missions by the defendants, threats previous to the commission of the crime tending to show a hostility on his part against the deceased, and in short any acts, declarations, or circumstances admitted in evidence tending to connect the defendant with the commission of the crime. There is nothing in the nature of circumstantial evidence that renders it any less reliable than the other class of evidence. A man may as well swear falsely to an absolute knowledge of the facts as to a number of facts from which, if true, the facts on which the guilt or innocence depends must inevitably follow. No human testimony is superior to possible doubt; and all that is required, if, under the foregoing rules, the testimony is sufficient to convince you as reasonable men beyond a reasonable doubt that defendant did commit the act charged, although the fact may be in a degree surrounded by a doubt, then I charge you it is your duty to convict."

We find no error in the foregoing instruction, and in our opinion it correctly states the rule relating to circumstantial evidence. But even if it were justly the subject of criticism, the following instructions given by the Court fully presented the law applicable to the case:

Third instruction: "When the evidence against the defendant is made up wholly of a chain of circumstances, and there is a reasonable doubt as to one of the facts essential to establish guilt, it is the duty of the jury to acquit."

Fifth instruction: "In order to convict the defendant upon the evidence of circumstances, it is necessary not only that all the circumstances concur to show that he committed the crime charged, but that they are inconsistent with any other rational conclusion. It is not sufficient that the circumstances proved coincide with, account for, and therefore render probable the hypothesis sought to be established by the prosecution, but they must exclude to a moral certainty every other hypothesis but the single one of guilt, or the jury must find the defendant not guilty."

The next point relied upon is that the Court erred in not sustaining defendant's objection to the testimony of Brown, in which he related a conversation between Jesse Anthony and himself. It is sufficient to say that the testimony admitted was immaterial, and did not in any manner tend to prejudice the defendant's case before the jury; and the same may be said of the testimony of the witness Davis. (Folio 422 of the transcript.)

The fifth and last point to be noticed is the alleged error of the Court in admitting in evidence the statement of Jesse Anthony, testified to by the witness Lownes. It is a suffi

cient answer to this objection that the evidence of Lownes came in without any objection, and no exception to any portion of it appears in the bill of exceptions. It was, however, certainly competent evidence against the defendant Jesse, and was properly before the jury.

We find no error in the proceedings of the Court below, and the judgment and order will therefore be affirmed. Judgment and order affirmed.

We concur: Sharpstein, J., Myrick, J.

IN BANK.

[Filed August 20, 1880.]
No. 10,531.

EX PARTE WILLIAM WESTERFIELD ON HABEAS CORPUS.

CONSTITUTIONAL LAW. Although

66

Sunday laws" are not unconstitutional,

yet a law which provides a day of rest for a certain specified class is "special" and unconstitutional.

BAKERS' ACT. The Act of April 16, 1880, providing for a day of rest as to Bakers, is special legislation, and void.

PROHIBITORY LAWS. There can be no rule which will permit the prohibition of a particular kind of labor in itself innocent and beneficial to the public.

GENERAL LAW-CONSTRUCTION. To say that every law is "general" within the meaning of the Constitution, which bears equally upon all to whom it is applicable, is to say that there can be no special laws.

Petition for writ of habeas corpus.

F. J. Castlehun, for petitioner.

D. L. Smoot, contra.

MYRICK, J., delivered the opinion of the Court:

The petition is in the custody of the Chief of 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 cases-that 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 personsviz., 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.

I concur: Thornton, J.

CONCURRING OPINION.

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.) Such laws have been sustained as simply requiring a periodical cessation from labor— the power to pass them resting upon the right of the Legislature to pass laws for the preservation of health and the promotion of good morals. I do not deem it necessary, in this place, to assent to the proposition that a law which enforces, under penalty of fine and imprisonment, a cessation from labor upon Sunday by one whose religious belief has imposed upon him the duty of taking his rest on Saturday, in no degree discriminates against his "religious profession." But admitting the constitutionality of general laws prohibiting all labor on Sunday, or upon any other day, I think the Act

of April 16, 1880, is a "special law," within the meaning of those terms as employed in Section 25, Article IV, of the present Constitution. The Act does not declare the business of "baking," as ordinarily conducted, to be a nuisance; nor does it contain any intimation that the business of baking may tend to interrupt divine worship by any class of sectaries, or can otherwise interfere with the rights or privileges of any citizen. The baking of bread is not only lawful and necessary, but we will take notice that there is nothing so peculiar in the occupation as that those engaged in it require -as a sanitary measure or for the protection of their moralsa period of rest not required by those engaged in many other employments.

A general law must include within its sanction all who come within its purpose and scope. It must be as broad as its object. If it is to be made a crime not to refrain from labor during the whole or during any portion of any given day of the week, it must be made equally a crime as to all persons who do not so refrain; or the prohibitory law must be made applicable to all of a class, the members of which, for reasons apparent upon mention of the class, may at least require, for the benefit of their health or morals, a period of rest not beneficial to any other class or individual. We might perhaps take notice that there are controlling reasons why clergymen should not be prohibited from pursuing their pious labors on the Christian Sabbath, and that a law might still be general which included all others, although it excluded them. So we might perhaps hold that there are other special classes who might be permitted to pursue their avocations, notwithstanding a law which prohibited labor by the rest of the community, because of the fact that their peculiar pursuits involved "works of necessity," and placed them beyond the benefits of a law which would compel an enforced cessation of labor by others. But there can be no rule which will permit the prohibition of a particular kind of labor in itself innocent and beneficial to the public. There is no reason, and can be no reason, why bakers should be forced to rest from their labors periodically, which is not applicable to many other classes of artisans and workmen. To say that every law is "general" within the meaning of the Constitution, which bears equally upon all to whom it is applicable, is to say that there can be no special laws. MCKINSTRY, J.

I concur in the judgment: Sharpstein, J. (Mr. Justice Ross and Mr. Justice McKee, not having heard the argument, took no part in the decision of this case.)

DEPARTMENT No. 2.

[Filed August 27, 1880.]
No. 6439.

JOHN BOYD, RESPONDENT,

VS.

CHARLES F. BRINCKIN, APPELLANT.

RAILROAD LANDS-SETTLERS-CONTRACT. Where a party settles upon land of a railroad company which, by a circular of the company, is offered to any one who would settle upon and improve it, and offering to sell it to such person, as soon as the company should fix a price upon the same, at the price so fixed-a contract is created, of which a Court of equity might decree a specific performance against the railroad company or its grantee.

Appeal from the District Court of the Tenth Judicial District, Colusa County.

W. F. Goad and W. C. Belcher, for respondent.
A. L. Hart, for appellant.

SHARPSTEIN, J., delivered the opinion of the Court:

After

The complaint in this case is in the usual form of complaints in ejectment. The defendant answered, and by way of cross-complaint alleged that he was induced to settle upon the land sued for by a circular issued and distributed by the Central Pacific Railroad Company, which invited people to settle and make improvements upon its lands, promising those who should do so that they should be preferred as purchasers when said lands should be offered for sale. settling upon the land, and before the same was offered for sale, defendant filed an application to purchase said land in the office of the company, as he was directed to do by said circular. He alleges that he has made improvements on said land of the value of $2,500. The company, in 1875, fixed the price of said land, and soon afterwards sold and conveyed it to the plaintiff, who at the time knew that the defendant had settled upon and improved, and was residing on said land, and also knew of the circular issued by said company and of the application of defendant to purchase said land. The defendant did not know that the price of said land had been fixed, nor that plaintiff had purchased it, until the month of July, 1877. On or about the first day of January, 1878, the defendant tendered to plaintiff the sum which he paid for the land, and demanded a deed thereof from him. The plaintiff refused to accept the tender or to give a deed. Defendant avers his readiness to pay said sum, and brings it