Under sec. 1558, one of the grounds given for the revocation of a license is that the licensee

"has not observed and obeyed any order of said supervisors, trustees, aldermen or county superintendent of the poor, or any of them, made pursuant to law."

In the case of State ex rel. McKay v. Curtis, 130 Wis. 357, our court had under consideration the interpretation to be given to the word "order." On page 362 the court said:

"The appellants claim that the word 'order,' in sec. 1558, supra, does not refer to an ordinance of the city council, but only to the order or notice authorized to be given under the terms of sec. 1554 by said officials to licensed persons forbidding the sale of liquor for one year to spendthrifts. We are unable to agree with this contention. Had this order been the sole thought of the legislature it would have been not only easy, but natural, to refer to it as an order made under the provisions of sec. 1554. On the contrary, it seems evident from the use of the broad words any order made pursuant to law' that the legislature intended to include many possible orders rather than one particular order. The word 'order' is a word of broad and general meaning. It includes all commands, precepts, or rules made by competent authority. An ordinance passed by the board of aldermen which has been approved and published so as to become a valid ordinance is in the highest sense an order or command of the aldermen. If it be within their power, it is an order made pursuant to law. If it be an order legitimately regulating the saloon business, we can entertain no doubt that it is one of the orders referred to in the statute. To hold otherwise would seriously emasculate the statute, the evident purpose of which is to secure obedience by means of a penalty more effective than paltry fines; i. e. by revocation of license."

Under this decision of our court, the foregoing ordinance of your village is an order within the purview of sec. 1558, provided that the village board has the power given by statute, either expressly or impliedly, to pass such ordinance.

In sec. 893, par. (17), the village board is given the power by order, resolution, law or vote to prohibit and suppress "immoderate drunkenness" or "drinking," and, under par. (18),

"To exercise such powers in respect to licensing and regulating the sale of malt, ardent or intoxicating liquors as are conferred by the general statutes in respect thereto."

Par. (26) of the same section reads, in part:

"To ordain and establish all such ordinances and by-laws for the government and good order of the village, the suppression of vice and immorality, the prevention of crime, the protection of public and private property, the benefits of trade and commerce and the promotion of health not inconsistent with the constitution and laws of the United States and of this state, as they shall deem expedient;

The powers conferred, especially in the last paragraph, are certainly very broad. Our court has said, in the case of Zodrow v. State, 154 Wis. 551, 555, concerning the liquor traffic:

"Unrestricted, it leads to drunkenness, poverty, lawlessness, vice, and crime of almost every description.

It would seem, therefore, that your village had the power to pass the ordinance in question, and it follows that it is an order made pursuant to law, as contemplated by sec. 1558. Your first question is therefore answered in the affirmative.

"2. Under existing state laws, and the ordinance above mentioned, of the village, has the village board power to close the saloons on Sunday, if any are found to be open?"

You will note that the above ordinance does not expressly provide for the closing of the saloons. It simply prohibits the giving away, sale or barter of any intoxicating liquors on Sunday. Sec. 1564, of the statutes, contains similar provisions and the sale made in violation thereof may be punished by a prosecution under it. While the saloon cannot be closed under this ordinance, it may be closed, however, under sec. 4595, of the statutes, it being a shop within contemplation of said section. See Vol. II, Op. Atty. Gen., pp. 298, 322.

"3. If the above ordinance does not constitute 'an order,' as referred to in said sec. 1558, would the publication of an ordinance or resolution requiring closing of saloons and taverns on Sunday, in the local newspaper, be sufficient notice, or would it be necessary to have a written or printed notice served by an officer on each licensed liquor dealer?"

In view of the decision of our court in the case of State ex rel. McKay v. Curtis, supra, I believe that it would not be necessary to have a written or printed notice served by the officer on each

licensed liquor dealer. The passing of the ordinance in due form, and publication of the same, would certainly be sufficient notice.

Labor-Minors-A minor may lawfully engage in an agricultural pursuit without a permit.

January 15, 1918.

HONORABLE GEORGE P. HAMBRECHT, Chairman,

Industrial Commission of Wisconsin.

Your letter of January 12, 1918, quotes sec. 1728e, Stats., and calls attention to chs. 633 and 674, laws of 1917, amending the Child Labor Laws, and asks for my opinion as to whether the law now requires labor permits to be issued as a condition to the lawful employment of children in agricultural pursuits.

Ch. 633, laws of 1917, merely changes the matter of making proof of children's ages, and has no bearing on this question.

The general plan of law regulating child labor does not, it seems to me, appear to have been changed by ch. 674, laws of 1917. The main change wrought by that chapter is to require further or additional attendance at industrial, continuation, or commercial schools, where such schools are maintained in the town, village, or city where a child works or resides. The statute which specifically relates to farm labor was not amended. It is entirely general in its phraseology, and it seems to me that if it had been the intention to restrict or limit its operation, such intention would have been expressed and not left to inference or implication. Besides, I see no reason for inferring that it is to be given a different meaning now from the one which was before attributed to it. The provision under consideration is subsec. 4, said see. 1728c, and reads thus:

"Nothing contained in sections 1728a to 1728j, inclusive, shall be construed to forbid any child from being employed in agricultural pursuits, nor to require a permit to be obtained for such child."

I am persuaded that the legislation of 1917 did not work any change in the Child Labor Law involved in your question, and that it is not now required that permits be issued to minors as a condition of their engaging in agricultural pursuits.

Bridges and Highways-Right to take surplus road materials from highway discussed.

Courts-Evidence-Execution of Documents-Sec. 4192, Stats., merely dispenses with proof of signature of an instrument and is a favor to the plaintiff.

January 15, 1918.

(LIVE J. STRANG,

District Attorney,

Grantsburg, Wisconsin.

In a letter dated January 8, 1918, you say:

1. "There is a large, clay hill across the highway in one town in this county and an adjoining town is taking the clay for their highways with the consent of the abutting owner along the highway. The town board of the town in which the clay hill is located objects to the taking of the clay into the other town for use. Are those taking the clay committing an offense and if so has the town in which the clay is located a right to stop the hauling of more clay from such hill? Or has the abutting owner the right to sell this clay? The town in which the clay is located may not have use for the clay just at present and I am unable to find if they will ever need it, but the town board seems to think they will.

2. "I would also like to ask advice on the meaning of sec. 4192. of the statutes. This section states that an instrument purporting to have been signed by coparty shall be proof that he did so sign it until he shall deny the same. The question is: Will this apply in a criminal case where a party is prosecuted for forgery? I have a party charged with forgery of his father's name and the father is out of the state and of course will not appear and deny the signature. Can the defendant claim the advantage of this section in a criminal prosecution?"

1. Upon the facts stated, I am of the opinion that the town taking the clay is committing no offense and that the town in which the hill is located has no right to interrupt the operation, and that the abutting owner has the right to sell this clay to the town which is taking it.

The general rule as to the rights of abutting owners and of the public in the soil and other materials within the highway limits and the use they may make of the same may be stated thus:

The laying out of a highway gives to the public a right of

passage and the incidental right to fit the way for travel, and the owner of the soil is not thereby divested of his title to the land. Notwithstanding the use thereof by the public for travel, the title and all uses of the land consistent with the existence and use of the public easement remain perfect not only to the land but to all the materials within its boundaries, except such as may be needed to build or to maintain the road. He therefore has title to any superfluous earth, gravel or rock not necessary or useful to the construction or repair of the highway and all mines or quarries, trees, grass and crops growing in and on the same. To fit the highway for travel and maintain it, the proper public officers may change the grade, remove trees and use the earth within the limits of the highway in any reasonable and proper manner. 37 Cyc. 203-204.

It has, I think, been the universal practice of abutting owners at all times to take surplus earth and other materials from the roadside and within the highway limits whenever they wished and without asking leave of the town supervisors. While such a practice does not make law and is not decisive of what the law is upon the subject, still the practice is quite persuasive of what a land owner's rights are and, indirectly, the public's. As before stated, he may use the surface and what is below it and above it as he will but subject always to the condition that he must not interfere with the public easement and the public control for highway purposes. Surplus materials at one point may be used at needed points within the town at least and to that extent the rights of the town thereto are superior to the owner's; but this need, I think, must be real and known. It must be present or within the reasonably near future. The mere remote possibility that materials may be needed in the distant future is not enough to stop the owner from appropriating them to his use. Of course the town board has a rather wide discretion in the matter.

The right of the abutting owner to take such surplus materials, i. e., his title thereto, carries with it the right to authorize others to take the same with or without compensation to him. He may sell such dirt to a private individual or to an outside town for use upon town highways. Probably town lines have no significance in this connection, where the highway on which the material is to be used happens to be a county or a state road.

Having stated the general rule, we are next to inquire to what