point, and we quote from the opinion the is satisfied that the land taken by the exerfollowing: "Application for the writ of prohibition is properly made in such a case, upon the ground that the District Court has transcended its jurisdiction in entertaining the described proceeding; and whether it has or not must depend, not upon facts stated dehors the record, but upon those stated in the record upon which the District Court is called to act, and by which alone it can regulate its judgment. Mere matters of defense, whether going to oust the jurisdiction of the court or to establish the want of merits in the libelant's case, cannot be admitted under such a petition here to displace the right of the District Court to entertain suits; the rule being that every such matter should be propounded by suitable pleadings as a defense for the consideration of the court, and to be supported by competent proofs, provided the case is one within the jurisdiction of the District Court." It may be true that the plaintiff could not present to Judge Conrad the facts outside the record which he asks this court to consider; but that cannot give to the Supreme Court a power which is not conferred by the Constitution or statute, and which said court does not inherently possess. We are clearly of the opinion that this court has not the power to hear and determine the issues of fact raised by the petition, answer and accompanying affidavits, which are dehors the record. But even if the court had the right, and also the means, of determining issues of fact dehors the record, it would be entirely unnecessary to do so in the present case. The plaintiff contends that every condemnation proceeding involves the question of the necessity of taking the particular land desired, and that this question is a judicial one. This particular question, the plaintiff insists, was raised before Judge Conrad, and is again raised in the petition for the writ of prohibition; and the denial of such necessity is supported by the affidavits of the plaintiff and six other persons, filed with the petition. The defendants claim that the charge which the plaintiff makes in his averments of fact dehors the record is in substance and effect but an attack upon the good faith of Coleman du Pont Road, Incorporated. We will not undertake to decide what is the real purpose of the plaintiff in making such averments of fact, but will assume that the purpose was, as he declares, to show that the taking of the land was not necessary. We have already decided that the purpose for which the statute authorizes a strip of land 200 feet in width to be taken is a public use. It follows, therefore, that the purpose for which the land of the plaintiff is sought to be taken is a public one. cise of the power of eminent domain is taken for a public use, the question of necessity is for the Legislature and not for the court to determine, and that when the Legislature has, in the exercise of an honest discretion, determined that question the court should not and will not interfere. Such being our view of the law it would be entirely unnecessary and profitless for this court to determine, or undertake to determine, by facts outside the record, the question of the necessity of the taking of the particular land desired, viz., the land of the plaintiff. [26] Upon the questions above considered and determined the court is unanimous. Upon the remaining question, viz., the constitutional passage of the act in question, the majority of the court are of the opinion that the act was constitutionally passed, but for different reasons. I am of the opinion that the act in question was constitutionally passed, and is a valid act under the journal entry doctrine. Under such doctrine every legal presumption is to be made in favor of the validity of the act. If the journal entries fail to show that the enrolled act was not the act that was in fact passed, or if the journal entries are such as to make it doubtful which one of two acts was passed, then the presumption in favor of the enrolled and published act stands, and the same must be held valid. The court in the Rash-Allen Case, 76 Atl. 370, clearly recognized the fact that the "journal entry respecting the title of the bill upon which the yea and nay vote was taken might be a mistake, and the true and correct title that of the substitute bill.” The court in that case said: "Of course it is possible that it may sometimes appear from the journals themselves that a mistake was made therein respecting the title of the bill on the final vote, and that the bill actually passed was another bill, with an entirely different title. But we are clearly of the opinion that in the present case the journals not only do not show that such was the fact, but they leave no room for doubt." It also appears from the Rash-Allen Case that, when there is a contention as to which one of two bills was in fact passed, the court "will examine, not only the entry respecting the final passage of the bill, but all the pertinent journal entries in order to determine which bill was passed. One of such entries," said the court, "is the title of the bill, a similarity of title indicating that a mistake might have been made by the clerk." The court in that case, after a most careful examination of all the journal entries, concluded that no mistake was made, and that the original Senate bill, and not the substitute, was passed, holding that: "It We have also decided that, when the court therefore affirmatively and indisputably ap pears from the journals of each house that | formed the House that the Senate had the yea and nay vote was taken upon a passed the original bill and requested the bill which bore an entirely different title concurrence of the House therein. Every from that of the bill which the contestants other entry shows that the substitute bill, claim was passed." that is, the enrolled and published act, was constitutionally passed. It would require entirely too much time and space to specifically compare the journal entries in the present case with those in the Rash-Allen Case. It will be enough to say that in the latter case there was no such similarity of title between the original and substitute bill as might cause a clerical mistake, as there is in the present case. The probability of such a mistake being made where the titles are very similar was distinctly recognized in the Rash-Allen Case. There is but one entry in the Senate Journal which indicates that the original bill was passed by that body, and that is the entry respecting the yea and nay vote. Of course, this is the most important and vital entry respecting the constitutional passage of a bill, under the journal entry doctrine. But, as we have seen, the court may notwithstanding this fact be satisfied, after a careful examination of all the journal entries of both houses, that there was a cler passage of the bill, and that it was another bill that was in fact passed. And such clerical error is more likely to be made if there is a striking similarity in the titles of the two bills. In that case it was expressly noted as a very significant fact that the journals show-ical error made in the title, on the final ed that the original bill was the one upon which the yea and nay vote was taken in each house. The court said: "If the title of the original bill was read by mistake, or inadvertently written, for the title of the substitute, is it not most remarkable that the same mistake should have been made in each house of the General Assembly?" And the court further said: "If the substitute bill was the one that was in fact passed, is it not equally remarkable that nothing whatever was done with it in the Senate, so far as the journal shows, after it was reported by the committee, until it was enrolled, and that in the House, so far as the journal of that body shows, it was not presented, read, reported by the committee, or acted upon at all, no mention being made of it there until it was enrolled." It is true that in the present case the original and substitute bill bore the same number, as they did in the Rash-Allen Case; but in the latter case the court said there might be some significance in that fact "if the similarity in the number proved the similarity in the character of the bills. But we know that the two bills were essentially different in character." The court in the Rash-Allen Case, after a most careful examination of all the journal entries, concluded that no mistake was made, and that the original Senate bill, and not the substitute, was passed. The question now is, whether in the present case the journal entries clearly and satisfactorily show that it was the original and not the substitute bill that was passed. If they do not, or if they leave it doubtful in the mind of the court, which one of the two was passed, the enrolled and published act stands unimpeached. What do the journal entries show? Generally speaking, they show a very different state of facts from the Rash-Allen Case because: 1. There is but one entry in the House Journal which indicates that the original bill was passed, and that is the entry which 2. The substitute bill was reported favorably by the Senate committee, and immediately, or at least before any other business intervened, a bill was passed of practically the same title, but called the original Senate bill. The passage of the bill followed right upon the report of the committee, and it is most natural to believe that it was the reported bill that was passed, and that the title of the original was entered by mistake. There are no other entries in the Senate Journal that are inconsistent with the passage of the substitute bill; indeed every other entry in the Senate Journal, and, as House Journal, indicates that this was the we have said, every entry but one in the bill that was passed. tles that were strikingly similar, and such as 3. The original and substitute bill bore tiwere not unlikely to cause confusion and mistake. The only difference in fact was in the parenthetical words contained in the brackets, and even those words meant one and the same thing. There was no real difference in the titles. 4. In the Rash-Allen Case there were certainly two separate and distinct bills, differing not only in title but also in subject-matter. It is not at all certain that there was, at the time the yea and nay vote was taken in the Senate, more than one bill relating to the organization of boulevard corporations, which was the real title of both the original and substitute bill. 5. The entry indicating that it was the original bill that received the yea and nay vote is in the journal of one house only; and while the journal of the House states that the Secretary of the Senate informed the House that the Senate had passed and requested the concurrence of the House in the original bill, the House later informed the Senate that it had concurred in the substi Senate to the House, the title of which re- counsel on either side; (2) that the present ferred to boulevards. In considering the question now before the court there are two propositions of law that should be kept in mind: 1. The court will presume every enactment of the Legislature to be constitutional, and the burden is upon him who challenges its constitutionality, to show it. 2. The journal entry doctrine holds that the enrolled act, duly authenticated and published, is prima facie evidence of its validity and raises a strong presumption of its constitutional passage. This presumption prevails, and the statute must be sustained, unless the journals show clearly and satisfactorily that the statute was not constitutionally passed. If the journals leave any doubt upon this subject the presumption remains and the statute is sustained. After considering the journals of the two houses I think the presumption of the constitutionality of the act in question is not rebutted or overthrown, because the journal entries, taken as a whole, do not convince me that any constitutional prerequisite was not complied with in the passage of the act. On the contrary, they lead me to believe that the two entries mentioning the original bill were clerical mistakes, the subject-matter being the substitute bill, and such bill being clearly meant or intended. From the foregoing statement of facts showing the legislative history of the bill under consideration it is manifest that the present case is clearly distinguishable from the Rash-Allen Case in which the journal entry doctrine was recognized. Under such doctrine, I hold the act now in question to have been constitutionally passed. RICE, J. One question in this case for the determination of the court is whether the provisions of section 10 of article 2 of the Constitution of the state of Delaware have been complied with by the General Assembly in the passage of the Boulevard Act? This question involves the consideration of two doctrines known as the "journal entry doctrine" and the "enrolled act doctrine." In a comparatively recent case in this state the five law judges, sitting at that time, and constituting a Court in Banc, passed upon the merits of the two doctrines, after a thorough and exhaustive argument by counsel in that case. The majority of that court accepted and applied as the law in this state the "journal entry doctrine," . and the minority dissented and expressed their opinion in favor of the "enrolled act doctrine." In the present case it appears to me that it is not necessary for me to pass upon the merits of the respective doctrines for the following reasons: (1) That the law pertaining to the two doctrines as applicable in this state was not argued to any extent by case is distinguishable from the former case. I therefore concur in the whole opinion as read by the CHIEF JUSTICE. WOOLLEY, J. In the Rash-Allen Case, and in this case Judge BOYCE and I have concurred in our opinion of the law respecting the valid enactment of statutes under our constitutional provision, and at his request I will briefly embody his views with mine. Sitting as judges of the Supreme Court in the consideration of this case, we do not here feel bound by the doctrine announced by the majority of the Court in Banc in the Rash-Allen Case; but, on the contrary, we consider that in this court we may express our views and state our positions relative to the law by which the valid enactment of statutes in this state is to be tested and determined, freely and without the restraint of precedent. In order therefore to make certain our positions upon this question, we state that we cannot subscribe to the journal entry doctrine announced by the majority of the court in the Rash-Allen Case, nor to that doctrine as applied to this case, nor can we distinguish this case from the Rash-Allen Case, for to our minds the journal which is relied upon in this case as the constitutional record of the Legislature's acts discloses precisely the same journal defect that was held to justify the decision in the Rash-Allen Case. Giving, however, to our constitutional provision the interpretation made by the minority of the court below in the case of Rash v. Allen, and adhering to the enrolled act doctrine as stated in the opinion of the minority of the court in that case, we hold that by the force of that doctrine, and according to the principles it embodies, the statute put in question in this case was validly and constitutionally enacted. CURTIS, Ch. The petitioner urges as one ground against the right to take his land the failure of the Legislature to comply with the constitutional requirements for the validity of the passage of the act under which the corporation seeking to take his land was incorporated. In the argument of this point counsel referred only to the case of Rash v. Allen. For the petitioner, it was urged that, applying the principles of that case, the act was not validly enacted; and for the defendants, that the two cases can be distinguished, and, further, that the act was validly enacted, whether the doctrine adopted in that case by the court, or that advocated in the dissenting opinion, be applied here. The case of Rash v. Allen was heard by the five law judges sitting as a Court in Banc (and not including the Chancellor, who is never a member of that court), to deter mine a cause then pending in the Superior | rules to be applied in determining whether Court, and there three members of it adopt-acts of the General Assembly passed since ed and applied the doctrine of construction 1897 meet the requirements of the Constiknown as the "journal entry doctrine," and tution as to the procedure for the enactment the other two joined in adopting and apply- of laws. It is very important, too, that it ing the other doctrine of construction known should be settled in this the Supreme Court as the "enrolled act doctrine," it being nec- of the state which of the rules of construcessary in that case to determine whether an tion should be adopted in Delaware, and I act had been validly enacted. regret very much that I am unable, at this time, to do my part by expressing my own opinion on the subject in this present case. But in view of the magnitude of the question, the extensive study required and the limited time available for consideration of this question, in addition to the several other difficult questions raised and learnedly discussed in this case, I have not as yet been able to reach conclusions satisfactory to my self, or to give to the matter the deliberation which its importance deserves. In this present case a majority of the court here finds that the act in question was validly enacted, though for divers and divergent reasons. Two members of this court, who were members of the Court in Banc, adhere to the doctrine of the minority of the court in that case, and, applying the enrolled act doctrine, find that the act was passed according to the Constitution, while one other member of this court, who was also a member of the court in the case cited, while adhering to the journal entry doctrine, distinguishes the two cases and reaches the same conclusion in favor of the act. In other words, in the present case the majority of this court reach the same conclusion for different reasons. At this time I am not prepared to adopt either of these doctrines in preference to the other. The general question was not argued by counsel in this case, and all of them referred only to the case of Rash v. Allen and the learned and exhaustive opinions there delivered. Inasmuch as a majority of this court have reached conclusions which will determine the judgment to be rendered in this case, I feel that the rendering of the decision should not be delayed. But I reserve to myself at least an opportunity to file, at or before the next regular term, an opinion on this branch of the case, inasmuch as the conclusions I may reach, whatever they may be, will not affect the rights of the parties in this present cause. For Judge BOYCE and myself I am constrained to say, and it seems only just to ourselves that we should say, that we have had perplexing doubts, fully known to the members of the court, as to the constitutionality of the act of assembly which we have had under consideration, in several respects. A judgment of the Court in Banc is not binding upon the Supreme Court, for an appeal will lie from the latter to the former. Nor would the principles of law adopted by the former be controlling in the latter court in the same or other cases. Great respect should be, and has been, given by the mem- In concurring with the opinion of the bers of the Supreme Court to the opinions court first read by the CHIEF JUSTICE, in of the judges constituting the Court in Banc, so far as it is the unanimous opinion of especially when the opinions in the latter the court, we have as it is our duty to do, court agree. Under the circumstances, I when it can be done, not without considerdo not feel controlled by the views express-able hesitation, resolved our doubts in favor ed in the case of Rash v. Allen as to the of the validity of the act as expressed in the rules of constitutional interpretation. The opinion. constitutional question there raised was of great importance, involving, as it does, the The rule is discharged, petition dismissed and petitioners ordered to pay the costs. (34 R. I. 416) EASTMAN v. DUNN et al. (Supreme Court of Rhode Island. July 6, 1912.) 1. ACTION (§ 45*)—SEPARATE COUNTS-JOIN DER. |cient, or the acceptance may be shown by the acts of the parties. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 192-198, 200-208; Dec. Dig. § 103.*] 8. TRIAL (§ 252*) — InstrUCTIONS—APPLICABILITY TO EVIDENCE. In assumpsit for breach of a contract for In assumpsit for breach of a contract the erection of a theater and the formation of where the consideration, moving from the plaina partnership in the future, plaintiff may prop- tiff, was an option to lease certain property erly join counts sounding in damages for the which he accepted and delivered to defendants, breach of an express contract and in indebita- and it was shown that for convenience he allowtus assumpsit for the value of an option delived the lease to be made directly to defendants, ered to defendants and labor performed at their an instruction that the amount of his recovery request, for the two counts grow out of the was the market value of the lease at the time same transaction, and, both being assumpsit, he delivered it to defendants was not inapplicaplaintiff cannot be required to make an election ble to the evidence. between them before going to the jury, defendants having the right to frame issues so as to determine upon what counts the jury base their verdict. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*] 9. GIFTS ($ 47*)-Burden of Proof. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 378-383, 385-448; Dec. Dig. § 45.*] 2. PARTNERSHIP (§§ 21, 102*)—WHAT CONSTI-ment, has the burden of proving the gift. Defendant who, in an action for breach of a contract, set up that plaintiff gave him an option and relied on his generosity for reimburse TUTES. Where defendants entered into an agreement with plaintiff that, if he would deliver an option on certain property and perform certain services, they would take a lease on the property, erect a theater thereon, and, after their advances had been deducted, would make him a full partner with them in the concern, no present partnership was formed, and plaintiff's cause of action for defendants' breach need not be brought in equity. [Ed. Note. For other cases, see Partnership, Cent. Dig. §§ 6, 156; Dec. Dig. §§ 21, 102.*] 3. FRAUDS, STATUTE OF (§ 138*)-CONTRACTS -PART PERFORMANCE. Where plaintiff, in pursuance of a contract whereby defendants were to erect a theater upon land on which he had an option, and, after deducting the amount of their advances, were to form a partnership, delivered his option to defendants, and performed all the services possible, he has a right of action, though the contract was not enforceable because of the statute of frauds. [Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. §§ 327-333; Dec. Dig. § 138.*] 4. DAMAGES (§ 120*)—DAMAGES FOR BREACH -MEASURE OF DAMAGES. In such case plaintiff is, for defendants' breach, entitled to recover both the value of the option surrendered and the value of his services rendered. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 291-305; Dec. Dig. § 120.*] 5. CONTRACTS (§ 350*)—ACTIONS FOR BREACH -EVIDENCE-SUFFICIENCY. In assumpsit for damages for breach of contract, evidence held sufficient to support judgment for plaintiff. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 93, 1819-1823; Dec. Dig. § 350.*1 6. TRIAL (252*) — INSTRUCTIONS-APPLICABILITY TO EVIDENCE. In assumpsit for the breach of a contract, the consideration of which was plaintiff's delivery of an option, an instruction that an option may be accepted verbally is proper, where there was evidence of such verbal instruction. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 505, 596-612; Dec. Dig. § 252.*] 7. FRAUDS, STATUTE OF (§ 103*)-ORAL AC CEPTANCE. [Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 81-86; Dec. Dig. § 47.*] 10. EVIDENCE ( 242*) — ADMISSIBILITY COMPETENCY. fendants, whereby he delivered to them an option for a lease on certain property, and they, in turn, promised to erect a theater thereon, and, after deducting the amount of their adenterprise. After the lease was taken, the two vances, to make plaintiff a full partner in the defendants had a disagreement, and did__not proceed with the erection of the theater. Held, that as the two were jointly interested, and plaintiff did not know of their irreconcilable disagreement, evidence of things done by him at the request of ether of them to enable the project to be carried out was admissible; the parties being considered as agents of one another in matters relating to their joint interest. Plaintiff entered into a contract with de [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 893-907; Dec. Dig. § 242.*] 11. EVIDENCE (§ 185*)-BEST EVIDENCE-NoTICE TO PRODUCE ORIGINAL. A notice, when served in duplicate, may be proven by the production of duplicate by the one giving the notice, even though he does not request those served to produce the original. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 642-660; Dec. Dig. § 185.*] 12. CONTRACTS (§ 349*) - ADMISSIBILITY OF EVIDENCE-RELEVANCY. In assumpsit for breach of a contract erect a theater, and, after deducting certain adwhereby defendants were, within a year, to dence of a notice served by the plaintiff a short vances, were to make plaintiff a partner, evitime before the year expired was admissible to show that they had abandoned the project, and demonstrate that the action which was commenced a day before the expiration of the year was not premature. [Ed. Note.-For other cases, see Contracts, Cent. Dig. $$ 1096, 1781-1784, 1788-1798, 1809, 1811-1814, 1817, 1818; Dec. Dig. 349.*] 13. EVIDENCE (8 116*)-ADMISSIBILITY — EVIDENCE ADMITTED BECAUSE OF OTHER EVIDENCE. Such notice was also admissible where both defendants referred to it in subsequent conversations had with plaintiff. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 134, 135; Dec. Dig. § 116.*] Unless an option contract requires an acceptance in writing, an oral acceptance is suffiFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 83 A.- 67 |