ON REHEARING.
Opinion delivered July 22, 1907.
Hill, C. J.Petitioner has forcibly re-presented his case, and it has again received the consideration of the court. He earnestly insists that the court has permitted an undenied allegation of the petition to overthrow the record evidence in the office of the Secretary of State — records of which the court takes judicial cognizance — and which in this case, for convenience, were introduced in evidence. The court does not so regard it, but considers that the petition aptly summed up the facts based on the record evidence; and, instead of overthrowing the record evidence, the court was effectuating it when' it accepted its crystallization in the pleadings.
Petitioner calls attention to the following sound proposition of law, which has often been repeated, and can not too often be called to the judicial mind: “That which purports to be a law of a State is a law, or it is not a law, according as the truth of the fact may be, and not according to the shifting circumstances of parties. It would be an intolerable state of things if a document purporting to be an act of the Legislature could thus be a law in one case and for one party, and not a law in another case and for another party; a law today and not a law tomorrow; a law in one place and not a law in another in the same State. And whether it be a law or not a law is a judicial question, to be settled and determined by the courts and judges.” Town of South Ottawa v. Perkins, 94 U. S. 260; Wilkes County v. Coler, 180 U. S. 506; Rogers v. State, 72 Ark. 565.
In applying this principle to a test of an act under an agreed statement of facts, the Supreme Court of the United States, speaking through Mr. Justice Brewer, in Chicago & Grand Trunk Ry. Co. v. Wellman, 143 U. S. 339, said: “Our suggestion is only to indicate how easily courts may be misled into doing grievous wrongs to the public, and how careful ’they should be not to declare legislative acts unconstitutional upon agreed and general statements, and without the fullest disclosure of all material facts.”
These principles were in the mind of the court when it accepted the facts as alleged in the petition as indicated in this statement in the opinion: “It may be added that the petition formed an issue of law on the facts therein stated, and later these facts were proved by the testimony to be the truth of the case; the pleader had candidly presented the real case.”
In Smithee v. Campbell, 41 Ark. 471, it was said:' “It is the duty of the courts to know the law, statutory as well as unwritten, and they may resort, of their own motion, to any means o'f information which may solve their doubts as to what is law and what is not. Allegations of facts which show that a law never was passed are simply argumentative, and suggestive. It is the same as to say there is no such law. Such facts need not be shown as evidence, but may be shown to the court in aid of its judgment.”
The same thought, was differently expressed by Mr Justice Miller in Gardner v. Collector, 6 Wallace, 499: “We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule.” This statement was quoted in South Ottawa v. Perkins, 94 U. S. 260, and Rogers v. State, 72 Ark. 565.
The court found a difficult question as to the admissibility of parol evidence, a question upon which the authorities were divided, and found the effect of the record evidence felicitously expressed by the respective counsel in their pleadings, and being-satisfied, as indicated, that these pleadings represented the real ■truth of the case as established by the record evidence, and also as established by the oral testimony of distinguished witnesses in whose evidence there was no conflict, felt safe in accepting these pleadings as presenting the ultimate truth of the question.
• While the court has not decided that the oral testimony was admissible on the issue as to the validity of the veto, yet it was certainly proper for the court to turn to it, in view of the admonition of Mr. Justice Brewer not to accept an agreed statement “without the fullest disclosure of all material facts” as a basis to test an act of the Legislature, in order to satisfy the court of the good faith and truth of the allegations made when testing the validity of an act of another co-ordinate department of government.
Petitioner seems to feel that his allegations have contributed to a result which, had he been more careful in his pleadings, would not have been reached. The court does not want the result to rest upon counsel’s shoulders, nor upon any inadvertency in pleading. It merely accepted his allegations, fortified as indicated, as the truth of the case; and, as he had happily characterized the controlling feature of the evidence, he was frequently quoted. The same result is reached by the record evidence.
The court did not consider it necessary in the former opinion, for the reasons stated, to consider either the record or oral evidence; but, in order that all question of the propriety of resting the decision on the concessions in the pleadings be removed, the decision will be placed on the record evidence as well as the admitted facts in the pleadings. Mr. Greenleaf says that public documents, such as executive proclamations, are admissible to prove pertinent facts when the statement is made therein by the person whose duty it is to make it, and the subject-matter belonged to his province or came within his official cognizance and observation. 1 Greenleaf on Evidence, § 491 (16 Ed.)
Therefore, the recitals of the Governor’s proclamation which are pertinent to the issue, made within his province, and which state facts within his official cognizance, must be taken as record evidence, prima facie, at least, proving the facts recited.
These facts are thus proved: When he assumed the powers of Governor, he found this bill in the possession of the Governor’s office, and that it had already been signed by his predecessor. -The authority to act is indicated to be in the continued possession of the bill in the Governor’s office and the five days allowed for consideration not having expired. (This authority was evidently based on the theory that the possession of the bill in the Governor’s office continued the executive control over it till the expiration of the five days, notwithstanding it had been approved and signed by his predecessor.) These recitals, taken together with the bill itself, showing upon its face the erasure of the following: “Approved May 14, 1907, John I. Moore, acting Governor of the State of Arkansas,” prove that the executive power over the bill had been exercised and exhausted before the attempted veto.
Motion for rehearing is denied.