the fact is denied by plea. The requisite constitutional solemnities in passing an act which has been published in the statute book, must always be presumed to have taken place, until the contrary should be clearly shown. Should the defendant withdraw his demurrer, and plead specially that the law in question did not receive the assent of two-thirds, as requiredby the constitution, it will then be in order to pass upon the solidity of such an objection." Bronson, J. also said: "It was conceded on the argument, that the demurrer does not reach the objection that the act was not passed by a two-third vote, and I have not, therefore, considered the question whether we can look beyond the statute book.

§ 834. This question again arose in the case of Warner v. Beers, President, and Bolander v. Stevens, President, (a) on demurrer to declarations by the plaintiffs as president of banks, created under the same act, upon a writ of error from the supreme court, who, in these cases, had adhered to the rule adopted in Thomas v. Daken, above cited. In these cases the point was distinctly made that the general banking law did not receive the assent of two-thirds of all the members elected to each branch of the legislature, which defect appeared by the law itself. Although the decision in these cases does not necessarily amount to an actual adjudication of the question by the court for the correction of errors, as the affirmance of the judgment of the supreme court was, by the resolution of the court, placed upon the ground that the law was constitutionally passed; although it might not have received a two-third vote, as such associations were not bodies politic or corporate, within the spirit and meaning of the constitution, still as this question was discussed at length by most of the members of

(a) 23 Wend. 103.

the court who delivered opinions, it may be regarded as indicative of what was the understanding of the members in regard to this question. We shall, therefore, present those views. Bradish, president, was of the opinion that the certificate of the secretary of state, as to the time of a passage of a bill by the two houses of the legislature, was conclusive evidence that such bill had been passed in due form, except as to bills referred to in the ninth section of the seventh article of the constitution of the state. In respect to such latter bills, inquiry might be made as to the number of the votes given on their passage. But such inquiry could not be by a jury; it must be by the court, by an inspection of the record in the secretary's office. The chancellor was of the opinion, that upon demurrer to a declaration in such a case, the court would not look beyond the statute book to ascertain whether the act was passed by a two-third vote or by a majority. He, however, expressed no opinion upon the question whether a court was authorized, in any way, to institute an inquiry into the mode in which a law was passed, where the act of the legislature had received the signature of the governor, and had been duly certified by the secretary of state. Senator Verplanck held, that the doctrine of Lord Coke: "That against a general act of parliament, or such an act whereof the judges ought ex officio to take notice nul tiel record, cannot be pleaded, applied to an act of our legislature. That it was the duty of the court, without the intervention of a jury, to inform themselves as to the legal existence of a statute the best way they could, by reference to the journals of the legislature, by adverting to uncontradicted contemporaneous public history, and by inspection of the statute in manuscript in the secretary's office."

835. In the case of Hunt v. Van Alstyne,(a) the

(a) 25 Wend. R. 606.

same question again came before the supreme court under a plea that the Lockport Trust and Banking Company was an association formed under said act,-which association was formed for banking purposes without the assent of two-thirds of the members of the legislature, and contrary to the constitution of the state. In this case also the cause was disposed of on another ground. The chief justice, however, on this branch of the case, says: "The object of the special plea is to put on the record the question of fact whether or not the general banking law of 1838 was enacted by a two-third vote, within the ninth section of the seventh article of the constitution; and if not so passed, whether it can be upheld as a valid statute." After stating that the pleas were defective, he adds: "Both parties seem to desire that the defence should be met on the constitutional ground. In the cases already decided in this court and the court for the correction of errors, though the question whether it is practicable for the defendant to avail himself of this defence, by setting up the fact that the bill did not receive the assent of two-thirds, within the constitutional provision, was alluded to, no definitive opinions were expressed.(a) In the first case, the only one argued before us, it was conceded by the counsel on both sides, that the court must assume, nothing appearing on the record to the contrary, that the law was passed by the requisite constitutional vote; and we entertain no doubt of the correctness of this view. If we had felt justified in taking official cognizance of the fact otherwise, the result of our judgment in that case would have been different; in the latter case, the chancellor concurred with this court that on the demurrer interposed, he would not look beyond the statute book; in

(a) Thomas v. Dakin, 22 Wend. R. 113; Warner & Roy v. Beers, and Borlander v. Stevens, 23 Wend. 103.

other words, that the court was bound to assume, for the purpose of the decision, that every law there published was to be deemed constitutionally enacted; he reserved himself upon the question, whether the court could, in any form, institute an inquiry into the mode in which a law signed by the governor, and duly certified by the secretary of state, was passed. The president and Senator Verplanck, the only two other members delivering opinions, in which allusion is made to this point, also reserved themselves, intimating, however, a doubt whether an inquiry could be instituted beyond the record of the law." After adverting to the provision of the statute relative to the mode of publication and authentication of laws, he says: "I have always been inclined to the opinion, that upon a fair interpretation of these several provisions regarding their scope and purpose, the printed publication of the statute, both in the state papers and in the volume, should contain the endorsed certificates of the presiding officers and of the governor. The law comes into the hands of the secretary, with those endorsements inscribed, for his certificate, which would seem naturally to follow them; and this appears to me to be the shape in which publication was contemplated by the legislature. Looking, perhaps, solely at the insulated sections, directing the printing in the state paper and volumes, and construing the duty imposed with reference to them exclusively, the above intimation may not be well-founded. It is certain the usage has been to omit them. If the provisions prescribing the endorsements by the presiding officers and governor are merely directory and not imperative, or a condition to the validity of the law, then the omission would be of no importance; if otherwise, it is a matter of public convenience; if material to determine the validity of the law, within the two-thirds provision in the constitution, or within any of the sections of the revised statutes, regulating the

mode of the enactment of laws, they can still be brought to our notice, doubtless, by an exemplified copy of the original on file. Until this is done, we do not look beyond the statute as published by the requisite authority, and shall assume each there found to be constitutionally enacted. In the case before us, assuming that the pleas constitute a valid defence to the action, if true under the tests given in sec. 3, 1 R. S. 143, which declares that no bill shall be deemed to have been passed by the assent of two-thirds, unless so certified by the presiding officers of each house, an exemplified copy of the general banking law might determine the fact involved in them. If, on its production, no such certificate appeared, the court would be bound to regard it as passed by a majority only. But suppose it did appear, would it be conclusive? It seems to me it would be so. There are only two modes of contradicting it. 1. By the journals of the two houses; and, 2. By parol testimony. The presiding officer had all the benefits of the first. The ayes and noes were taken, and the journal made up under his supervision and control. His means of ascertaining and determining the fact, when he declares the law to be passed, exceed those of any other tribunal that might afterwards be called upon to inquire into it. Besides, the hurry and looseness with which the journals are copied, and the little importance attached to the printed copies, necessarily impair confidence in their correctness. They are most uncertain data upon which to found a judicial determination of the rights of property, much more of great constitutional questions. As to the second mode of contradicting the certificate, the evidence would, if possible, be still more fallible and unsatisfactory. Indeed, we can scarcely imagine a case where, from its nature, the proof would be so subject to the doubtful and conflicting recollection of witnesses. Nothing short of absolute necessity could justify a resort