variance with the rule announced above. But we regard the case of Fowler v. Peirce as overruled by the later case of Sherman v. Story, 30 Cal., 253. This last case holds that an act of the legislature appearing to be properly enrolled, authenticated, and deposited with the secretary of state is a record which is conclusive evidence of the passage of the act, and that the same passed as enrolled; that neither the journals of the legislature, nor the bill as originally introduced, nor the amendments attached to it, nor parol evidence, can be received to show that it did not become a law in accordance with the prescribed forms, or that it did not become a law as enrolled. The court said: "The result of the authorities in England and in the United States is that at common law, whenever a general statute is misrecited, or its existence denied, the question is to be tried and determined by the court as a question of law; that is to say, the court is bound to take notice of it, and inform itself the best way it can; that there is no plea by which it can be put in issue and tried as a question of fact; that if the enrollment of the statute is in existence, the enrollment itself is the record, which is conclusive as to what the statute is, and cannot be impeached, destroyed or weakened by the journals of parliament or any other less authentic or less satisfactory memorials; and that there has been no departure from the principles of common law in this respect in the United States, except in instances where a departure has been grounded on or taken in pursuance of some express constitutional or statutory provision requiring some relaxation of the rule in order that full effect might be given to such provisions." After the foregoing decision was rendered, section 15 of article 4 of the present constitution of California was adopted, viz.: "That on the final passage of all bills they shall be read at length, and the vote shall be by yeas and nays upon each bill separately, and shall be entered on the journal, and no bill shall become a law without the concurrence of a majority of the members elected to each house." Under this provision the same judge who delivered the opinion in the case of Sherman v. Story, supra, after he became judge of the ninth cir

cuit of the United States, said, in a concurring opinion, in Railroad Tax Case, 8 Sawy., 281, 13 Fed. Rep., 722: "Under the decisions of the courts upon constitutional provisions in all respects similar to that in the present constitution of California it is settled that the court, to inform itself, will look to the journals of the legislature.

Unless this mode is adopted of resorting to the journals to ascertain whether a statute has been legally passed or not, experience and the number of cases that have already arisen under similar constitutional provisions demonstrate that the requirements of the constitution that the vote shall be taken by yeas and nays, and a majority of the members required to vote in the affirmative on the final passage of an act, would be of little value."

The case of Gardner v. Collector, 6 Wall., 499, is cited in support of the proposition that the court may look back of the statute book, and the original engrossed bill on file in the office of the secretary of state, and even beyond the journals kept by the two houses. In that case the president omitted the year in attempting to give the date of his approval of the act questioned. Two propositions were insisted upon-First, that the president alone could make the record to show the date of his approval; second, that if such record was defective in respect to the year, no resort could be had to extrinsic evidence to supply that defect. The court held that no provision of the constitution and no act of Congress imposed on the president the duty of affixing a date to his signature of a bill, and that the court might look to the date of the filing of the bill "in the office of the secretary of state, and the journals of the House of Representatives showing that a message was received from the president January 6, 1862, stating that on the 24th day of the preceding month he had approved the bill."

These extrinsic facts were not received to contradict a record made by the president, because he had made none as to the date, nor to supply a record that he was required to make, because the law did not impose such a duty upon him. In the opinion the case of Fowler v. Peirce, supra, was cited in support of the proposition

that when the passage of a bill is disputed, the court, to inform itself, may look to the journals of the legislature with respect to it, and not in support of the right to hear and consider oral evidence. In the conclusion of the opinion the court did use this language: "We are of opinion, therefore, on principle, as well as authority, that whenever a question arises in a court of law of the existence of a statute or of the time when a statute took efiect, or of the precise terms of a statute, the judges, who are called upon to decide it, have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question, always seeking, first, for that which in its nature is most appropriate, unless the positive law has enacted a different rule." This is a broad statement, and, taken by itself, probably indicates a more general rule than was intended by the court. Reference is also made to People v. Petrea, 92 N. Y., 128. In that case an act of the legislature of the state of New York was alleged to be unconstitutional because it was a local act, and had not been reported to the legislature by commissioners appointed to revise the statutes. The defendant offered to prove by the clerk of the senate, by the commissioners appointed to revise the statutes, by the journals of the legislature, and by the original act itself, that the bill was not reported to the legislature by the commissioners. This offer the trial court overruled. But the court of appeals said: "We think the offer to prove, by the journals of the legislature, and by the original act, that the act of 1881 was not reported by the commissioners, was improperly overruled." No error was found in the ruling of the court excluding the verbal testimony offered.

In the case of Berry v. Railroad Co., 41 Md., 446, the bill, as it passed the legislature, extended the time for the completion of the road mentioned in the act for five years from the 1st day of January, 1875, but as it appeared in the printed statute book, the extension was for five years from the 1st day of January, 1870. The question was, ought the court, in its investigations, to look behind the

signature of the governor to the bill filed for record, and the imprints of the great seal? The court said: “But while the authorities just cited maintain that it is the right and duty of the court to go behind the authentication of the statute, and to receive evidence such as that furnished by the engrossed bills, with the indorsements thereon, and the journals of proceedings of the two houses of the legislature upon the question of the constitutional enactment of what purports to be the statute, they all seem to concur in maintaining that no statute having the proper forms of authentication can be impeached or questioned upon mere parol evidence. Nor do we decide in this case that the journals of the two houses, though required by the constitution to be kept as records of their proceedings, would be evidence per se upon which the validity of a statute having the required authentication would be successfully questioned as to the manner of its enactment. But we think the journals, in connection with other competent evidence upon the subject, may be examined as means of information to aid in arriving at a correct conclusion as to what was the action of the legislature on any particular bill before it." From this opinion it appears that the constitution of Maryland required the journals of the two houses to be kept as records of their proceedings. In the light of authority we are of the opinion-First, that the court cannot receive verbal evidence to prove that a law was not passed and approved on the day it purports to have been passed and approved; second, that when the passage or the approval of a law is questioned, the court may look beyond the printed statute to the engrossed bill, as approved and filed with the secretary of the state or the territory, as the case may be; third, that when the journals of the two houses showing their action are kept in pursuance of law, the court may look to such journals to ascertain whether constitutional requirements have been complied with. The common-law rule, making the engrossed bill duly signed and enrolled with the secretary of state conclusive of its authenticity, was changed in order the more effectually to secure compliance with constitutional re

quirements in enacting laws. We have found no provision in the organic act of this territory requiring the journals of the legislature to show the vote on the passage of a bill, or the date thereof. But section 1844 of the Revised Statutes of the United States does require the secretary of the territory to “record and preserve all the laws and proceedings of the legislative assembly, and all the acts and proceedings of the governor, in the executive department." This record the secretary makes as commanded by law, and under the sanction of his official oath. A record so made is entitled to more weight than the entries in the legislative journals not made in pursuance of positive law. The law presumes that the acts of a public officer, in pursuance of law, and under the sanction of his official oath, are correct because he is presumed to keep his oath and to do his duty. A legislative enactment, approved by the governor, and filed and recorded in the office of the secretary of the territory, constitutes a record of a high order. This law appears from that record to have been duly passed by the legislature, and approved by the governor on the 8th day of March, 1888, before the expiration of the 60 days, and it so appears in the printed volume. We do not feel authorized to look beyond this record to the legislative journals, or to receive verbal testimony to support or contradict the record in the office of the secretary of the territory. In addition to the cases cited, the following, among others, support the conclusions reached above: Pangborn v. Young, 32 N. J. Law, 29; Town of South Ottawa v. Perkins, 94 U. S., 260; Post v. Supervisors, 105 U. S., 667; Green v. Weller, 32 Miss., 650; People v. Commissioners, 54 N. Y., 276; People v. Derlin, 33 N. Y., 269; Railroad Co. v. Governor, 23 Mo., 353; Com. v. Martin, 107 Pa. St., 185.

The plaintiff also contends that the naming of the court. commissioners in the act was an attempt to appoint territorial officers contrary to section 1857 of the Revised Statutes of the United States. That section is as follows: "All township, district and county officers, except justices of the peace and general officers of the militia, shall be appointed or elected in such manner as may be provided by