the dipping of the Bair sheep were in the sel, in effect, stated to the court that they same relative proportions.

desired to make this proof, and none other, with reference to that particular subject. The offer is made as a whole. It is not for the court to separate the admissible from the nonadmissible, and admit the one and reject the other. If the offer as a whole contains objectionable matter, no error can be predicated upon the ruling of the court in excluding it. Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417; Farleigh v. Kelley, 28 Mont. 421, 72 Pac. 756. The defect in the offer becomes very apparent when we consider the fact that the complaint in this instance alleges that 69 head of sheep were killed, and that the remaining 81 were so materially injured as to render them unfit for breeding purposes. It may be that in the other instances no fatal results followed, but that such damage was caused as to render those sheep likewise of no value for the purpose for which they were kept; in other words, the offer is so pregnant with the admission that serious or damaging results may have followed that it could have no evidentiary value, and in its exclusion we cannot say that the court committed error. The judgment and order denying defend

Consideration of the offer of proof and of the questions referred to may be had to gether, as they are treated as one error by the appellant in his brief. The evident purpose of the defendant was to show that he had used the same material, mixed with water in the same proportion, in dipping other sheep as in the case of the dipping of the sheep in question, and that no serious or damaging results had followed. If the offer of proof had fairly presented this matter, it would have been competent. It is contended by the respondent that the offer is fatally defective in many respects; that the offer must show that the dipping was done under like circumstances, with like conditions prevailing as to the character of the sheep, the conditions of the weather, and numerous other conditions to which it is not now necessary to refer. In our judgment, the of fer was fatally defective in one particular at least. Assuming that the questions asked and the offer made fairly show that the other sheep were dipped in the same material, mixed in water in the same propor-ant a new trial are affirmed. tion, under like circumstances and surroundings, still the offer only seeks to show that in the other instances fatal results did not follow. In submitting this offer coun

Brantly, Ch. J., and Milburn, J., con

cur.

(September 21, 1903.)

The facts are stated in the opinion.
Mr. M. W. Niven, with Mr. Francis H. lic schools.
McCauley, for plaintiff in error:

The act was framed to affect certain municipalities in one way and other municipalities in another. On its face it purports to be general, but in reality contains so many exceptions that the word "special" crops up at every page.

The guide to interpretation is legislative 564, 52 Atl. 362,-answer all the objections intent. that have been urged, or can be urged, State, Bowyer, Prosecutor, v. Camden, 50 against Laws 1902, chap. 36, in the present N. J. L. 87, 11 Atl. 137. proceedings.

Lewis v. Board of Education, 66 N. J. L. Education in Township, Incorporated Town 582, 50 Atl. 346.

Mr. John R. Hardin, also for plaintiff and 7 provide separate codes for the school in error:

Wanser v. Hoos, 60 N. J. L. 482, 64 Am. St. Rep. 600, 38 Atl. 449; State ex rel. Cor-board of school estimate, of which two memnelius v. Boorum, 66 N. J. L. 197, 88 Am. St. Rep. 469, 48 Atl. 955; Hermann v. Guttenberg, 63 N. J. L. 616, 44 Atl. 758; State, Lowthorp, Prosecutor, v. Trenton, 62 N. J. L. 795, 44 Atl. 755; Hudson County v. Clarke, 65 N. J. L. 271, 47 Atl. 478.

gether with the mayor or other chief execu- tion thus resorted to must be germane to tive officer of the city, are to constitute the the purposes of the enactment. It must rest board. The same board determines the on peculiarities or characteristics that subamounts necessary to be raised for the pur- stantially differentiate the localities includchase of lands, and construction, etc., of ed from those excluded, and that render dischool buildings; the power of appropriat-vergent legisiative enactments appropriate ing and borrowing money for the purpose to the several localities respectively. being reposed in the common council or other municipal body. In the township, incorporated town, and borough school districts, the board of education is to be chosen by the people at the annual school meeting. Such questions as the raising of money by district tax, the issuing of bonds, the purchase of lands and construction of school buildings, and the condemnation of land, are to be decided by vote of the people of the district. The specific provisions respecting the raising of a district tax for school purposes are found in §§ 179 and 180. Those relating to school district bonds are found in §§ 188 to 193.

From the opinion delivered by Mr. Justice Dixon in the supreme court (54 Atl. 801), it is manifest that the only question discussed before that court was the constitutional validity of a classification of school districts, for the purpose of divergent legislation, made by placing all city school districts in one class, and all other school districts in another class. The act was dealt with as if, either by its terms or by force of previous legislation, all the school districts of the state were coterminous with the bounds of some municipality. In this court, certain features of the act not adverted to below were pointed out and discussed. As will be presently shown, they result in subdividing the two principal classes of districts just mentioned, and bring into play special discriminations, so that the act does not operate uniformly in all cities, nor uniformly in all the other forms of municipality.

Our Constitution, since the amendments of 1875, has recognized the common-law classification of municipalities into counties, cities, incorporated towns, boroughs, villages, and townships; and it is already established by repeated decisions of this court that the constitutional inhibition against special legislation regulating the internal affairs of municipalities is not violated by laws that make distinctions between the different forms of municipalities, based merely on the common-law classification. Hermann v. Guttenberg, 63 N. J. L. 616, 44 Atl. 758; State ex rel. Cornelius v. Boorum, 66 N. J. L. 197, 88 Am. St. Rep. 469, 48 Atl. 955. It is equally well settled that where the legislature makes a departure from the common-law or constitutional classification, either by subdividing one of the classes, or by excepting a part of a class from a given legislative scheme, the legislative classifica

In the present case we have to consider, not only the constitutional prohibition of special laws regulating municipal affairs, but the additional prohibition of special laws “providing for the management and support of free public schools." In State, Lowthorp, Prosecutor, v. Trenton, 62 N. J. L. 795, 44 Atl. 755, this court, speaking through the present chief justice, intimated a doubt, whether, under this clause, any classification of schools or of school districts was permissible. Upon full consideration we are now unanimously of the opinion that such classification, within due limits of generality, is permissible. Assuming that, for purposes of local management and support, a single school might be treated as a natural logical unit, and that the adjacent territory, whose children should attend there for education, and whose citizens and property owners ought to contribute especially to its support and to have voice' in its management, might be set apart as a "school district," we entertain no doubt that these units may be grouped together, so that single districts may be made to comprise numerous schools, combined for purposes of local government. We are likewise unanimous in the view that schools and school districts having characteristics so nearly alike as to require similar treatment in legislation may be grouped together in classes, and that such classification may be made the basis of divergent legislative provisions, appropriate to the different classes, respectively. In the opinion of all, a legislative classification of school districts, proceeding on lines germane to the objects and purposes of the law, would serve to make general an enactment providing for the management and support of the free public schools.

Upon one question, however, the court is divided, and upon only one. It is this: May the legislature, upon subdividing the whole territory of the state into school districts coextensive with the municipal bounds of the several cities, incorporated towns, boroughs, and townships, establish divergent regulations for the management and support of the schools, based merely upon the common-law classification of the municipalities themselves? A majority of the members of the court have reached the conclusion that this question is to be answered in the affirmative. They consider that the management and support of the schools is so much a matter of local concern as to admit of

legislative treatment according to the same lines of classification that apply to the general internal affairs of municipalities. They hold, therefore, that the common-law classification of municipalities may be adopted in legislating about matters of school management and support, when the school districts are made to conform to the corporate limits of the municipalities, and that the declarations to the contrary in the case of State, Lowthorp, Prosecutor, v. Trenton, 61 N. J. L. 484, 40 Atl. 442, 62 N. J. L. 795, 44 Atl. 755, have been in effect overruled by the later cases of Hermann v. Guttenberg, 63 N. J. L. 616, 44 Atl. 758; State ex rel. Cornel- | ius v. Boorum, 66 N. J. L. 197, 88 Am. St. Rep. 469, 48 Atl. 955; and Lewis v. Board of Education, 66 N. J. L. 582, 50 Atl. 346.

act contravenes the Constitution, in that, while assuming to adopt in general the common-law classification, it makes exceptions and distinctions with respect to certain school districts that are arbitrarily set apart and separately legislated about, or left subject to previous legislation, in such a manner as to render the act local and special, within the constitutional interdict. How this is done, we will attempt to point out. As already remarked, article 6 assumes to provide a code of government for "city school districts;" article 7, a code for "township, incorporated town and borough school districts." If all school districts were included in one or the other of these classes, and if each code consisted of regulations uniformly operative upon the class in question, the common-law method of classification would be satisfied. Such, however, is not the case.

A minority of the judges, including the writer of this opinion, have found ourselves unable to adopt this view. We give to the constitutional prohibition of special laws respecting schools an independent force and effect, unqualified by the prohibition respect-in ing municipal legislation. We read it in connection with the constitutional mandate that "the legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in this state between the ages of five and eighteen years." Assuming that the legislature might make the schools a matter of special concern to the several municipalities, either by establishing school districts coterminous with municipal districts, but having separate local government, or even by delegating the management and support of the schools to the municipal governments themselves, we are unable to see how the constitutional prohibition of special laws for the management and support of the schools can be thus de prived of effect. Differences in the mode of school management and support, that are made to depend upon the mere circumstance that one group of schools is located within a "city," and another group located with in an "incorporated town," seem to us inconsistent with the Constitution. Such was the decision in the Lowthorp Case, and we are unable to see that that decision has been expressly or by necessary implication overruled up to the present time.

Accepting, however, the view of the majority in the present case as settling the law upon this topic, it follows that, if the statute under consideration had made the school districts everywhere coterminous with municipal boundaries, and had based its divergent provisions respecting school management and support upon the common-law classification of the municipalities, the act would have been sustained.

But we are all of the opinion that this

The provisions respecting the delimitation of the districts are found principally § 33 of the act (p. 80), which reads as follows: "Sec. 33. Each township, city, and incorporated town shall be a separate school district, but each incorporated village and each borough hereafter created, shall remain and be a part of the school district in which said incorporated village or borough shall be situate at the time of its incorporation; and each borough heretofore incorporated which shall not have assumed the functions of a separate school district by the election of a board of education, or which shall not have actually acted as a separate school district, shall be and remain, and shall be deemed to have been and remained, a part of the school district in which it was situate at the time of its incorporation as a borough, any law to the contrary notwithstanding: Provided that whenever it shall appear to the State Superintendent of Public Instruction that the best interests of any borough require that it be a separate school district he shall make an order creating such borough a separate school district. Such order shall not take effect until approved by the State Board of Education: Provided further, that nothing in this section shall be construed as abolishing any school district which shall have assumed the functions of and acted as a separate school district by the election of a board of education prior to the introduction of this act, or changing the boundaries of any school district possessing complete oflicial autonomy prior to the introduction of this act, but such district shall be and remain a separate school district until consolidated with an adjoining school district. as hereinafter provided.”

It will be perceived at once that this section makes little, if any, change in the ter

since that act as not to be coterminous with a municipality, consolidated districts, and any other district that comprised only a part of the territory of a municipality, or parts of two or more municipalities, or the whicle of a municipality and part of another--remain as before. In view of the saving clauses, it is difficult to ascribe any force or effect to § 33, in the direction of rendering existing districts coterminous with the municipalities. What its effect might be upon school districts hereafter created, or upon the territory of municipalities hereafter incorporated, need not be considered. Nor are we now questioning the

tablishing the bounds of school districts. Our present concern is with the method of their classification for the purposes of this act. It is plain that this classification does not uniformly follow the common-law classification of the municipalities, for the districts do not uniformly coincide with the bounds of the municipalities themselves. How any exceptions are permitted by the act is obscure, and there is nothing before us to elucidate this question. That exceptions exist is entirely clear. That they are arbitrarily made is equally so.

ritorial boundaries of the districts as they | cepted from the operation of the act of 1894 existed de facto at the time the act was-districts whose bounds had been so altered passed. The case is submitted to us without either findings of fact, or evidence upon which to base a finding of fact, determining the actual bounds of the school districts as they existed prior to this act. If, however, they had been uniformly coterminous with municipal boundaries, the second proviso of § 33 would have been uncalled for. Therefore that proviso amounts to a legislative declaration that there existed certain school districts whose boundaries did not conform to the limits of the municipalities. It is a matter of common knowledge that prior to the year 1894 such nonconformity was the rule, and not the exception. Partly under special charters, and partly under the opera- | power of the legislature with respect to estion of general laws, the territory of the state had been divided, for the purposes of school management and support, in such manner that a single township or other municipality often comprised several school districts, while certain other school districts were made up of parts of two or more townships, or even parts of two or more counties; and in some instances a single district was so made up as to comprise the whole territory of a municipality and part of an adjoining territory. By an amendment to the general school act of 1874, approved May 25, 1894 (P. L. 1894, p. 506; Gen. Stat. p. 3055), an attempt was made to render district lines generally conformable to municipal boundaries, but the operation of the act was in this respect limited by certain provisos, notably those contained in §§ 23 and 24, which made special regulations with regard to school districts acting under special charters. In the following year a further supplement was enacted (P. L. 1895, p. 114; Gen. Stat. p. 3062) enabling the boards of education of any two adjoining school districts to alter the boundary line between their districts. And still another supplement (P. L. 1895, p. 503; Gen. Stat. p. 3067) made special provisions respecting the bounds of certain specially incorporated school districts, and at the same time enabled adjoining districts to become consolidated.

An examination of articles 6 and 7 will disclose that the governmental regulations therein contained are applicable in terms only to school districts that are coextensive with the bounds of a single municipality. It is at least doubtful whether they apply to a district comprising only a part of one municipality, or comprising parts of two or more municipalities. That they were not intended to be applied in their entirety to all the school districts of the state is rendered quite plain by § 244 (p. 165), which is as follows: "In any school district which comprises a municipality and a portion of an adjoining municipality, members of the board of education shall be selected in the same manner in all respects as they are selected in said district at the time of the passage of this act, and moneys for the maintenance of public schools therein shall be ordered, assessed, levied, and collected in the same manner as they are ordered, as

We do not undertake to say whether other laws are to be found upon the statute book, - under whose operation school-district bound-sessed, levied, and collected therein at the aries have been rendered nonconformable to time of the passage of this act." We should municipal boundaries. Enough has been note, also, that part of § 249 which declares said to show that § 33 of the present act, that members of boards of education in all by its second proviso, excepts from the township, incorporated town, and borough force and effect of its earlier clauses a group school districts shall continue to be elected or groups of school districts set apart by or appointed in the same manner as said themselves according to arbitrary character- members have been heretofore elected or apistics that existed at the time of the pass-pointed. Therefore, in respect at least to age of this act. It would seem that spe- two principal matters relating to the cially incorporated districts that were ex-management and support of the schools (to