The opinion
SMYTH, Chief Justice
(dissenting in part). I concur in the judgment, but not in all that is said in the opinion. If it were, not for the stipulation which appears in the record to the effect .that the letter of August 2 from the appellant and the telegram and letter of August 3 from the appellee constitute an offer and an acceptance, I would be of the opinion that the appellant had failed to establish the contract sued upon.
From the conclusion that the auditor’s report in a law case is prima facie evidence of the truth of his findings I must dissent, for these reasons:
*895 Chapter 4 of the Code, providing for the appointment of an auditor in law cases and defining his authority,-is, as the opinion states, substantially the same as a prior rule of the Supreme Court of the District which was based on the Maryland statute of 1785. Construing that rule, the Supreme Court of the District, sitting in general term, said in McCullough v. Groff, 2 Mackey (13 D. C.) 361, 365:
“When, therefore, the proceedings before the auditors under the Act of 1785, e. 80, were to ho such ‘as in cases of actions of account,’ the right of hearing before the court as to all questions of law, and of trial by a jury upon all matters of fact, was intended to be preserved to the contestants. And where, in point of fact, the auditors have undertaken to decide all questions of fact incorporated into their report, without a reference to a jury, although such trial had been insisted upon by one of the parties, it seems to he clearly against the intent and spirit of the statute to admit the report before the jury even as prima facie evidence of the truth of its assertions or conclusions.”
This decision was rendered in 1883. On the same day on which it was handed down the rule referred to was amended, to cure certain infirmities which had been developed during the trial of the case (Simmons v. Morrison, 13 App. D. C. 161, 166), but was not amended so as to make the auditor’s report prima facie evidence. This is significant. As thus amended, the rule continued without change until it was incorporated into chapter 4 of the Code — a period, of nearly 20 years.
Now, it is a well-established principle that when a Legislature adopts an act, the meaning of which has been settled, it enacts it with that-meaning. Allen v. St. Louis Bank, 120 U. S. 20, 34 , 7 Sup. Ct. 460, 30 L. Ed. 573 ; 25 R. C. L. 1069. The commission which framed the Code and the Congress which adopted it must be presumed to have had knowledge of the interpretation which had been given to the rule. If it was desired to change that interpretation, it would have'been easy to do so by saying that the report of the auditor should be considered as prima facie evidence. I am warranted, therefore, in saying that Congress approved that interpretation, and that, in consequence, it is the proper interpretation of the chapter. The court ignores the decision in the McCullough Case, ignores the well-established rule of interpretation to which I have just called attention, and gives to the chapter a different meaning from that which it has had for nearly 40 years. This, I submit, is not judicial interpretation, but judicial legislation.
Even if we consider the chapter as a matter of first impression, unaided by the rules which I have invoked, there is no warrant for the interpretation given to it by the court. According to the chapter, a party who desires to frame an issue of fact for trial by the jury must file exceptions -to the auditor’s report, and then, says the chapter:
“Exceptions shall be tried and determined in the same manner as other issues of * * * fact made by the pleadings in an action at common law. * * *”
An issue of fact at common law is made by an assertion on the one hand and a denial thereof on the other, and the burden of proof is on him who makes the assertion. By a finding of fact the auditor affirms *896 a proposition. When an exception thereto is taken, the proposition is denied, and, by the words of the chapter, an issue of fact is thereby formed.- He who seeks to establish the proposition has the burden of proof. But the court says the burden is on the exceptant, which is equivalent to holding that he must prove a negative.
The opinion says the case was submitted to the auditor, not under the Code, but in pursuance of a rule of the common law to the effect that a court has the inherent power to refer any matter to an auditor for consideration and report. The record shows that there was no intention on the part of either of the parties, or of the court, to submit the case to any auditor but the one provided for by the Code. The order is that the case be referred “to the auditor of this court” — not to an auditor to be appointed, but to “the auditor of this court.” The fact that it may not have been a proper case to submit to him can make no difference, because no objection was made to its submission, and neither of the parties raises any objection now on that score. I must ’ conclude, therefore, that the submission was a valid one and was under the Code.
In this connection it is worthy of note that, while the court says the submission to the auditor was under the common law, it tests the sufficiency of the except'ons to his report by chapter 4. Is not this somewhat inconsistent ?
I deny that a trial court in this District has any inherent common-law power to refer a law case to an auditor. Reference is made in the opinion to the decision of the Supreme Court of the United States in the Peterson Case, wherein it was held that federal courts generally have such power; but there was no statute controlling the situation in that case, and that makes the distinction between it and this case. Conceding that at one time the common law in this District was as stated 'in the Peterson Case, the court or Congress could change that law. It was changed first by the adoption of the rule to which I have referred, and then by the enactment of chapter 4 of the Code. If Congress was satisfied with the common law on the subject, why any legislation at all ? . The fact that it thought it necessary to legislate is conclusive that it desired to change the common law. By enacting chapter 4 it dealt fully with the subject, and the rule “expressio unius est exclusio alterius” applies.
If the common-law rule prevails, then chapter 4 is a useless thing, and Congress has' accomplished nothing by enacting it. “There is a presumption against the construction which would render a statute ineffective or inefficient. * * * ” Bird v. United States, 187 U. S. 118, 124 , 23 Sup. Ct. 42, 44 ( 47 L. Ed. 100 ). Chapter 4 has often been interpreted. Its scope has been demarcated and its intent defined. By the decision just handed down a rule of practice of nearly 40 years’ standing has been upset, uncertainty substituted for certainty, and an act. of Congress rendered nugatory, all of which is done, as I view it, without any warrant of law.