But the general rule undoubtedly is that the courts of every grade will take judicial notice of the journals and of the enrolled act and indorsements thereon.50 Whether an appellate court will consider an objection to the manner of passing a statute, not made in the lower court, is another question. § 59 (54). The investigation upon an objection that an act was unconstitutionally passed may be expected to be made primarily by the parties; they will desire to be heard in respect to the source and the evidentiary quality of information obtained, and the effect of facts considered. Doubtless this interest of the parties, and a conservatism of the courts restraining them from a consideration of any important ingredient of a case without notice to the parties, and the aid of their counsel, have induced the course of decision in Illinois and in some other states in which it is held that the courts will not take judicial notice of the legis lative journals, though they are required by the constitution to be kept, and will be considered only when brought before the court as evidence. It has been intimated in some cases that the objection should be made by plea, were not offered in evidence below. In People v. Luby, 99 Mich. 89, 57 N. W. 1092, the court says it will not consider an objection to the manner of passing an act, when it is made for the first time on ap peal. 50 Henderson v. State, 94 Ala. 95, 10 S. E. 332; Davis v. Whidden, 117 Cal. 618, 49 Pac. 766; State v. Hocker, 36 Fla. 358, 18 So. 767; Homzighausen v. Knoche, 58 Kan. 646, 50 Pac. 879; Barnard v. Gall, 43 La. Ann. 959, 10 So. 5; State v. Smith, 44 Ohio St. 348, 7 N. E. 447; State v. Price, 8 Ohio C. C. 25; State v. Rogers, 22 Ore. 348, 30 Pac. 74; McDonald v. State, 80 Wis. 407, 50 N. W. 185; In re Ryan, 80 Wis. 414, 50 N. W. 187; Milwaukee 51 52 County v. Isenring, 109 Wis. 9, 85 N. W. 131, 53 L. R. A. 635. In the last case the court says: "It must be understood that when the exist ence or contents of a statute are called in question, no issue of fact is presented for a trial upon the evidence, but the court, whether one of original or appellate jurisdiction, must necessarily decide the question the same as it decides any other question of law." 51 Burt v. Winona, etc. R. R. Co., 31 Minn. 472, 4 Am. & Eng. Corp. Cas. 426, 18 N. W. 285, 289; Ballou v. Black, 17 Neb. 389, 23 N. W. 3. 52 People v. Supervisors, 8 N. Y. 317; Falconer v. Campbell, 2 McLean, 195, Fed. Cas. No. 4620. made to depend on But this notion has which implies that the validity may be the determination of an issue of fact. been abandoned in the court in which it originated, and never obtained a footing in any other jurisdiction.53 The court is required to take notice ex officio of general laws; its peculiar function is to determine what the law is, and expound it; therefore it would be at once absurd and inconvenient to submit such a question to a jury. It is more logical and more consistent with principle to treat the evidence, so called, produced upon such an objection as being presented for the information of the court in the same sense in which law-books are read; facts are only incidental to the research, as when a court must deal with them to some extent, to learn if authorities cited are authentic. In Gardner v. The Collector," Miller, J., said of the public statute in question: "It is one of which the court takes judicial notice, without proof, and therefore the use of the words extrinsic evidence' is inappropriate. Such statutes are not proved as issues of fact as private statutes are." § 60 (55). Approval by executive. The legislative power is generally in terms vested by the organic law in the legislature or general assembly consisting of two branches; though in acts of congress organizing territorial governments it has been usual to vest it in the governor and general assembly. He is thus made a constituent of the legis lature, as the king in the English system is a constituent of parliament. The legislative practice, however, is the same in the territories as in the states, and the same as in parliament, as to the part taken by the executive in the enactment of laws. The two houses formulate and adopt in the first instance all legislative measures, and the executive acts merely to approve or disapprove these measures. His function is of the same nature as that of members of the two houses, except that it is negative, and that by pursuing the 53 People v. Devlin, 33 N. Y. 269, 88 Am. Dec. 377; People v. Com missioners, 54 N. Y. 276; State ex rel. v. Foote, 11 Wis. 11. 54 6 Wall. 508, 18 L. Ed. 890. course prescribed in the paramount law acts may acquire the force of laws without his concurrence.55 In New York it is held that after the final adjournment 55 In People v. Bowen, 21 N. Y. 520 et seq. (S. C., 30 Barb. 24), Denio, J., thus discusses the nature of the duty and power of the executive in the enactment of laws: "The question as to the nature of the governor's agency raises, I think, rather a dispute about terms than one concerning the substance of things. Whatever the authority touching the enactment of laws, with which the governor is clothed, shall be called, it is of the same general nature with that which is exercised by the members of the two houses. He is to consider as to the constitutionality, justice and public expediency of such legislative measures as shall have been agreed upon by the two houses, by the ordinary majorities, and be presented to him; and he is to accord or withhold his approbation according to the result of his deliberations. This is plainly the function of a legislator. The sovereign of England, who is charged with the same duty in respect to acts of parliament, is considered to be a constituent part of the supreme legislative power. 1 Bl. Com. 261. It is true that his determination to disapprove a bill deprives it of any effect, while one disallowed by the governor may yet be established by an extraordinary concurrence of votes in the houses. Thus, though the action of the executive is less potential here than in England, the quality of the act, namely, deliberating and determining upon the propriety of laws proposed to be enacted, is precisely the same. Besides making his determination the governor is required, in case it is unfavorable to the law, to submit his objections to the legislature which is to examine them, and again pass upon them in the light of the discussion which they have thus undergone. To my mind it is clear that this involves a partici pation on the part of the governor with the two houses of the legisla ture in the enactment of laws. It would not be correct language to say that he forms a branch of the legislature, for the constitution has limited that designation to the sen ate and assembly; but it would be equally incorrect to affirm that the sanction which he is required to give to or withhold from bills before they can become operative does not render him a participator in the function of making laws. The forty-seventh number of 'The Federalist,' written by Mr. Madison, treats of the separation of the great departments of the government. and it is there shown that the concurrence of the executive magistrate with the proper legislature in the enactment of laws as arranged in the constitution of the United States is not, in spirit, a violation of the principle, so strongly insisted upon by Montesquieu and other writers upon constitutional government, that constitutional liberty cannot exist where the leg of the legislature the governor may act upon bills submitted to him.56 Such seems to have been the practice sanctioned by judicial decision under similar constitutional provisions islative and executive powers are united in the same person. Mr. Madison considers the qualified veto accorded to the president as effecting a partial distribution of the legislative authority between him and the congress, but argues that it is not objectionable, because neither authority can, in any case, exercise the whole power of the other. He shows, also, that in certain states, in the constitutions of which the principle of Montesquieu is laid down in terms with great positiveness, there is an intermingling of the legislative and executive departments in the act ual arrangement of the details of government. Our own constitution furnishes another example; for though it is declared that the whole legislative authority shall be vested in the senate and assembly, still no law can be enacted which has not been submitted to the judg⚫ ment of the governor. His agency cannot, therefore, be considered as merely a power to refer back bills for further consideration by the legislature. His approval is regarded as generally essential to the enactment of laws, though his disapproval is not necessarily fatal to them, but may be overcome, where the legislature, upon a considera tion of his objections, shall repass them by an extraordinary majority." 56 People v. Bowen, 21 N. Y. 520. Denio, J., continuing the opinion Irom which we quoted in the last note, said that, in his opinion, "it is not a just construction of the power intrusted to the governor to consider it as merely an authority to require a further consideration of bills which he shall disapprove. In one respect the effect of the governor's determination is different when the legislature is in session and when it is not. In the latter case, if he approves, the concurrence of the whole lawmaking power is secured, precisely as though the legislature was in session. The bill has received the concurrence of all the functionaries which the constitution requires shall unite in enacting a perfect law. He cannot state objections, for there is no public body in existence to whom they can be submitted. If he neglect to act, which he will of course do if the bill is disapproved of by him, it falls to the ground by the express provisions of the constitution. for the grounds of his disapproval cannot be passed upon by the legis lature. But if the proposed law meets with his approval, there is no reason why the public will, expressed by all the official bodies and persons with whom the constitution has intrusted the province of making laws, should fail of effect. "It has been argued that, as the governor cannot, in the recess of the legislature, compel the reconsideration of bills to which he is unwilling to yield his consent, he 59 in Georgia, Illinois,58 Louisiana, Maryland, Michigan," and Mississippi.62 It is held that the president may approve a bill during a recess of congress.63 A bill was signed by the presiding officers and approved by the governor on the second page of the bill, at the end of section 2 instead of at the end of the bill. The governor, on discovering this, erased the signatures and sent the bill to be re-signed by the presiding officers, intending to sign after them. The bill was again signed by the presiding officers, but, in the confusion attending the close of the session, the governor neglected to do so, and the bill was filed with the secretary of state without being again signed by the governor. In a message to the senate, where the bill origi nated, the governor announced that he had approved of the bill. It was held that it was immaterial where on the bill the signatures were placed, that the bill became a law when approved, and that the subsequent acts did not annul it.64 might be induced to approve those which are, in some respects, objectionable, but which contain other provisions important to the public welfare. This argument is not without force, but I think it should be assumed that he would never interpose a veto to a bill which he did not conscientiously believe ought not to become a law, and that he would never approve one to which such objection, in his opinion, existed. Should a bill of the character suggested be left in his hands at the adjournment, the remedy for the public inconvenience, which might be occasioned by the failure to enact the sound parts, would be found in the power to again call the legislature to gether, which is vested in him for this and the like occasions." 58 Const. 1848, art. 4, § 21; Seven Hickory v. Ellery, 103 U. S. 423, 26 L. Ed. 435. 59 State v. Fagan, 22 La. Ann. 545. 60 Lankford v. County Com'rs, 73 Md. 105, 20 Atl. 1017, 11 L. R. A. 491. 61 Detroit v. Chapin, 108 Mich. 136, 66 N. W. 587, 37 L. R. A. 391. 62 State v. Supervisors, 64 Miss. 365. Contra, Fowler v. Pierce, 2 Cal. 165. 63 La Arba Silver Min. Co. v. United States, 175 U. S. 423, 20 S. C. Rep. 168, 44 L. Ed. 223. 64 National Land & Loan Co. v. Mead, 60 Vt. 257, 14 Atl. 689. The court says: "The bill passed both the senate and the house, was presented to the governor, was carefully examined by him, 57 Solomon v. Commissioners, 41 and was by him approved and Ga. 157. signed intentionally and under |