ON PETITION FOR REHEARING.
The defendant asks for a rehearing in this court upon several grounds relating to points discussed in the original opinion in this case. As to such points, it is enough to say that the views of the court have undergone no change since the decision was handed down, and that the same, therefore, will be adhered to, without further attempts at elucidation. But the petition embraces one point not referred to in any way upon the argument in this court. The fact that the point is first mentioned in a petition for a rehearing would, alone, justify a denial of the petition. See Sweigle v. Gates, 9 N. D. 538, 84 N. W. 481. But in this case a denial of the petition may safely rest upon the merits. The petitioner claims that the statute referred to in the original opinion, and relied upon by the defendant (Chap. 158, Laws 1899), was never enacted or passed by both branches of the legislative assembly. It is conceded that a bill (No. 121) embracing the statute originated in the senate, and, after passing that body, that it was regularly transmitted to the house of representatives; and it is further conceded that the house journal shows that the bill was amended in the house, and after being amended was regularly passed by the house, and that upon the day of its passage in the house it was certified or messaged to the senate by the chief clerk of the house, and that such crtificate of the clerk stated, in effect, that the bill was returned to the senate “unchanged,” thereby declaring that the bill’ had not been amended in *263the house of representatives. It is further conceded that, after the measure was returned to the senate, it was regularly signed there, but the journal of the senate is silent as to any passage of the measure by the senate after its return from the house. It is noticeable that the petition nowhere states that said Chap. 158, as published in the Session Laws of 1899, is not a copy of an enrolled senate bill which is on file in the office of the secretary of state. The existence of an enrolled bill on file with the proper state official seems to be studiously ignored by the petitioner. Until the contrary is made to appear, courts are bound to presume that the published statute is in fact a true copy of the bill in the office of the secretary of state. In this case, however, the writer has been at pains to verify this legal presumption, and by a search has ascertained the fact that the published statute is a verbatim copy of the law on- file, and that the original enactment is not only signed by the governor, but is further authenticated by the president and secretary of the senate, and by the speaker and chief clerk of the house of representatives. The petitioner reminds the court that the court is in duty bound to judicially notice the journals of both branches of the legislature; but the petition does not advise the court respecting any rule of law which is to govern courts in.a case such as this, where the legislative journal? are at loggerheads with each other, and where it will become necessary, in deciding a question of fact, to accept one part of the record evidence, and disregard another. That such a conflict of evidence exists in this case is manifest. The house journal shows affirmatively that the bill was amended in that body, and that it passed after such amendment. But the senate journal shows affirmatively that a sworn officer of the house — its chief clerk — certified that the bill was returned to the senate “unchanged,” which means and must mean that the measure was not amended in the house. There is also strong negative evidence that the bill was not amended in the house. Had it been so amended, it would have been necessary to again pass it in the senate before it could take effect as a law, or be officially signed and sent to the governor for approval. But the senate journal is silent as to any such action after the bill was returned to the senate. The senate journal only shows that the bill was signed officially in the senate after being transmitted from the house. This silence of the senate journal, while negative in character, is nevertheless strong evidence that the bill never was amended in the house. We refer to these conflicts in the evidence, however, only to show that there is evidence to be found in the journals of the two houses bearing upon both sides of the question of fact to be determined, viz; whether the published law was in fact ever enacted by both branches of the legislature. The evidence of the journals being conflicting, it will be necessary to consider the evidential effect of the enrolled bill properly authenticated and on file with the secretary of state. Which shall prevail? Which possesses the greater probative force, — the conflicting evidence of the journals, *264upon one side, or, on the other side, the positive evidence, consisting of the authenticated bill found in the hands of the official custodian of the laws? Many courts have attempted to answer this question, and judicial tribunals of the highest respectability have widely differed in their answers. But we are inclined to the opinion that the better reason, as well as the greater weight of authority, will be found to preponderate in favor of the evidence to be found in the bill itself, when properly authenticated. The Supreme Court of South Dakota, in a very recent case, has reached this conclusion; and in its opinion the court has exhaustively considered, and very ably discussed, the leading cases bearing upon the question. See Narregang v. Brown Co., (S. D.) 85 N. W. 602; also page 605, Id. We are satisfied with the reasoning contained in the opinion in the case cited, and we shall therefore -content ourselves with a citation of that case and the authorities found in it. The petition is denied.
(86 N. W. Rep. 737.) All the judges concurring.