and that one of the parties to this action has neither given nor received notice of this appeal; but, as the record shows that notice of appeal was given by the plaintiffs in open court, no other notice or service was necessary, (Code Proc. §§ 1405, 1406,) and the motion must therefore be denied.

This is an action to recover the possession of a small tract of land situated in section 17, township 25 N., range 4 E., in King county, and lying on the north shore of Lake Union, and in front of a portion of the Christian Brownfield homestead claim, of which the appellants are conceded to be the owners. The land embraced in said homestead claim was first surveyed by the United States government in the year 1855, at which time the premises in dispute were outside of the boundary then fixed,-the meander line of the lake, and were partially, if not wholly, covered with water. Since that time the water of the lake has become so much lower that it has entirely receded from the land in controversy, and no longer covers any part thereof; and appellants claim title to the same by accretion, or, more properly speaking, reliction. The respondent took possession of a portion of the land in dispute on August 2, 1879, and built a house thereon, in which he has ever since resided, and otherwise improved the same. He claims that the land then settled upon and improved by him was an island, and a portion of the public domain, upon which large trees were growing, and that it was separated from the premises of appellants by a channel from 40 to 80 feet wide and some 3 feet deep, which, by the recession of the waters of the lake, has become a part of the mainland; and that he is entitled to the possession, not only of this island, but of the intervening land to the original water line, by reason of having held the same adversely to every one except the United States and the state of Washington for a period of more than 10 years. On the other hand, the appellants contend that no such island as claimed by the respondent ever existed, and at the trial they introduced several witnesses who testified favorably to their contention. They also introduced in evidence a plat of the original survey of this township by the government surveyors, on which no such island was shown or mentioned. But this evidence, except as to the plat, was directly contradicted by witnesses for the respondent, and we are therefore unable to say that the evidence upon this branch of the case is insufficient to justify the verdict.

The next question to be determined is whether the court erred in its instructions to the jury with reference to the statute of limitations. Upon this subject the court charged the jury as follows: "The court further instructs you that if you find from a preponderance of the evidence in this case that D. F. Brownfield, the defendant in this

case, has been for more than ten years last past in actual, open, notorious, adverse possession of the premises in question, and that no one has asserted any right, title, or claim to the property until the commencement of this action, and that the commencement was after a period of ten years of such uninterrupted, actual, open, and notorious adverse possession by the defendant, then the plaintiff in this case cannot recover." The statute in force when the respondent took possession of this land limited the time within which actions to recover the possession of real estate might be brought to 20 years; but in the year 1881 the legislature passed a new law, changing the time to 10 years. See Code 1881, § 26. The court assumed, and, as we have shown, instructed the jury, not only that the later statute was applicable to plaintiffs' cause of action, but that the period of limitation therein prescribed began to run at the time when the defendant entered into possession of the premises in controversy in the year 1879. In construing the statute so as to give it a retrospective operation we think the learned trial court committed error. While it is well settled that limitation laws pertain only to the remedy, and may be changed at the pleasure of the legislature, it is also true that such laws will not be given a retroactive effect unless it appears that such was clearly the legislative intention; and therefore, in Baer v. Choir, 6 Wash. St.-, 32 Pac. Rep. 776, this court, following the decision of the supreme court of the United States in the case of Sohn v. Waterson, 17 Wall. 596, where a similar statute was construed, held that, while this 10-year statute took effect upon pre-existing rights of action, and limited them, yet rights already accrued were not barred until the lapse of the full statutory period. This is not only an authoritative, but also a reasonable, construction, and gives to the statute a uniform application in all cases affected by it. As this action was commenced within 10 years after the statute went into operation, it is readily perceived that the instruction given to the jury upon the question of limitation was prejudicial to the appellants. The appellants are therefore entitled to a new trial. And the same result would, of course, follow if appellants' contention should be adopted, namely, that the old statute only is applicable to this case.

The objection that possession without color of title cannot be adverse, so as to entitle the possessor to the benefit of the statute of limitations, is not well taken. Actual, uninterrupted, and notorious possession under a claim of right is sufficient without color of title, and such possession need not be adverse to all the world. Mather v. Walsh, (Mo. Sup.) 17 S. W. Rep. 755. Although possession be held in subordination to the title of the United States, it may be adverse to one claiming the land as against

DUNBAR, C. J., and HOYT, SCOTT, and STILES, JJ., concur.

STATE ex rel. REED. JONES, Attorney General.

(Supreme Court of Washington. June 5, 1893.)

STATUTES-REGULARITY OF PASSAGE-PRESUMP

TION.

An enrolled bill on file in the office of the secretary of state, in all respects regular on its face, bearing the signatures of the presiding officers of the houses of the legislature, regularly approved by the governor, and deposited in such office, as required by the constitution. is conclusively presumed to have been regularly passed by the legislature.

Mandamus on the relation of T. M. Reed

but that the enrolled bill on file in the office of the secretary of state is in all respects regular upon its face, and bears the signatures of the presiding officers of the 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 constitution in that regard; but it is claimed that an examination of the journals of the respective houses will show that the legislature disregarded several mandatory provisions of the constitution which it was incumbent upon them to observe before any bill could become a law. The argument upon what is shown by the journal, and the effect thereof, has been elaborate and full; and the publicity which has been thereby given to the manner in which such journals have been kept, and the want of care exercised by the legislature in seeing that a

Roger S. Greene and John W. Corson, for relator. W. C. Jones, in pro. per.

HOYT, J. Respondent, as attorney general, was charged by an act of the legislature, or what purports to be such, with the duty of approving the bond of the relator as one of the board of state land commissioners provided for by said act. This duty he refused to perform, on the ground that what purported to be the act of the legislature was not in fact such, for the reason that the constitutional requirements had not been observed by the legislature in its passage. This proceeding is brought on the part of the relator to compel such action by respondent.

There is a line of authorities which we might follow and dispose of this case without at all entering into the question as to whether or not in fact said purported act of the legislature should have force as such; but in view of the great importance of a prompt determination of the question as to whether or not said purported act is in force, and of the further fact that the elaborate briefs filed upon the part of the respective parties will enable the court to as intelligently determine that question in this proceeding as in any other, we have concluded that our duty to the parties and to the public will be best performed by disregarding all preliminary questions which might be raised, and determining the rights of the parties upon the broad ground, upon which it has been largely argued, as to whether or not such purported act is in fact a part of the statute law of this state.

It is claimed on the part of the respondent that it cannot have such force, by reason of the fact that the legislature has not complied with the constitutional requirements by which a certain subject-matter can

made to appear therein, cannot but be beneficial, whatever may be the effect thereof in the decision of the question now before the court.

Preliminary to entering upon the question thus argued, we must decide another question, which, if determined adversely to the position of the respondent, will make it improper for us to enter at all upon the discussion as to the effect of the journal entries above referred to. This is as to the effect to be given to the enrolled bill on file in the office of the secretary of state. It is claimed on the part of the relator that such enrolled bill is absolutely conclusive of the fact that it had been regularly enacted into a law by the legislature, and, if this be true, it is of course immaterial as to what the journals or any other proof may or may not show upon this subject. As to just what force the respondent is willing to concede to such enrolled bill is not entirely clear from his argument, though it may probably be fairly deduced therefrom that he is willing to concede that it prima facie establishes the fact of the regularity of its passage through the legislature, but that such prima facie proof is overcome whenever there is a suggestion to the court that the journal or other competent proof shows that some constitutional requirement has not been complied with; that, upon such suggestion, the courts must take judicial notice of what the journals show in that regard, and, if it appear to the court therefrom that there has been such violation of constitutional requirements, it must be held that the enrolled bill is not in force as a law. That this is the position of the respondent seems certain from the line of authorities which he has cited to sustain it, as nearly or quite all of them hold that such prima facie presumption attaches to the enrolled bill. If this is not his position, then it must be that the enrolled bill is proof of nothing,

and that in every case the courts and all the inhabitants of the state must take notice of the course of the legislature as to every step relating to the passage of a bill, so far as such steps are made obligatory upon the legislature by the constitution. If the courts were to hold with this latter contention, it would lead to such results as to almost justify revolution on the part of the people. With such a construction once sanctioned by the courts, it would. follow that, in however good faith an individual or an officer might act in view of the law as it appeared in the enrolled bill, such seeming law or such good faith could in no manner protect him from the result of his acts if in fact the journals failed to show that the act had been regularly passed by the legislature. Hence a person might, while supposing that he was acting directly in accordance with the laws of the state, be in fact committing a crime, and an officer who should venture to pay out money in pursuance of what thus seemed to be the law could be called upon to account for the same as having been paid out in violation of all law if in fact such seeming law had not been constitutionally passed, as shown by the legislative journals. That such must be the result if the signing by the presiding officers and the approval by the governor are to be considered only as steps in the act of making the bill a law, and not in themselves proof of such fact, seems clear under well-settled rules relating to construction. If such signing and approval are only steps, then the fact that they have been taken in no manner proves that any other required step has been taken, and it must follow that, before the courts can find that the bill has become a law, they must look and see that all the steps required by the constitution to constitute it such have been observed by the legislature. Such a construction given to the enrolled act would render it practically impossible for the courts even to determine what was the law, and would render it absolutely impossible for the average citizen to ascertain that of which he must at his peril take notice. There is enough injustice in requiring the citizen to take notice of the statute law when to do so he has only to determine the legal effect of the enrolled acts on file in the office of the secretary of state, and, if he is further required to take notice of all that is shown by the journals of the legislature which may affect the regularity with which such acts have been passed, he will indeed be in a sorry condition. The absolutely disastrous result of this construction has led the courts which have held that they could go behind the enrolled act to adopt the theory, which seems to us to be entirely illogical, that the enrolled acts prima facie, but not conclusively, establish the fact of their regular enactment. Such holding compels the further one that, whenever the atten

tion of the courts is directed to the particular parts of the journal which show a want of compliance with constitutional requirements, the courts must take judicial notice of all facts therein contained in relation to the point to which their attention has thus been called, and, if such journals show any want of compliance with the mandates of the constitution, declare such prima facie presumption overcome, and the law invalid. The result of this construction will lead to results as disastrous and embarrassing as would the other construction of which we have been speaking. For a number of years after the passage of an act it may be given force by the courts, by reason of the prima facie presumption flowing from the finding of the act regularly enrolled and signed in the office of the secretary of state. Then, after said act, to all intents and purposes, has been treated as in force during all of these years, upon the suggestion of some person that there was a fatal omission in the journal entries regarding the passage thereof, the court must take judicial notice of such fact, if shown by the journal, and from that time on it must be held, not only that such bill was not then a law, but that it never had been such. The confusion as to rights and duties growing out of such a state of uncertainty as to what the statute law of the state is may well appall one who even superficially contemplates the same. Worse than this may happen, however. The suggestion as to the invalidity of the law may be made to one superior court in the state, and from that moment such court must hold the law invalid if the journal shows any constitutional irregularity in its passage; while in another superior court said act will still be given full force as a law, by reason of the fact that no suggestion has been made which will authorize the court to go behind the prima facie presumption flowing from the enrolled bill. If, from the enrolled bill on file, it can be conclusively presumed that it has been regularly enacted by the legislature, none of these evil conse quences will follow, and the duty of the courts will be confined exclusively to ascertaining the effect of such law. It follows that, as a matter of public policy, as well as of convenience and certainty, the court should adopt the rule which makes such enrolled bills conclusive evidence of their regular enactment, if it can do so without violating some fundamental constitutional provision or well-settled rule of construction. As we have already stated, none of the cases cited by respondent go to the extent of holding, as first above suggested, that the enrolled act on file is proof of nothing at all, and that the fact of its be ing thus found on file must be supplemented by the further affirmative finding from the journals that it has been regularly enacted before it can be given any force whatever; nor have we been able to find any cases

going to that extent. We may therefore dismiss that construction from further consideration, though to us it seems to follow more logically from the course of the argument of respondent than does that upon which, under the authorities, he must rest his case.

As a basis for our further discussion, then, it may be accepted as a fact that all of the courts hold that these enrolled bills are prima facie the law, and that they must be given force as such until their invalidity is suggested in some proceeding. Yet to

hold that this prima facie presumption attaches, and a conclusive one does not, seems to us to be illogical in the highest degree. Besides, there is something ridiculous in holding that there can be such a thing as a prima facie law. It is true that it is frequently the duty of courts and citizens to accept certain things as prima facie proof of what the law is, but that is an entirely different proposition from holding that a certain thing is prima facie a law. An act

of the legislature, when regularly on file in. the office of the secretary of state, is, and must necessarily be, either a law or not a law; and it is preposterous to hold that that which is the law is so only prima facie, or to hold that that which is in fact not a law is even prima facie so. What constitutes the statutory law of a state must necessarily be an absolute proposition, and not simply a prima facie one. The statutes published by authority do not purport to be the law; they only purport to be copies of the law as it is, and prima facie show that fact. It is perfectly competent for the legislature not only to so provide, but it may in almost any other way provide what may prima facie be taken to have the force and effect of the original law, but this is the extent to which the legislature can go. It can provide various methods of proving the existence of the original law other than its actual production, but the entire force of all these substitutes is to show what the original law on file in the office of the secretary of state is. The enrolled bill on file is either what it purports to be,-a law regularly passed through the legislature,-or it is nothing whatever. If it was in fact regularly passed, it is a law; not simply prima facie a law, but conclusively so. If the courts can give any force whatever to the fact that it has not been regularly passed through the legislature, then the courts must take it as the facts show, and cannot, in the event of its not having been regularly passed through the legislature, give it any force whatever. But, as we have seen, there are none of the courts but what go so far as to hold that such enrolled bills are prima facie the law. Upon what ground can they do this? We are unable to discover but one ground upon which any satisfactory reasoning can be founded, and that is because they are the final records of the acts of the legisMative department, regularly certified by it,

as required by the constitution, for the information and guidance of the other departments of the government. If they are not such final records, then the placing of them on file, signed and approved, can be no more than one of the steps devolving upon the legislature in making a law, and, until the other necessary steps are also made to appear, there is nothing to show the court in any manner whatever that the necessary steps to make it a law have been taken. It seems therefore to follow as a necessary conclusion that all of the courts have looked upon these enrolled bills as the final records of the legislative department in the enactment of laws, and, if this is so, why should they not be given the sancity and force incident to final records? If they are final records in any sense whatever, it is because, under the provisions of the constitution, interpreted in the light of the universal practice of legislative bodies, it must be held that such bodies are authorized to make up an authoritative record certified in a certain way, and that this record, when so made up, carries with it as a necessary import the fact that all the steps which led up to the making of such record have been regularly taken; and, if from such record it can be prima facie presumed that all the necessary steps have been taken, it seems to logically follow that such facts should be conclusively presumed therefrom. The legislature is a co-ordinate branch of the government, and cannot in any sense be said to be an inferior body. Consequently its final record, when certified and recorded as required by the constitution, imports absolute verity. There is no reason why the final record thus made up by the legislative department of the government should not be conclusive of the fact that all the steps necessary to make up such record had been regularly taken, the same as the judgment of a court of competent jurisdiction is of all the facts necessary to sustain it. The decree of a court of general jurisdiction, if fair upon its face, proves itself, and is conclusive of all the facts necessary to sustain it, and, upon principle, the same rule should obtain as to the final record of the legislature in the enactment of a law. In this regard it may be suggested that the final record of a court of general jurisdiction may be attacked upon several grounds, and the attack sustained by proof of what occurred in the progress of the case before it was made up. This is only true when such attack is made in a direct proceeding against such record, and never when the same is brought in question collaterally; and, as there is no method provided by the constitution or laws for a direct attack upon an enrolled bill, it follows that, if an attack upon it is to be made at all, it must be made in a collateral proceeding; hence the point we are trying to make is aided, instead of met, by such suggestion.

But it is argued with great force on the part of the respondent that if the courts do not look into the proceedings of the leg. islature, and set aside laws when not enacted with the formalities required by the constitution, the legislature can at pleasure nullify all such provisions. This is no doubt true, and it is upon this line of reasoning that those courts which have gone behind the enrolled bill have justified themselves in so doing. This line of reasoning seems to assume that the judicial department is charged with seeing that all the mandatory provisions of the constitution are complied with. But is this a reasonable construction in view of the theory of our government, and the principles enunci. ated in our constitution? Each of the three departments into which the government is divided are equal, and each department should be held responsible to the people that it represents, and not to the other departments of the government, or either of them. What are the respective duties of these departments? They may be briefly stated thus: The legislature enacts laws, and is commanded by the constitution to enact them in a certain way. The executive enforces the laws, and by the constitution it is made his duty to take certain steps looking towards such enforcement in the manDer prescribed therein upon the happening of certain contingencies. The judicial department is charged with the duty of interpreting the laws, and adjudging rights and obligations thereunder. What is the law upon which the judicial department must thus determine rights and obligations? It is First, the constitution of the state; second, so much of the common law as is in force here, and the laws of the legislature; and, third, the acts of the executive department in those matters in which, under the constitution, it is given the power to exercise discretion under certain contingencies. Such being the respective duties of the several departments, it seems to us that the acts of each of them, when certified as required by the constitution, or by such a universal course of practice as to have the force of a constitutional provision, should be conclusive upon each of the other departments; and there would seem to be no more impropriety in the legislature seeking to go behind the final record of a court, for the purpose of determining whether or not it had obeyed the constitutional directions in making such a record, than there would be in the courts seeking to go behind the final record made by the legislative department. As we have seen, the executive, under the constitution, is charged with doing certain things upon certain contingencies happening, and under the constitution he is given no power thus to act excepting upon such contingency; yet if the governor determines that such contingency exists, and acts in pursuance thereof, no court, so far as we have been able

to see, has ever sought to inquire into the fact as to whether or not the contingency upon which the governor had founded his action in fact existed. For instance, under the constitution, the governor is authorized to convene the legislature upon extraordinary occasions, and there would seem to be the same reason for a court refusing to give force to his proclamation thus convening the legislature if upon investigation it found that the extraordinary occasion upon which the governor had assumed to act did not in fact exist as there would be to go back of the record made by the legislature. To preserve the harmony of our form of government it must be held that these several mandatory provisions are addressed to the department which is called upon to perform them, and that neither of the other departments can in any manner coerce that department into obedience thereto. Courts have gone behind the final records of the legislative department upon what seems to us a false theory. They have assumed that the mandatory provisions of the constitution are safer if the enforcement thereof is intrusted to the Judicial department than if so intrusted to the legislature; in other words, they have acted upon the presumption that their department is the only one in which sufficient integrity exists to insure the preservation of the constitution. How the courts have obtained this idea is somewhat difficult to ascertain, but that they entertain it, and have allowed it to influence their decisions, is so evident that even a superficial examination of such decisions will satisfy any one of the fact.

But it is said that all courts assume some superiority over the legislature, for the reason that they refuse to give force to an act which upon its face violates some provision of the constitution. A brief examination will show that such conclusion is unwarranted by the fact stated. The courts are called upon to adjudicate rights under the laws of the state. Those laws are made up of the provisions of the constitution, the common law, and the acts of the legislature, and the acts of the executive when by the constitution he is authorized to act in such a way as to affect rights or obligations. The constitution comes to all of the departments directly from the people, and is the supreme law of the land, and can in no manner be changed or affected by the action of either the legislative or executive department. The rest of the law comes to each of such departments, authenticated in the way the constitution or custom requires, from the hands of the other departments; and though they each take it as verity, and give it the full force which it can derive as the expressed will of the department from which it emanates, yet, when it comes in conflict with the constitution, it must yield, for the reason that such constitution has a sanction greater than could be given by the action of