(concurring). While I agree with the majority of the court as to the result, I cannot consent to that por*394tion of the opinion which, relates to the question of judicial notice. I do not believe the law to be that the court below was bound to take judicial notice of the rules established by the secretary of the interior relating to the cutting of timber on the public domain.
Subdivision 3 of section 625 of the code may be properly divided so as to read the “private acts” and “the official acts ” of the several departments mentioned therein. Looking at the section in this way, we find no new rule of evidence, or of judicial notice, save and excepting the rule therein contained relating to the private acts of the departments therein mentioned. As to the public acts of the legislative, executive and judicial departments of the territory and of the United States, our courts would take notice of them without the aid of a statute. See 1 Greenl. Ev. § 5; Whart. Ev. § 317. This rule applies with unusual force to territorial courts; for they owe their origin to the United States government. As to the private acts of those several departments, the section quoted from the code probably does make a new rule of evidence. At least it settles a disputed question; for many authorities have held that courts would not take judicial notice of such private acts. See Dole v. Wilson, 16 Minn. 525 (Gil. 472). In the case of United States v. Wilson,it was held that the court would not take judicial notice of a pardon because it is the private, though official, act of the president. 7 Pet. 160. Our code changes that rule, •and includes private as well as public acts.
However that may be, we are not considering either a private act of a legislative, judicial or executive department of the government of the United States. The rule of the secretary of the interior is the act of which it is held the court should take judicial notice. I cannot consider the secretary of the interior as the- executive of any department. He is but the trusted head of one department, of which the president of the United States is the executive, as he is of every one of the departments. Before the adoption of the constitution, and while that document was under *395consideration, the most bitterly fought propositions was, “ Shall wé have one or several executives?” The result of the contest was section 1 of article 2 of the constitution, which declares: “ The executive power shall be vested in a president of the United States of America.” It is too late for the legislature of Montana to change that provision. The secretary of the interior is not one of the legislative departments of the United States government; for all legislative powers are vested in the congress of the United States by section 1, article 1, of the constitution. And the same document provides for the judicial powers, of which the secretary of the interior is not one.
As to the rules in question, they are in no sense the act of the president. If they became a law subject to his approval, they would be subject to his veto power. The law referred to was approved by the then president, who by signing the law merely authorized the secretary of the interior to pass such rules as he, the secretary, thought proper. The rules thus made were in no way the act of the president. They were the rules of the secretary of the interior, relating to the conduct of his particular department; and the court below had no more judicial notice of those rules than of any other rule which the secretary of the interior may have passed for the dispatch of business in his department.
Neither do I think that subdivision 2 of said section 625 makes it obligatory upon the court to take judicial notice of the rules referred to. That subdivision reads: “Whatever is established by law.” These rules were not established by law. They were established by the secretary of the interior. The law referred to established merely his power to pass rules; and, if the rules had been proved, it would have been incumbent upon the court below to take judicial notice of the act which gave the secretary power to establish such rules.
The learned justice who writes the opinion in this case finds peculiar force in the words of the statute which pro*396vides that the secretary may prescribe rules, etc. This power, thus given to the secretary, is very much like the power given to municipalities which derive their power to pass ordinances from a statute; yet courts do not take notice of ordinances passed by the legislative branch of such corporations. When the ordinances are proved, then the courts take judicial notice of the law which gave power to the corporation to pass such ordinances; and they take judicial notice of the extent of the power; but the use of the power must be proved. In other words, neither the rules of the secretary, nor the ordinances of municipal corporations, become a part of the laws which authorize but do not enact them.
In the case of Hensley v. Tarpey, 7 Cal. 288, the court say: “ The courts of this state are not bound to take official notice of the rules adopted for the regulation of the various departments of the federal government, or those established by the board of land commissioners or surveyor-general of the United States for California.” Yet such rules, if they are the act of the president at all, are his public official acts, of which the supreme court of California would have taken notice judicially, by reason of common law rules of evidence governing such cases. But, not being the acts of the president, the court, in my opinion, properly held that such rules had to be proved.
Upon the other portions of the opinion I concur with the majority, and therefore agree that the judgment of the court below should be reversed.