III. Presumptions and burden of proof. i. As to skill; negligence; care. circumstances establishing contributory neg- Presumption of performance of duty genligence on his part; and, when such facts are proved, it devolves upon the defendant to prove affirmatively that the plaintiff was guilty of contributory negligence. Purcell v. Stubblefield, 51 L.R.A.(Ñ.S.) 1077, 41 Okla. 562, 139 Pac. 290.

c. The sudden swerving of a reasonably safe and gentle horse in temporary fright at a street car, raises no presumption of negligence on the part of the driver so as to bar recovery for injury sustained by being thrown from his wagon on the strik-431, 132 Ind. 567, 32 N. E. 568; State ex ing by it of an obstruction on the street when the horse swerved, since such conduct on the part of the horse is usual and ordinary. Rucker v. Huntington, 25 L.R.A. (N.S.) 143, 66 W. Va. 104, 66 S. E. 91.

a. To relieve itself from liability to make good the amounts which it has paid on raised checks, a bank must affirmatively establish negligence on the part of the drawer which facilitated the commission of the fraud. 48 N. W. 98. Critten v. Chemical Nat. Bank, 57 L.R.A. 529, 171 N. Y. 219, 63 N. E. 969.

j. As to judicial and other official acts; it has been done, and therefore the party

1

III. Presumptions and burden of proof. j. As to judicial and other official acts; jurisdiction. 1. Rules which have been in force in a commencement of the litigation, the defendcity and have been notoriously acted upon ant held the property as city marshal, unfor thirty years must be deemed to have the der a warrant issued by a police court, sanction and approval of every branch of justifies a presumption, in the absence of the city government. Engel v. Minneapolis, anything to indicate the contrary, that he L.R.A.1918B, 647, 138 Minn. 438, 165 N. W. was acting under an ordinance passed in aid of a prohibitory law, authorizing the seizure and destruction of liquors kept for sale in violation of the statute. Hines v. Stahl, 20 L.R.A. (N.S.) 1118, 79 Kan. 88, 99 Pac. 273.

278.

m. When a board is created for the purpose of carrying a law into execution, all legal intendments are with the orders of such board, and such orders will be upheld unless their invalidity is shown by those who complain of such orders. The legal presumption is that such orders are reasonable that they were made upon proper evidence; and that they are valid. It is only when such orders were unauthorized by the law, or were made by such board without or in excess of legal authority, or were unreasonable, that they are void. Railroad Commission v. Alabama G. S. R. Co. L.R.A. 1915D, 98, 185 Ala. 354, 64 So. 13.

n. A court of equity cannot assume in advance that a county board will violate the fundamental law of the state by the making of an illegal contract. Stevens v. St. Mary's Training School, 18 L.R.A. 832, 144 Ill. 336,

32 N. E. 962.

o. In the absence of a contrary showing courts presume that the municipal authorities, in passing on matters respecting the use of streets, have acted for the best interests of the city. People ex rel. Mather v. Marshall Field & Co. L.R.A.1915F, 937, 266

Ill. 609, 107 N. E. 864.

p. A presumption that a request for aid was made by one assisted by public officers as a poor person will not be made as the foundation of an alleged right to recover compensation therefor from her estate. Albany v. McNamara, 6 L.R.A. 212, 117 N. Y. 168, 22 N. E. 931.

a. It will be presumed on application for mandamus to enforce an order of the State Railway Commission, that the findings of the Commission were sustained by the eviand no appeal had been taken. dence, where jurisdiction had been acquired rel. Nebraska State R. Commission v. MisState ex souri P. R. Co. L.R.A.1918E, 346, 100 Neb. 700, 161 N. W. 270.

mission in fixing a schedule of local rates b. The action of the Corporation Comfor telephone exchange service in a particular city must be regarded as prima facie just, reasonable, and correct, until such time as the case can be considered on full hearing, where such rates were based on a full investigation which involved the exercise of judgment and discretion by the Commission. Pioneer Teleph. & Teleg. Co. v. State, L.R.A.

1918C, 138,

Okla.,

167 Pac. 995. § 370. Of executive officers generally. See also post, §§ 380 a, 430 i; COURTS, § 56

f.

q. The burden of proof is upon a city in a. It is the duty of a court to resolve an action for the value of property de-all doubts in favor of an official act of the stroyed by it as a nuisance without first chief executive officer of the state. State condemning the same, to show that its v. Lewis, 11 L.R.A. 105, 107 N. C. 967, 12 destruction was really necessary to the S. E. 457, 13 S. E. 247. public health or safety. Savannah v. Mulligan, 29 L.R.A. 303, 95 Ga. 323, 22 S. E.

621.

b. Until the contrary is made to appear, the law will presume that the executive officer of a city in classifying the positions r. The burden is upon defendant, in an under the civil service has obeyed the proaction against a city to recover the value of visions of the statute requiring them to be an animal which was sold under an ordi- made competitive so far as practicable. nance which provides for the impounding Chittenden v. Wurster, 37 L.R.A. 809, 152 and sale of animals found running at large N. Y. 345, 46 N. E. 857. in the city, to show that all the require- c. It is a presumption of law that every ments of the ordinance, including the post-public officer does his duty, and this preing of notices of sale, were strictly com-sumption is especially strong in the case plied with. Ft. Smith v. Dodson, 4 L.R.A. of the governor, the chief executive officer 252, 51 Ark. 447, 11 S. W. 687. (Annotated) of an independent state. People ex rel. s. It will be presumed where the fees for Engley v. Martin, 24 L.R.A. 201, 19 Colo. the inspection of oil exacted under a state 565, 36 Pac. 543. statute average for a number of years largely more than enough to pay expenses, that the state will reduce them to conform to the constitutional authority to impose fees solely to reimburse the expense of inspection. State v. Standard Oil Co. L.R.A. 1917D, 746, 100 Neb. 826, 161 N. W. 537. t. In a trial following the replevying of intoxicating liquors, to determine the right of possession thereof, evidence that, at the

d. It will be presumed in support of the governor's warrant in extradition proceedings, in the absence of evidence to the contrary, that he made the necessary findings of fact if the record evidence presented to him legally authorized such findings. State ex rel. Munsey v. Clough, 67 L.R.A. 946, 72 N. H. 178, 55 Atl. 554, aff'd in 196 U. S. 364, 49 L. ed. 515, 25 Sup. Ct. Rep. 282.

e. An extradition warrant issued by the

III. Presumptions and burden of proof. j. As to judicial and other official acts; jurisdiction. governor upon requisition from a foreign e. There can be no presumption in favor of state must be presumed, in the absence of an assessment for taxation which is arrived evidence to the contrary, to have been at, not by an exercise of judgment, but by granted upon competent proof that the pris- an arbitrary manipulation of figures. Cononer was a fugitive from justice; and in solidated Gas Co. v. Baltimore, 1 L.R.A. habeas corpus proceedings to obtain his re- (N.S.) 263, 101 Md. 541, 61 Atl. 532. lease, the prisoner has the burden of showing that he has not fled and is not a fugitive. State ex rel. McNichols v. Justus, 55 L.R.A. 325, 84 Minn. 237, 87 N. W. 770. § 371. Of Federal cabinet officers.

a. The official survey of government land will be presumed to be correct after the lapse of many years, where its disturbance would upset titles and destroy rights of those who have in good faith relied on it. Kneeland v. Korter, 1 L.R.A. (N.S.) 745, 40 Wash. 359, 82 Pac. 608.

b. One seeking to enjoin the exclusion of his paper from the mails by order of the Postmaster General has the burden of show. ing that such officer exceeded his power, or exercised it wantonly or maliciously. Masses Pub. Co. v. Patton, L.R.A.1918C, 79, 246 Fed. 24, 158 C. C. A. 250.

§ 372. Of health officers. See also ante, § 368 q.

a. The presumption is always in favor of the validity of the action of a local board of health. Board of Health v. Kollman, 49 L.R.A. (N.S.) 354, 156 Ky. 351, 160 S. W.

1052.

f. No presumption can be indulged that all of the public officials of the state in the various counties who have to do with the assessment of property for taxation will knowingly violate the duties imposed upon them by law. State ex rel. Nelson v. Meek, L.R.A.1918F, 642, 127 Ark. 349, 192 S. W. 202.

g. The presumption is that an assessment of personal property for taxation is correct and it is incumbent upon the property owner to clearly show that the assessment was erroneous, to relieve itself from the assessment. People ex rel. Burke v. Wells, 12 L.R.A. (N.S.) 905, 184 N. Y. 275, 77 N. E.

19.

h. One attacking a tax assessment on the ground that he has not the property assessed has the burden of showing that fact, and his assessment cannot be canceled because of absence of proof that he possessed the property. Barhydt v. Cross, 40 L.R.A. (N.S.) 986, 156 Iowa, 271, 136 N. W. 525.

i. Where the statutes make real estate liable for taxes levied on personal property when they cannot be made out of the personalty, and direct the collector to seb. The officers of the city health depart-lect real estate for that purpose when it ment will be assumed to be acting in accord- becomes necessary, it will be presumed, ance with, and not in violation of, the law when the books show charges of unpaid perin accepting a resignation of an employee sonal taxes against land, that they were therein. Byrne v. St. Paul, L.R.A.1917F, necessary because the taxes could not be 545, 137 Minn. 235, 163 N. W. 162. made out of personalty, although it is not so stated on the return. Shelbyville Water Co. v. People ex rel. Craddick, 16 L.R.A. 505, 140 I. 545, 30 N. E. 678.

c. Under a statute permitting a municipality to appeal from an order of a board of health forbidding its casting sewage into a stream so as to menace the public health and permitting the order to stand pending the appeal, the burden is on the city to show that the order was not justified. Miles City v. Board of Health, 25 L.R.A. (N.S.) 589, 39 Mont. 405, 102 Pac. 696.

j. To sustain a tax upon land which is shown to have been legally exempt from taxation for a long period prior to the year for which the tax was assessed, the burden is on the tax officers to show that something had occurred before such year to remove the exemption. Allen County V.

§ 373. Taxes and assessments. Presumption of discrimination in statute as Simons, 13 L.R.A. 512, 129 Ind. 193, 28 N.

E. 420.

(Annotated) k. The state board of equalization, which has no power to assess railroad roadways other than for railroad uses, must be presumed not to have considered, in valuing a railroad right of way for railway use, the value of leases of sites on its roadway for elevators, lumber yards, or oil tank stations which, by N. D. Const. § 179, as amended in 1901, are to be assessed to the lessees in the manner provided for assessment of other real property. Northern P. R. Co. v. Morton County, L.R.A.1916E, 404, 32 N. D. 627, 156 N. W. 226.

1. A large tract of land will not be presumed to have been assessed at its full valuation if the acreage stated by the taxpayer's list is only about one half of what the tract contains. Hillman Land & I. Co. v. Com. L.R.A.1915C, 929, 148 Ky. 331, 146 S. W. 776.

m. A party attacking a certificate of sale

III. Presumptions and burden of proof. j. As to judicial and other official acts; jurisdiction. for taxes has the burden of showing that by mistake of the election officers. Parvin there was no valid judgment authorizing the v. Wimberg, 15 L.R.A. 775, 130 Ind. 561, sale. Nind v. Myers, 8 L.R.A. (N.S.) 157, 30 N. E. 790. 15 N. D. 400, 109 N. W. 335.

§ 374. License.

a. The charge made for a license will be presumed to be reasonable, and within the authority conferred upon the municipality issuing it, unless the contrary appears upon the face of the ordinance, or is, by evidence, shown to be so. Ottumwz v. Żekind, 29 L.R.A. 734, 95 Iowa, 622, 64 N. W. 646.

b. It will not be presumed that a city council refused a license temporarily and without sufficient reason, merely because no reason appears upon its record, where it had the right to exercise discretion in the matter. Perry v. Salt Lake City, 11 L.R.A. 446, 7 Utah, 143, 25 Pac. 739, 998. § 375. Public improvements.

a. The burden is on the property owner to show that a wrong basis of apportionment of the expense of a public improvement was followed, and he must allege and prove facts showing such to be the case, and that under the proper method of apportionment he would be required to pay less. Bayes V. Paintsville, L.R.A.1916B, 1027, 166 Ky. 679,

179 S. W. 623.

b. Where a petition for paving a street was circulated and signed, bids were advertised for, a contract was about to be let and bonds about to be issued to pay for the pavement, and the board of commissioners adopted and published a resolution and enacted an ordinance ordering and providing for the paving, it must be presumed that the petition was spread upon the journal as required by statute. Pollock v. Kansas City, 42 L.R.A.(N.S.) 465, 87 Kan. 205, 133 Pac.

985.

c. A certificate of the auditor whose duty was to assess the cost of a street improvement on abutting property, that he had made the assessment in proportion to benefits, is presumed to be true. Reiff v. Portland, L.R.A.1915D, 772, 71 Or. 421, 141 Pac. 167, 142 Pac. 827.

d. The presumption is that county of ficers in making changes in the heating apparatus of a new public building made only such as were proper. Gibson County v. Cincinnati Steam Heating Co. 12 L.R.A. 502, 128 Ind. 240, 27 N. E. 612.

e. The board of railroad commissioners, one of whom is required by law to be a civil engineer, will be presumed to have made no order for the construction of a public work which cannot be precisely executed. Bristol v. New England R. Co. 40 L.R.A. 479, 70 Conn. 305, 39 Atl. 235. § 376. Elections.

a. Ballots for general state officers will be presumed, in the absence of anything to show the contrary, to have contained the name of a candidate for every state office to be filled at that election. State ex rel. Phelan v. Walsh, 17 L.R.A. 364, 62 Conn. 260, 25 Atl. 1.

b. The presumption is that ballots found in the wrong ballot box were placed there

c. In a contested election case, the burden of proof rests on the plaintiff. He must establish, to the satisfaction of the jury or trial court, that the ballots have been kept intact, and are the genuine, identical ballots cast at the election; otherwise they will receive no credence, and be rejected as unworthy of credit. Hartman v. Young, 2 L.R.A. 596, 17 Or. 150, 20 Pac. 17.

d. One who attempts to establish his right to an office on the ground that he received a majority of all votes cast for candidates for that office at a certain election has the burden of showing that votes rejected from the count by the board of

canvassers

were properly rejected, if the reason for such rejection given in the canvasser's certificate is insufficient to justify it. State ex rel. Phelan v. Walsh, 17 L.R.A. 364, 62 Conn. 260, 25 Atl. 1.

e. The presumption that a voter has conformed to the law will prevail over a presumption that moderators have rightfully rejected his ballot, where their certificate does not specifically state the reason for the rejection, as required by statute. State ex rel. Phelan v. Walsh, 17 L.R.A. 364, 62 Conn. 260, 25 Atl. 1.

f. It is unnecessary to prove in an election contest that a sufficient number of voters were influenced to change the election results by an offer by the successful candidate for common pleas judge, to accept as salary for his judicial services only the amount payable by the state, and not any amount payable from the local or county treasury. Prentiss V. Dittmer, L.R.A. 1917B, 191, 93 Ohio St. 314, 112 N. E. 1021. g. Allegation or proof on the part of the state of the holding of a valid election to determine whether or not intoxicating liquor shall be sold in a certain precinct is not necessary in a prosecution for illegal sale within that territory, where the statute provides that the order of the county court in declaring the result of an election shall be prima facie evidence that all provisions of the law have been complied with in giving notice of and holding such election, and in counting and returning the votes and declaring the result, if such an order is produced at the trial. State v. Carmody, 12 L.R.A. (N.S.) 828, 50 Or. 1, 91 Pac. 446.

§ 377. Acknowledgment.

a. The absence of a seal or of anything representing it, from the record or from a transcript thereof, is not sufficient to overcome the presumption created by language in an acknowledgment indicating that the officer's official seal was affixed to the original. Summer v. Mitchell, 14 L.R.A. 815, 29 Fla. 179, 10 So. 562.

b. Where an instrument has been acknowledged in another state before a deputy clerk of a court signing himself as such and affixing the seal of office, it will be presumed, in support of the certificate, that the clerk had authority to appoint a deputy.

III. Presumptions and burden of proof. j. As to judicial and other official acts; jurisdiction. Summer v. Mitchell, 14 L.R.A. 815, 29 Fla. | Bragg v. Rogers, 32 L.R.A. 520, 107 Ala. 179, 10 So. 562. 444, 19 So. 909.

§ 378. Service of process.

ING, § 446 e.

e. A party who asserts that the legis

As to service of cross complaint, see PLEAD- lature has usurped power or has violated the constitution must affirmatively and clearly establish his position. Jamieson v. Indiana Natural Gas & Oil Co. 12 L.R.A. 652, 128 Ind. 555, 28 N. E. 76.

a. When the record discloses the manner in which service on infants was attempted to be made, there is no presumption that they were served in any other way. Clark v. Neves, 12 L.R.A. (N.S.) 298, 76 S. C. 484, 57 S. E. 514.

f. It must be assumed that the legis lature, and all other public bodies intrusted with the functions of government, general or local, will use the power conferred by the Constitution or the law fairly, and ir the public interests. Mallette v. Spokane GRAND 51 L.R.A. (N.S.) 686, 77 Wash. 205, 137 g. Legislators are conclusively presumed

§ 379. Selection of jury or grand

jury.

As to summoning Grand Jury, see

JURY, § 15 a.

Pac. 496.

a. The fact that it does not distinctly to act with the generally recognized rules appear by the return of the officer that the of statutory construction in mind. Hustor posting of notice for a meeting to revise v. Scott, 35 L.R.A. (N.S.) 721, 20 Okla a jury list and draw jurors was as long as 142, 94 Pac. 512. it should have been before the meeting, h. A legislature is presumed to have acted where it does not appear that the notices within constitutional limits, upon ful were not sufficient, will not prevent the knowledge of the facts, and with the pur presumption that the proceedings were legal. Com. v. Brown, 1 L.R.A. 620, 147 Mass. 585, 18 N. E. 587.

b. In passing upon the validity of an indictment there is ordinarily a presumption of law that the grand jury was legally and regularly selected, drawn and impaneled according to law, and that its proceedings at the time the indictment was found were in every respect legal and regular. State v. Vincent, 52 L.R.A. 83, 91 Md. 718, 47 Atl. 1036.

§ 380. Legislative acts.
Presumption as to validity of statute, see
ante, § 104.
Burden of proving invalidity of statute, see
ante, § 105.

Matters considered by legislature in grant-
ing authority, see ante, § 165 a.
Presumption and burden of proof as to leg-
islative intent, see ante, § 206.
Presumption as to continuance of quorum,
see ante, § 258 a, b.

Presumption as to correctness of legis-
lative determination that use is
lic, see COURTS, § 128 g, h.

pose of promoting the interests of the peo ple as a whole; and the courts will not lightly hold that an act duly passed by the legislature was one in the enactment of which it has transcended its power. Re Ten-Hour Law for Street R. Corps. 61 L.R.A. 612, 24 R. I. 603, 54 Atl. 602.

i. The legislature is presumed to have had former statutes before it, and to have beer acquainted with their judicial construction, and passed new statutes on the same sub. ject with reference thereto. State v. Ger. hardt, 33 L.R.A. 313, 145 Ind. 439, 44 N. E. 469.

j. A court is bound to assume, that, in with full knowledge of all constitutional the passage of any law, the legislature acted discriminately decided that they were act restrictions, and intelligently, honestly, and ing within their constitutional limits and powers. Laughlin v. Portland, 51 L.R.A (N.S.) 1143, 111 Me. 486, 90 Atl. 318.

k. It must be presumed that the legis lature had before it when the statute was pub-enable it to act; and the passage of the passed any evidence that was required to statute must be deemed a finding by the a. Any act performed by the legislative legislature of the existence of the facts or executive department is presumed to have been done in the proper exercise of authority conferred by the constitution. McPherson v. State, 31 L.R.A. (N.S.) 188, 174 Ind. 60, 90 N. E. 610.

b. Courts are bound to presume that the legislature acted upon good and sufficient evidence, and such presumption is conclusive on the question of validity of a statute. Erskine v. Nelson County, 27 L.R.A. 696, 4 N. D. 66, 58 N. W. 348.

c. If a state of facts could exist which would justify legislation, it is to be presumed that it did exist. Re Ten-Hour Law, 61 L.R.A. 612, 24 R. I. 603, 54 Atl. 602.

justifying the enactment. State ex rel. Linde v. Packard, L.R.A.1917B, 710, 35 N. D. 298, 160 N. W. 150.

1. It must be presumed that the legislature did its duty and had before it such evidence as was satisfactory to it in determining an election contest on a report by a contest board, where the question required evidence and the journals are silent as to what evidence the legislature heard. Taylor v. Beckham, 49 L.R.A. 258, 108 Ky. 278, 56 S. W. 177, writ of error dismissed in 178 U. S. 548, 44 L. ed. 1187, 20 Sup. Ct. Rep. 890, 1009.

m. All acts of the legislature are pred. The presumption is that the legislature sumed to have been enacted conformably to has not exceeded its powers, and unless it the constitution, unless the contrary is is clear that there has been a substantial manifest. State ex rel. George v. Aiken, departure from the constitution, the validity 26 L.R.A. 345, 42 S. C. 222, 20 N. E. 221. of an act must be supported. State ex rel. n. Every bill of the legislature signed