« AnteriorContinuar »
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 other kindred testimony iff that it was made by her. His acquamtance 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 we reach is not so determinate as may be handwriting of the adult plaintiff. It is not to be dis- wished for. There were sbown to the witness two voltinguished from a case of genuine writings furnished umes of a printed work, and a single volume of another
son 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
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 1862, 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, aud did use, the printed statutes of not be allowed (Greaves v. llunter, 2 Carr.& Payne, 477): | France every day in the courts of that country, 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. He 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, and also from Espinasse 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 I but he said that
but ho said that that very copy he would use before a chosen by the parties who wished it to appear to the French tribunal the first time he had occasion to quote witness that the disputed signature was uulike the 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 here 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 havo 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 testified, 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 the Fitzwalter Peeruge case, terms for a mode of proving the statute law of a for10 ('1. & Fin. 193, between the testimony of a witness eign country (old Code, $ 4:26, new Code, S 942). The who, intending to be a witness, has inspected genuine new Code also ($ 96:2) permits the proof of an act acdocuments for the purpose of forming an acquaintanco cording to tho rules of the common law or by any with the characteristics of a certain handwriting, and other competent proof. We think 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 beiug a witness, has used tho 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 evidence is open to the objections that 8C. B. (N. S.) 208, 250, et seq.; Earl Nelson v. 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 prove 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 not in though the book is sustained by tho testimony of a ruling out the question. Tho Legislature 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 wo 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 sworn 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 sworn copy. Id. 483-4; Book of Registry of Births. Nor is there force in the Chamvine v. Fouler, 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 l of the new Code (5 942), for the time of which the wit
ness spoke, from 1837, when he was first licensed to prac- | himself by a perusal of them. He knew no more of tice, until 1862, when he ceased to practice, a question that than what the title page told him, assisted by his arises. The period for the existing law of which the reason. Verily this is weak testimony on which to trial court was seeking was from a late day in June, take printed books as evidence of foreign statute law, 1871, until the expiration of four weeks thereafter. It from the contents of them to draw material for an is claimed, however, that the law of France having | adjudication. Now though it is said by a text writer been shown as it existed in 1862, we are to presume of repute (Taylor on Ev., 48, pp. 62, 63, 7th ed.), that that it continued the same until the year 1871. Pre- in regard to foreign laws the functions of the judges sumptions of the continued existence of the same state and jury do not seem to be yet well distinguished, still of things arise when the things are continuous in their | it seems that it is the duty of the court to decide as to own nature. They are founded on the experienced the complete knowledge of the witness, and as to the continuance or immutability for a longer or shorter admissibility of the documents by which or as to period, of human affairs. What may be presumed of which he speaks. Bristow v. Sequeville, 5 Ex. 275; one country and one state of society may not so readily Sussex Peerage case, supra; 8 Beav., supra. That duty be presumed of another. Thus, at one time in Eng-| was on the trial judge in our case, and we hesitate land it was held that it will not be intended that a man before we will say that he was in judicial error in not alters his trade or profession, but by presumption he deeming this witness well enough informed of the concontinues in it through life. Tuthill v. Milton, Yel. | tents of these books, or the books admissible as proof 158. It has been held that a partnership, an agency or | of French law. It is not plain that there was error a tenancy once shown to exist is presumed to continue in the ruling of tho trial court. until it is proved to have been dissolved; and so far We are not compelled to pass definitely upon these has this been carried, that where it was admitted that questions. If it be determined or conceded that the a partnership had been in existence in 1816, it was, in marriago law of France when the intestate and the the absence of all evidence to the contrary, presumed adult plaintiff cohabited there, was not observed by to be still continuing in 1838 (Clurk v. Alexander, 8 them in making their marriage contract there, still Scott [N. R.), 161), which seems to us an extreme car- the jury have found, as a specific verdict, that the riage of the rule. Would it do in the Uuited States to | parties did, whilo crossing the English Channel, enter base judicial action on that presumption in the breadth | into an agreement to take each other then and there as of it as stated in those cases? It has indeed been held, man and wife. As wo have already said, so far as that the statute law of another State of this Union appears in this case, this was a valid contract of marhaving been proven, it must be presumed to exist until riage under the laws of this State, and the general vershown by good evidence to have been repealed. Payr- dict of the jury is thus sustained. 2 Bosw., supru. Wo baur v. Cantan, 3 Pick. 293. Statutes of our own State need not therefore pass definitely upon the question are read to the courts, and they staud as the law until raised by the offer of the defendants to read in evia repealing statute is produced. This is howover ondence the book claimed to be the law of France in the theory that the judges know what is the statute print. law of their own State, and need to hear it only to re Seventh. We now como to the allegation of error in fresh their memory. Lincoln v. Battelle, supra. It the charge. The court charged the jury in substance may be that if the question was beforo us, whether in that though the transaction between the parties in a case presenting it, that presumption should be made, | England was not a valid act or contract of marriage we would feel obliged to make it. But then, even, by the laws of that country, yet that if Hlynes was a there would arise the query, whether, by a true inter- citizen of this Stato, and did that act with the intenpretation of the Code (5 942), it must not be held to tion of marrying in accordance with the law of this require, that as the existing law which may be proved State, and of bringing the woman to this country to is the law existing at the very time of the transaction live with him as his wife, there was the foundation that is in controversy, the proof to be received must of a valid marriage relation. The jury fouud, on be addressed directly to that time, and show by direct specific questions put to them, that the facts were in assertion that there was the book of statute laws now | accordanco with the suppositions put in the charge. produced, admitted in the judicial tribunals of the for- | The defendants duly excepted. This exceptiou we do eign country as evidence of its law.
not deem it necessary to consider. If the propositions It will not fail to be noticed that the witness had stated in the chargo be wrong, yet the jury have by not read theso very books, nor a pago of them, other specific findings established such facts in the save the title page. It must have struck the case as must uphold their general finding that the circuit judge, as it strikes us, as difficult to con adult plaintiff was the wife of Hynes. Other excepceive how one could testify that the contents tions to the charge called to our attention by the points of these books, issued from tho press as a venture of the defendants havo been passed upon incidentally, of private business, without the impress of public but sufficiently, by what we have said in the first part or official authority, contained the law of France as it of this discussion. existed at any given time, when he knew not from pe-| Eighth. There are points made upon requests to charge rusal what were the contents of the books. It is to be and alleged refusals to charge as requested. The noticed further of one of them that it was issued in the requests to charge are thirteen in number, which the year of 1877. It is impossible that this book, or a book of court had charged the jury. The record shows that it the same edition, could havo been issued in 1862, and remarked: Thero are certain requests to charge which prior thereto, before the judicial tribunals of France, as I will briefly read. At the request of the defendants' evideuce to them of tho existing law of that State, and counsel, I am asked to charge. [The court then as the witness had not looked into the contents of repeated to tho jury, in tho language of the counsel, the books, would not say that he had made an examina- nine of the requests.] It did not in terms say that it tion of them, and did say that he founded his opinion did or did not give them to the jury as the law of the on reason, how could he satisfy the court that those case; nor did it in terms say that it refused to charge contents had ever been spread before a French tribunal the four requests that it did not read. The exception as evidence of the law? The most of which the wit of the defendants was this: Separately, in each instance, ness could satisfy the court by the testimony he gave to the refusal and neglect of the judge to charge was this: That the work of the author, whom he requests. The court read to the jury all the requests named, was usually received in the courts of France upon which points are made, except the third and fifth. as containing its law. Whether these books were the | We infer that the court meant to charge the jury that work of that author the witness had not informed 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 uuteness 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; Clarle v. Delo, 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
is cited and approved in Mussing v. Bartlett, 8 Porter the answer of a defendant who is in contempt by a failure to obey the order of tho court directing him
(17 Ala.), 277; see, also, Rutherford v. Metcalf, 3 Hayw.
(17 A to pay alimony pendente lite
(Tenn.) 58, 61; and in Saylor v. Mockbie, 1 Witbrow
(9 Iowa), 209, 21:2, it was held that until the defendant ACTION for limited divorce on the ground of cruelty, had purged himself of contempt, the court might well A 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. Hand 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 (526) 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 that 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), aud that the ity that formerly existed in chancery in England, and exercise of this power was legitimato 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 Hlow. 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. 5:37–9. 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. I 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 to tho 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. sara at like that in hand, to a
o 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 appellaut, 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 tigruous 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,
upon this question, directly or indirectly, and it must vacate, and change the boundaries of tho towns in their
therefore be treated as an original one, and determined respective counties" (R. S., 8 670, subd. 1), such a board 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 A 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 & Bailey, 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 have 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 organizatious of the early colonists of New England, and in the town of Oconto. Tho 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 tho 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 I 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, certain 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 tho 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 Con, 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 bound. failed 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, theu, | fourth, it should embrace within its government only taken together, still leave the two bodies detached, but I 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; but by this. the counties were made by a consolidation of its towns. omission the town still remains subject to the objec- 1 In the western States, however, when an organic law
is first made for the government of the whole territory, | also void, and the taxes so paid by the appellant under or a constitution 18 formed for the whole State, coun protest are illegal aud void and may be recovered in ties are formed first, and towus within them after this action. ward; but the same original idea and meaning of the The judgment of the Circuit Court is reversed, and town remain the same, and that is, “a subdivision of the cause remanded for a new trial. a county," as defined in Johnson's New Universal Enryclopedia, and “subdivision of a county, as a parish is part of a subdivision of a diocese.” “In popular SUNDAY LAWS AFFECTING ONE CLASS usage, in America, the whole territory within certain
ONLY INVALID. limits.” Imperial Dictionary. Webster defines town as “an enclosure;" "the
CALIFORNIA SUPREME COURT, AUGUST 30, 1880. whole territory within certain limits;" and the word "parish "as "a district of certain limits, which cannot
Ex PARTE WESTERFIELD. bo altered without legal enactment;" and the word “district" as "a defined portion of the State."
A statute making it a misdemeanor for those engaged in Iu Abbott's Law Dictionary it is defined, “a walled the business of baking to bake or to permit their em place or borough." Finch, 80. “ Townships are in
ployees to do so, for the purpose of sale, on Sunday; corporated, not as cities and villages are, for their own
held unconstitutional under a provision forbidding the
legislature to pass special laws for the punishment ci benefit, and by their assent, but like counties, as mere
crimes and misdemeanorg. civil divisions of the State." Waltham v. Kemper, 55 Ill. 346. “The several towns of this Stato are corpora DETITION for writ of habeas corpus. The facts aptions for certain very limited purposes: * * for the I pear in the opinion. conservation of highways, * * relief of the poor,
F. J. Castlehun, for petitioner. * * the assessment and collection of taxes, etc. The several towns are political divisions, organized for the
D. L. Smoot, contra. convenient exercise of portions of the political power MYRICK, J. The petition is in the custody of tho of the State.” Lorillard v. Town of Monroe, 11 N.
Chief of the Police of the city and county of San Y. 392. All of these terms defining “town" are
Francisco, under a warrant charging a misdemeanor strangely expressive of compactness, adjacency, and under an act entitled “An act to regulate and provide contiguity, such as “enclosure," "whole territory for a day of rest in certain cases," approved April 16, within certain limits," " defined portion of the State,"
1880. and "a subdivision of a county." A town, in its name
The act provides that "it shall be unlawful for any and uses, conveys the very idea of locality, viciuity, vicinage and convenience. A town is a subdivision in
or permit others in his employ to engage, in the labor the singular; not subdivisions, or many subdivisions,
of baking for the purpose of sale between the hours of in the plural. Aside from these definitions, all of
6 o'clock P. M. on Saturday and 6 o'clock P. M. on Sunwhich appear to be conclusive of the question, there is
day, except in the setting of sponge preparatory to much force in the general and almost in variable usage,
the night's work; provided, however, that restaurants, in this country at least, in the organization of towns
hotels and boarding-houses may do such baking as is and counties, as in precincts, districts, cities, and vil
necessary for their own consumption;" and a violalages, in forming them of adjacent and contiguous ter
tion of the act is made a misdemeanor, punishable by ritory. If there had been many instances, and I might
fine and imprisonment, or both. say any, of the organization of a town constituted of This act is in conflict with section 25, article IV, of separate, detached, and remote bodies of territory, the the Constitution, and is therefore void. evils would have been so manifest and numerous that
"Section 25. The Legislature shall not pass local or cases of complaint would havo found their way into
special laws in any of the following enumerated casesthe courts and reports, but by considerable searching
that is to say: * * * Second. For the punishment I have been unable to find a single case directly involv
of crimes and misdemeanors." ing this question.
The act purports, according to its title, to be an act To so construe the constitution as to authorize the
to provide for a day of rest. Instead of pursuing that board of supervisors of a county to organize or change
intent, it goes on to say that certain acts, viz., the the boundaries of a town so that it would be composed
labor of baking for the purpose of sale, if performed of separate, detached, and non-contiguous territory,
by certain persons, viz., persons “engaged in the buswould most unquestionably restrict the sovereign
iness of baking for the purpose of sale," shall constipower of the legislature in the organization of assem
tuto a crime, and shall be punished. The employees bly districts “consisting of contiguous territory, and
are not to be punished. This is special legislation. A bounded by county, precinct, town or ward lines."
certain class is selected. As well might it have said, if Articlo 4, 84, Const. The term precinct, as used in master carpenters or blacksmiths, or if attorneys have this section, has reference only to certain districts
ing clerks, shall labor or permit employees to labor, having similar functions to those of towns, as in Grant
they shall bo deemed guilty of misdemeanor and be
punished; carpenters or blacksmiths not master work and which passed away upon the formation of the first
men, or attorneys without clerks, may labor at their legislative districts, after the admission of the State, and the term is no longer used except, perhaps, occa sary. Even if there be authority to restrain tbe labor sionally, interchangeably with election districts. By
on some one day, it must be, if at all, under a general section 5 of the same article, senate districts are re
law restraining labor on that day. quired to be of alike "convenient contiguous terri
Let the petitioner be discharged. tory," and the power of the legislature would be restricted in their formation if the territory of towns McKINSTRY, J. I concur. I entertaiu no doubt that need not be contiguous. Supported by these authori the invalidity of the statute under which the defendant ties, as well as most obvious and numerous reasons of was arrested may be determined upon habeas corpus. public policy, practical convenience, and respecting | “Sunday laws" have been held not to be violative of the public welfare, we decide that a town must consist | a provision of a coustitution, that “the free exercise of contiguous territory, and that the orders of the and enjoyment of religious profession and worship, board of supervisors of Oconto county are void and of without discrimination or preference, shall forever be no effect; and that the assessment complaiued of is allowed in this State." Ex parte Andrews, 18 Cal. 678.