I wish to concur fully in the foregoing opinion, but I think an explanation of my apparent change of views in this case is in order, since I wrote the opinion affirming the judgment, which has been withdrawn, and for which the foregoing is now substituted.
It was thought by me that since it is not necessary in any tribunal acting in a judicial capacity to prove matters which are judicially known (Anderson v. Board of Dental Examiners,27 Cal. App. 336, 149 P. 1006; 23 Corpus Juris 172, section 2004; Atchison, Topeka Santa Fe Ry. Co. v. United States,284 U.S. 248, 262, 52 S. Ct. 146, 150, 76 L. Ed. 273), that the board in this instance could treat as evidence introduced those matters thus known, and that when so considered in the light of the evidence which was placed before it, as alleged in the complaint, we should not say that the complaint shows that its finding was wholly unsupported by the evidence.
But it did not occur to me that there was involved a situation which amounted to a denial of procedural due process if those matters thought to have been judicially known, and so to have been considered, were not set out either in the findings or record of the proceedings so that on review by a court it would "know the particular or evidential facts of which the commission took judicial notice, and on which it rested its conclusion," so as to "challenge the deductions made from them," for that it is not "possible for the appellate court to review the law and the facts and intelligently decide that the findings of the commission were supported by the evidence when the evidence that it approved was unknown and unknowable," and "a hearing is not judicial, at least in an adequate sense, unless the evidence can be known." All of this is essential to procedural due process as discussed by Justice Cardozo for the court in Ohio Bell Tel. Co. v. Public Utilities Commission, *Page 469 301 U.S. 292, 57 S. Ct. 724, 81 L. Ed. 1093.
It is also said that: "Where a party relies on the judicial knowledge of the trial judge as to local conditions, he must in some form procure that knowledge to be brought into the record, so that an appellate court may rely on it, for the general rule is that if the attention of the trial court is not called to a fact within its judicial knowledge and such fact is not judicially noticed, the appellate court will not take judicial notice of it." 15 R.C.L. 1063, section 6; Ramsey v. City of Kissimmee, 111 Fla. 387, 149 So. 553. For it is said that "judicial notice" and "judicial knowledge" are not identical. Shapleigh v. Mier, 299 U.S. 468, 57 S. Ct. 261,81 L. Ed. 355, 113 A.L.R. 253. However, this theory has not always been given full force.
There is nothing here alleged to indicate that matters which may have been judicially known were brought to the attention of the board and in some form put in the record so that we may, on review, know upon what the board acted other than the evidence which was offered.
Without the aid of judicial knowledge, I agree that the evidence before the board, as alleged in the petition for certiorari, is such as that the writ should have been granted. I pretermit consideration of the difficulty which a court has in a proceeding to review by certiorari the board's finding upon the facts as pointed out in Ex parte City of Birmingham,199 Ala. 9, 74 So. 51; City of Birmingham v. Southern Bell Tel. Tel. Co., 203 Ala. 251, 82 So. 519; Federal Credit Co. v. Zepernick Grocery Co., 153 Miss. 489, 120 So. 173. This will be presented on final hearing after there has been a return of the writ.