Property Taken for Public Uses. Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in case of the state, without such compensation first assessed and tendered. See Art. XI, § 4, post, as to first making or securing compensation. See chapter in Vol. II for general law governing appropriations. PARTICULAR SERVICES.-The statute providing that witnesses residing within two miles of the place of trial shall receive neither witness fees nor mileage does not contravene this provision, as such services are not "particular services" within the meaning of this section: Daly v. Multnomah County, 14 Or. 21, 12 Pac. 11. The detention in custody of the prosecuting witness in default of bail is not requiring the "particular services" of him for which compensation must be made: Morin v. Multnomah County, 18 Or. 167, 22 Pac. 490. The law annexing part of Umatilla county to Baker county, and providing that the clerk of the former county shall make and deliver a transcript of certain records to the clerk of the latter requires the particular services of the clerk of Umatilla county in making such transcript, but as the county is a component part of the state it comes within the exception in regard to the state contained in this section of the constitution; and this section, therefore, does not authorize the clerk to demand his compensation in advance: Baker County v. Benson, 40 Or. —, 66 Pac. 819. TAKING OF PROPERTY.-Private property may only be taken for public use. It is for the legislature, not the courts, to say in what particular cases the right to take property exists, subject only to the limitation that the use shall be public. and compensation shall be made. Accordingly the following uses are public: A railroad right of way: Oregon Cascades R. R. Co. v. Bailey, 3 Or. 174. A canal for floating logs: Dalles Lumbering Co. V. Urquhart, 16 Or. 69, 19 Pac. 78; A road to a private residence which has no convenient access to a county road is authorized by the code, provided the general public has the right to use it at any time: Towns v. Klamath County, 33 Or. 232, 53 Pac. 604; § 19. Imprisonment for Debt. Sullivan v. Cline, 33 Or. 261, 54 Pac. 154. But a statute authorizing the taking of property for a private road is unconstitutional: Witham v. Osburn, 4 Or. 322, 18 Am. Rep. 287. The assessing and tendering just compensation, except in case of the state, is a condition precedent to the taking, and the legislature cannot authorize any other method: Oregonian Ry. Co. v. Hill, 9 Or. 379; and equity will restrain the taking until such condition is complied with: Willamette Iron Works v. O. R. & N. Co., 26 Or. 232, 37 Pac. 1016; 46 Am. St. Rep. 620. The rule of compensation, as provided by the code in locating county roads, is not violative of the provision that just compensation must be made: Putnam v. Douglas County, 6 Or. 330. The legislature may legalize the act of the county court in establishing a road without legal petition, but it cannot without notice to the persons concerned. The legislature is prohibited from taking property for public use without just compensation, and it is necessarily implied thereby that the owner of the property so taken shall have notice of the proceedings for appropriation and an opportunity to be heard thereon: Burns V. Multnomah County, 15 Fed. 177. a With the state prepayment is not condition precedent, hence the statute authorizing the road supervisor to take material from adjoining lands for repair of roads is not unconstitutional; the mode of obtaining just compensation being provided for: Branson v. Gee, 25 Or. 466, 36 Pac. 527; Cherry v. Mathews, 25, Or. 485, 36 Pac. 529. The changing of a county road into a street does not impose an additional burden which will require compensation to be made to the owners of the fee: Huddleston v. Eugene, 34 Or. 352, 55 Pac. 868. So the damage resulting from a change in a street grade is not a taking of property: Brand v. Multnomah County, 38 Or. 92, 6 Pac. 390, 50 L. R. A. 389. There shall be no imprisonment for debt except in case of fraud or absconding debtors. The word "debt" as here used refers to that arising out of a contract expressed or implied, and has no application to a tort or a penalty. Statutes authorizing arrests in the following cases are, therefore, not unconstitutional: To recover a fine or penalty: United States v. Walsh, 1 Deady, 285; to recover damages for injury to a person by force: Hanson V. Fowle, 1 Saw. 505; § 260, subdiv. 1, authorizing the arrest of the defendant in an action for damages arising out of con $ 20. Exclusive Privileges. tract, when the defendant is about to leave the state: Norman v. Manciette, 1 Saw. 489. Sudivisions 2, 4 and 5, of § 260, are the only instances of fraud justifying arrest in civil actions: Norman v. Zieber, 3 Or. 204. An absconding debtor is one who is about to leave the state without any definite intention of returning, and without fulfilling his obligations to his creditors: Norman v. Manciette, 1 Saw. 490. No law shall be passed granting to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens. Legislation which affects all persons alike under the same circumstances and conditions is not prohibited by this section. Thus, the following statutes have been held constitutional as regards this provision: § 2075, granting immunity from arrest for debt to seamen: In re Fred Oberg, 21 Or. 407, 28 Pac. 130; the law of 1889 as amended in 1891, granting to physicians practicing in the state at the time of the passage of the act the right to a certiñcate without an examination, while others are compelled to be examined: State v. Randolph, 23 Or. 79, 31 Pac. 201, 37 Am. St. Rep. 655, § (laws of 1899, page 140) relating to fees of certain officers in counties of more than 50.000: State v. Frazier, 36 Or. 188, 59 Pac. 5. The Lockwood law, providing a method for holding primary elections for the selection of delegates to nominating conventions, denying the benefits of the act to political parties which did not cast at the next preceding election at least a specified per cent. of the total vote but permitting such minor parties to make nominations in other mode, is not in conflict with this section of the constitution, since the act is but a reasonable regulation of the larger parties designed to safeguard the privileges of the electors thereof, and is not an infringement of the rights of the minor party: Ladd v. Holmes, 40 Or. -, 66 Pac. 714. $ 21. Laws of Certain Nature not to be Passed. No ex post facto law, or law impairing the obligations of contracts, shall ever be passed, nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this constitution: Provided, That laws locating the capital of the state, locating county seats, and submitting town and corporate acts, and other local and special laws, may take effect or not, upon a vote of the electors interested. LAWS IMPAIRING THE OBLIGATION OF CONTRACTS.-An act providing for the taxation of mortgages taken before as well as after the passage of the act is not in violation of this section: Mumford v. Sewall, 11 Or. 67, 4 Pac. 588, 50 Am. Rep. 456; Dundee Mtg. Co. v. School Dist., 19 Fed. 359. An act enlarging the time for redeeming real property sold on execution as applied to sales on mortgages executed before the passage of the act is a violation of contract: State v. Sears, 29 Or. 582, 54 Am. St. Rep. 808. note. The law of 1901, annexing part of Umatilla county to Baker county is a local and § 22. How Laws Suspended. special law within this section. The proviso that "local and special laws may take effect or not upon a vote of the electors interested" is neither a grant nor a limitation of power, but merely a qualification upon the clause preceding it; and does not make it obligatory upon the legislature to submit to the interested electors a question whether certain territory in one county should be separated therefrom and annexed to another. The act, therefore, providing for such annexation is constitutional though not providing for submission to a popular vote: Baker County v. Benson, 40 Or. —, 66 Pac. 816. The operation of the laws shall never be suspended except by the authority of the legislative assembly. $ 23. Habeas Corpus. The privilege of the writ of habeas corpus shall not be suspended, unless, in case of rebellion or invasion, the public safety require it. $ 24. Treason, Evidence Of. Treason against the state shall consist only in levying war against it, or adhering to its enemies, giving them aid or comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or confession in open court. $ 25. Effect of Conviction. No conviction shall work corruption of blood or forfeiture of estate. $ 26. Assemblages of the People. No law shall be passed restraining any of the inhabitants of the state from assembling together in a peaceable manner to consult for their common good; nor from instructing their representatives; nor from applying to the legislature for redress of grievances. The Lockwood election law, requiring the holding of primary elections under the supervision of the general election officers, prescribing a test for the indication of party affiliations, and directing the manner of electing committeemen and fixing their terms of office and specifying their duties, is not unwarrantable invasion of § 27. Right to Bear Arms. the rights of political parties, nor an infringement of the rights guaranteed by this section, and § 33, post, of this article of the constitution, but is merely a regulation of party management designed to secure to the voters a free expression of their will: Ladd v. Holmes, 40 Or. -, 66 Pac. 714. The people shall have the right to bear arms for the defense of themselves and the state, but the military shall be kept in strict subordination to the civil power. $ 28. Quartering Soldiers. 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 manner prescribed by law. § 29. Titles of Nobility. No law shall be passed granting any title of nobility, or conferring hereditary distinctions. § 30. Emigration. No law shall be passed prohibiting emigration from the state. § 31. Rights of White Foreigners-What Immigration may be Restrained. White foreigners who are or may hereafter become residents of this state shall enjoy the same rights in respect to the possession, enjoyment, and descent of property as native-born citizens. And the legislative assembly shall have power to restrain and regulate the immigration to this state of persons not qualified to become citizens of the United States. The law of 1891, prohibiting the sale of state lands to persons other than citizens of the United States and the state, is not in conflict with this section providing that foreign-born residents of the state shall enjoy the same rights to the possession, § 32. Taxes and Duties. enjoyment, and descent of property as native-born citizens, as there is no constitutional right to purchase state lands and the state may determine the qualifications of purchasers thereof: State v. Carlson, 40 Or., 67 Pac. 516. No tax or duty shall be imposed without the consent of the people or their representatives in the legislative assembly; and all taxation shall be equal and uniform. See Art. IX, § 1, and note. § 33. Enumeration of Rights, how Construed. This enumeration of rights and privileges shall not be construed to impair or deny others retained by the people. See note to Art. I, § 26, ante. VOL. I.-3. § 34. Prohibition of Slavery. There shall be neither slavery nor involuntary servitude in the state, otherwise than as a punishment for crime, whereof the party shall have been duly convicted. § 35. Free Negroes and Mulattoes. No free negro or mulatto, not residing in this state at the time of the adoption of this constitution, shall come, reside, or be within this state, or hold any real estate, or make any contracts, or maintain any suit therein; and the legislative assembly shall provide by penal laws for the removal by public officers of all such negroes and mulattoes, and for their effectual exclusion from the state, and for the punishment of persons who shall bring them into the state, or employ or harbor them. These restrictions upon the rights of negroes and mulattoes are abrogated by the fourteenth amendment to the constitution of the United States. ARTICLE II. SUFFRAGE AND ELECTIONS. § 1. Elections Free. All elections shall be free and equal. directly, whereby he shall be hindered or prevented from participation at the polls. The word "equal" has a different signification; every elector has a right to have his vote counted for all it is worth in proportion to the whole number of qualified electors desiring to exercise their privilege so that the terms free and equal, used as they are correlatively, signify, not only that the election shall be open and untrammeled to all persons endowed with the elective franchise, but shall be closed to all not in the enjoyment of such privilege: Ladd v. Holmes, 40 Or. 66 Pac. 714. In all elections not otherwise provided for by this constitution, every white male citizen of the United States, of the age of twenty-one years and upwards, who shall have resided in the state during the six months immediately preceding such election, and every white male of foreign birth of the age of twenty-one years and upwards, who shall have resided in this state during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States one year preceding such election, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote at all elections authorized by law. The fifteenth amendment of the United States constitution rendered of no legal force or effect this provision restricting the elective franchise to white persons: Wood v. Fitzgerald, 3 Or. 579. The qualification of voters here set forth applies to general elections provided for by the constitution, but does not apply to election for school directors. A law allowing women to vote at school elections is therefore not prohibited by this provision of the constitution: Harris v. Burr, 32 Or. 360, 52 Pac. 17. The office of county school superintendent is a county office requiring of the incumbent the qualifications of a county |