(dissenting) .
Assuming that the Maryland Small Loan Act has been modified by administrative construction, i. e., through the opinion of the Attorney General, it is still necessary, in order to justify the fees exacted of the appellees, that such fees be within that construction. The opinion of the Attorney General validates “Notary’s fee allowed by law for the acknowledgment by borrowers of chattel mortgages, bills of sale or other paper which, under the law, are required to be acknowledged.” (Italics supplied) It must thus be made to appear that the papers involved in the instant case were required to be acknowledged. Federal courts not only can take judicial notice of state statutes, Moore v. Pywell, 1907, 29 App.D.C. 312, 9 L.R.A.,N.S., 1078, but are bound to do so even without plea or proof, Lamar v. Micou, 1885, 114 U.S. 218, 5 S.Ct. 857, 29 L.Ed. 94.1 The Maryland statutes contain no requirement that a promissory note shall be acknowledged. In respect of wage assignments, Section 11 of Article 8, Annotated Code of Maryland (1939), which section was in effect at the time the wage assignments involved in the instant case were executed, provides as follows:
“No assignment of wages or salary shall be valid so as to vest in the assignee any beneficial interest, either at law or in equity, unless such assignment be in writing, signed by the assignor and acknowledged in person by Mm or her before a justice of the peace in and for the city or county, as the case may be, in which the assignor resides, and entered on the same day by said justice of the peace upon his *762docket; and unless further, within three days from the execution and acknowledgment of said assignment, a true and complete copy thereof, together with the certificate of its acknowledgment, be served upon the person, firm or corporation by whom said wages or salary are due or to become due, in the same manner that the summons in chancery is now required by law to be served; provided, however, that no assignment of wages or salary by a married person shall be valid unless the same is also executed and acknowledged as above by the assignor’s wife or husband, as the case may be.” [Italics supplied]
The assignments of wages were not acknowledged before a justice of the peace in and for the city or county in which the assignors resided.. They resided in the District of Columbia, and the wage assignments were acknowledged in Maryland and before a notary public. The acknowledgments could have been taken in compliance with the statute because, although there are no justices of the peace so-called in the District of Columbia, the municipal court judges here have all the powers of justices of the peace. Act of February 17, 1909, 35 Stat. 623. I think it cannot be said that the construction of the statute as expressed in the Attorney General’s opinion validated the charging of a fee for acknowledgments taken before the wrong officer in the wrong locality.
The reliance of the majority upon the approval of the promissory note and wage assignment acknowledgment forms by the Maryland Administrator of the Small Loan Act seems to me to be unwarranted. The Administrator is bound by the statute' as construed by the opinion of the Attorney General. That opinion gives no approval to the forms in question. The reliance of the majority upon an asserted settled practice in Maryland based upon these forms is I think also unwarranted. A settled erroneous practice does not make law.
Since the fees exacted for the acknowledgments of the promissory note and the wage assignments were not within either the terms of the Small Loan Act itself or of the administrative construction thereof by the Attorney General, the contract of loan was, under the terms of the Act, void.
I think the disposition of this case by the majority permits a hard case — invalidation of the loan — to make bad law. The majority decide that the United States courts in the District of Columbia are not obliged to take notice of state statutes unless the same are thrust upon their attention by pleading or proof. This is contrary to the settled rule evidenced by decisions in both this and other Federal courts. Also, despite the flat mandate of the Maryland statute that “In addition to the interest herein provided for, no further or other charge, or amount whatsoever for any examination, service, brokerage, commission or other thing, or otherwise, shall be directly or indirectly charged, contracted for or received, except the lawful fees, if any, actually and necessarily paid out by the licensee to any public officer, for filing, or recording in any public office, any instrument securing the loan” (italics supplied), the majority decide that charges may be made in addition to interest if they are approved by the Maryland Administrator of the Small Loan Act. The Maryland legislature passed the statute in question in protection of small borrowers against undue exactions upon their loans. The sanction chosen by the legislature — invalidation of a loan because of charges not authorized by the statute — may be harsh, but if the legislature thought it necessary that should be final. It is the duty of courts to enforce clear legislative action not constitutionally objectionable.
We relied upon Moore v. Pywell in Old Dominion Stages v. Connor, 1937, 67 App.D.C. 158, 90 F.2d 403, in taking judicial notice of the Virginia traffic laws.