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and that one of the parties to this action case, has been for more than ten years last has neither given nor received notice of this past in actual, open, notorious, adverse posappeal; but, as the record shows that no- session of the premises in question, and that tice of appeal was given by the plaintiffs no one has asserted any right, title, or claim in open court, no other notice or service was to the property until the commencement of necessary, (Code Proc. 88 1405, 1406,) and this action, and that the commencement the motion must therefore be denied.

was after a period of ten years of such unThis is an action to recover the possession interrupted, actual, open, and notorious adof a small tract of land situated in section verse possession by the defendant, then the 17, township 25 N., range 4 E., in King coun- plaintiff in this case cannot recover." The ty, and lying on the north shore of Lake Un- statute in force when the respondent took ion, and in front of a portion of the Christian possession of this land limited the time Brownfield homestead claim, of which the within which actions to recover the possesappellants are conceded to be the owners. sion of real estate might be brought to 20 The land embraced in said homestead claim years; but in the year 1881 the legislature was first surveyed by the United States gov- passed a new law, changing the time to 10 ernment in the year 1855, at which time the years. See Code 1881, § 26. The court aspremises in dispute were outside of the sumed, and, as we have shown, instructed boundary then fixed,—the meander line of the jury, no only that the later statute was the lake,-and were partially, if not wholly, | applicable to plaintiffs' cause of action, but covered with water. Since that time the that the period of limitation therein pre water of the lake has become so much low- scribed began to run at the time when the er that it has entirely receded from the land defendant entered into possession of the in controversy, and no longer covers any premises in controversy in the year 1879. part thereof; and appellants claim title to In construing the statute so as to give it the same by accretion, or, more properly retrospective operation we think the speaking, reliction. The respondent took | learned trial court committed error. While possession of a portion of the land in dis- it is well settled that limitation laws perpute on August 2, 1879, and built a house tain only to the remedy, and may be changed thereon, in which he has ever since resid- at the pleasure of the leg ature, it is also ed, and otherwise improved the same. He true that such laws will not be given & ret. claims that the land then settled upon and roactive effect unless it appears that such improved by him was an island, and a por- was clearly the legislative intention; and tion of the public domain, upon which large therefore, in Baer v. Choir, 6 Wash. St.-, trees were growing, and that it was sepa- | 32 Pac. Rep. 776, this court, following the rated from the premises of appellants by a decision of the supreme court of the United channel from 40 to 80 feet wide and some States in the case of Sohn v. Waterson, 17 3 feet deep, which, by the recession of the Wall. 596, where a similar statute was conwaters of the lake, has become a part of the strued, held that, while this 10-year statute mainland; and that he is entitled to the took effect upon pre-existing rights of ac possession, not only of this island, but of tion, and limited them, yet rights already the intervening land to the original water accrued were not barred until the lapse of line, by reason of having held the same ad- the full statutory period. This is not only versely to every one except the United an authoritative, but also a reasonable, conStates and the state of Washington for a struction, and gives to the statute a uniperiod of more than 10 years. On the other form application in all cases affected by it. hand, the appellants contend that no such As this action was commenced within 10 island as claimed by the respondent ever years after the statute went into operation, existed, and at the trial they introduced sev- it is readily perceived that the instruction eral witnesses who testified favorably to given to the jury upon the question of lim. their contention. They also introduced in itation was prejudicial to the appellants. evidence a plat of the original survey of The appellants are therefore entitled to a this township by the government survey- new trial. And the same result would, of ors, on which no such island was shown or course, follow if appellants' contention mentioned. But this evidence, except as to should be adopted, namely, that the old the plat, was directly contradicted by wit- statute only is applicable to this case. nesses for the respondent, and we are there- The objection that possession without color fore unable to say that the evidence upon of title cannot be adverse, so as to entitle this branch of the case is insufficient to Jus- the possessor to the benefit of the statute tify the verdict.

of limitations, is not well taken. Actual, The next question to be determined 18 uninterrupted, and notorious possession unwhether the court erred in its instructions der a claim of right is sufficient without color to the jury with reference to the statute of title, and such possession need not be adof limitations. Upon this subject the court verse to all the world. Mather V. Walsh, charged the jury as follows: "The court (Mo. Sup.) 17 S. W. Rep. 755. Although further instructs you that if you find from a possession be held in subordination to the preponderance of the evidence in this case title of the United States, it may be adthat D. F. Brownfield, the defendant in this verse to one claiming the land as against

the possessor. Francoeur V. Newhouse, 43 be enacted into a law. It is not contended Fed. Rep. 236. The judgment is reversed, but that the enrolled bill on file in the and a new trial granted.

office of the secretary of state is in all re

spects regular upon its face, and bears the DUNBAR, C. J., and HOYT, SCOTT, and signatures of the presiding officers of the STILES, JJ., concur.

respective houses of the legislature in due form, and has been regularly approved by the governor, and deposited in said office,

as required by the provisions of the constiSTATE ex rel. REED 7. JONES, Attorney tution in that regard; but it is claimed that General.

an examination of the journals of the re(Supreme Court of Washington. June 5, spective houses will show that the legisla1893.)

ture disregarded several mandatory provi. STATUTES-REGULARITY OF PASSAGE-PRESUMP- sions of the constitution which it was inTIOX.

cumbent upon them to observe before any An enrolled bill on file in the office of

bill could become a law. The argument upthe secretary of state, in all respects regular on its face, bearing the signatures of the pre

on what is shown by the Journal, and the siding officers of the houses of the legislature, effect thereof, has been elaborate and tull; regularly approved by the governor, and depos- and the publicity which has been thereby ited in such office, as required by the constitution, is conclusively presumed to have been

given to the manner in which such journals regularly passed by the legislature.

have been kept, and the want of care exMandamus on the relation of T. M. Reed

ercised by the legislature in seeing that a

compliance with constitutional provisions is against W. C. Jones, attorney general. Writ granted.

made to appear therein, cannot but be ben

eficial, whatever may be the effect thereof Roger S. Greene and John W. Corson, for in the decision of the question now before relator. W. C. Jones, in pro. per.

the court.

Preliminary to entering upon the question HOYT, J. Respondent, as attorney gen- thus argued, we must decide another ques. eral, was charged by an act of the legis- tion, ch, if determined adversely to the lature, or what purports to be such, with

position of the respondent, will make it imthe duty of approving the bond of the re

proper for us to enter at all upon the dislator as one of the board of state land com

cussion as to the effect of the journal enmissioners provided for by said act. This tries above referred to. This is as to the duty he refused to perform, on the ground effect to be given to the enrolled bill on file that what purported to be the act of the in the office of the secretary of state. It is legislature was not in fact such, for the claimed on the part of the relator that such reason that the constitutional requirements enrolled bill is absolutely conclusive of the had not been observed by the legislature | fact that it had been regularly enacted into in its passage. This proceeding is brought a law by the legislature, and, if this be true, on the part of the relator to compel such it is of course immaterial as to what the action by respondent.

Journals or any other proof may or may There is a line of authorities which we not show upon this subject. As to just what might follow and dispose of this case with force the respondent is willing to concede to out at all entering into the question as to such enrolled bill is not entirely clear from whether or not in fact said purported act his argument, though it may probably be of the legislature should have force as such; fairly deduced therefrom that he is willing but in view of the great importance of a to concede that it prima facie establishes prompt determination of the question as to the fact of the regularity of its passage whether or not said purported act is in through the legislature, but that such prima force, and of the further fact that the facie proof is overcome whenever there is elaborate briefs filed upon the part of the a suggestion to the court that the journal respective parties will enable the court to or other competent proof shows that some as intelligently determine that question in constitutional requirement has not been com. this proceeding as in any other, we have plied with; that, upon such suggestion, the concluded that our duty to the parties and courts must take judicial notice of what the to the public will be best performed by Journals show in that regard, and, if it disregarding all preliminary questions which appear to the court therefrom that there might be raised, and determining the rights has been such violation of constitutional reof the parties upon the broad ground, up- quirements, it must be held that the enrolled on which it has been largely argued, as to bill is not in force as a law. That this is whether or not such purported act is in the position of the respondent seems fact a part of the statute law of this state. tain from the line of authorities which he

It is claimed on the part of the respond- has cited to sustain it, as nearly or quite ent that it cannot have such force, by rea- all of them hold that such prima facie pre son of the fact that the legislature has not sumption attaches to the enrolled bill. It complied with the constitutional require- this is not his position, then it must be ments by which a certain subject matter can that the enrolled bill is proof of nothing,


and that in every case the courts and all tion of the courts is directed to the particuthe inhabitants of the state must take no- lar parts of the journal which show a want tice of the course of the legislature as to of compliance with constitutional require every step relating to the passage of a ments, the courts must take judicial notice bill, so far as such steps are made obliga- of all facts therein contained in relation to tory upon the legislature by the constitu- the point to which their attention has thus tion. If the courts were to hold with this been called, and, if such journals show any latter contention, it would lead to such re- want of co ince with the mandates of sults as to almost justify revolution on the the constitution, declare such prima facie part of the people. With such a construc- presumption overcome, and the law invalid. tion once sanctioned by the courts, it would . The result of this construction will lead to follow that, in however good faith an in- results as disastrous and embarrassing as dividual or an officer might act in view of the would the other construction of which we law as it appeared in the enrolled bill, such have been speaking. For a number of years seeming law or such good faith could in after the passage of an act it may be given no manner protect him from the result of force by the courts, by reason of the prima his acts if in fact the journals failed to show facie presumption flowing from the finding that the act had been regularly passed by of the act regularly enrolled and signed in the legislature. Hence a person might, while the office of the secretary of state. Then, supposing that he was acting directly in ac- after said act, to all intents and purposes, cordance with the laws of the state, be in has been treated as in force during all of fact committing a crime, and an officer who these years, upon the suggestion of some should venture to pay out money in pursu- person that there was a fatal omission in the ance of what thus seemed to be the law journal entries regarding the passage there could be called upon to account for the same of, the court must take judicial notice of as having been paid out in violation of all such fact, if shown by the journal, and from law if in fact such seeming law had not | that time on it must be held, not only that been constitutionally passed, as shown by such bill was not then a law, but that it the legislative journals. That such must be never had been such. The confusion as to the result if the signing by the presiding | rights and duties growing out of such a officers and the approval by the governor state of uncertainty as to what the statute are to be considered only as steps in the ; law of the state is may well appall one who

i act of making the bill a law, and not in even superficially contemplates the same. themselves proof of such fact, seems clear Worse than this may happen, however. The under well-settled rules relating to suggestion as to the invalidity of the law struction. If such signing and approval are may be made to one superior court in the only steps, then the fact that they have state, and from that moment such court been taken in no manner proves that any i must hold the law invalid if the journ:l other required step has been taken, and it shows any constitutional irregularity in its must follow that, before the courts can find passage; while in another superior court said that the bill has become a law, they must act will still be given full force as a law, by look and see that all the steps required by reason of the fact that no suggestion has the constitution to constitute it such have been made which will authorize the court been observed by the legislature. Such a to go behind the prima facie presumption construction given to the enrolled act would flowing from the enrolled bill. If, from the render it practically impossible for the courts enrolled bill on file, it can be conclusively even to determine what was the law, and presumed that it has been regularly enacted would render it absolutely impossible for the by the legislature, none of these evil conse average citizen to ascertain that of which he quences will follow, and the duty of the must at his peril take notice. There is

courts will be confined exclusively to as. enough injustice in requiring the citizen to certaining the effect of such law. It fol. take notice of the statute law when to do lows that, as a matter of public policy, as so he has only to determine the legal ef- well as of convenience and certainty, the fect of the enrolled acts on file in the office | court should adopt the rule which makes of the secretary of state, and, if he is fur- | such enrolled bills conclusive evidence of ther required to take notice of all that is their regular enactment, if it can do so shown by the journals of the legislature without violating some fundamental consti. which may affect the regularity with which tutional provision or well-settled rule of consuch acts have been passed, he will indeed struction. As we have already stated, none be in a sorry condition. The absolutely dis-, of the cases cited by respondent go to the astrous result of this construction has led extent of holding, as first above suggested, the courts which have held that they could that the enrolled act on file is proof of go behind the enrolled act to adopt the nothing at all, and that the fact of its be theory, which seems to us to be entirely ing thus found on file must be supplemented illogical, that the enrolled acts prima facie, by the further affirmative finding from the but not conclusively, establish the fact of their journals that it has been regularly enacted regular enactment. Such holding compels before it can be given any force whatever; the further one that, whenever the atten- nor have we been able to find any cases


going to that extent. We may therefore dis- as required by the constitution, for the inmiss that construction from further consid- formation and guidance of the other departeration, though to us it seems to follow more ments of the government. If they are not logically from the course of the argument of such final records, then the placing of them respondent than does that upon which, un- on file, signed and approved, can be no more der the authorities, he must rest his case. than one of the steps devolving upon the

As a basis for our further discussion, legislature in making a law, and, until the then, it may be accepted as a fact that all other necessary steps are also made to apof the courts hold that these enrolled bills pear, there is nothing to show the court in are prima facie the law, and that they must any manner whatever that the necessary be given force as such until their invalidity steps to make it a law have been taken. It is suggested in some proceeding. Yet to seems therefore to follow as a necessary hold that this prima facie presumption at- conclusion that all of the courts have looked taches, and a conclusive one does not, seems upon these enrolled bills as the final records to us to be illogical in the highest degree. of the legislative department in the enBesides, there is something ridiculous in actment of laws, and, if this is so, why holding that there can be such a thing as a should they not be given the sancity and prima facie law. It is true that it is fre- force incident to final records? If they quently the duty of courts and citizens to are final records in any sense whatever, accept certain things as prima facie proof it is because, under the provisions of of what the law is, but that is an entirely the constitution, interpreted in the light different proposition from holding that a of the universal practice of legislative certain thing is prima facie a law. An act bodies, it must be held that such bodies are of the legislature, when regularly on file in. authorized to make up an authoritative recthe office of the secretary of state, is, and ord certified in a certain way, and that this must necessarily be, either a law or not a record, when so made up, carries with it as law; and it is preposterous to hold that that a necessary import the fact that all the which is the law is so only prima facie, or steps which led up to the making of such to hold that that which is in fact not a law record have been regularly taken; and, if is even prima facie so. What constitutes from such record it can be prima facie prethe statutory law of a state must necessarily sumed that all the necessary steps have be an absolute proposition, and not simply been taken, it seems to logically follow that a prima facie one. The statutes published such facts should be conclusively presumed by authority do not purport to be the law; therefrom. The legislature is a co-ordinate they only purport to be copies of the law branch of the government, and cannot in as it is, and prima facie show that fact. any sense be said to be an inferior body. It is perfectly competent for the legislature Consequently its final record, when certified not only to so provide, but it may in almost and recorded as required by the constituany other way provide what may prima tion, imports absolute verity. There is no facie be taken to have the force and effect reason why the final record thus made up of the original law, but this is the extent by the legislative department of the governto which the legislature can go. It can ment should not be conclusive of the fact provide various methods of proving the ex- that all the steps necessary to make up such istence of the original law other than its ac- record had been regularly taken, the same as tual production, but the entire force of all the judgment of a court of competent juristhese substitutes is to show what the original diction is of all the facts necessary to suglaw on file in the office of the secretary of tain it. The decree of a court of general state is. The enrolled bill on file is either | jurisdiction, if fair upon its face, proves itwhat it purports to be,-a law regularly self, and is conclusive of all the facts necespassed through the legislature,-or it is noth- sary to sustain it, and, upon principle, the ing whatever. If it was in fact regularly same rule should obtain as to tbe final recpassed, it is a law; not simply prima facie ord of the legislature in the enactment of a a law, but conclusively so. If the courts law. In this regard it may be suggested can give any force whatever to the fact that that the final record of a court of general it has not been regularly passed through jurisdiction may be attacked upon several the legislature, then the courts must take it grounds, and the attack sustained by proof as the facts show, and cannot, in the event of what occurred in the progress of the case of its not having been regularly passed before it was made up. This is only true through the legislature, give it any force when such attack is made in a direct pro whatever. But, as we have seen, there are ceeding against such record, and never when none of the courts but what go so far as to the same is brought in question collaterally; hold that such enrolled bills are prima facie and, as there is no method provided by the the law. Upon what ground can they do constitution or laws for a direct attack upon this? We are unable to discover but one an enrolled bill, it follows that, if an attack ground upon which any satisfactory reason- upon it is to be made at all, it must be ing can be founded, and that is because they made in a collateral proceeding; hence the are the final records of the acts of the legis- point we are trying to make is aided, indative department, regularly certified by it, stead of met, by such suggestion.

But it is argued with great force on the to see, has ever sought to inquire into the part of the respondent that if the courts fact as to whether or not the contingency do not look into the proceedings of the leg. upon which the governor had founded his islature, and set aside laws when not en- action in fact existed. For instance, under acted with the formalities required by the the constitution, the governor is authorized constitution, the legislature can at pleas- to convene the legislature upon extraordiure nullify all such provisions. This is no nary occasions, and there would seem to be doubt true, and it is upon this line of rea- the same reason for a court refusing to soning that those courts which have gone be- give force to his proclamation thus conredhind the enrolled bill have justified them- ing the legislature is upon investigation it selves in so doing. This line of reasoning found that the extraordinary occasion upon seems to assume that the judicial depart- which the governor had assumed to act did ment is charged with seeing that all the not in fact exist as there would be to go mandatory provisions of the constitution back of the record made by the legislature. are complied with. But is this a reasona- To preserve the harmony of our form of ble construction in view of the theory of government it must be held that these ser. our government, and the principles enunci. eral mandatory provisions are addressed to ated in our constitution ? Each of the three the department which is called upon to perdepartments into which the government is form them, and that neither of the other de divided are equal, and each department partments can in any manner coerce that should be held responsible to the people that department into obedience thereto. Courts it represents, and not to the other depart- have gone behind the final records of the ments of the government, or either of them. legislative department upon what seems to What are the respective duties of these de us a false theory. They have assumed that partments? They may be briefly stated the mandatory provisions of the constitution thus: The legislature enacts laws, and is are safer if the enforcement thereof is incommanded by the constitution to enact trusted to the judicial department than it them in a certain way. The executive en- 80 intrusted to the legislature; in other forces the laws, and by the constitution it words, they have acted upon the presumpis made his duty to take certain steps look- tion that their department is the only one ing towards such enforcement in the man- in which sufficient integrity exists to insure per prescribed therein upon the happening the preservation of the constitution. How of certain contingencies. The judicial de- the courts have obtained this idea is some partment is charged with the duty of in- what difficult to ascertain, but that they enterpreting the laws, and adjudging rights and tertain it, and have allowed it to influence obligations thereunder. What is the law up- their decisions, is so evident that even a suon which the judicial department must thus perficial examination of such decisions will determine rights and obligations? It is- satisfy any one of the fact. First, the constitution of the state; second, But it is said that all courts assume some 80 much of the common law as is in force superiority over the legislature, for the reahere, and the laws of the legislature; and, son that they refuse to give force to an act third, the acts of the executive department which upon its face violates some provision in those matters in which, under the con- of the constitution, A brief examination stitution, it is given the power to exercise will show that such conclusion is unwarrantdiscretion under certain contingencies. Such ed by the fact stated. The courts are called being the respective duties of the several upon to adjudicate rights under the laws of departments, it seems to us that the acts the state. Those laws are made up of the of each of them, when certified as required provisions of the constitution, the common by the constitution, or by such a universal law, and the acts of the legislature, and the course of practice as to have the force of a acts of the executive when by the consticonstitutional provision, should be conclusive tution he is authorized to act in such a way upon each of the other departments; and as to affect rights or obligations. The conthere would seem to be no more impropriety stitution comes to all of the departments in the legislature seeking to go behind the directly from the people, and is the supreme final record of a court, for the purpose of law of the land, and can in no manner be determining whether or not it had obeyed changed or affected by the action of either the constitutional directions in making such the legislative or executive department. a record, than there would be in the courts The rest of the law comes to each of such seeking to go behind the final record made departments, authenticated in the way the by the legislative department. As we have constitution or custom requires, from the seen, the executive, under the constitution, hands of the other departments; and though is charged with doing certain things upon they each take it as verity, and give it the certain contingencies happening, and under full force which it can derive as the ex. the constitution he is given no power thus pressed will of the department from which to act excepting upon such contingency; yet it emanates, yet, when it comes in conflict if the governor determines that such con- with the constitution, it must yield, for the tingency exists, and acts in pursuance there- reason that such constitution has a sanction of, no court, so far as we have been able greater than could be given by the action

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