given in answer to any hypothetical question incorporating a statement of facts. (Whitebeck v. New York Central Ry. Co., 36 Barb. (N. Y.) 644; Lawson on Expert and Opinion Evidence 23.) Nor was its competency affected by the fact that another ring was used to illustrate the description given by Sullivan by way of comparison. This, it would seem, was an aid to an understanding of the description, rather than the contrary. In any event, it would seem that, after refusing to produce the ring for the inspection of witnesses and the jury, and t! us rendering it impossible for plaintiff to present the best evidence of its value, defendants ought not to be heard to complain that the best evidence was not produced.

We find no error in the record. The judgment and order are therefore affirmed.

Affirmed.

MR. JUSTICE SMITH and MR. JUSTICE HOLLOWAY concur.

STATE EX REL. GREGG ET AL., RELATORS, V. ERICKSON ET

(Submitted June 3, 1909. Decided June 21, 1909.)

[102 Pac. 336.]

Statutes Constitutionality-Legislative Procedure Enrolled Bill-Conclusiveness-Lincoln County-Validity of Act.

Legislative Procedure-Enrolled Bill-Conclusiveness.

1. An enrolled bill, bearing the signatures of the presiding officers of the two Houses and the approval of the governor, is conclusive upon the courts, and, in determining whether an Act has been properly passed, recourse may not be had to any other evidence, except where the alleged invalidity of an Act is based upon a failure to enter the names of those voting upon its final passage, in which case the journals may be consulted.

Statute-Lincoln County-Validity.

2. Held, that the Act of March 9, 1909 (Laws 1909, p. 193), creating Lincoln county, and providing for its organization and government,

in failing to provide any compensation for the county superintendent of schools, is not upon its face so defective as to defeat its purposes.

ORIGINAL proceedings by the state, on the relation of Robert Gregg and others, against John E. Erickson and others, to determine the validity of the Act creating Lincoln county. Dismissed.

Messrs. Walsh & Nolan, for Relators.

Mr. Thos. D. Long, and Messrs. Gunn & Rasch, for Respondents.

MR. JUSTICE HOLLOWAY delivered the opinion of the court.

This is a special proceeding commenced in this court, the ultimate object of which is to test the validity of an Act of the Eleventh Legislative Assembly, known as Senate Bill No. 65, approved March 9, 1909 (Laws 1909, p. 193). The enrolled bill on file in the office of the secretary of state is entitled "An Act to create Lincoln county, designate its boundaries, and provide for its organization and government," is properly signed by the speaker of the House and president of the Senate, and bears the approval of the governor. It is contended that the Act is invalid for two reasons: (1) The enrolled bill contains certain amendments, whereas the amendments were in fact not adopted; and (2) the enrolled bill differs materially from the bill which passed the two houses. These contentions are met by the counter contentions that it is not competent to show these facts, or either of them since they do not appear from the enrolled bill itself, nor from the journals if they can be consulted for such a purpose. On behalf of the relators we are urged to go behind the enrolled bill and consult the journals, the original bill, and the engrossed bill, to ascertain whether any amendments were adopted, and whether there is in fact a variance between the bill as it passed the two houses, and the bill as signed by the presiding officers and approved by the governor. In support

of this contention, generally, the following cases are cited: State v. Platt, 2 S. C. 150, 16 Am. Rep. 647; Gardner v. Collector, 6 Wall. 499, 18 L. Ed. 890; Chicot County v. Davies, 40 Ark. 200; Jones v. Hutchinson, 43 Ala. 721; State v. Moore, 37 Neb. 13, 55 N. W. 299; Ramsey County Board of Supervisors v. Heenan, 2 Minn. (Gil. 281) 330; Lankford v. County Commrs. of Somerset County, 73 Md. 105, 20 Atl. 1017, 11 L. R. A. 491; Hollingsworth v. Tax Collector, 45 La. Ann. 222, 40 Am. St. Rep. 220, 12 South. 1; Milwaukee County v. Isenring, 109 Wis. 9, 85 N. W. 131, 53 L. R. A. 635.

State v. Platt, above, was decided in 1870; but it was distinctly overruled by the same court in 1893, in State v. Town Council of Chester, 39 S. C. 307, 17 S. E. 752. In this latter case the court said: "We announce that the true rule is that, when an Act has been duly signed by the presiding officers of the general assembly, in open session in the Senate and House, approved by the governor of the state, and duly deposited in the office of the secretary of the state, it is sufficient evidence, nothing to the contrary appearing upon its face, that it passed the general assembly, and that it is not competent, either by the journals of the two houses, or either of them, or by any other evidence, to impeach such an Act."

Gardner v. Collector, above, Jones v. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691, In re Duncan, 139 U. S. 449, 11 Sup. Ct. 573, 35 L. Ed. 219, and Lyons v. Woods, 153 U. S. 649, 14 Sup. Ct. 959, 38 L. Ed. 854, occupy a peculiar position. In Gardner v. Collector the only question before the court was when a particular revenue measure was signed by the President; the indorsement on the enrolled bill bearing the month and day, but not the year. The Constitution of the United States does not require that the President shall do more than sign a bill, if he approves it. It does not require him to affix the date of his approval, and under these circumstances the court held that it might examine the journals and public documents, to determine the year of the President's approval; but in concluding the opinion the court said: "We are of opin

ion 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." Just what is meant by this we are unable to understand; but this language is referred to in the Jones, Duncan, and Lyons Cases above. The language appears all the more ambiguous in view of the fact that in Marshall Field & Co. v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294, where the court had before it the precise question presented to us now, viz., that the bill, as authenticated by the presiding officers and approved by the executive, did not contain a section which was in the bill as it passed the two houses, the court held to the strict English rule, and said: "We are of opinion, for the reasons stated, that it is not competent for the appellants to show, from the journals of either house, from the reports of committees, or from other documents printed by authority of Congress, that the enrolled bill designated 'H. R. 9416,' as finally passed, contained a section that does not appear in the enrolled Act in the custody of the State Department."

But that Gardner v. Collector is not authority for the proposition to which it is frequently cited, and to which it is cited by relators in this case, is made plain by the same court; for when that case was cited in support of the contention that other evidence than the enrolled bill ought to be received to show that a section of the bill under consideration, as it passed the two houses, had been omitted in the enrollment, the court, in Marshall Field & Co. v. Clark, said: "The cause of Gardner v. Collector, 6 Wall. 499, was relied on in argument as supporting the contention of the appellants. The question there was as to the time when an Act of Congress took effect; the doubt, upon that point, arising from the fact that the month and day, but not the year, of the approval of the Act by the President appeared upon the enrolled act in the custody

of the Department of State. This omission, it was held, could be supplied in support of the Act from the legislative journals. It was said by the court: [The court then quotes from Gardner v. Collector the excerpt above given, and continues]: There was no question in that case as to the existence or terms of a statute, and the point in judgment was that the time when an admitted statute took effect, not appearing from the enrolled Act, could be shown by the legislative journals. It is scarcely necessary to say that that case does not meet the question here presented."

In Chicot County v. Davies, above, the court reviewed the authorities and quoted the language from Gardner v. Collector, above, as indicating the true rule, and then said that the courts. may go back of the enrolled bill "to the legislative journals and the records and files in the office of the secretary of state"; but in Glidewell v. Martin, 51 Ark. 559, 11 S. W. 882, the same court, after expressing regret that there had been any departure from the English rule, said: "The courts are gravitating toward the English rule, so thoroughly discussed by Mr. Justice Smith in Chicot County v. Davies, 40 Ark. 200; for while they say that the enrolled bill is not conclusive of the valid enactment of a law, and that we may look beyond it to the journals, they supply by presumption everything necessary to its validity, save where the journal affirmatively shows a violation of the Constitution."

In Jones v. Hutchinson, above, it is held that, for the purpose of determining whether the enrolled bill presented to the governor was in fact the bill which passed the two houses, the court might look to the legislative records; but in the latter case of Ex parte Howard-Harrison Iron Co., 119 Ala. 484, 72 Am. St. Rep. 928, 24 South. 516, the same court decided definitely that there cannot be any evidence received other than the enrolled bill and journals, and said: "Of course, the presumption is that the bill, signed by the presiding officers of the two houses and approved by the governor, is the bill which the two houses concurred in passing, and the contrary must be made to affirmatively appear before a different conclusion can be