Ex parte Spencer

— This is an application for discharge upon habeas corpus. The return to the writ shows, that the respondent is imprisoned under an order of the superior court of the city and county of San Francisco, made upon conviction for contempt, in refusing to obey an order of the court theretofore made, requiring him “ to pay the sum of twenty-five dollars per month as alimony,” to Josephine M. Spencer, his former wife.

From the return and records introduced, it appears that on August 25, 1884, in the suit of Thomas M. Spencer, plaintiff, v. Josephine M. Spencer, defendant, a decree of divorce was granted to the defendant, upon her cross-complaint; the custody of a minor child was awarded to her; the household goods and personal property at the residence occupied by her were set apart to her; and it was further decreed that the plaintiff should pay to the defendant, “ as permanent alimony, the sum of fifty dollars per month, on the first day of September, 1884, and *462 on the first day of each and every month thereafter.” On May 13, 1887, on the motion of plaintiff, this decree was modified and the amount of alimony so fixed reduced to twenty-five dollars per month. In December, 1888,…

For the reasons given by me when this matter was before me in chambers,! dissent. (In re Spencer, 82 Cal. 110 .) I do not believe that the legislature intended to provide that the immediate daily earnings of a man, having a wife and child dependent upon him for surport, should be taken to support the wife of another, because he may have had, at some prior period of his life, the fortune or misfortune to be her husband; yet to that extent the exigencies of the conclusion reached by my learned associates carry us. It is a construction which seems to me to be at variance with the entire scope and spirit of the law governing the subject of “ personal relations.” Such a law, if it exist, should be repealed, or the right to an absolute divorce and privilege of remarriage be abolished. The case of Eidenmuller v. Eidenmuller was based upon statutes entirely different from the provisions of our code. At that time divorces were granted from bed and board, and there was no provision like that of section 141 of the Civil Code, viz., “that in executing the five preceding sections the court must resort, first, to the community property; then second, to the separate property of the husband.” The…