United States Circuit Courts of Appeals Reports: With Key-number Annotations ...

level of the same. In order to make it distinct whether the draw is open or closed, there shall be placed three square lanterns on the top of the drawspan, all of them raised fifteen feet above the top of the draw. These lanterns are to show green along the axis of the draw, and red at right angles to the axis. The result will be that when the draw is shut there will be shown up and down stream three high red lights above the permanent low lights; when open, three green lights will be seen in line up and down stream, with the low permanent red lights showing the width of the openings. All of these lights shall be permanent."

The bridge across the Minnesota river at Shakopee, where the accident occurred, was not provided with such lights as the regulations aforesaid require, for which reason it must be adjudged that the city was at fault, and did not exercise that reasonable degree of care and diligence in lighting the draw of the bridge which the law requires of the owner of a drawbridge across a navigable stream.

In our former decision we said, in substance, that the proximate or efficient cause of the collision with the bridge seems to have been that the pilot attempted to pass through the draw before he was assured that it was fully opened. This conclusion was induced, however, by the finding that the bridge was provided with adequate lights, considering its location and the amount of navigation on the Minnesota river, to meet the requirements of the common law. The same conclusion cannot be formed on the present occasion, since it was the duty of the city to provide such lights as are required by the regulations of the lighthouse board, and, if such lights had been provided, the posi tion of the three green lights would have shown at a glance when the draw was fully swung. The city was at fault, therefore, in not furnishing the requisite lights. On the other hand, we think that the pilot and the captain, one or both of them, did not exercise that degree of care and circumspection which they should have exercised, in attempting to pass through the draw before they were assured that it was fully swung. Even if the city was at fault in failing to provide the requisite lights, those in charge of the steamer had no right to attempt to pass through the bridge until they had taken the precaution to ascertain that the passage could be made in safety. The conditions were such that the steamer could have been held at a safe distance from the bridge until the men who were in charge of the draw had advised the pilot that the draw was fully swung and ready for the passage of the steamer; and such action, we think, should have been taken. The case is one, in our judgment, where the accident was occasioned by the concurring negligence of both parties, and in such cases the admiralty rule is to divide the damages. The Max Morris, 137 U. S. 1, 9, 11 Sup. Ct. 29, 34 L. Ed. 586; The Britannia, 153 U. S. 130, 144, 14 Sup. Ct. 795, 38 L. Ed. 660; The Lisbonense, 53 Fed. 293, 3 C. C. A. 539. There is some uncertainty in the proof as to the true amount of the damages that were occasioned by the collision, but we are satisfied by an investigation of the evidence on that point that they did not exceed $1,000. The decree of the district court directing that the libel be dismissed is reversed, and the case is remanded to that court with directions to vacate said decree, and in lieu thereof to enter a decree in favor of the libelants for the sum of $500 and costs.

tice of the regulations of the lighthouse board prescribing the number and kinds of lights to be placed on the draws of bridges across navigable streams, because the regulations were neither pleaded nor offered in evidence, so far as the record discloses. In support of that view we cited the following cases: The E. A. Packer, 140 U. S. 360, 367, 11 Sup. Ct. 794, 35 L. Ed. 453, and The Clara, 14 U. S. App. 346, 5 C. C. A. 390, 55 Fed. 1021. Our attention was called by a petition for a rehearing to certain other cases wherein a different doctrine had been announced, as it was claimed; and on the strength of such references a rehearing was granted, and the case has been reargued.

In the case of Caha v. U. S., 152 U. S. 211, 221, 222, 14 Sup. Ct. 517, 38 L. Ed. 419, certain rules and regulations which had been prescribed by the interior department in respect to contests before the land office were not formally offered in evidence; and it was urged that, because of such omission, judicial notice of the same could not be taken. court said with reference to this contention:

The

"We are of opinion that there was no necessity for a formal introduction in evidence of such rules and regulations. They are matters of which the courts of the United States take judicial notice. Questions of a kindred nature have been frequently presented, and it may be laid down as a general rule deducible from the cases that wherever, by the express language of any act of congress, power is intrusted to either of the principal departments of government to prescribe rules and regulations for the transaction of business in which the public is interested, and in respect to which they have a right to participate, and by which they are controlled, the rules and regulations prescribed in pursuance of such authority become a mass of that body of public records of which the courts take judicial notice."

Reference is then made to the following cases: U. S. v. Teschmaker, 22 How. 392, 405, 16 L. Ed. 353; Romero v. U. S., 1 Wall. 721, 17 L. Ed. 627; Armstrong v. U. S., 13 Wall. 154, 20 L. Ed. 614; Jones v. U. S., 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691; Knight v. Association, 142 U. S. 161, 169, 12 Sup. Ct. 258, 35 L. Ed. 974; Jenkins v. Collard, 145 U. S. 546, 12 Sup. Ct. 868, 36 L. Ed. 812. The rule above stated in Caha v. U. S. was referred to with approval in Re Kollock, 165 U. S. 526, 534, 17 Sup. Ct. 444, 41 L. Ed. 813. See, also, U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591, and Wilkins v. U. S. (D. C.) 96 Fed. 835, 841; also, the recent decision of this court in Grady v. U. S., 39 C. C. A. 42, 98 Fed. 238. We conclude, therefore, that we erred in our former opinion in refusing to take judicial notice of the regulations of the lighthouse board, although they were neither pleaded nor offered in evidence. The regulations of the lighthouse board which are invoked in the present case were prescribed, as it seems, by the board pursuant to authority expressly conferred on that body by an act of congress approved August 7, 1882 (22 Stat. 309, c. 433). It is our duty, therefore, to take judicial notice of such regulations as the board may have made for the lighting of the draws of bridges across navigable streams pursuant to the authority conferred by the aforesaid statute. Such regulations, it seems, are as follows:

"Every low bridge with a double draw shall have a red light on each end of the draw piers. Each pivot pier shall have one red light on each side where the pier is crossed by the axis of the bridge, and placed below the floor

In our former decision we said, in substance, that the proximate or efficient cause of the collision with the bridge seems to have been that the pilot attempted to pass through the draw before he was assured that it was fully opened. This conclusion was induced, however, by the finding that the bridge was provided with adequate lights, considering its location and the amount of navigation on the Minnesota river, to meet the requirements of the common law. The same conclusion cannot be formed on the present occasion, since it was the duty of the city to provide such lights as are required by the regulations of the lighthouse board, and, if such lights had been provided, the position of the three green lights would have shown at a glance when the draw was fully swung. The city was at fault, therefore, in not furnishing the requisite lights. On the other hand, we think that the pilot and the captain, one or both of them, did not exercise that degree of care and circumspection which they should have exercised, in attempting to pass through the draw before they were assured that it was fully swung. Even if the city was at fault in failing to provide the requisite lights, those in charge of the steamer had no right to attempt to pass through the bridge until they had taken the precaution to ascertain that the passage could be made in safety. The conditions were such that the steamer could have been held at a safe distance from the bridge until the men who were in charge of the draw had advised the pilot that the draw was fully swung and ready for the passage of the steamer; and such action, we think, should have been taken. The case is one, in our judgment, where the accident was occasioned by the concurring negligence of both parties, and in such cases the admiralty rule is to divide the damages. The Max Morris, 137 U. S. 1, 9, 11 Sup. Ct. 29, 34 L. Ed. 586; The Britannia, 153 U. S. 130, 144, 14 Sup. Ct. 795, 38 L. Ed. 660; The Lisbonense, 53 Fed. 293, 3 C. C. A. 539. There is some uncertainty in the proof as to the true amount of the damages that were occasioned by the collision, but we are satisfied by an investigation of the evidence on that point that they did not exceed $1,000. The decree of the district court directing that the libel be dismissed is reversed, and the case is remanded to that court with directions to vacate said decree, and in lieu thereof to enter a decree in favor of the libelants for the sum of $500 and costs.

NOTE.

Judicial Notice of Public Laws and Regulations.

1. Treaties and International Law.

2. Public Statutes.

3. Private Acts of Legislature.

4. Same-Statutes Declared to be Public.

5. Same Charters of Corporations.

6. Journals of the Legislature.

7. Federal Law in the State Courts.

8. State Law in the Federal Courts.

9. Laws of Foreign Countries.

10. Same-Laws of Former Sovereignty.

11. Statutes of a Sister State.

12. Same-In Actions on Foreign Judgments.

13. Executive Orders and Proclamations.

14. Regulations of Executive Departments and of Inferior Officers and Boards. 15. Municipal Ordinances.

1. Treaties and International Law.

Treaties made under the authority of the United States are declared to be the "supreme law of the land." Const. U. S. art. 6. Consequently, the courts of the nation are bound to take judicial notice, without proof, of the date, terms, and effect of all treaties concluded between the United States and any foreign power whenever they determine or affect the rights of parties litigating in the courts. U. S. v. Schooner Peggy, 1 Cranch, 103, 2 L. Ed. 49; Lacroix Fils v. Sarrazin (C. C.) 15 Fed. 489. Moreover, the federal courts will take judicial cognizance of the public acts and proclamations of foreign governments, and of their publicly authorized agents, in carrying into effect treaties made with the United States. U. S. v. Reynes, 9 How. 127, 13 L. Ed. 74. Thus, where a bill alleges a fee-simple title to real estate, derived from Russia prior to the treaty of cession of 1867, the court will take judicial notice of such treaty, and of the protocol of transfer, and of the property inventories and map of Sitka, thereto attached, and made a part of such protocol, and executed by the commissioners appointed by Russia and the United States to make the formal transfer of Alaska. Callsen v. Hope (D. C.) 75 Fed. 758. The same rule is no less binding upon the courts of the several states. They will take judicial notice of the terms of a treaty made by the United States with a foreign nation or with an Indian tribe, and of the date of its going into effect. Carson v. Smith, 5 Minn. 78; Godfrey v. Godfrey, 17 Ind. 6.

Public international law is also a part of the public law to which the United States has given its adherence, and which its courts must be presumed to know. Hence prize courts, administering the law of nations, are bound to take judicial notice of, and give effect to, a rule of international law exempting fishing vessels from capture as prize, when there is no treaty or other public act of their own government in relation to the matter. The Paquete Habana, 175 U. S. 677, 20 Sup. Ct. 290, 44 L. E. 320. The same is true of the general maritime law. It does not require proof as a foreign law. Where a set of rules of navigation, prescribing the different kinds of lights to be used on vessels, has been issued by a foreign government, and accepted as obligatory by more than 30 of the principal commercial nations of the world, the courts may take judicial notice of the fact that, by common consent of mankind, these rules have been acquiesced in as of general obligation. The Scotia, 14 Wall. 170, 20 L. Ed. 822.

2. Public Statutes.

Every court is bound to take judicial notice, without pleading or proof, of all the public statutes enacted by the legislative authority of the state or sovereignty under which it exercises its functions. Buell v. Warner, 33 Vt. 570; Town of Griswold v. Gallup, 22 Conn. 208; State v. Jarrett, 17 Md. 309; Same v. Cooper, 101 N. C. 684, 8 S. E. 134; Wikel v. Commissioners, 120 N.

C. 451, 27 S. E. 117; State v. Sartor, 2 Strob. 60; Lane v. Harris, 16 Ga. 217; Benson v. Christian, 129 Ind. 535, 29 N. E. 26; Marmon v. White, 151 Ind. 445, 51 N. E. 930; Railroad Co. v. Lynch, 67 Ill. 149; Bowen v. Railway Co., 118 Mo. 541, 24 S. W. 436; State v. Stevens, 29 Or. 464, 44 Pac. 898; North Platte Waterworks Co. v. City of North Platte, 50 Neb. 853, 70 N. W. 393. This rule applies also to a joint resolution of the state legislature, it having the effect of a public legislative act. McCarver v. Herzberg, 120 Ala. 523, 25 South. 3. And it is said that the courts will take judicial notice of a public statute of the state, although it does not affirmatively appear that the statute has been published, the law of the state providing that statutes shall become operative from the time of their publication. People v. Hopt, 3 Utah, 396, 4 Pac. 250. Under this rule, the courts of the United States are presumed to know officially the acts of congress. Thus, on a complaint for obstructing navigation by a bridge over navigable waters, the court will take judicial notice of an act of congress authorizing its construction by the defendant. Pennsylvania Ry. Co. v. Baltimore & N. Y. Ry. Co. (C. C.) 37 Fed. 129. Courts will take judicial notice that justices of the peace have jurisdiction of a certain class of actions, under the statutory law of the state, though not of the fact that a particular justice has jurisdiction in a particular case. Olmstead v. Thompson, 91 Ala. 130, 8 South. 755. In Missouri, judicial cognizance will be taken of the fact that there is but one local option law in the state which provides for the prohibition of the sale of spirituous liquors. State v. Munch, 57 Mo. App. 207.

It is also a part of this general rule that the courts will take judicial notice of the time when a public statute takes effect. Pierson v. Baird, 2 G. Greene, 235; Attorney General v. Foote, 11 Wis. 14. Moreover, it is the duty of the courts ex officio to notice the repeal of laws. State v. O'Conner, 13 La. Ann. 486. Thus, where an action is tried, a verdict rendered therein, and questions of law reserved on the report of the trial judge, and afterwards the legislature repeals the statute on which the action was founded, the appellate court is bound to take judicial notice of the repealing statute, although it does not make a part of the case as reported. Springfield v. Worcester, 2 Cush. 52. In effect, it may be stated that the question of when a statute went into effect, or whether it is at any given time a law of the state or not, is always a question for the judicial knowledge of the court. State v. Bailey. 16 Ind. 46; Heaston v. Railroad Co., Id. 275; Berliner v. Town of Waterloo, 14 Wis. 378.

3. Private Acts of Legislature.

It is a general rule that private acts of the legislature-such as affect only certain designated individuals or their rights, and do not constitute a part of the public law of the state-are not presumed to be within the judicial cognizance. Hence, if such an act is relied on, it must be pleaded and proved. Judicial notice cannot be taken of it. Timlow v. Railroad Co., 99 Pa. St. 284; Bank v. Converse, 33 La. Ann. 963; Hailes v. State, 9 Tex. App. 170; Hotel Co. v. Weaver's Adm'r, 57 Ala. 26; Railroad Co. v. Blackshire, 10 Kan. 477; Ellis v. Eastman, 32 Cal. 447. But this rule does not now prevail in all of the states. In California, for example, in an action by an individual against the state to recover for special services rendered as agent for the state, an objection that there was no legal employment of the plaintiff may be raised by demurrer; for the court knows that there could be no valid contract without legislative authority, and by statute (Code Civ. Proc. Cal. § 1875) it is charged with judicial knowledge of all acts of the legislature, private as well as public. Mullan v. State, 114 Cal. 578, 46 Pac. 670, 34 L. R. A. 262. In Kansas, it is provided by law that "in pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its approval, and the court shall thereupon take judicial notice thereof." Dassler's Comp. Laws Kan. § 3923 (Code Civ. Proc. § 124). In Kentucky, the supreme court is required to take judicial notice of private statutes only when they are specially pleaded as required by the Code, or when it appears from the record that they were relied on as evidence on the trial in the lower court. Nichols v. Lodge No. 179, 20 Ky Law Rep. 1236, 48 S. W. 1091. It is important to notice, in this connection, the difference between private and local laws. Although a statute may be expressly confined in its

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