Weeks v. Smith

• Decision Date: 31 May 1889
• Citation: 81 Me. 538,18 A. 325
• Parties: WEEKS v. SMITH et al.
• Court: Maine Supreme Court

18 A. 325

81 Me. 538

WEEKS

v. SMITH et al.

Supreme Judicial Court of Maine.

May 31, 1889.¹

Report from supreme judicial court, Kennebec county.

Petition for mandamus filed by Stephen H. Weeks, in the name and by the authority of the attorney general, against Oramandal Smith, secretary of state, and Charles W. Tilden, secretary of the senate, for the restoration to its place among the public laws in the office of the secretary of state of "An act to regulate the practice of medicine," alleged to have been enacted in 1887. The relator appeared in behalf of the Maine Medical Association, of which he was president. The hearing took place before the chief justice July 11, 1888. The relator offered to prove by parol testimony that the bill had passed both houses, been approved by the governor, and that thereafter, on the same day, the governor changed his mind and withdrew the bill from the custody of the secretary of state, in whose office it had been deposited, canceled his approval, and returned the bill to the legislature with his veto, where, on a second vote, it failed. The governor being dead, the relator also offered to prove declarations made by him in his life-time tending to support the allegations of the petition. This evidence was excluded by the chief justice. The case was reported on the petition and evidence, by consent of the parties, to the full court, to be heard and determined at Portland at the July term of the law court.

C. W. Goddard and Symonds & Libby, for relator. Orville D. Baker, Atty. Gen., for respondents.

HASKELL, J. The writ of mandamus is authorized by Rev. St. c. 77, § 5; but, as that statute does not provide in what behalf the remedy may be had, the rules of the common law apply. A private person may move for the writ, in proper cases, when his personal rights have been invaded beyond those rights that he enjoys as a part of the public, and that are common to every one; but when the common right is invaded it is a public grievance, and the remedy must be asked in behalf of the public, and by the proper officer,' who is required by law to prosecute in the state's behalf. If, then, the right be a public right only, the attorney for the state must move for the writ; and this he must do in the state's behalf, in good faith, asking for no more than he believes the public weal to demand. Sanger v. Commissioners, 25 Me. 291. This application is signed by Stephen H. Weeks, who informs in the name of, and by authority of, the attorney general. That officer, however, appears and resists the application. It seems as if this resistance must work a discontinuance of the relator's petition and end the case. But, waiving any irregularity in the proceeding, the court considers it best to decide the only remaining question in the case, viz., whether "An act to regulate the practice of medicine," supposed to have been enacted in 1887, is a statute of the state. This is a judicial question, and has been so regarded from the time of horn-books. Saunders said at the bar, more than three centuries ago, in the time of Edward VI., (1553:) "And as to the statute, you judges have a private knowledge and a judicial knowledge; and of your private knowledge you cannot judge, but may use your discretion, * * * for the judges ought to take notice of statutes which appear to them judicially, although they are not pleaded." And it was so held in the common bench. Partridge v. Strange, 1 Plow. 83. See, also, the case of The Prince, 8 Coke, 28, (3 Jac. 1606.) A judicial knowledge does not result from plea and proof, but comes from an understanding of public laws and records; of the methods of the executive and legislature; from a knowledge of history and of historical facts, and of matters of public notoriety and interest; and commands inquiry from the widest field of general information. In the Duke of Norfolk's Case, 1 Dyer, 93, (1 Queen Mary, 1553,) it being much debated among the judges whether royal assent had been given to an act of parliament through letters patent bearing the sign-manuel of Henry VIII., for want of the genuine signature of the king, inasmuch—First, as it was written beneath the test of the patent, whereas he was used to put it above the head; and, second, because the writing was so perfect that it could not have been written by a man so ill and near his death as the king was, for he died the same night,—the clerk of parliament brought the original record of the act before the judges for their inspection of it. In King v. Arundel, Hob. 109, (14 Jac. 1617.) the validity of a private act of parliament being called in question before the lord chancellor, and COKE and HOB ART, Chief Justices, they, each more suo, proceeded to inform themselves of it by consulting the original roll and the journals of parliament. In Rex v. Jefferies, 1 Strange, 446, (7 Geo. 1721,) the original parliament roll was referred to to correct an error in printed statutes. So, in Rex v. Robotham, 3 Burrows, 1472, (4 Geo. III. 1764,) the original act of parliament was examined, and Lord Mansfield and his associates declared its true construction, notwithstanding a manifest error in it. The result of all the authorities upon this question is well stated by Mr. Justice MILLER, of the supreme court, in Gardner v. Collector, 6 Wall. 505. He says, (page 511:) "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 * * * 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." Post v. Supervisors, 105 U. S. 667; State v. Wagner, 61 Me. 178.

Although the question to be here decided is a judicial question, the legislature not having enacted any rule touching the effect to be given to those considerations from which a conclusion must be reached, the rules of the common law must control so far as they can be of any aid. The first and best evidence of a statute is the enrolled act, accomplished by the deposit of the original act, when approved by the governor, in the office of the secretary of state, who, by Const. art. 5, pt. 3, § 4, is required to "carefully keep and preserve the records of all the official acts and proceedings of the governor and council, senate and house of representatives;" and by Rev. St. c. 1, § 4, is required to give written notice to the senate and house of the approval of all public acts by the governor; and, by chapter 2, § 44, is to cause to be printed all public laws passed at each session of the legislature within 30 days after the close thereof. The deposit of a statute in the secretary's office is equivalent to the English custom of enrollment; and the original act thereby becomes the record, precisely as a private act of the English parliament has been held to be the record of parliament without enrollment; for it is not customary to enroll private acts, but only to deposit them with the clerk of parliament. The houses of parliament were not required by law to keep journals, and these, therefore, have been held not to be records, but remembrances only, that expired when parliament dissolved. But our constitution, like the constitution of the United States and of most or all of the sister states, requires both branches of the legislature to keep journals of their proceedings, thereby making them public records, to be looked to when no higher or better source remains from which to establish the validity of a statute. But when the original act, duly certified by the presiding officer of each house to have been properly passed and approved by the governor, showing upon its face no irregularities or violation of constitutional methods, is found deposited in the secretary's office, it is the highest evidence of the legislative will, and must be considered as absolute verity, and cannot be impeached by any irregularity touching its passage shown by the journal of either house. Legislative journals are made amid the confusion of a dispatch of business, and are therefore much more likely to contain errors than the certificates of the presiding officers are to be untrue. Moreover, public policy requires that the enrolled statutes of our state, fair upon their faces, should not be put in question after the public have given faith to their validity. No man should be required to hunt through the journals of a legislature to determine whether a statute, properly certified by the speaker of the house and president of the senate, and approved by the. governor, is a statute or not. The enrolled act, if a public law, and the original, if a private act, have always been held in England to be records of the highest order, and, if they carry no "death wounds," in themselves, to be absolute verity, and of themselves conclusive. In King v. Arundel, Hob. 109, the validity of an act of parliament came in question because of a suggestion that, although the act made no mention of a proviso, yet the indorsement upon it, made in the lower house, indicated its passage in that house with a proviso, and that it had not received the assent of both houses without the proviso. The act, being a private act, as customary, had been properly filed with the clerk of parliament, and by him labeled and sealed, but not enrolled as public acts are, and thereby became the original record. The lord chancellor and chief justices sought information from the original act and the journals of parliament, and said: "Now journals are no records, but remembrances for forms of proceedings to the record. They are not of necessity; neither have they always been. They are like the dockets of the pronotaries, or the particular to the king's patents. Co. lib. 2, 34, b....