On the other hand, on Dec. 4, 1900, Judge Hebbard, of the same court, in Adler _v._ Adler, maintains the validity of a similar Reno marriage. He holds that the California law "is in restraint of marriage," since it fixes an arbitrary prohibitory period. "We may imagine the reason which induced the passage of the section, by an examination of the law of the State of Oregon upon the same subject. In that state there is no fixed prohibitory period, but the law is to the effect that, pending an appeal from a decree of divorce, if one be taken, and, if not, during the time in which it may be taken, the parties shall be incapable of contracting marriage with a third person. In California an appeal from a final judgment must be taken in six months; an appeal from an order granting or refusing a new trial in sixty days. The great majority of divorce cases go to judgment upon the default of the defendants, and in such cases there can be no appeal upon the merits of the cause. When no appeal can be taken, or when the time for appeal has gone by and none taken, why compel the parties in the case to abstain from matrimony for the remainder of the year thereafter? The proportion of divorce decrees appealed from is infinitely small, and therefore the prohibition in section 61 discriminates against the many, for the protection of the few; it is an arbitrary law." He relies upon Pearson _v._ Pearson, 51 _Cal._, 120 (1875), construing sec. 63 of the Civil Code to the effect that "all marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state."--_San Fran. Law Journal_ (July 16, 1900), 1. [538] See the Estate of Wood, 137 _Cal._ (1902), 129 ff., where Reno marriages are held valid, three justices dissenting. [539] In Willey _v._ Willey, 22 _Wash._ (Jan. 27, 1900), 115-21. The courts of Oregon have taken the opposite view, holding such marriages of residents of Oregon contracted in another state absolutely void under the statute: McLennan _v._ McLennan, 31 _Ore._ (1897), 480. [540] Acts of March 2 and 16, 1903, _Stat. and Amend. to the Codes_, chaps. lxvii, clviii. [541] It has already been so declared by Judge Rhodes in the superior court of Santa Clara county. Expressly or by implication the divorced couple are excepted from the restraint, and permitted to rewed in Alaska, California, Colorado, Idaho, Kansas, Montana, New York, Oklahoma, Oregon, South Dakota, Vermont, and Washington. On the question whether, in the absence of statutory authority, such remarriage of the divorced persons comes within the restraint, the decisions of the courts are conflicting.[542] [542] Compare Moore _v._ Moore, 8 ABB., _N. C._, 171-73; Colvin _v._ Colvin, 2 PAIGE, 385-87, denying the right of remarriage in such cases; with Moore _v._ Hegeman, 92 _N. Y._, 521-29, where the question is left undecided.