173 P. 158 | Or. | 1918
The bill of exceptions does not disclose that any testimony whatever was offered in support of the allegations of the complaint and the only error assigned is the ruling of the trial court admitting in evidence the judgment-roll in the case of McKay v. Brown already mentioned.
“There are certain facts of such general notoriety that they are assumed to be already known to the court. Of those facts evidence need not be produced.”
“The following facts are assumed to be thus known: — * *
“3. Public and private official acts of the legislative, executive and judicial departments of this state, and of the United States.”
In the light of this rule of evidence we must know despite the denials of the reply that the Secretary of State did canvass the votes and the Governor did proclaim the creation of Deschutes County. They could not have done this legally except upon a prior regular election and count of the votes cast, resulting in the proper majority for the proposed county. In Knox County v. Ninth Nat. Bank, 147 U. S. 91, 97 (37 L. Ed. 93, 13 Sup. Ct. Rep. 267), the court said:
“It is a rule of very general application that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act”: See, also, Nofire v. United States, 164 U. S. 657 (41 L. Ed. 588, 17 Sup. Ct. Rep. 212).
The county having been regularly created, the power of the Governor to appoint a county judge and commissioners and their right to those offices follow as a matter of course. It is unnecessary to consider the validity of the act of February 1,1917, or the effect of the decree in McKay v. Brown.
The judgment of the Circuit Court is affirmed.
Aitibmed.