cial notice; and, to some extent, by-laws and classes of statutes not public are made such by legislative mandate.' Private statutes always, under the common-law rules, require to be proved to the judge. With us, the ordinary prima facie proof of statutory laws is by the production, in court, of a copy purporting to be printed by public authority. Now, Looking into records. If a public statute is in question, and there is a suggestion that it is not correctly printed, the court will inform itself of the true reading by referring to the original in the office of the secretary of state. And the public record of it, kept by the proper officer, is by all opinions prima facie correct and the statute valid, and by a part of the opinions absolutely conclusive. Still the legislative journals are records; and some of our courts will look into them and into the engrossed bills, to learn whether an act received the constitutional majority, and otherwise conformed to requirements which were 1 Post, SS 395, 406; 1 Greenl. Ev., S$ 5, 6, 480; Lane v. Harris, 16 Ga. 217; Sims v. Marryat, 17 Q. B. 281, 288, 292; Forman v. Dawes, Car. & M. 127; S. v. Bailey, 16 Ind. 46, [79 Am. D. 405;] Berliner v. Waterloo, 14 Wis. 378; Clare v. S., 5 Iowa, 509. 2 Id.; Brett v. Beales, Moody & M. 416, 421, 425; Allegheny v. Nelson, 25 Pa. St. 332. 31 Greenl. Ev., § 480; Bound v. Wisconsin Central R. R. Co., 45 Wis. 543; Clark v. Janesville, 10 Wis. 136. See Needham v. Thresher, 49 Cal. 393. 4 Clare v. S., 5 Iowa, 509; Evans v. Browne, 30 Ind. 514, [95 Am. D. 710;] Paine v. Lake Erie, etc. R. R. Co., 31 Ind. 283. And see ante, § 29; S. v. Lee, 37 Iowa, 402; Goldsmith v. Augusta, etc. R. R. Co., 62 Ga. 468: [Re Tipton, 28 Tex. Ap. 438, 8 L. R. A. 326, 13 S. W. R. 610.] 5 Annapolis v. Harwood, 32 Md. 471; S. v. Fagan, 22 La. An. 545; Larrison v. Peoria, etc. R. R. Co., 77 Ill. 11; Louisiana State Lottery Co. v. Richoux, 23 La. An. 743, [8 Am. R. 602;] S. v. Swift, 10 Nev. 176, [21 Am. R. 721;] S. v. Rogers, 10 Nev. 250, [21 Am. R. 738;] English v. Oliver, 28 Ark. 317; Brodnax v. Groom, 64 N. C. 244; P. v. Marlborough, 54 N. Y. 276; S. v. Liedtke, 9 Neb. 462; Usener v. S., 8 Tex. Ap. 177; Bender v. S., 53 Ind. 254; Kilgore v. Magee, 85 Pa. St. 401; Blessing v. Galveston, 42 Tex. 641; Miller v. S., 3 Ohio St. 475; S. v. Septon, 3 R. L. 119; Erie & North East R. R. Co. v. Casey, 26 Pa. St. 287; McCulloch v. S., 11 Ind. 424; P. v. Devlin, 33 N. Y. 269. [88 Am. D. 377; Standard Union Cable Co. v. Atty. Gen., 46 N. J. Eq. 270, 19 Atl. R. 733.] 6 S. v. Smalls, 11 S. C. 262; Moody v. S., 48 Ala. 115, [17 Am. R. 28.] 7Sedgwick on Statutes, 68, 69, referring to Purdy v. P., 4 Hill (N. Y.), 384; De Bow v. P., 1 Denio, 9; Commercial Bank v. Sparrow, 2 Denio, 97; Jones v. Hutchinson, 43 Ala. 721; Com. v. Jackson, 5 Bush, 680; [Robertson v. P., 20 Colo. 279, 28 S. W. R. 711. An enrolled bill signed by the speaker of the house and by the president of the senate in open session is an official attestation that such bill has passed congress, and when, thus attested, it receives the approval of the president, and is deposited in the public archives, its vital, and not merely directory; holding it void when thus affirmatively shown not to have been duly enacted. § 37a. Estoppel - Admissions.—As private persons cannot make laws, they are not estopped or otherwise bound by their admissions on the question whether or not a statute has been constitutionally passed. 3 VI. DEFECTS OTHER THAN CONSITUTIONAL. § 38. Motives-(By-law).— Evil motives and bad faith are never to be imputed by a court to the legislative body; so that no statute, public or private, is held void on these grounds. It is the same also of a city by-law." And, 6 Fraud.-In general, though not without some doubt as to purely private statutes, a legislative enactment will not, it seems, be held void for fraud practiced on the legislature in procuring its passage. If this is so, we have doubtless here authentication is complete and unimpeachable. Field v. Clark, 143 U.S. 649.] St. Louis v. Shields, 62 Mo. 247; O'Hanlon v. Myers, 10 Rich. 128. 2 South Ottawa v. Perkins, 94 U. S. 260; Boyd v. Alabama, 94 U. S. 645. See Burrows v. Bashford, 22 Wis. 103; Green v. Green, 14 La, An. 39. 3 Happel v. Brethauer, 70 Ill. 166, [22 Am. R. 70,] And see Jones v. Perry, 10 Yerg. 59, [30 Am. D. 430.] 4 Kountze v. Omaha, 5 Dill. 443; S. v. Eau Claire, 40 Wis. 533; S. v. Fagan, 22 La. An. 545; Wright v. Defrees, 8 Ind. 298; P. v. Shepard, 36 N. Y. 285, 289. And see S. v. King, 12 La. An. 593; [Barbier v. Connolly, 113 U. S. 1 Ramsey v. Heenan, 2 Minn. 330; Dew v. Cunningham, 28 Ala. 466, [65 Am. D. 362;] S. v. McBride, 4 Mo. 303, [29 Am. D. 636;] South Ottawa v. Perkins, 94 U. S. 260; Worthen v. Badgett, 32 Ark. 496; Brady v. West, 50 Miss. 68 (overruling Green v. Weller, 32 Miss. 650); Legg v. Annapolis, 42 Md. 203; Ryan v. Lynch, 68 Ill. 160; Opinion of Justices, 52 N. H. 622; P. . Lowenthal, 93 IL. 191; Perry v. Selma, etc. R. R. Co., 58 Ala. 546; Berry v. Baltimore, etc. R. R. Co., 41_27.] Md. 446, [20 Am. R. 69;] P. v. Hurlbut, 24 Mich. 44, 53, [9 Am. R. 103.] And see Blake v. National Banks, 23 Wall. 307, 321. For various questions relating to the manner of passing and approving bills, see Harpending v. Haight, 39 Cal. 189, [2 Am. R. 432;] S. v. Fagan, 22 La. An. 545; Solomon v. Cartersville, 41 Ga. 157; Danielly v. Cabaniss, 52 Ga. 211; S. v. Buckley, 54 Ala. 599; Hardee v. Gibbs, 50 Miss. 802; Division of Howard, 15 Kan. 194; Hull v. Miller, 4 Neb. 503. See also Freeport v. Marks, 59 Pa. St. 253. 62 Bl. Com. 346; Com. v. Breed, 4 Pick. 460; Waterford, etc. Ry. Co. v. Logan, 14 Q. B. 672, 630. 7 Broom, Leg. Max. (2d ed.) 42, referring to Stead v. Cary, 1 C. B. 496, 516, 522. See Charles River Bridge v. Warren Bridge, 7 Pick. 344; Jersey City, etc. R. R. Co. v. Jersey City, etc. R. R. Co., 6 C. E. Green, 61; [McLane v. Paschal (Tex. Civ. Ap.), 28 S. W. R. 711] the only exception to the rule that fraud vitiates the transactions into which it enters. § 39. Mistake. It has been held that a statutory provision, inserted through pure inadvertence and mistake, will, on this fact clearly appearing, be disregarded.' In Illinois, by mistake, the governor signed a bill, and his private secretary, finding it on his table signed, sent, in the usual routine of business, a message to the house announcing his approval. Within twenty minutes the governor, discovering the error, transmitted to the speaker a notice of the facts, and it was read aloud. He then returned the bill to the proper branch of the legislature with his signature erased and with his objections thereto, it never having been out of his possession. It was held not to become a law. The court considered that, as it had not passed out of his custody, the writing of his name did not constitute final action upon it. "While within such control and custody, the right to reconsider is a necessary incident to the power to act." § 39a. Acts not within legislative function. We have seen that, with us, all power is in the people, who by written constitutions have given to the legislative bodies whatever they chose. But, in fact, our state legislatures, unlike congress, have thus been endowed with all legislative power, subject merely to specified exceptions and limitations. Still it results that the legislature cannot exercise a function not in its nature legislative; and, though a thing of this sort should be attempted in the form of a statute, it will be null. Now, § 40. Statutes against fundamental justice. While it would not be a legislative function to change the orbit of the earth, and statutes attempting it would be void, is it otherwise where the legislative endeavor is to subvert the fundamental principles of right and justice? In point of abstract theory the two cases are identical, and acts of the latter sort—that is, subversive of fundamental right and justice are equally void with the former. Able judges in all ages have so declared." 1 Pond v. Maddox, 38 Cal. 572. 2 P. v. Hatch, 19 Ill. 283, 288, opinion by Caton, C. J. 3 Ante, § 33. 4 Com. v. Drewry, 15 Grat. 1; P. v.Flagg, 46 N. Y. 401; Page v. Allen, 58 Pa. St. 338, [98 Am. D. 272; Perkins v. Philadelphia, 156 Pa. St. 554, 27 Atl. R. 356.] 5 Day v. Savadge, Hob. 85, 87; Bonham's Case, 8 Co. 114a, 118a; Cromwell's Case, 4 Co. 12a, 13a; London v. But, while astronomers agree as to what is the orbit of the earth, the professors of moral science differ more or less concerning the fundamental principles of justice. Legislators are to judge of the right and expediency of the laws they frame, and plainly the courts have not in general any jurisdiction to reverse their decision. Therefore, as a practical question, rarely, if ever, will a considerate court so set its opinion against the legislative judgment on a point of morals as to hold a statute void on the ground now under consideration. But — Granting private property.— It has been held, for example, that a state, like an individual, cannot convey what it does not own; so that, independently of constitutional inhibitions, an act is void which attempts to transfer to one private person the vested property of another. Again, § 41. Impossible.- If the legislature enacts an impossibility, no court will undertake to carry it into effect. Of this sort is a case of — Repugnance. Provisions in irreconcilable repugnance cannot stand together. Either all or a part, as the particular instance may require, will be held void. Of a somewhat different nature is Ambiguity. Where the statutory terms are of such uncertain meaning, or so confused, that the courts cannot discern Wood, 12 Mod. 669, 687, 688; Balti- Davis v. S., 2 Tex. Ap. 425; Stapp W. R. 646.] Lower Chatham, 6 Vroom, 497; P. v. Hoye v. Swan, 5 Md. 237, 244; Bowman v. Middleton, 1 Bay, 252. And see Williams v. Register, Cooke (Tenn.), 214; Hoke v. Henderson, 4 Dev. 1, [25 Am. D. 677;] Owens v. Rain, 5 Hayw. 106; Austin v. Trustees, 1 Yeates, 260; Ten Eyck v. Frost, 5 Cow. 346; Wilkinson v. Leland, 2 4 Van Alstine v. P., 37 Mich. 523; S. v. Douglass, 5 Sneed, 608. Bishop, First Book, § 88-91, where 5 Post, 65; U. S. v. Cantril, 4 Cranch, 167; Gillespie v. S., 9 Ind. 380; Albertson v. S., 9 Neb. 429; Sullivan v. Adams, 3 Gray, 476. And with reasonable certainty what is intended, they will pronounce the enactment void. Yet they will not do this on account of a mere slight inaccuracy of expression. see Scrinegrour v. S., 1 Chand. 48; [Albert v. Twohig, 35 Neb. 563, 53 N. W. R. 582.] McConvill v. Jersey City, 10 Vroom, 38; S. v. Boon, Taylor, 246; Cheezem v. S., 2 Ind. 149; King v. S., 2 Ind. 523. See Huntsville v. Phelps, 27 Ala. 55; Sullivan » Adams, 3 Gray, 46 476; Ex parte George, T. U. P. Charl 80; S. ex rel. McLean v. Liedtke, 9 Neb. 468; S. v. Craig, 23 Ind. 185. 2 Evans v. Com., 3 Met. 453; Haynes v. S., 5 Humph. 120; S. v. Cooper, 5 Day, 250; P. v. Shepard, 36 N. Y. 285; S. v. Nichols, 12 Rich. 672. See post, §§ 79, 81, 145, 146. |