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and had gone to England as such in the employ of the speak of handwriting. The appeal book speaks, at defendants after the commencement of this action; the folio where the testimony is rejected, of a general that it was while in the pursuit of evidence against the objection. But it is plain it is a continuation of the plaintiffs that he learned of this bank book writing, same objection that had been before made to that tesand while engaged in taking the evidence, in behalf of timony. It would be a forced supposition that the the defendants, of a witness, on commission, that he defendants' counsel was misled at the trial, and thereby saw the writing, and heard the admission of the plaint- omitted to bring forward otber kindred testimony iff that it was made by her. His acquaintance with that he held in reserve. her handwriting was from an examination of these two Sixth. The next point is that of the rejection of the pieces of it, and it was formed while he was a hired offer to read from the books claimed to contain the law agent in quest of testimony with which to combat the of France. It is well enough to consider it, though plaintiff's case, and of testimony to be made from the the result wo reach is not so determinate as may be handwriting of the adult plaintiff. It is not to be dis- wished for. There were shown to the witness two voltinguished from a case of genuine writings furnished umes of a printed work, and a single volume of another to a person to enable him to become a witness to a dis- work. He said that the two were the French Code, puted signature. It is clear that if the genuine writ- and that the three were all the French acts, the five ings had been made or chosen for his inspection by the Codes and State laws of France. The very books thus party who called him as a witness so as to qualify him shown to him he saw then for the first time. He had to speak, his testimony to be based upon an acquaint- been a practicing lawyer in France from 1837 until 1802, ance got from view of them would not be received. and left that country in 1863. The date of the edition Stranger v. Earle, 1 Esp. N. P. C. 14; Tome v. Parkers- of the two volumes was 1859. The date of the last bury R. R. Co., 39 Md. 36, 17 Am. Rep. 540, and it edition was 1877. Ile said that they constituted a has been held at nisi prius that when the acquaintance printed copy of the Code of Statutes of France, as is formed from the view of writings admitted by the they existed when he practiced there; that he had attorney of the writer to be genuine, the witness will occasion to use, and did use, the printed statutes of not be allowed (Greaves v. Hunter, 2 Carr.& Payne, 477); France every day in the courts of that couutry, and though on the other hand, when the genuine writing that he had not the slightest doubt that the two volfrom which the witness got his kuowledge was to a umes produced constituted a printed copy of the statpaper filed in the cause of the opposite party, the testi- utes or book which was commonly received by the mony was allowed. Smith v. Sainsbury, 5 id. 196. These judicial tribunals of France as evidence of the existing cases exemplify how lacking in uniformity are the rul- laws thereof; that he had no doubt it was an exact ings on this matter, and how delicate a question it is to copy of the French law; that it was the same thing, handle. The last two cases are not directly in point, inas- the only difference being in the notes of the author, much as it did not appear that the witness, when he saw M. Rogron. Ile would not say that that opinion was the genuine writings, was seeking the means of making based upon an examination of the books, and did say acquaintance, so that he might testify therefrom. A that it was founded on reason. He first saw the voldifference between the case in hand and those cited ume in court on the day that he was examined, aud also from Espinasso and the Maryland Reports is, that had not looked into the books save at the title page; in the latter two the genuine signatures were made or but ho said that that very copy he would use before a chosen by tho parties who wished it to appear to the French tribunal the first time he had occasion to quote witness that the disputed signature was unlike tho tho French law, and that the work of M. Rogron regenuine ones inspected by him, while in the former ceived therein as proof of the existing law. We have the genuine signature is used in tho case, and is admit- hero given all of the testimony of the witness. It will ted to be genuine by the party against whom tho wit- be seen that the books ho had before him were the ness is called. Still it is a case of signatures selected publication of a private person. They were not proven in the interest of the party who calls the witness. They to have been published by tho authority of France, nor were pitched upon by the witness himself, who, in the does it appear that they purported so to have been. It hire of the party, had been sent in quest of hostile evi- was testitted, however, that they were at the time dence, and that after the commencernent of the action. spoken to by the witness received in the tribunals All the stimulus upon and all the impulses of his call- thereof as a proof of the then existing law. ing were against impartiality in selection of specimens. The old and the new Code provide in nearly the same The distinction is taken in tho Filzwalter Peerage case, terms for a mode of proving the statute law of a for10 Cl. & Fin. 193, between the testimony of a witness eign country (old Code, $ 4:26, new Code, $ 942). The who, intending to be a witness, has inspected genuino new Code also (S 962) permits the proof of au act acdocuments for the purpose of forming an acquaintanco cording to the rules of the common law or by any with the characteristics of a certain handwriting, and other competent proof. We thiuk that the testimony that of one who in the course of business, without of this witness would not bring the offer to read the having in view the being a witness, has used the same books within the rule of the common law. As to what documents and thus got an acquaintance. In our that is held to be in England see Baron de Bodes' case, judgment tho evidenco is open to the objections that 8C. B. (N. S.) 209, 250, et seq.; Earl Nelson y. Lord have been held fatal to testimony as to handwriting Bridport, 8 Beav. 5:27; Sussex Peerage case, 11 Cios. created post litem motam. We think, that upon all & Fin. 85, 111. To provo tho written law of a foreign that transpired on the trial in tho testimony of Loader State by a printed book purporting to contain it, and the objections made, the trial court erred pot in though the book is sustained by the testimony of a ruling out the question. Tho Legislaturo of this State witness familiar with tho law, was not permitted, so has this year (Laws of 1880, ch. 36) passed an act which far as we can find, in this State before the Codes (Packis intended to allow proof of signaturo by comparison ard v. Ilill, 2 Wend. 411; see S. C., Hill v. Packard, 5 of handwritings, and which perhaps will forestall for id. 375), and again it was held that to prove the statute the future much discussion of this topic. That statute, law of a foreign State there must be produced a copy however, is probably yet to be the subject of judicial authenticated there, or a sworu copy (Lincoln v. Batinterpretation.
telle, 6 Wend. 482), and such proof as was produced in Fifth. What we have just said applies to the defend- our case, according to that decision, would not have ants' offer of testimony as to the handwriting in tho been deemed equivalent to a sworu copy.
Id. 483-4; Book of Registry of Births. Nor is there force in the Chamvine v. Fowler, 3 id. 173. position of the defendants that the plaintiffs then Even if that testimony would meet the requirement waived objection to the competency of the witness to of the new Code ($ 942), for the time of which the wit
ness spoke, from 1837, when he was first licensed to practice, until 1862, when he ceased to practice, a question arises. The period for the existing law of which the trial court was seeking was from a late day in June, 1871, until the expiration of four weeks thereafter. It is claimed, however, that the law of Franco having been shown as it existed in 1862, we are to presume that it continued the same until the year 1871. Presumptions of the continued existence of the same state of things arise when the things are continuous in their own nature. They are founded on the experienced continuance or immutability for a longer or shorter period, of human affairs. What may be presumed of one country and one state of society may not so readily be presumed of another. Thus, at one time in Eugland it was held that it will not be intended that a man alters his trade or profession, but by presumption ho continues in it through life. Tuthill v. Milton, Yel. 158. It has been held that a partnership, an agency or a tenancy once shown to exist is presumed to continue until it is proved to have been dissolved; and so far has this been carried, that where it was admitted that a partnership had been in existence in 1816, it was, in the absence of all evidence to the contrary, presumed to be still continuing in 1838 (Clurk v. Alexander, 8 Scott [N. R.), 161), which seems to us an extreme carriage of the rule. Would it do in the Uuited States to base judicial action on that presumption in the breadth of it as stated in those cases? It has indeed been held, that the statute law of another State of this Union having been proven, it must be presumed to exist until shown by good evidence to have been repealed. Payrbaur v. Cantan, 3 Pick. 293. Statutes of our own State are read to the courts, and they stand as the law until a repealing statute is produced. This is however on the theory that the judges know what is the statute law of their own State, and need to hear it only to refresh their memory. Lincoln V. Battelle, supra. It may be that if the question was beforo us, whether in a case presenting it, that presumption should be made, we would feel obliged to make it. But then, even, there would arise the query, whether, by a true interpretation of the Code ($ 942), it must not be held to require, that as the existing law which may be proved is the law existing at the very time of the transaction that is in controversy, the proof to be received must be addressed directly to that time, and show by direct assertion that there was the book of statute laws now produced, admitted in the judicial tribunals of the foreign country as evidence of its law.
It will not fail to be noticed that the witness had not read theso very books, nor a pago of them, save the title page.
It must have struck the circuit judge, as it strikes us, as difficult to conceive how could testify that the contents of these books, issued from tho press as a venture of private business, without the impress of public or official authority, contained the law of France as it existed at any given time, when he knew not from perusal what were the contents of the books. It is to be noticed further of one of them that it was issued in the year of 1877. It is impossible that this book, or a book of the same edition, could havo been issued in 1862, and prior thereto, before the judicial tribunals of France, as evidence to them of tho existiug law of that State, and as the witness had not looked into the contents of the books, would not say that he had made an examination of them, and did say that he founded his opinion on reason, how could he satisfy tho court that those contents had ever been spread before a French tribunal as evidence of the law? The most of which the witness could satisfy the court by the testimony he gave was this: That the work of the author, whom he named, was usually received in the courts of France as containing its law. Whether these books were the work of that author the witness had not informed
himself by a perusal of them. He knew no more of that than what the title page told him, assisted by his reason. Verily this is weak testimony on which to take printed books as evidence of foreign statute law, from the contents of them to draw material for an adjudication. Now though it is said by a text writer of repute (Taylor on Ev., 48, pp. 62, 63, 7th ed.), that in regard to foreign laws the functions of the judges and jury do not seem to be yet well distinguished, still it seems that it is the duty of the court to decide as to the complete knowledge of the witness, and as to the admissibility of the documents by which or as to which he speaks. Bristow v. Sequeville, 5 Ex. 275; Sussex Peerage case, supra; 8 Beav., supra. That duty was on the trial judge in our case, and we hesitate before we will say that he was in judicial error in not deeming this witness well enough informed of the contents of these books, or the books admissible as proof of French law. It is not plain that there was error in the ruling of tho trial court.
We are not compelled to pass definitely upon these questions. If it be determined or conceded that the marriago law of France when the intestate and the adult plaintiff cohabited there, was not observed by them in making their marriage contract there, still the jury have found, as a specific verdict, that the parties did, whilo crossing the English Channel, enter iuto an agreement to take each other then and there as man and wife. As wo have already said, so far as appears in this case, this was a valid contract of marriage under the laws of this State, and the general verdict of the jury is thus sustained. 2 Bosw., supru. Wo need not thereforo pass definitely upon the question raised by the offer of the defendants to read in evidence the book claimed to be the law of France in print.
Seventh. We now como to the allegation of error in the charge. The court charged the jury in substance that though the transaction between the parties in England was not a valid act or contract of marriage by the laws of that country, yet that if Hlynes was a
of this Stato, and did that act with the intention of marrying in accordance with the law of this State, and of bringing the woman to this country to live with him as his wife, there was the foundation of a valid marriage relation. The jury found, on specific questions put to them, that the facts were in accordanco with the suppositions put in the charge. The defendants duly excepted. This exceptiou we do not deem it necessary to consider. If the propositions stated in the chargo be wrong, yet the jury have by other specific findings established such facts in the case as must uphold their general finding that the adult plaintiff was the wife of Hynes. Other exceptions to the charge called to our attention by the points of the defendants havo been passed upon incidentally, but sufficiently, by what we have said in the first part of this discussion.
Eighth. There are points made upon requests to charge and alleged refusals to charge as requested. The requests to charge are thirteen in number, which the court had charged the jury. The record shows that it remarked: Thero are certain requests to charge which I will briefly read. At the request of the defendants' counsel, I am asked to charge. [The court then repeated to tho jury, in tho language of the counsel, nine of the requests.] It did not in terms say that it did or did not give them to the jury as the law of the case; nor did it in terms say that it refused to charge the four requests that it did not read. Tho exception of the defendants was this: Separately, in each instance, to the refusal and neglect of the judge to charge requests. The court read to the jury all the requests upon which points are made, except the third and fifth. We infer that the court meant to charge the jury that the requests made to them, and which it read, were
well asked for. The third related to the alleged act of another place (p. 71), that “the answer will not be marriage in England, and the court had charged fully received without clearing his contempts;
"! and at upon that. The fifth was that the presumption is that another (p. 211), “So it is where a man hath a bill as the vessel sailed from an English port that she was depending in court, and falls under the displeasure of an English vessel sailing under an English flag. We must the court, and is ordered to staud committed. Here, infer that the court declined to charge this request. when his cause is called, if the other side insist he The defendants cite no authority to sustain it. We hath not cleared his contempt, nor actually surrenhave not been able to find it so laid down as law.
dered his body to the warden of the Fleet, he must There are noted upon the points two exceptions to do both of these things before his cause
can be the rejection of evidence. We think the court did not proceeded in
*." It err therein. We have examined the case with mi- is stated by Lord Eldon that it is a general rule, that a nuteness and do not find that error which calls upon us party who has not cleared his contempt cannot be to reverse the judgment.
heard. Voules v. Young, 9 Ves. Jr. 173; Anonymous, All concur.
Judgment affirmed. 15 id. 174. The same is said with the addition of the
words "in the principal case,' " in 2 Com. Dig. Chy.
Process D. 8, citing Practical Registry in Chy. 217. See, RIGHT TO STRIKE OUT ANSWER FOR CON
also, Heyn v. Heyn, Jacobs, 49; Clark v. Dero, 1 Russ. & TEMPT IN ACTION FOR DIVORCE.
Myl. 103. The rule in the Chancery of Ireland is stated
thus: A party in contempt will not be allowed to oppose NEW YORK COURT OF APPEALS, OCTOBER 5, 1880. the relief sought by the plaintiff by contradicting the
allegations of the bill or bringing forward any defense WALKER V. WALKER, Appellant.
or alleging new facts. Anon, v. Lord Gort, 1 Hogan, 77;
Valle v. O'Reilly, id. 199. And the rule as thus stated, A court has power in an action for divorce to strike out the answer of a defendant who is in contempt by a
is cited and approved in Mussina v. Bartlett, 8 Porter failure to obey the order of tho court directing him
(17 Ala.), 277; see, also, Rutherford v. Metcalf, 3 Hayw. to pay alimony pendente lite
(Tenn.) 58, 61; and in Suylor v. Mockbie, 1 Withrow (9 Iowa), 209, 212, it was held that until the defendant
had purged himself of contempt, the court might well by Eliza Jane Walker against Joseph Walker. refuse to receive his answer to the complainant's bill or Defendant was ordered to pay alimony, whereupon he to consider the matter set up in it by way of excuse for left the State. An order was thereafter made that he refusal to obey the order. The reporter (Coop. temp. pay within five days, in default of which that his an- Colt, at page 211) cites in a note the case of Anon. V. swer, which was a general denial, be struck out. Default Lord Gort, supra, and says of it: “ The accuracy of being made, an order was made that his answer be some of these dicta may be doubted." He does not struck out and a reference be had to take testimony as state as to which of them he queries. Many cases are if there was no answer. This order was affirmed at collected in the note just above mentioned. Some of General Term and defendant appealed.
them show that the rule has not been vigorously apS. Iland and D. T. Robertson, for appellant.
plied in latter times (see King v. Bryant, 3 Myl. & Cr.
191, especially); but it does not appear that it has been John B. Perry, for respondent.
abolished or abandoned entirely. FOLGER, J. The defendant, having refused or neg- It seems, too, that the authors of the Revised Statutes lected to obey an important order of the court, was in thought that this power resided in the English Court of contempt, and liable to punishment by reason thereof. Chancery. In preparing the sections relative to the The punishment inflicted by the court was by an order in production and discovery of books and papers (2 R. S., the cause, to strike out the answer that had been putin p. 199, $ 21, et seq.) they provided ($ 26) that in case of a by him, and to direct a reference to take proof of the party neglecting or refusing to obey an order, the matters stated in the order; the reference to proceed court might strike out his plea and debar him from a as if there had been no auswer put in.
defense; and they sought thus to assimilate the prac. It is claimed that the court had no power to make tice to that of tho Court of Chancery (see rev. note, 5 that order; that every defendant has a vested right to Edm. Stats. 411). The Legislature gave its sanction to make a defense to any action or suit or legal pro- the proposed practice by passing into law the sections ceeding begun against him, and that ho cannot be de- reported by the revisers. It is well to say here that prived of it.
Rice v. Ehle, 55 N. Y. 518, does not condemn this. It is conceded by the defendant that the Supreme | That case holds the the pleading may not be stricken Court, on its equity side, has all the power and author- out, save on notice to the party (p. 523), and that the ity that formerly existed in chancery in England, and exercise of this power was legitimate was recognized was continuously exercised by it. “The rule there by Marcy, J., in Birdsall v. Pirley, 4 Wend. 196. The must be the rule here,” says Ch. Kent, “ for I take this power seems to have been exerted or recognized by the occasion to observe that I consider myself bound by Supreme Court in several instances, without question those principles which were known and established as made by appeal. Furnham v. Farnham, 9 Ilow. Pr. law in the courts of equity in England at the time of 231; Barker v. Barker, 15 id. 568; Ford v. Ford, 41 id. the institution of this court.” Janning v. Manning,
169 1 Johus. Ch. 5.27-9. It is not to be denied that a court We are brought to the conclusion that there has long of equity may refuse to a defendant in contempt the been exerted by the Court of Chancery in England the benefit of proceedings in it, when asked by him as a power to refuse to hear the defendant when he was in favor, until he has purged himself of his contempt. contempt of the Court by disobeying its orders, and See Brinkley v. Brinkley, 47 N. Y. 40-9, and cases there that that power was in the Courts of Chancery of this cited. But the rule has been held broader than that and country, enforced with much vigor. Ch. Baron Gilbert lays it We do not think that the case of Wayland v: Tyson, down in his Forum Romanorum, p. 33, that “if the 45 N.Y. 282, and Thompson v. Erie Railway, id. 471, and defendant appeared before the secundum decretum, he others of like result, are in the way of this conclusion. was liable to a mulct, for he could not be heard m the They were not cases of contempt, nor wero they equity cause until he had cleared his contempt
cases. Besides, there the answer was stricken out, It is suggested in Cooper's Cases (temp. Colt, p. 209), with no loophole left for relief totho defendant. that this is merely a statement of the practice accord- It is always in the power of the defendant, in a caso ing to the canon law. But the Chief Baron, says at like that in hand, to apply to the court and show that
the order was irregularly made, or for leave to purge tion of consisting of two detached bodies of territory, himself of the contempt and be let in again to make the same as by the first order. his defense. Brinkley v. Brinkley, supra.
We shall not follow the very able arguments of the The order should be affirmed.
learned counsel of the appellant, urging many and weighty reasons of public policy, why, if possible, the
Constitution should be so construed as to require a TOWN - MUST CONSIST OF CONTIGUOUS TER- town to be composed only of contiguous territory, and RITORY.
reasons based upon the Constitutional rule of uni
formity of town government and of taxation. We WISCONSIN SUPREME COURT, SEPT. 21, 1880. shall pass directly, and confine ourselves strictly, to
the consideration of the true meaning and proper conCHICAGO AND NORTHWESTERN RAILWAY Co. v. Town
struction of the term town," as used in the ConstiOF OCONTO.
tution, with reference only to the defect in the
organization, or in the changing of the boundaries of The word "town," as used in the Constitution of the State the town of Oconto, here urged, as making the orders
of Wisconsin, denotes a civil division composed of con- of the board of supervisors void. There are few, if tiguous territory' and under the power granted to
there are any, decisions of courts having a bearing county boards by the statute, " to set off, organize, vacate, and change the boundaries of tho towns in their
upon this question, directly or indirectly, and it must respective counties” (R. S., 8 670, subd. 1), such a board
therefore be treated as an original one, and determined cannot make a valid order changing the boundaries of a
somewhat arbitrarily. The word “town,” philologictown so that it shall consist of two separate and de- ally considered, is a change in the orthography and tached tracts of land.
pronunciation of the Anglo-Saxon word "tun," from PPEAL from Circuit Court, Oconto county. The
the verb “tyan,'' meaning to “inclose,” and “tun,"
therefore, means an inclosure. It was used to denote opinion states the facts.
a garden inclosed by a hedge, or a collection of houses F. J. Lamb and W. F. Vilas, for appellant.
inclosed by a wall. Zell's Popular Encyclopedia, and Tracy & Builey, for respondent.
Johnson's New Universal Encyclopedia.
Its general and customary usage in England, as ORTON, J. This suit is brought to recover from the denoting a collection of houses or hamlets between a town of Oconto, the defendant, certain moneys paid village or city, or its stricter legal or civil meaning, as under protest for taxes claimed to havo been illegally denoting a civil corporation of larger territory, which assessed upon the plaintiff's lands, situated in towns might include a village or city, is somewhat foreign 35, 36, and 37, range 16, in Oconto county, by the said to the use of the word, and the civil and territorial towns, for the year 1878. Two grounds of recovery subdivision or organization which it is used to signify were relied upon at the trial — First, that the assess- in this country. Its first use in this country was to ment was improperly made; and second, that these define the original or primary civil or governmental lands were not subject to assessment and taxation by organizations of the early colonists of New England, and in the town of Oconto. The latter ground, being who knew by bitter experience the oppressive tyranny the more important, and if well taken, fatal to the of imperial law, and who desired, above all things, to legality of the assessment, will alone be considered.
be governed not only by laws made by themselves in To sustain this objection to the assessment, it is primary assembly, but having a limited and local claimed that the several orders of the board of super- application to their wants in small and independent visors of the county of Oconto, attaching these lands communities. They were considered and adopted by to and making them a part of the town of Oconto, are those alone who knew their fitness and adaptation to void, because they are left by such orders in a body of their wants, and they received the general assent. lands separated and detached, and not contiguous to This attachment to local law and local government, the main body of lands in said town, in violation of which then prevailed and still prevails in this country, the Constitution, which, it is claimed, requires towns was the producing cause of the organization of the to be composed and constituted of contiguous territory towns of the New England colonies, which had exonly.
clusive control of their local affairs. Each town had There was some question on the argument whether clearly-defined territorial limits or boundary, so rethe orders of the board of supervisors of Oconto stricted as to fully secure to each citizen the advantcounty, organizing and changing the boundaries of the
ages of a local or home government, and not so extended town of Oconto, in fact left these bodies of land so as to defeat or lessen them. detached, but by an inspection of the orders it is The nature and uses of this form of local governapparent that they are so detached. The order of the
ment are fully expressed by one of the earliest acts of the board of November 15, 1876, it is conceded, made the Massachusetts colony, in general court in 1636, viz. : town consist of two detached bodies of lands, in the “ Inasmuch as particular towns have many things smaller body of which the lands of the appellant in which concern only themselves and the ordering of question were situated, and the two bodies separated their own affairs, and disposing of their own towns, it by the distance of nearly 20 miles of intermediate ter- is ordered that the freemen of every town, or the ritory. By the order of March 25, 1877, certaiu lands, major part of them, sball only have power to dispose of a part of, and contiguous to, the larger body, and in their own lands and woods, with all the privileges and the direction of the lands in question, were detached appurtenances, not repugnant to the laws and orders from the town of Oconto, and added to and made a of the general court." Local Law of Mass. and Conu. part of the towns of Peshtigo and Marinette. By the by Fowler, 10-20. It can be seen that in the very order of January 12, 1878, certain lands lying con- nature and uses of such a local government the town tiguous to the lands so detached were added to and must be — First, of limited territorial extent; second, made a part of tho town of Oconto, but this order of compact and contiguous territory; third, its boundfailed to embrace the lands so detached, and they were ary must be clearly defined and continuous; and still left in those two other towns. These orders, then, fourth, it should embrace within its government only taken together, still leave the two bodies detached, but those having a unity or similarity of interests. In New not by so great a distance. It was unquestionably in- England, townis having been the first local civil governtended by the last order to cure this defect in the first ments, and antecedent to the formation of counties, one, and connect the two bodies together; hut by this. the counties were made by a consolidation of its towns. omission the town still remains subject to the objec- In the western States, however, when an organic law
also void, and tho taxes so paid by the appellant under protest are illegal aud void and may be recovered in this action.
The judgment of the Circuit Court is reversed, and the cause remanded for a new trial.
SUNDAY LAWS AFFECTING ONE CLASS
CALIFORNIA SUPREME COURT, IUGUST 30, 1880.
Ex PARTE WESTERFIELD.
is first made for the government of the whole territory, or a constitution is formed for the whole State, counties are formed first, and towns within them afterward; but the same original idea and meaning of the town remain the sanie, and that is, “a subdivision of a county,” as defined in Johnson's New Universal Encyclopedia, and “subàivision of a county, as parish is part of a subdivision of a diocese." " In popular usage, in America, the whole territory within certain limits." Imperial Dictionary.
Webster defines town as “an enclosure;" "the whole territory within certain limits;" and the word “parish" as "a district of certain limits, which cannot be altered without legal enactment;” and the word "district" as "a defined portion of the State."
Iu Abbott's Law Dictionary it is defined, "a walled place or borough.” Finch, 80. * Townships are incorporated, not as cities and villages are, for their own benefit, and by their assent, but like counties, as mere civil divisions of the State." Waltham v. Kemper, 55 Ill. 346. “The several towns of this State are corporations for certain very limited purposes :
* for the conservation of highways, * relief of the poor,
the assessment and collection of taxes, etc. The several towns are political divisions, organized for the convenient exercise of portions of the political power of the State.” Lorillard v. Town of Monroe, 11 N. Y. 392. All of these terms defining “town strangely expressive of compactness, adjacency, and contiguity, such as “enclosure,” ** whole territory within certain limits," " defined portion of the State,' and "a subdivision of a county.” A town, in its name and uses, conveys the very idea of locality, viciuity, vicinage and convenience. A town is a subdivision in the singular; not subdivisions, or many subdivisions, in the plural. Aside from these definitions, all of which appear to be conclusive of the question, there is much force in the general and almost invariable usage, in this country at least, in the organization of towns and counties, as in precincts, districts, cities, and villages, in forming them of adjacent and contiguous territory. If there had been many instances, and I might say any, of the organization of a town constituted of separate, detached, and remote bodies of territory, the evils would have been so manifest and numerous that cases of complaint would havo found their way into the courts and reports, but by considerable searching I have been unable to find a single case directly involving this question.
To so construe the constitution as to authorize the board of supervisors of a county to organize or change the boundaries of a town so that it would be composed of separate, detached, and non-contiguous territory, would most unquestionably restrict the sovereign power of the legislature in the organization of assembly districts “ consisting of contiguous territory, and bounded by county, precinct, town or ward lines." Article 4, § 4, Const. The term precinct, as used in this section, has reference only to certain districts having similar functions to those of towns, as in Grant county, and perhaps other places in territorial times, and which passed away upon the formation of the first legislative districts, after the admission of the State, and tho term is no longer used except, perhaps, occasionally, interchangeably with election districts. By section 5 of the same article, senate districts are required to be of alike “convenient contiguous territory," and the power of the legislature would be restricted in their formation if the territory of towns need not be contiguous. Supported by these authorities, as well as most obvious and numerous reasons of public policy, practical convenience, and respecting the public welfare, we decide that a town must consist of contiguous territory, and that the orders of the board of supervisors of Oconto county are void and of no effect; and that the assessment complained of is
A statute making it a misdemeanor for those engaged in
the business of baking to bake or to permit their em ployees to do so, for the purpose of sale, on Sunday; held unconstitutional under a provision forbidding the legislature to pass special laws for the punishment of crimes and misdemeanors. ETITION for writ of habeas corpus. The facts ap
pear in the opinion. F. J. Castlehun, for petitioner. D. L. Smoot, contra.
MYRICK, J. The petition is in the custody of tho Chief of the Police of the city and county of San Francisco, under a warrant charging a misdemeanor under an act entitled “An act to regulate and provide for a day of rest in certain cases," approved April 16, 1880.
The act provides that "it shall be unlawful for any person engaged in the business of baking to engage, or permit others in his employ to engage, in the labor of baking for the purpose of sale between the hours of 6 o'clock P. M. on Saturday and 6 o'clock P. M. on Sunday, except in the setting of sponge preparatory to tho night's work; provided, however, that restaurants, hotels and boarding houses may do such baking as is necessary for their own consumption;" and a violation of the act is made a misdemeanor, punishable by fine and imprisonment, or both.
This act is in conflict with section 25, article IV, of the Constitution, and is therefore void.
“Section 25. The Legislature shall not pass local or special laws in any of the following enumerated casesthat is to say:
* * * Second. For the punishment of crimes and misdemeanors."
The act purports, according to its title, to be an act to provide for a day of rest. Instead of pursuing that intent, it goes on to say that certain acts, viz., the labor of baking for the purpose of sale, if performed by certain persons, viz., persons "engaged in the business of baking for the purpose of sale," shall constitute a crime, and shall be punished. The employees are not to be punished. This is special legislation. A certain class is selected. As well might it have said, if master carpenters or blacksmiths, or if attorneys having clerks, shall labor or permit employees to labor, they shall be deemed guilty of misdemeanor and be punished; carpeuters or blacksmiths not master workmen, or attorneys without clerks, may labor at their will. The baking of bread is in itself lawful and necessary. Even if there be authority to restrain the labor on some one day, it must be, if at all, uuder a general law restraining labor on that day.
Let the petitioner be discharged.
McKinstry, J. I concur. I entertain no doubt that the invalidity of the statute under which the defendant was arrested may be determined upon habeas corpus.
“Sunday laws" have been held not to be violative of a provision of a constitution, that “the free exercise and enjoyment of religious profession and worship. without discrimination or preference, shall forever be allowed in this State.” Ex parte Andrews, 18 Cal. 678.