Baldwin, J.
Upon the trial of this cause, the defendant claimed that the statute (Public Acts of 1893, Chapter 216) upon which the prosecution was based, was unconstitutional for various reasons, and asked the court to instruct the jury as follows: “The jury are the judges of the law bearing upon the case as well as the facts, and they are entitled, and it is their duty, to consider the legal questions regarding the constitutionality of the statute in question, and if they con-. scientiously believe that the statute is unconstitutional upon any of the grounds claimed, then they should acquit the defendant.”
The court refused to charge as thus requested, and instructed the jury that the statute (General Statutes, § 1630) made them the judges of the law, hut not in such a sense that they were at liberty to disregard it; that when their judgment was satisfied as to what the law was, that law, as thus ascertained, was binding upon them ; that in the opinion of the court the statute upon which the prosecution was brought was a constitutional and valid law; but that under the limitations already stated they were the judges of the law as well as of the facts, and it was for them to say, on all the evidence, and under the law as they should find it to be, and as they conscientiously believed it to be, whether the accused was guilty or not guilty.
There is nothing in this part of the charge of which the defendant can complain.'
Constitutional law, in the form which it has taken in the United States, is an American graft on English jurisprudence. Its principles and rules are mainly the work of the present century. They rest upon the fundamental conception of a supreme law, expressed in written form, in accordance with which all private rights must be determined, and all public authority administered.
The Constitution of Connecticut (Art. II) has divided the powers of government into three distinct departments, each confided to a separate magistracy. To one of these departments is entrusted (Art. Y) the judicial power of the State In all cases where the meaning of a written document is to be [128]*128collected from the words in which it is expressed, its construction, if called in question in the course of a judicial proceeding, is to be determined by the court. This is a proper and necessary exercise of judicial power. It belongs, therefore, to the magistracy to which the exercise of this power has been confined by the Constitution, to determine the meaning and effect of the words in which that instrument is expressed.
The defendant contends that, as by General Statutes, § 1680, it is enacted that “the court shall state its opinion to the jury upon all questions of law arising in the trial of a criminal cause, and submit to their consideration both the law and the facts, without any direction how to find their verdict,” the Superior Court, in the case at bar, was bound to submit to the determination of the jury the meaning and effect of the Constitution, in its bearing upon the validity of the statute under which he was prosecuted. If this contention could be supported, it would follow that the General Assembly has power indirectly to transgress the constitutional limitations which the people have imposed upon the exercise of legislative power. It is undisputed that that body cannot enact a law which is in conflict with the Constitution. But if it can enact a law that juries, in certain cases, shall decide between the Constitution and a statute, when it is claimed by a party to the proceeding that they are in conflict, the legislative magistracy can thus invest the jury with a prerogative which it does not, itself, possess; and can take that prerogative away from the judicial magistracy, which does possess it, under the tripartite division of the powers of government, upon which our Constitution rests.
These questions first claimed the serious attention of the court and bar of the United States in connection with the prosecutions growing out of the Sedition Law of 1798. By that Act of Congress, it was provided that in any prosecution for libel the truth might be given in evidence and the jury should have “ a right to determine the law and the fact, under the direction of the court, as in other cases.” Notwithstanding this, the Circuit Courts uniformly held that the jury could [129]*129not pass upon the constitutionality of the statute. United States v. Lyon, Wharton’s State Trials, 333, 336; United States v. Callender, ibid. 688, 713, 718. In the latter of these cases, Mr. Justice Chase observed in his charge, that by the provision above quoted “ a right is given to the jury to determine what the law is in the case before them; and not to decide whether a statute of. the United States produced to them, is a law or not, or whether it is void, under an opinion that it is unconstitutional, that is, contrary to the Constitution of the United States. I admit that the jury are to compare the statute with the facts proved, and then to decide whether the acts done are prohibited by the law; and whether they amount to the offense described in the indictment. This power the jury necessarily possesses, in order to enable them to decide on the guilt or innocence of the person accused. It is one thing to decide what the law is, on the facts proved, and another and a very different thing, to determine that the statute produced is no law. To decide what the law is on the facts, is an admission that the law exists. If there be no law in the case, there can be no comparison between it and the facts; and it is unnecessary to establish facts before it is ascertained that there is a law to punish the commission of them. The existence of the law is a previous inquiiy, and the inquiiy into facts is altogether unnecessary, if there is no law to which the facts can apply. By this right to decide what the law is in any case arising under the statute, I cannot conceive that a right is given to the petit jury to determine whether the statute (under which they claim this right) is constitutional or not. To determine the validity of the statute, the Constitution of the United States must necessarily be resorted to and considered, and its provisions inquired into. It must be determined whether the statute alleged to be void, because contrary to the Constitution, is prohibited by it expressly, or by necessary implication. Was it ever intended, by the framers of the Constitution, or by the people of America, that it should ever be submitted to the examination of a jury, to decide what restrictions are expressly or impliedly imposed by it on the national legislature ? I cannot [130]*130possibly believe that Congress intended, by the statute, to grant a right to a petit jury to declare a statute void. . . . I have uniformly delivered the opinion, ‘ that the petit jury have a right to decide the law as well as the fact, in criminal cases; ’ but'it never entered into my mind that they, therefore, had a right to determine the constitutionality of any statute of the United States.”
Callender's Case was tried in 1800, and the grounds upon which the charge was based, so far as concerns the point now under consideration, have since been repeatedly approved by American courts of last resort. Commonwealth v. Anthes, 5 Gray, 185, 191, 192; Pierce v. State, 13 N. H. 536, 553, 561; Franklin v. State, 12 Md. 236, 245, 246; Sparf v. United States, 156 U. S. 51, 71.
General Statutes, § 1630, which first appears in the Revision of 1821, was not intended to narrow the functions of the court, but rather to enlarge them. State v. Fetterer, 65 Conn. 287, 291. Trial by jury in criminal cases liad, for more than a century before the adoption of our Constitution, become something very different in Connecticut from what it was under the common law. The judges, after the first generation of colonists, among whom were some who had been trained for the English bar, had passed away, had seldom received any special legal education. They did not assume to express any opinion of their own to the jury on points of law; contenting themselves with simply recapitulating in the charge the points made by counsel. 2 Swift’s System, 258, 401. If a verdict of guilty were returned in the County Court, the prisoner had, by a statute passed in 1705, an absolute right of “review,” that is to a new trial. Stats., Comp. of 1715, p. 131. As soon as the judicial establishment of the State was reorganized, in 1806, by placing only trained lawyers upon the bench, the judges began the restoration of trial by jury to something like its form at corn-man law. General Rules of Practice, 3 Day, 28. The General Assembly took action in the same direction in 1812 (Session Laws of 1812, Chap. XV, p. 106), and in 1818 the framers of the Constitution completed the work (Art. I, § 21).
[131]*131Trial by jury had lost, under our colonial government, its native-strength and dignity. Legislation and judicial practice had done something towards their restoration. The Constitution, in providing that the right of trial by jury should remain inviolate, was designed to perpetuate its essential characteristics, as they existed at common law; preserving its substance, while leaving its form to be regulated from time to time as the legislative power might deem the public interests to require. Guile v. Brown, 38 Conn. 237, 243; State v. Worden, 46 id. 349, 365.
The effect of the statutory provisions in the Revision of 1821, by which it was sought to give proper effect to the Declaration of Rights in this particular, was probably not fully apprehended by those who penned them. Chief Justice Swift, who was one of the revisers, states in his Digest, with reference to General Statutes, § 1630, that it precludes the court from expressing any opinion on the facts, or giving any direction to the jury with regard to them, and so that the judge is made a mere cipher, as it respects the facts in criminal cases, and the jury deprived of that benefit from his ability and experience which in other States, where the common law is recognized, is secured by his explanation and illustration of the testimony, and the statement of his opinion as to its weight and sufficiency. 2 Swift’s Digest, 412. The judicial construction of the statute, however, has always been otherwise; and it is settled by a long course of decisions that the judge can, and wherever it seems necessary, should, in the charge give his own opinion of the nature, bearing, and force of the evidence adduced. State v. Borne, 64 Conn. 329, 336. The meaning of a statute must always depend on the words used, and the intention as thus expressed. Lee Bros. Furniture Co. v. Cram, 63 Conn. 433, 438; Dartmouth College v. Woodward, 4 Wheat. 518. Courts cannot, with safety, proceed under any other rule, even if satisfied that this expressed intention was not that which the legislature designed to express, or that understood by contemporary expositors.
It has been assumed in some of the decisions of this court [132]*132that the statute now under consideration (General Statutes, § 1630) may subject to the determination of the jury in criminal cases questions of statutory or common law to a greater extent than would otherwise have been allowed. State v. Buckley, 40 Conn. 246, 248; State v. Thomas, 47 id. 546, 551. If this be so, it would not follow that it has subjected to their determination any question of constitutional law. It is true that the requests for instructions, which came under review in the cases above cited, related to questions of that nature; but the distinction between constitutional law and other law was not alluded to in argument or considered by the court. We have now found it necessary to consider it fully, and are satisfied that to hold the statute to mean that it is in the rightful province of the jury to determine the true construction of the Constitution, in criminal eases, would be to attribute to the General Assembly an intent to trench upon the judicial power, and give to verdicts a superior force to that of the words of the Constitution itself.
At common law, no jury ever exercised such a function, for there was no written constitution under which the government was created and by which its limitations were established. The constitutional guaranty that the right of trial by jury shall remain inviolate, lends therefore no aid to the defendant’s position.
On the other hand, the section of the Declaration of Rights (Const. Art. I, § 7) which declares that “ in all prosecutions or indictments for libels, the truth may be given in evidence, and the jury shall have the right to determine the law and the facts, under the direction of the court,” implies that, but for such a declaration, it would be, to say the least, doubtful, whether in prosecutions for that offense, the jury could, under the principles of the common law, determine the law of the case by their verdict. On that subject there had been a sharp contest between the English bar and the English bench. In 1792, only twenty-six years before the adoption of our Constitution, it had been affirmed by the twelve judges of England, in response to questions put to them by the House of Lords, that the general criminal law was also the [133]*133law of libel, and that in prosecutions for that offense it was the duty of the judge to declare to the jury what the law was, and their duty, should they find a general verdict, to compound it of the fact as it appeared in evidence before them, and of the law as it was declared to them by him. Annual Register for 1792, Chron. 62, 68, 69, 75. The same rule was laid down in 1803 by Chief Justice Lewis, in an important prosecution of this nature in New York. People v. Croswell, 3 Johns. Cases, 337, 341. The earliest State constitution in which indictments for libel are specifically mentioned, is that of Pennsylvania, adopted in 1790, two years before the passage of Fox’s Libel Bill in Parliament, in which it was declared that in such proceedings “the jury shall have the right to determine the law aud the facts, under the direction of the court, as in other cases.” 2 Poore’s Charters & Const., 1554. Constitutional provisions similarly phrased were adopted by Kentucky in 1792 and 1799, by Tennessee in 1796, and by Illinois in August, 1818. 1 Poore, 278, 447, 655, 666; 2 Poore, 1674. The same terms were also introduced, as has been stated, in the Sedition Act of 1798. In 1817, Mississippi put -into her Declaration of Rights, from which that in our Constitution, adopted in September of the following year, was largely copied, a section precisely identical with that now under consideration. 2 Poore, 1055. It will be remarked that the words “ as in other cases ” were thus dropped by Mississippi, and, following her lead, by the framers of our Constitution. This would seem to indicate that they intended to secure to juries larger power over questions of law in prosecutions of libel, than in other criminal trials; and our statute (§ 1630) is in entire harmony with this view, since, in lieu of declaring that the jury shall have the right to “determine ” the law under the direction of the court in ordinary prosecutions, it only provides that the court shall state its opinion to them on all questions of law, and then submit the law to their “consideration,” without any direction how to find their verdict.
The distinguishing feature of trial by jury in criminal cases as compared with trial by jury in civil cases, has always [134]*134been the right of the jury to return a general verdict, and such a verdict as they might deem proper, on the law and the evidence, without dictation from the court. The English judges, from the earliest times, were accustomed to instruct the jury as to the law, with the same freedom in criminal as in civil proceedings; but after the decision in Bushuell's Case, in 1670, they never assumed the right to direct a verdict of guilty.
It was the duty of the Superior Court to instruct the jury as to the constitutionality or unconstitutionality of the statute under which the defendant was prosecuted; but it would have had no right to direct a verdict either of conviction or acquittal. Their duty to accept the construction of the Constitution which the court might adopt, was absolute. They were bound to this, as well by their official oath as jurors well and truly to try and true deliverance make between the State of Connecticut and the prisoner at the bar, according to law and the evidence before them, as by the oath which each had taken as a freeman to be true and faithful to the State of Connecticut and the Constitution and government thereof. General Statutes, § 3264. But their right to return such a verdict as they thought proper was absolute, also. Law and fact are inseparably blended in every general verdict. By a verdict of not guilty, they might in effect have disregarded the instruction of the court, but only by disregarding the Constitution and disobeying the government which they had sworn to support.
The request for instructions, which has been under consideration, was, therefore, properly refused. It is unnecessary to decide whether the instructions which were given in response to it, and substantially followed the charge sustained in State v. Buckley, 40 Conn. 246, were in all points correct. They gave the defendant no cause of complaint.
The Superior Court was also right in refusing to instruct the jury, as requested, that if they should “find that the ‘Yellows’ is not a contagious disease and the existence of the disease in one tree does not cause it to spread from that tree to other trees, and thus endanger other trees, the prop* [135]*135erty of others, and that a tree so diseased is not a public nuisance, then this statute is an improper and unwarrantable invasion of the rights and property of citizens, the right to care for his property and plant and cultivate his trees as he desires without interference, and is unconstitutional and void.”
Whether the “yellows” was such a disease as to justify the General Assembly in enacting the statute under which the prosecution was brought, depended on the existence and nature of the disease, and also on the apprehension of danger from it commonly entertained by the public at large. That such a disease existed, and was one of a serious character, ordinarily resulting in the premature death of the tree affected, is a matter of common knowledge, of which the court had a right to take judicial notice. Century Diet., Peach-yellows, and Yellows; Webster’s Internat. Diet., Yellows. Such a disease it was proper for the General Assembly, in the exercise of its police power, to endeavor to suppress, even by the destruction of the trees attacked by it, if there was a reasonablé apprehension of substantial danger from allowing them to live, to those who might eat their fruit, or to other peach orchards.
Unless the courts can see that there could by no possibility be such danger, the propriety of such legislation as that nOw in question, is to be determined solely by the discretion of the legislative department. The description of this disease given in standard works and government publications, and the legislation in regard-to it to be found in the statute books of Delaware, Maryland, Michigan, New York, Pennsylvania, Virginia, and the Province of Ontario, are amply sufficient to establish as a matter of judicial notice the possibility, if not the probability, that it is a contagious disease. Grimes v. Eddy, 126 Mo. 168, 28 Southwestern Rep. 756. The destruction of a tree affected by a disease of that character, without compensation to the owner and against his will, is as fully within the police power of a State as the destruction of a house threatened by a spreading conflagration, or the clothes of a person who has fallen a victim to small-pox. [136]*136Such property is not taken for public use. It is destroyed because, in the judgment of those to whom the law has confided the power of decision, it is of no use and is a source of public danger.
Judicial notice takes the place of proof, and is of equal force. As a means of establishing facts it is therefore superior to evidence. In its appropriate field it displaces evidence, since, as it stands for proof, it fulfills the object which evidence is designed to fulfill, and makes evidence unnecessary. Brown v. Piper, 91 U. S. 37, 43; Commonwealth v. Marzynski, 149 Mass. 68, 21 Northeastern Rep. 228. “The true conception of what is judicially known is that of something which is not, or rather need not, unless the tribunal wishes it, be the subject of either evidence or argument,— something which is already in the court’s possession, or at any rate is so accessible that there is no occasion to use any means to make the court aware of it.” Thayer’s Cases on Evidence, 20. If, in regard to any subject of judicial notice, the court should permit documents to be referred to or testimony introduced, it would not be, in any proper sense, the admission of evidence, but simply a resort to a convenient means of refreshing the memory, or making the trier aware of that of which everybody ought to be aware. State v. Morris, 47 Conn. 179, 180.
The defendant, therefore, had no right to have the jury pass upon the danger of contagion from trees affected by the yellows, as a means of determining the constitutionality of the statute, by such verdict as they, might render under the instructions of the court. It was for the court to take notice that it was a disease which might be contagious. Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 525, 527. This being established, the validity of the statute became a matter of pure law. Police legislation for the' extirpation of a disease of such a nature, which the legislative department deems dangerous to the public welfare, cannot be pronounced invalid by the judicial department by reason of any difference of opinion, should one exist, between these two agencies of government, as to the probability of such danger. If the [137]*137law may be an appropriate means of protecting the public health and the agricultural interests of the State, it is for the legislature alone to determine as to its adoption. It may have been the opinion of the General Assembly that peach growers in general would abandon their business, from dread of contagion from orchards infected by the yellows. In such a case, whether their apprehensions were well-founded or ill-founded would be immaterial, unless it also appeared that there could be no reasonable grounds for them. A wide spread apprehension throughout the community justifies itself, and is a sufficient basis for legislative action towards the removal of the cause, real or supposed, of the danger apprehended, when this cause is a deadly disease of a food-producing tree. Bissell v. Davison, 65 Conn. 183, 191. The destruction of the infected trees by order of a public official, after due inspection, is a remedy which, however severe, is one appropriate to the end in view, and may properly be enforced without any preliminary judicial inquiry, as well as without any compensation to the owner for resulting loss. State v. Wordin, 56 Conn. 216, 226; Powell v. Pennsylvania, 127 U. S. 678, 685.
The Superior Cotírt also properly refused to instruct the jury, as requested by the defendant, that “if the term ‘Yellows ’ in the statute does not define with clearness and certainty a well and commonly known disease of peach trees, capable of being clearly and readily recognized, identified and shown to exist, but the term is so vague and uncertain that it furnishes no clear and fixed standard so as to determine what said disease is and when it exists, then the statute is void for doubt and uncertainty in defining the disease and the crime of failing to destroy such diseased trees.”
As has already been stated, the court had a right to take judicial notice that the term “Yellows ” was one, the meaning of which was clearly defined by common usage. This being so, whether the statute was void for uncertainty, or not, depended simply on the construction of a written document, and was properly and only a question for the court. [138]*138Jordan, Marsh & Co. v. Patterson, 67 Conn. 473, 479; People v. Smith, 106 Mich. 431, 66 Northwestern Rep. 382, 384.
The requests for instructions that “the statute is unconstitutional and void because it deprives a person of his lights and property without notice and hearing and without due course of law, without compensation, and violates the right of trial by jury; ” and that “ if the minimum fine provided by the statute is unreasonably great and out of proportion to the act for which it is imposed, considering the nature and circumstances of the act, and such fine would be oppressive and unjust, then it is an excessive fine, and the statute imposing it violates the Constitution of this State and is invalid and unconstitutional, and the defendant is entitled to an acquittal even though guilty of the act charged,” were also properly refused.
The notice from the deputy commissioner of peach yellows, and the proceedings conducted by him upon the defendant’s premises, were sufficient to satisfy every requirement of the constitutions of Connecticut and of the United States, as well as the principles of natural justice, if the trees in question were in fact diseased with the yellows. Summary proceedings for the abatement of whatever is dangerous to the public health or safety are often necessary, and have always been permitted when authorized by appropriate legislation. Raymond v. Fish, 51 Conn. 80, 97. If, indeed, the trees which the defendant was ordered to destroy did not in fact have the yellows, he was justified in disobeying the order. As to this he was entitled to demand a trial by jury ; and he has had one, in which the question was properly submitted to their determination. Miller v. Horton, 152 Mass. 540, 26 Northeastern Rep. 100; Health Department v. Trinity Church, 145 N. Y. 32, 39 Northeastern Rep. 833.
Whether the fine prescribed in the statute was excessive, presented a question of law, and was properly disposed of, as such. It is not so clearly disproportioned to the offense as to come necessarily within the constitutional prohibition, and it is only in case of a plain conflict between the supreme law and an enactment of the legislature, that the courts can [139]*139interfere for the protection of the citizen. Blydenburgh v. Miles, 39 Conn. 484, 497.
The Superior Court instructed the jury that as the legislature had by this statute declared trees diseased by the yellows to be a public nuisance, that decision was final, and it was not for them to inquire whether they were, in fact, such or not. This position is not without authority for its support. Train v. Boston Disinfecting Co., 144 Mass. 523, 11 Northeastern Rep. 929. But whether sound or unsound (as to which we express no opinion), the charge in this particular did the defendant no injury, for it was delivered only with reference to the constitutionality of the statute, and as to that the jury had been already definitely and correctly instructed that it was a constitutional and valid law. Its validity did not depend on the question of nuisance, or no nuisance. It was enough that the court could see that reasonable apprehensions of danger from the disease were commonly entertained in the public mind,’ and that it was not impossible that it was dangerous, because contagious. The court below therefore reached the right result, even if it were by the wrong road.
The defendant requested instructions to the effect that before the commissioner of peach yellows or his deputy could legally order trees destroyed, regulations in relation to so ordering trees destroyed must have been adopted ox-approved by the State Board of Agriculture, and the State having failed to prove axxy such regulations, the defendant should be acquitted.” They were properly refused, because the State had offered evidence tending to show that such regulations had been previously adopted.
This evidence was a copy from the records of the board, duly certified by its secretary, under its seal, purporting to set forth the doings of the board at a meeting held several months before the date of the order served upon the defexxdant. He sought to meet this document by oral testimony from the secretary that the statement in the minutes of the meeting that certain regulations were adopted, had been interlined pexxding this prosecution, and was no part of the [140]*140original record. This testimony was properly rejected by the court. It was offered to impeach the record of a public board, and such a record cannot thus be collaterally attacked. Gilbert v. New Haven, 40 Conn. 102.
It is also assigned for error that James P. Brown, a witness for the State, by whom the order in question was made, when asked what position he held at the time it was issued, was allowed to state that he was then acting as a deputy commissioner of peach yellows. If by this he meant to be understood as saying that he acted as such a deputy commissioner in issuing the order, or in inspecting and condemning the trees, the testimony was properly objected to. If on the other hand, his meaning was that at the time in question he was acting in other matters generally as such a deputy commissioner, the evidence was admissible. But in either case, its reception would be no ground of error, since the copy of record subsequently introduced showed his due appointment to the office in question.
The same witness was allowed to testify that after an examination of the defendant’s orchard, he condemned sixty-four trees which were diseased with the peach yellows; the defendant excepting because no facts were stated showing the condition of the trees or symptoms of disease. There was no error in this ruling.
It is a familiar rule of law that every man acting officially shall be presumed to have done his duty, until the contrary appears. Booth v. Booth, 7 Conn. 350, 367. This rule rests on the assumption that he will not undertake the execution of his office, unless he is reasonably competent to discharge the duties which belong to it. A man cannot be expected to do his duty, who does not know what his duty is, and how to perform it. A commissioner or deputy commissioner of peach yellows is charged by statute with the duty of visiting any peach orchard where it is suspected that there are.trees diseased with the yellows; making a personal investigation to determine as to the presence of the disease; and, should he find that any trees are infected by it, ordering their destruction. The witness had for more than a [141]*141month before his inspection of the defendant’s trees been a deputy commissioner of peach yellows under this law. This was, to say the least, a circumstance which the court had a right to consider, in determining whether to receive him on the footing of an expert, even if he were not to be regarded as presumably peritus virtute officii.' The Sussex Peerage, 11 Clark & Fin. 85, 125, 134; Dickenson v. Fitchburg, 13 Gray, 546, 557; Grayson v. Lynch, 163 U. S. 468, 480. The record does not disclose whether any further evidence as to his practical acquaintance with the symptoms of the disease was, or was not, introduced. The decision of a trial judge in admitting a witness to testify as an expert will not be reviewed, unless it is clearly shown to have been based on incompetent or insufficient evidence.
There is no error in the judgment appealed from.
In this opinion Torrance and Fenn, Js., concurred.