Cent. Ry. Co. v. Hearne

• Citation: 32 Tex. 546
• Parties: CENTRAL RAILWAY COMPANY v. H. R. HEARNE.
• Decision Date: 01 January 1870
• Court: Supreme Court of Texas

32 Tex. 546

CENTRAL RAILWAY COMPANY

v.H. R. HEARNE.

Supreme Court of Texas.

1870.

1. The best evidence of the terms of an act of the legislature, is a copy of the enrolled bill, duly certified, and it was error to exclude such evidence when offered to show a variance between the statute as passed by the legislature and as printed among the published acts.

2. In a suit against a railway company for overcharging on certain freight, by rating cotton as “measurement freight” instead of “weight freight” (the company's charges being limited per foot as well as per hundred pounds), it was error to admit the evidence of merchants and shippers to prove that, by custom, cotton was “weight freight” and not “measurement freight.” The company might lawfully rate cotton either by measurement or weight, but could not charge according to both standards on the same lot of freight.

ERROR from Harris. Tried below before the Hon. George R. Scott.

This suit was brought to the fall term (1867) of the district court of Harris county. Its character and purpose is clearly stated in the opinion of the court. Hearne, plaintiff below, obtained verdict and had judgment for $208.56, at the spring term, 1869.

In his original and amended petitions the plaintiff alleged that by the custom of the country and commercial custom, cotton in bales was universally deemed aud known to be “weight freight,” and was so known and deemed at the time the railway company was incorporated and accepted its charter; and it was alleged, in effect, that under its charter, the company had no option to charge on cotton in bales otherwise than as weight freight. This was the feature in the plaintiff's petitions which subjected them to the demurrer of the defendant.

The other questions decided in the opinion arose upon rulings of the court below in excluding and admitting evidence, the nature of which is clearly indicated in the opinion.

The only difference between the act as printed and as enrolled occurs in the clause prescribing the maximum charge allowed on freight; the printed act having it “fifty cents per hundred and twenty-five cents per foot,” per hundred miles, while the law as enrolled had it “fifty cents per hundred or twenty-five cents per foot.”

Gray & Botts, for plaintiff in error. In our state, and all states governed by written constitutions and enacting laws by representatives, the laws enacted are enrolled by the legislative body, transmitted to the executive department, and deposited as enrolled records in the state department, there to be kept for safety, and as evidence of what the legislative declaration of its will really was, to be referred to for all time, as proof of it, according to constitutional provisions. These records constitute the muniments of title and protection to the people acquiring rights under them, or whose rights are in any way affected by them. They take effect and are acted on as the law from the date of their enactment, or other time specified by law, whether they be promulgated by printing or not. The enrolled acts, or certified copies of them from the state department, is the evidence on which the governor, and every department, are authorized to act and do act instantly. Hence the laws are put in operation and held binding without printing. That such has been the practice in Texas, and that parties have been held bound by laws not printed and circulated, is well known to this court. In years past it has frequently happened that the publication of the statutes has been delayed a long time, yet rights have been adjudicated under them and parties held bound, though in actual ignorance of them. It is well remembered that in the days of the republic this often occurred. In 1840 the common law was introduced, and most important laws enacted, yet they were not printed for many months after they took effect, even in the newspapers. Vast interests were affected by unprinted laws, yet no one questioned that they were in force, because they had been enacted and were enrolled in the proper department. I well remember a case where property had been sold under execution, and supposed right to it acquired and claimed for years, until on a trial most unexpectedly arising where the validity of the title came in question, that link was found defective, because the law under which the sale was made had been repealed at Austin about eight days previously, though it was not published in the county for months afterwards. What, then, was the highest evidence of the law? Clearly the record of it, or an exemplified copy, for none other existed, and none other in the nature of things could exist of primary character. On this subject we refer to the elementary works on evidence, and to the following cases:

Mathews v. Zane, 7 Wheat. 164; The Annie, 1 Gall. 62; Warren Manufacturing Company v. Etna Insurance Company, Pa. 502; Richardson's case, 2 Story, 571; Ankrim's case, 3 McLean, 285.

In absence of the record, or an exemplification of it, printed statutes published by authority, are admissible in evidence by statute (Pas. Dig. art. 3712). This, however, does not declare the degree or grade of it, and it is secondary evidence. It is at best only a copy of a copy--a copy from the record by a clerk furnished the printer and manipulated into print by him. Pas. art. 5091. In short, a second-hand copy of the record, liable to such mistakes as printers so frequently make, that “a mistake in print” has become a household phrase. Mr. Disraeli, Sr., in his remarkable work on The Curiosities of Literature, has stated that the miraculous event had never yet occurred of a book printed, in which many errors had not been found, spite of the most careful revision and repeated proof reading. Knowing as we do how careful some publishers have been, and with what pride they contend for accuracy in the print of a highly prized book, how far less reliance should be placed on copies of laws printed in haste, and hurried through the press by contract for pay at the lowest compensation. It may be wise to allow such books to be relied on as evidence of the law, when undoubted and uncontradicted, but surely not when denied, and shown to be falsely printed by examination of the record. By such reliance the legislature is held to command that which it did not command, and a rule is enforced which was not the rule prescribed by their will, and that of the people through them. The printer thus makes the law, or the judge, whose duty it is to expound the law as declared by the legislature, usurps their functions and becomes a lawgiver. This result follows whenever he follows the printer in preference to the enrolled law, or takes usage, or any other extrinsic circumstance, as evidence of the law. Sedgw. Stat. Law, pp. 22 to 25, 295, 378 to 381.

The statutes of the United States declare: “The acts of the legislatures of the several states shall be authenticated by having the seal of their respective states affixed thereto,” etc. 1 U. S. Stat. at Large, p. 122; Pas. Dig. art. 3709 and note 835, with authorities cited. “Copies of private bills, certified to by the secretary of state and attested by his seal of office, which is deposited in the office of the secretary of this state, shall be evidence in like manner.” Pas. Dig. 3712, in last clause. Also, “copies of the records of all public officers and courts, etc., in all cases where the records themselves would be admissible.” Art. 3715.

Elementary writers on evidence and decisions of courts are full of the doctrine that an exemplified copy of the enrolled act, or any public record, is next to the record, the highest and best evidence of its contents; and upon an issue of nul tiel record, as in this case, the only perfect evidence. The rule is that “the best evidence of which the case is susceptible in its nature must always be produced.” 1 Greenl. Ev. §§ 52 and 32.

“It is essential to the pure administration of justice.” It means “that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had; and that which indicates the existence of more original sources of information, is excluded.” The exceptions to this rule include the case of public records, which can not ordinarily be removed from the place of safe-keeping, for inspection, and therefore sworn examined copies, or those certified by a sworn officer and keeper of them, stand, and are received as the originals. 1 Greenl. Ev. 591; 1 Gilbert Ev. 19; 3 Co. Inst. 173; 1 Stark. Ev. 195, 197; 1 Phill. Ev. ch. v, pp. 383-4, and note.

There is no question that by statute, in Texas printed copies of public and private acts, published by authority, are admissible in evidence; and so also in some exceptional cases in England. But the question is, which is the best evidence, the print or the exemplification of the enrolled act? Both may be competent, but which is the most reliable and conclusive? We submit that in the nature of the case the exemplification is best, for the reasons already given.

Lord Chief Justice Holt held that though “an act, printed by the king's printers, was admissible in evidence, it was not sufficient on an issue of nul tiel record.” Anon. 2 Salk. 566.

So, also, Lord Ellenborough, when Ruffhead's old printed edition of the statutes differed from a later one, printed by the king's printer, required proof to be made of the statute by an examination of the parliament roll. Rex v. Barnitt, 3 Camp. 344.

In America it was held by Judge McLean that a printed statute may be corrected by the enrolled bill filed in the department of state. To this case we invite the special attention of the court. Reed v. Clark, 3 McLean, 480.

A very interesting case, involving the question, what is the highest and conclusive evidence of the enactment and contents of a statute, passed in New Jersey, “to establish a police district in the county of Hudson,” etc., was decided by the supreme court....