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and had gone to England as such in the employ of the defendants after the commencement of this action; that it was while in the pursuit of evidence against the plaintiffs that he learned of this bank book writing, and while engaged in taking the evidence, in behalf of the defendants, of a witness, on commission, that he saw the writing, and heard the admission of the plaintiff that it was made by her. His acquaintance with her handwriting was from an examination of these two pieces of it, and it was formed while he was a hired agent in quest of testimony with which to combat the plaintiff's case, and of testimony to be made from the handwriting of the adult plaintiff. It is not to be distinguished from a case of genuine writings furnished to a person to enable him to become a witness to a disputed signature. It is clear that if the genuine writings had been made or chosen for his inspection by the party who called him as a witness so as to qualify him to speak, his testimony to be based upon an acquaintance got from view of them would not be received. Stranger v. Earle, 1 Esp. N. P. C. 14; Tome v. Parkersburg R. R. Co., 39 Md. 36, 17 Am. Rep. 540, and it has been held at nisi prius that when the acquaintance is formed from the view of writings admitted by the attorney of the writer to be genuine, the witness will not be allowed (Greaves v. Hunter, 2 Carr.& Payne, 477); though on the other hand, when the genuine writing from which the witness got his knowledge was to a paper filed in the cause of the opposite party, the testimony was allowed. Smith v. Sainsbury, 5 id. 196. These cases exemplify how lacking in uniformity are the rulings on this matter, and how delicate a question it is to handle. The last two cases are not directly in point, inasmuch as it did not appear that the witness, when he saw the genuine writings, was seeking the means of making acquaintance, so that he might testify therefrom. difference between the case in hand and those cited also from Espinasse and the Maryland Reports is, that in the latter two the genuine signatures were made or chosen by the parties who wished it to appear to the witness that the disputed signature was unlike the genuine ones inspected by him, while in the former the genuine signature is used in the case, and is admitted to be genuine by the party against whom the witness is called. Still it is a case of signatures selected in the interest of the party who calls the witness. They were pitched upon by the witness himself, who, in the hire of the party, had been sent in quest of hostile evidence, and that after the commencement of the action. All the stimulus upon and all the impulses of his calling were against impartiality in selection of specimens. The distinction is taken in the Fitzwalter Peerage case, 10 Cl. & Fin. 193, between the testimony of a witness who, intending to be a witness, has inspected genuine documents for the purpose of forming an acquaintance with the characteristics of a certain handwriting, and that of one who in the course of business, without having in view the being a witness, has used the same documents and thus got an acquaintance. In our judgment the evidence is open to the objections that have been held fatal to testimony as to handwriting created post litem motam. We think, that upon all that transpired on the trial in the testimony of Loader and the objections made, the trial court erred not in ruling out the question. Tho Legislature of this State has this year (Laws of 1880, ch. 36) passed an act which is intended to allow proof of signature by comparison of handwritings, and which perhaps will forestall for the future much discussion of this topic. That statute, however, is probably yet to be the subject of judicial interpretation.

Fifth. What we have just said applies to the defendants' offer of testimony as to the handwriting in the Book of Registry of Births. Nor is there force in the position of the defendants that the plaintiffs then waived objection to the competency of the witness to

speak of handwriting. The appeal book speaks, at the folio where the testimony is rejected, of a general objection. But it is plain it is a continuation of the same objection that had been before made to that testimony. It would be a forced supposition that the defendants' counsel was misled at the trial, and thereby omitted to bring forward other kindred testimony that he held in reserve.

Sixth. The next point is that of the rejection of the offer to read from the books claimed to contain the law of France. It is well enough to consider it, though the result we reach is not so determinate as may be wished for. There were shown to the witness two volumes of a printed work, and a single volume of another work. He said that the two were the French Code, and that the three were all the French acts, the five Codes and State laws of France. The very books thus shown to him he saw then for the first time. He had been a practicing lawyer in France from 1837 until 1862, and left that country in 1863. The date of the edition of the two volumes was 1859. The date of the last edition was 1877. IIe said that they constituted a printed copy of the Code of Statutes of France, as they existed when he practiced there; that he had occasion to use, and did use, the printed statutes of France every day in the courts of that country, and that he had not the slightest doubt that the two volumes produced constituted a printed copy of the statutes or book which was commonly received by the judicial tribunals of France as evidence of the existing laws thereof; that he had no doubt it was an exact copy of the French law; that it was the same thing, the only difference being in the notes of the author, M. Rogron. He would not say that that opinion was based upon an examination of the books, and did say that it was founded on reason. He first saw the volume in court on the day that he was examined, and had not looked into the books save at the title page; but he said that that very copy he would use before a French tribunal the first time he had occasion to quote the French law, and that the work of M. Rogron received therein as proof of the existing law. We have here given all of the testimony of the witness. It will be seen that the books ho had before him were the publication of a private person. They were not proven to have been published by the authority of France, nor does it appear that they purported so to have been. It was testified, however, that they were at the time spoken to by the witness received in the tribunals thereof as a proof of the then existing law.

The old and the new Code provide in nearly the same terms for a mode of proving the statute law of a foreign country (old Code, § 426, new Code, § 942). The new Code also (§ 962) permits the proof of an act according to the rules of the common law or by any other competent proof. We think that the testimony of this witness would not bring the offer to read the books within the rule of the common law. As to what that is held to be in England see Baron de Bodes' case, 8 C. B. (N. S.) 208, 250, et seq.; Earl Nelson v. Lord Bridport, 8 Beav. 527; Sussex Peerage case, 11 Clos. & Fin. 85, 111. To prove tho written law of a foreign State by a printed book purporting to contain it, though the book is sustained by the testimony of a witness familiar with the law, was not permitted, so far as we can find, in this State before the Codes (Packard v. Hill, 2 Wend. 411; see S. C., Hill v. Packard, 5 id. 375), and again it was held that to prove the statute law of a foreign State there must be produced a copy authenticated there, or a sworn copy (Lincoln v. Battelle, 6 Wend. 482), and such proof as was produced in our case, according to that decision, would not have been deemed equivalent to a sworn copy. Id. 483-4; Chamvine v. Fowler, 3 id. 173.

Even if that testimony would meet the requirement 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 thereaftor. It is claimed, however, that the law of France 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 England it was held that it will not be intended that a man alters his trade or profession, but by presumption he 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 (Clark v. Alexander, 8 Scott [N. R.], 161), which seems to us an extreme carriage of the rule. Would it do in the United 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 kuow 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 before 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 these very books, nor a page of them, save the title page. It must have struck the circuit judge, as it strikes us, as difficult to conceive how one could testify that the contents of these books, issued from the 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 have been issued in 1862, and prior thereto, before the judicial tribunals of France, as evidence to them of the existing 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 the 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 wo 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 the trial court.

We are not compelled to pass definitely upon these questions. If it be determined or conceded that the marriage 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, while crossing the English Channel, enter into an agreement to take each other then and there as man and wife. As we 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., supra. Wo need not therefore 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 come 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 Hynes was a citizen of this State, 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 accordance with the suppositions put in the charge. The defendants duly excepted. This exception we do not deem it necessary to consider. If the propositions stated in the charge 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 have 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: There 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 the jury, in the 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. The 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

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well asked for. The third related to the alleged act of marriage in England, and the court had charged fully upon that. The fifth was that the presumption is that as the vessel sailed from an English port that she was an English vessel sailing under an English flag. We must infer that the court declined to charge this request. The defendants cite no authority to sustain it. We have not been able to find it so laid down as law.

There are noted upon the points two exceptions to the rejection of evidence. We think the court did not err therein. We have examined the case with minuteness and do not find that error which calls upon us to reverse the judgment.

All concur.

Judgment affirmed.

RIGHT TO STRIKE OUT ANSWER FOR CON-
TEMPT IN ACTION FOR DIVORCE.

NEW YORK COURT OF APPEALS, OCTOBER 5, 1880.

WALKER V. WALKER, Appellant.

A court has power in an action for divorce to strike out the answer of a defendant who is in contempt by a failure to obey the order of the court directing him to pay alimony pendente lile

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CTION for limited divorce on the ground of cruelty, by Eliza Jane Walker against Joseph Walker. Defendant was ordered to pay alimony, whereupon he left the State. An order was thereafter made that he pay within five days, in default of which that his answer, which was a general denial, be struck out. Default being made, an order was made that his answer be struck out and a reference be had to take testimony as This order was affirmed at if there was no answer. General Term and defendant appealed.

S. Hand and D. T. Robertson, for appellant.

John B. Perry, for respondent.

FOLGER, J. The defendant, having refused or neglected to obey an important order of the court, was in contempt, and liable to punishment by reason thereof. The punishment inflicted by the court was by an order in the cause, to strike out the answer that had been put in by him, and to direct a reference to take proof of the matters stated in the order; the reference to proceedas if there had been no answer put in.

It is claimed that the court had no power to make that order; that every defendant has a vested right to make a defense to any action or suit or legal proceeding begun against him, and that ho cannot be deprived of it.

It is conceded by the defendant that the Supreme Court, on its equity side, has all the power and authority that formerly existed in chancery in England, and "The rule there was continuously exercised by it.

must be the rule here," says Ch. Kent, "for I take this
occasion to observe that I consider myself bound by
those principles which were known and established as
law in the courts of equity in England at the time of
the institution of this court." Manning v. Manning,
1 Johns. Ch. 527-9. It is not to be denied that a court
of equity may refuse to a defendant in contempt the
benefit of proceedings in it, when asked by him as a
favor, until he has purged himself of his contempt.
See Brinkley v. Brinkley, 47 N. Y. 40-9, and cases there
cited. But the rule has been held broader than that and
enforced with much vigor. Ch. Baron Gilbert lays it
down in his Forum Romanorum, p. 33, that "if the
defendant appeared before the secundum decretum, he
was liable to a mulet, for he could not be heard in the
cause until he had cleared his contempt

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It is suggested in Cooper's Cases (temp. Colt, p. 209), that this is merely a statement of the practice accordng to the canon law. But the Chief Baron, says at

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another place (p. 71), that "the answer will not be
and at
received without clearing his contempts;"
another (p. 211), "So it is where a man hath a bill
depending in court, and falls under the displeasure of
the court, and is ordered to stand committed. Here,
when his cause is called, if the other side insist he
hath not cleared his contempt, nor actually surren-
dered his body to the warden of the Fleet, he must
do both of these things before his cause can be
*." It
proceeded in
is stated by Lord Eldon that it is a general rule, that a
party who has not cleared his contempt cannot be
heard. Vowles v. Young, 9 Ves. Jr. 173; Anonymous,
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,
also, Heyn v. Heyn, Jacobs, 49; Clark v. Dew, 1 Russ. &
Myl. 103. The rule in the Chancery of Ireland is stated
thus: A party in contempt will not be allowed to oppose
the relief sought by the plaintiff by contradicting the
allegations of the bill or bringing forward any defense
or alleging new facts. Anon. v. Lord Gort, 1 Hogan, 77;
Valle v. O'Reilly, id. 199. And the rule as thus stated,
is cited and approved in Mussina v. Bartlett, 8 Porter
(17 Ala.), 277; see, also, Rutherford v. Metcalf, 3 Hayw.
(Tenn.) 58, 61; and in Saylor v. Mockbie, 1 Withrow
(9 Iowa), 209, 212, it was held that until the defendant
had purged himself of contempt, the court might well
refuse to receive his answer to the complainant's bill or
to consider the matter set up in it by way of excuse for
refusal to obey the order. The reporter (Coop. temp.
Colt, at page 211) cites in a note the case of Anon. v.
Lord Gort, supra, and says of it: "The accuracy of
some of these dicta may be doubted." He does not
state as to which of them he queries. Many cases are
collected in the note just above mentioned. Some of
them show that the rule has not been vigorously ap
plied in latter times (see King v. Bryant, 3 Myl. & Cr.
191, especially); but it does not appear that it has been
abolished or abandoned entirely.

It seems, too, that the authors of the Revised Statutes
thought that this power resided in the English Court of
Chancery. In preparing the sections relative to the
production and discovery of books and papers (2 R. S.,
p. 199, § 21, et seq.) they provided (§ 26) that in case of a
party neglecting or refusing to obey an order, the
court might strike out his plea and debar him from a
defense; and they sought thus to assimilate the prac-
tice to that of the Court of Chancery (see rev. note, 5
Edm. Stats. 411). The Legislature gave its sanction to
the proposed practice by passing into law the sections
reported by the revisers. It is well to say here that
Rice v. Ehle, 55 N. Y. 518, does not condemn this.
That case holds that the pleading may not be stricken
out, save on notice to the party (p. 523), and that the
exercise of this power was legitimate was recognized
by Marcy, J., in Birdsall v. Pixley, 4 Wend. 196. The
power seems to have been exerted or recognized by the
Supreme Court in several instances, without question
made by appeal. Farnham v. Farnham, 9 How. Pr.
231; Barker v. Barker, 15 id. 568; Ford v. Ford, 41 id.
169.

We are brought to the conclusion that there has long been exerted by the Court of Chancery in England the power to refuse to hear the defendant when he was in contempt of the Court by disobeying its orders, and that that power was in the Courts of Chancery of this country.

We do not think that the case of Wayland v. Tyson, 45 N. Y. 282, and Thompson v. Erie Railway, id. 471, and others of like result, are in the way of this conclusion. They were not cases of contempt, nor were they equity Besides, there the answer was stricken out, with no loophole left for relief to the defendant. It is always in the power of the defendaut, in a case like that in hand, to apply to the court and show that

cases.

the order was irregularly made, or for leave to purge himself of the contempt and be let in again to make his defense. Brinkley v. Brinkley, supra. The order should be affirmed.

TOWN-MUST CONSIST OF CONTIGUOUS TERRITORY.

WISCONSIN SUPREME COURT, SEPT. 21, 1880.

CHICAGO AND NORTHWESTERN RAILWAY Co. v. TowN OF OCONTO.

The word "town," as used in the Constitution of the State of Wisconsin, denotes a civil division composed of contiguous territory and under the power granted to county boards by the statute, "to set off, organize, vacate, and change the boundaries of the towns in their respective counties" (R. S., § 670, subd. 1), such a board cannot make a valid order changing the boundaries of a town so that it shall consist of two separate and detached tracts of land.

APPEAL from Circuit Court, Oconto county. The

opinion states the facts.

F. J. Lamb and W. F. Vilas, for appellant.

Tracy & Bailey, for respondent.

ORTON, J. This suit is brought to recover from the town of Oconto, the defendant, certain moneys paid under protest for taxes claimed to have been illegally assessed upon the plaintiff's lands, situated in towns 35, 36, and 37, range 16, in Oconto county, by the said towns, for the year 1878. Two grounds of recovery were relied upon at the trial - First, that the assessment was improperly made; and second, that these lands were not subject to assessment and taxation by and in the town of Oconto. The latter ground, being the more important, and if well taken, fatal to the legality of the assessment, will alone be considered. To sustain this objection to the assessment, it is claimed that the several orders of the board of supervisors of the county of Oconto, attaching these lands to and making them a part of the town of Oconto, are void, because they are left by such orders in a body of lands separated and detached, and not contiguous to the main body of lands in said town, in violation of the Constitution, which, it is claimed, requires towns to be composed and constituted of contiguous territory only.

There was some question on the argument whether the orders of the board of supervisors of Oconto county, organizing and changing the boundaries of the town of Oconto, in fact left these bodies of land so detached, but by an inspection of the orders it is apparent that they are so detached. The order of the board of November 15, 1876, it is conceded, made the town consist of two detached bodies of lands, in the smaller body of which the lands of the appellant in question were situated, and the two bodies separated by the distance of nearly 20 miles of intermediate territory. By the order of March 25, 1877, certain lands, a part of, and contiguous to, the larger body, and in the direction of the lands in question, were detached from the town of Oconto, and added to and made a part of the towns of Peshtigo and Marinette. By the order of January 12, 1878, certain lands lying contiguous to the lands so detached were added to and made a part of the town of Oconto, but this order failed to embrace the lands so detached, and they were still left in those two other towns. These orders, then, taken together, still leave the two bodies detached, but not by so great a distance. It was unquestionably intended by the last order to cure this defect in the first one, and connect the two bodies together; but by this. omission the town still remains subject to the objec

tion of consisting of two detached bodies of territory, the same as by the first order.

We shall not follow the very able arguments of the 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 to be composed only of contiguous territory, and reasons based upon the Constitutional rule of uniformity of town government and of taxation. We shall pass directly, and confine ourselves strictly, to the consideration of the true meaning and proper construction of the term "town," as used in the Constitution, with reference only to the defect in the organization, or in the changing of the boundaries of the town of Oconto, here urged, as making the orders of the board of supervisors void. There are few, if there are any, decisions of courts having a bearing upon this question, directly or indirectly, and it must therefore be treated as an original one, and determined somewhat arbitrarily. The word "town," philologically considered, is a change in the orthography and pronunciation of the Anglo-Saxon word "tun," from the verb "tyan," meaning to "inclose," and "tun," therefore, means an inclosure. It was used to denote a garden inclosed by a hedge, or a collection of houses inclosed by a wall. Zell's Popular Encyclopedia, and Johnson's New Universal Encyclopedia.

Its general and customary usage in England, as denoting a collection of houses or hamlets between a village or city, or its stricter legal or civil meaning, as denoting a civil corporation of larger territory, which might include a village or city, is somewhat foreign to the use of the word, and the civil and territorial subdivision or organization which it is used to signify in this country. Its first use in this country was to define the original or primary civil or governmental organizations of the early colonists of New England, who knew by bitter experience the oppressive tyranny of imperial law, and who desired, above all things, to be governed not only by laws made by themselves in primary assembly, but having a limited and local application to their wants in small and independent communities. They were considered and adopted by those alone who knew their fitness and adaptation to their wants, and they received the general assent. This attachment to local law and local government, which then prevailed and still prevails in this country, was the producing cause of the organization of the towns of the New England colonies, which had exclusive control of their local affairs. Each town had clearly-defined territorial limits or boundary, so restricted as to fully secure to each citizen the advantages of a local or home government, and not so extended as to defeat or lessen them.

The nature and uses of this form of local government are fully expressed by one of the earliest acts of the Massachusetts colony, in general court in 1636, viz.: "Inasmuch as particular towns have many things which concern only themselves and the ordering of their own affairs, and disposing of their own towns, it is ordered that the freemen of every town, or the major part of them, shall only have power to dispose of their own lands and woods, with all the privileges and appurtenances, not repugnant to the laws and orders of the general court." Local Law of Mass. and Conn. by Fowler, 10-20. It can be seen that in the very nature and uses of such a local government the town must be - First, of limited territorial extent; second, of compact and contiguous territory; third, its boundary must be clearly defined and continuous; and fourth, it should embrace within its government only those having a unity or similarity of interests. In New England, towns having been the first local civil governments, and antecedent to the formation of counties, the counties were made by a consolidation of its towns. In the western States, however, when an organic law

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 same, and that is, a subdivision of a county," as defined in Johnson's New Universal Encyclopedia, and "subdivision of a county, as a parish is part of a subdivision of a diocese." "In popular usage, in America, the whole territory within certain limits." Imperial Dictionary.

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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."

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In 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" are 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, vicinity, 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 have 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.

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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 the 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

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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 the 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; carpenters 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, under 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.

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