Eld v. Gorham , 20 Conn. 8 ( 1849 )

Storrs, J.

The question first presented in this case, is, whether the volume termed “ The Revised Statutes of the State of Connecticut,” published during the present year, under the superintendence of the committee of revision, appointed by the General Assembly for that purpose in 1847, is to be deemed to contain all the public statute laws which were in force in this state, when the present action was tried. If this question is resolved in the affirmative, it is conceded, that the court below erred in excluding the defendant as a witness; since by the 141st section of the act contained in those statutes, entitled “An Act for the regulation of civil actions,” it is provided, that “no person shall be disqualified as a witness, in any suit or proceeding at law or in equity, by reason of his interest in the event of the same, as a party or otherwise;” and there is no saving or excepting clause in that act other than that contained in the 143rd section, which applies only to suits pending on the 27th day of June, 1848, which was the day next preceding that on which this suit was commenced.

The validity of this body of Revised Statutes, as thus published, depends on the effect which is to be given to that part of the act, "relating to the Revised Statutes,” passed in 1848, which provides for the mode of authenticating the statutes revised and compiled by said committee, Sess. Laws of 1848, ch. 80. p. 70.

The committee appointed in 1847, to revise the public statute laws of the state then in force, having completed said revision, reported the same to the legislature at its session in 1848, which, after having been referred to the joint select committee on the subject of that revision, was then approved by the act last above-mentioned; and it was further enacted, by the 2nd section of that act, that the said revised acts so approved, and the acts passed at the then present session, when incorporated with the said revised acts, should constitute “The Revised Statutes of the State of Connecticut;" and the same were “thereby enacted and confirmed as such;" and by the 3rd section, all public statute laws, other than the said acts revised and approved, and the acts passed at said session of 1848, and other than acts of incorporation, confirming statutes and acts, which, although public acts in form, are of a merely private nature, were repealed. In the 5th section, it is provided, that said acts and the said revised statutes shall go into effect on the 1st day of January, 1849, and not before.

The act in the revised statutes, which has been mentioned, removing the common law disability of parties as witnesses, was first enacted in 1848; and, as it was originally passed, contained no special limitation as to the time when it should go into operation; and therefore, by the general law on that subject, took effect from and after the rising of the General Assembly of 1848, by which it was passed; which, it is conceded, took place on the 28th day of June of that year, the day on which the present suit was commenced. Sess. Laws of 1848, ch. 44. p. 38. That act did not constitute a part of the statute laws which were to be revised by the revising committee, since the acts to be revised by them consisted only of the statutes which were in force previous to the session of the legislature of that year; but by the act, “relating to the revised statutes,” passed in 1848, that act, together with the other statutes enacted that year, were to be incorporated with said revised acts, and they were together to constitute the said revised statutes of the state. We find, however, in the volume of revised statutes as published, that in connexion with the provision in the 141st section of the act for the regulation of civil actions, (that parties in suits shall be admissible as witnesses,) there is a further provision in the 143rd section of the same act, that the said provision in the 141st section shall not affect any suit pending on the 27th day of June, 1848. without any other limitation.

The difference, therefore, between the provision respecting the competency of parties as witnesses, as it was originally passed, and as it now stands in the revised code, is, that by the former, it took effect on the 28th day of June, 1848, the day of the commencement of this suit, and therefore raises the question, whether it applied to a suit commenced on that day; whereas by the latter, it clearly applies to this suit, which was brought after the 27th day of June, 1848, and therefore rendered the defendant a competent witness. The question is, whether the act, as it was originally passed, or as it is now found in the revised code, is to be considered the law on this subject when this action was tried in the superior court. The defendant claims, that the certificate of the secretary, annexed to the revised statutes, furnishes evidence which must be deemed conclusive of the existence and validity of the laws as they are contained in those statutes. The plaintiff insists, that that certificate is not thus conclusive, but that we may look behind it, into the proceedings of the committee of revision; that by doing so, it appealr, that they exceeded the powers conferred on them, in inserting a provision in the published revised statutes, limiting the provision therein, respecting the competency of parties as witnesses, to suits pending on the 27th day of June, 1848; and that the question as to the effect of that provision in the revised statutes, is to be determined, as if it was therein declared, that it should take effect on the rising of the legislature of 1848, when it took effect, by the act containing it, as originally passed. And on the supposition that the claim of the plaintiff in this particular is valid, he further claims, that, on the facts conceded in this case, the principles of law in regard to the construction of statutes, warranted the court below in excluding the defendant as a witness.

We think that the effect of the act relating to the revised statutes, passed in 1848, was, to continue in force until the 1st day of January, 1849, all of the public statute laws which were in force at the time of the passage of that act, and not repealed at the session at which it was passed, and also the acts passed at that session; and from the 1st day of January, 1849, inclusive, to constitute the acts therein mentioned, which had been revised by the revising committee, together with the acts passed at the session of 1848, when the latter should be incorporated with said revised acts, the public statute laws, and (with the exceptions and qualifications contained in the 3rd section, which have no application to the question now before us,) the only public statute laws of this state, by the name of "The Revised Statute Laws of the state of Connecticut," and to enact and confirm them as

But the legislature further deemed it expedient to prescribe a simple, convenient and certain mode for ascertaining what particular statutes constituted the revised code. The several acts revised by the committee, and which, together with those passed in 1848, were to compose this code, were, by the said act relating to the revised statutes, approved, enacted and established, as the Revised Statutes, only by a reference to them as "the several acts revised by the committee appointed by the General Assembly, at its last session, to revise the statute laws of the state, referred to the joint select committee on the revision of the statutes, and by them reported to this Assembly." Although it would indeed be practicable, by an examination of the journals and files of the two branches of the legislature, to ascertain which those revised acts are, it would, in most cases, be exceedingly inconvenient, and in some, very difficult, to do so, from a want of access to these sources of information. The legislature, therefore, made provision for the publication of the said revised code, and by the 4th section of said act, provided, that one copy thereof should be deposited and forever kept in the office of the secretary of state; that the secretary of state should annex a certificate thereto, under his hand and the seal of the state, that the laws therein contained are the statute laws of the state; and that such certified copy should be an authentic record of said laws. A copy of the published volume containing those laws has been: deposited in the office of the secretary of state, who has annexed thereto a certificate, such as is thus required.

That it is competent for the legislature to prescribe what shall constitute a record of their proceedings, the manner in which it shall be made, and the effect thereof, admits of no question. And it is equally clear, that when they have prescribed what shall constitute a record, although they have not expressly declared what shall be its effect, it has, and is to be treated, to all intents and purposes, as having the effect which is attached to all records, as to its constituting evidence of what is stated in it. When, therefore, the legislature constituted such certified copy an authentic record of the statute laws of the state, it has the same force and effect as if it were in truth a portion of the original records of the proceedings of that body. As such, it imports absolute verity; is, in itself, conclusive evidence of what it states; and is therefore entitled to implicit credit. Hence it follows, that its existence as a record being conceded, it can neither be contradicted nor varied as to any of the facts of which it professes to be the memorial; and that no evidence is admissible, because it would be unavailing, for that purpose. And it being a record of the statutes of the state, courts are bound judicially to take notice of these statutes; not because it is the prerogative of courts arbitrarily to determine what are the public statutes of the state, nor because they are required or supposed to have a knowledge of those laws without any evidence of them, but because they have the means and it is their duty to make themselves acquainted with the records of the legislature, which are in their nature not only conclusive evidence, but the only original evidence of those laws.

From these principles, it results, that we are bound to consider the copy of the published statutes, thus certified by the secretary, as containing the veritable and only statute laws of the state, when the present action was tried; and that therefore, it is not competent for us, in this suit and in this mode, to permit any enquiry as to the propriety of the course taken by the committee of revision, or the secretary of state, respecting the publication or authentication of those statutes. Whether there is any other mode, by which any errors, which they may have committed in the discharge of these duties, can be corrected, by the judicial tribunals of the state, is a question which it is not necessary now to determine. It is sufficient to say, that until the records of the state, as they now stand, are legally and regularly obliterated or corrected, they must receive implicit faith and credit. If there be any legal remedy in those tribunals, it is not by collaterally impeaching their validity, in the mode here attempted, but would probably be, by some direct and specific proceeding, more appropriate to that purpose. As to the existence or nature of any such remedy, however, we would intimate no opinion.

The argument in favour of examining the doings of the revisers, for the purpose of deciding on the validity of their proceedings, in embodying the statutes revised by them and approved by the legislature, with the acts of 1848, drawn from the consequences to the public and to individuals, which may result from errors committed by them, if they cannot be corrected in the mode here attempted by the plaintiff, is certainly very imposing in its character; but it is, when scrutinized, only the same which would apply in all other cases, where it is claimed collaterally, that facts are erroneously stated in a record. The law presumes conclusively, that it speaks the truth ; and public policy forbids, that it should be open to contradiction, unless in a proceeding properly instituted for the specific purpose of correcting it.

The conclusion to which we have come as to the effect of the authentication of the published revised statutes, renders it unnecessary to determine the other questions which have been argued in the case. The result is, that as, by the revised statutes, there is no limitation as to the provision of the statute which has been mentioned making parties to suits competent witnesses, excepting as to suits pending on the 27th day of June, 1848, which was the day previous to the commencement of this suit, the defendant should have been permitted to testify ; and therefore a new trial is advised.

In this opinion, Church, Ch. J., and Ellsworth, J., fully concurred. Waite and Hinman, Js., were also of opinion that a new trial should be granted, but did not fully concur with the other judges as to the effect produced by the revised statutes upon the law passed by the legislature in 1848. They inclined to the opinion that the revising committee had no power to alter or change that law ; and that notwithstanding the revised statutes, they were not authorized to say, that the statute of 1848 did not still remain in force.

New trial to be granted.