STATUTES.

CHAPTER X.

JUDICIAL NOTICE AND PROOF OF STATUTES AND OF FACTS RELATING TO THEIR VALIDITY, OPERATION AND CONSTRUCTION.

§ 309 (181). Judicial notice of statutes.- Courts of justice take official notice of public statutes and the general jurisprudence of the state under whose authority they act.' They judicially know the origin and history of that jurisprudence, and all the facts which affect its derivation, validity, commencement and operation. A state court will

take notice of the federal constitution and amendments to

3

it and the public acts of congress. The courts of a state carved out of the territory of another take judicial notice of the statutes of the old state in force up to the time of the separation. The states formed from territory ceded by Spain will take notice of the Spanish law existing prior to the cession affecting rights and titles then in being."

§ 310 (182). Courts will take notice of facts that affect the validity, operation or construction of a statute.The courts will take judicial notice of whatever may affect the validity or meaning of a statute. They will take notice of events generally known within their jurisdiction, of the history of legislation, and of the reasons urged for and against the passage of a law. They will inform themselves of facts which may affect a statute; for example, the precise time when it was approved, to determine its existence, commencement or any other fact for like purpose. They will take notice of the terms in which an act was passed, though

3 Graves v. Keaton, 3 Cold. 8.

4 Dickenson v. Breeden, 30 Ill. 279; Gooding v. Morgan, 70 id. 275; Papin v. Ryan, 32 Mo. 21; Kessel v. Albetis, 56 Barb. 362; Semple v. Hagar, 27 Cal. 163; Rice's Succession, 21 La. Ann. 614; Morris v. Davidson, 49 Ga. 361; Flanigen v. Washington Ins. Co., 7 Pa. St. 306; Bayly v. Chubb, 16 Gratt. 284.

Delano v. Jopling, 1 Litt. 417; Berluchaux v. Berluchaux, 7 La.

539.

6 United States v. Turner, 11 How. 663, 668, 13 L. Ed. 857; United States v. King, 7 How. 883, 12 L. Ed. 934; United States v. Philadelphia, 11 How. 609, 13 L. Ed. 834; Arguello v. United States, 18 How. 550, 15 L. Ed. 478; Fremont v. United States, 17 How. 542, 15 L. Ed. 241; Chouteau v. Pierre, 9 Mo. 3; Ott v. Soulard, id. 581; Doe v. Eslava, 11 Ala. 1028.

7 Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800; State v. Westfall, 85 Minn. 437, 89 N. W. 175, 89 Am. St. Rep. 571; State v. Ames, 87 Minn. 23, 91 N. W. 18; State v. Wofford, 121 Mo. 61, 25 S. W. 851; Grimes v. Eddy, 126 Mo. 168, 28 S. W. 756, 47 Am. St. Rep. 653, 26 L. R. A. 638; State v. County Com'rs, 128 Mo. 427, 30 S. W. 103, 31 S. W. 23; State v. Norris, 37 Neb. 299, 55 N. W. 1086; Stratton v. Oregon City, 35 Ore. 409, 60 Pac. 905; Fitzgerald v. Phelps & B. Windmill Co., 42 W. Va. 570, 26 S. E. 315.

8 Redell v. Moores, 63 Neb. 219, 227, 88 N. W. 243; Texas & Pac. Ry. Co. v. Interstate Com. Commission, 162 U. S. 197, 16 S. C. Rep. 666, 40 L. Ed. 940; Barnard v. Gall, 43 La. Ann. 959, 10 So. 5.

9 Gardner v. The Collector, 6 Wall. 499, 18 L. Ed. 890; Louisville v. Savings Bank, 104 U. S. 469, 26

they differ from those of the officially published statutes.1o No issue by pleading can be made by the parties involving such facts to be tried by evidence." The judges make the proper inquiry to inform themselves in the best way they can. An eminent jurist says: "An act of parliament, made within the time of memory, loses not its being so because not extant of record, especially if it be a general act of parliament. For of the general acts of parliament the courts of common law are to take notice without pleading them. And such acts shall never be put to be tried by the record upon an issue of nul tiel record, but shall be tried by the court, who, if there be any difficulty or uncertainty touching it, or the right of pleading it, are to use for their information ancient copies, transcripts, books, pleadings and memorials to inform themselves, but not to admit the same to be put in issue by a plea of nul tiel record. For, as shall be shown hereafter, there are many old statutes which are admitted and obtain as such, though there be no record at this day extant thereof; nor yet any other written evidence of the same, but which is in a manner only traditional, as namely, ancient and modern books of pleading and the common received opinion and reputation and approbation of the judges learned in the law." 12 Where an act is only to operate when adopted by popular vote, the court will take notice of the result of such a vote.13 So where a general law for the incorporation of cities provides that any city

L. Ed. 775; Cargo of Brig Aurora v. United States, 7 Cranch, 382, 3 L. Ed. 378; Lapeyre v. United States, 17 Wall. 191, 21 L. Ed. 606; Kennedy v. Palmer, 6 Gray, 316; Burgess v. Salmon, 97 U. S. 381, 24 L. Ed. 1104; Leavenworth Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114; Ottman v. Hoffmann, 7 Misc. 714, 28 N. Y. S. 28; ante, § 179.

10 Gardner v. The Collector, 6 Wall. 499, 18 L. Ed. 890; Purdy v. People, 4 Hill, 384; De Bow v. Peo

ple, 1 Denio, 14; State v. Platt, 2 S. C. 150, 16 Am. Rep. 647; Brady v. West, 50 Miss. 68.

11 Town of South Ottawa v. Perkins, 94 U. S. 260, 24 L. Ed. 154. 12 Hale's Hist. Com. L. 14, 16. 13 Andrews v. Knox County, 70 Ill. 65; State v. Swift, 69 Ind. 505; Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610; Ranch v. Commonwealth, 79 Pa. St. 490. But see Whitman v. State, 80 Md. 410, 31 Atl. 325.

under a special charter may adopt any chapter or section, in lieu of its charter on the same subject, the court will take notice of such adoption.14

16

§ 311 (183). Judicial notice of facts relating to the passage or existence of statutes.15-While the constitution or a statute may provide what shall be conclusive evidence of the due passage or existence of a statute, the inquiry is not generally so restricted, and the general principle governs that record or constitutional evidence must be adduced to impeach a statute the record of which is fair on its face.17 Where the purpose is not to invalidate the statute, but to give it effect, to ascertain the fact on which the taking effect depends, or to ascertain the time more precisely than appears by the record, any source of information which is capable of conveying to the judicial mind a clear and satisfactory answer is available.18 Extraneous facts relating to the subject of the statute fair on its face, or the procedure to enact it, will not be considered for the purpose of overturning it for some infraction of the constitution, unless a statute or the constitution itself has provided for such proof.19 In the absence of such provisions, a court cannot resort to the legislative rolls and journals for the purpose of exam14 Davey v. Janesville, 111 Wis. 628, 87 N. W. 813.

People, 19 N. Y. 48; De Camp v.
Eveland, 19 Barb. 88; Lanning v.

15 Consult chapter II on this sub- Carpenter, 20 N. Y. 447; Duncombe ject.

16 Town of South Ottawa v. Perkins, 94 U. S. 260, 24 L. Ed. 154.

17 English v. Oliver, 28 Ark. 317; Worthen v. Badgett, 32 id. 496; State v. Swift, 10 Nev. 176, 21 Am. Rep. 721; State v. Hastings, 24 Minn. 78; Larrison v. Peoria, etc. R. R. Co., 77 Ill. 11; Pangborn v. Young, 32 N. J. L. 29; Legg v. Mayor, etc., 42 Md. 203, 224; State v. County of Dorsey, 28 Ark. 378; Wall, Ex parte, 48 Cal. 279, 17 Am. Rep. 425; Happel v. Brethauer, 70 Ill. 166, 22 Am. Rep. 70; Rumsey v.

v. Prindle, 12 Iowa, 1; Lusher v. Scites, 4 W. Va. 11. See Bradley v. Commissioners, 2 Humph. 428, 37 Am. Dec. 563; Ford v. Farmer, 9 Humph. 152.

18 Wells v. Bright, 4 Dev. & Batt. L. 173; Louisville v. Savings Bank, 104 U. S. 469, 26 L. Ed. 775; Gardner v. The Collector, 6 Wall. 499, 18 L. Ed. 890.

19 Ante, § 29; Matter of Church, 28 Hun, 476; Matter of New York Elevated R. R. Co., 70 N. Y. 327, 351; South Ottawa v. Perkins, 94 U. S. 260, 24 L. Ed. 154.

ining as to whether the bill as passed is the same as the bill certified; 20 nor for the purpose of determining whether the statute passed in conformity with rules adopted by the legis lature for its own government." It cannot resort to extrinsic evidence to show that the certified and published law actually passed. The court will take notice of the proclamation of the governor convening a special session of the legislature in order to determine whether an act passed at such session is within the call.23

22

§ 312 (184). Judicial notice of English statutes and of the common law. The written law of a state embraces as well the statutes in force at the time of its organization, and not in conflict with its constitution, as those subsequently enacted. The laws of England, written and unwritten, or, as it has been otherwise expressed, the common law and all the statutes of parliament in aid of the common law, in force at the time of the emigration to this country, were brought hither by the emigrants who first settled the original colonies, as a birthright, so far as those laws were suitable to the circumstances and conditions which existed in the new country.25 To them they were unwritten laws. Subsequent acts of parliament did not affect the colonies

20 Pangborn v. Young, 32 N. J. L. 29; Sherman v. Story, 30 Cal. 253, 89 Am. Dec. 93; Coleman v. Dobbins, 8 Ind. 156; Grob v. Cushman, 45 Ill. 119; Green v. Weller, 32 Miss. 650; 1 Whart. on Ev., § 290. 21 Id.

252 P. Wms. 75; Blankard v. Galdy, 2 Salk. 411; Scott v. Lunt's Adm'r, 7 Pet. 603, 8 L. Ed. 797; Commonwealth v. Knowlton, 2 Mass. 534; O'Ferrall v. Simplot, 4 Iowa, 400; Dodge v. Williams, 46 Wis. 92; Gardner v. Cole, 21 Iowa,

22 Mayor, etc. v. Harwood, 32 Md. 205; Williams v. Williams, 8 N. Y. 471.

23 Wells v. Missouri Pac. Ry. Co., 110 Mo. 286, 19 S. W. 530, 15 L. R. A. 847; Bowen v. Missouri Pac. Ry. Co., 118 Mo. 541, 24 S. W. 436.

24 American Ins. Co. v. Canter, 1 Pet. 511, 7 L. Ed. 242; Brice v. State, 2 Overt. 254; Egnew v. Cochrane, 2 Head, 320; Lee v. King, 21 Tex. 577.

541; Calloway v. Willie's Lessee, 2 Yerg. 1; Clawson v. Primrose, 4 Del. Ch. 643, 652; Stump v. Napier, 2 Yerg. 35; Carter v. Balfour, 19 Ala. 814; Horton v. Sledge, 29 id. 478; Nelson v. McCrary, 60 id. 301; McCorry v. King, 3 Humph. 267, 39 Am. Dec. 165; Webster v. Morris, 66 Wis. 366, 28 N. W. 353, 57 Am. Rep. 278; Coburn v. Harvey, 18 Wis.