Smith v. Thompson, 258 N.W.

190 (Iowa 1934)

Supreme Court of Iowa
Filed: December 11th, 1934
Precedential Status: Precedential
Citations: 258 N.W. 190, 219 Iowa 888
Docket Number: No. 42327.

This case involves the validity of chapter 89 of the Laws of the Forty-fifth General Assembly, known as the Salary Reduction Act.
Plaintiff states in his petition, and it is admitted in the record, that he was duly elected treasurer of Woodbury county, Iowa, in
November, 1932, and on January 1, 1933, he qualified as such and assumed the duties of said office; that his salary amounting to
$3,775 per annum or $314.58 per month had been fixed and determined by the board of supervisors in accordance with the provisions
of the 1931 Code, and he had drawn his salary on that basis up to the month of May, 1933; that on June 1, 1933, the plaintiff made
written demand upon the auditor for the issuance of a salary warrant to him in payment of his salary for the month of May, 1933, in the
sum of $314.58, which demand or request was refused by the auditor of Woodbury county for the reason that the Forty-fifth General
Assembly had passed an act known as Senate File No. 479 (now chapter 89 of the Acts of the Forty-fifth General Assembly), reducing
the salary of county treasurers, and a warrant was tendered to the plaintiff by the county auditor in the sum of $229.12, the reduced
amount of the salary of the county treasurer as fixed by the provisions of the legislative act referred to; that the plaintiff refused to
accept the warrant representing the reduced salary for the month of May, 1933, and commenced this action in mandamus to compel
the issuance and delivery to him of a warrant in the sum of $314.58, and alleging the invalidity of the act of the legislature referred to.
Answer was filed by the county auditor and Woodbury county, and petition of intervention was also filed *Page 891 by certain named
taxpayers who asserted that they were taxpayers and property owners in Woodbury county, and would be adversely affected if the
plaintiff should prevail, and joined with the defendants in the defense of the action. There was a trial to the court upon the issues
presented and a finding and judgment dismissing plaintiff's petition. The plaintiff appeals.
The appellant assigns numerous errors and relies upon several propositions of law, all attacking the validity of the act in question. We
will notice some of them.
[1] The appellant contends that the act is in contravention of section 29 of article 3 of the state constitution because it contains two or
more subjects, two or more objects, and is omnibus in form, subject, and object. Section 29 of article III of the constitution provides:
"Every act shall embrace but one subject, and matters properly connected therewith; which subject shall be expressed in the title. But if
any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as
shall not be expressed in the title."
It is true that the title to the act is omnibus in form, and, to some extent at least, unintelligible and misleading. For instance, the first
clause of the title reads, "An Act to repeal section fifty-one hundred twenty-six (5126) and enact a substitute therefor and to amend
sections eighty-eight-c one (88-c1)", and approximately fifty other and different sections contained in at least eleven different chapters
of the Code. The first clause of the title, quoted above, is not again referred to in the act itself. Again sections 5221, 5223, 5225, 5229,
and 5231 are included in the title as sections to be amended. These numbered sections are not again mentioned in the body of the act.
Again section 29 of the act reduces the compensation of the members of the General Assembly and the lieutenant governor and this
change is not mentioned in the title. Again we find that the sections of the act itself are not numbered consecutively, sections 31, 35, 37,
39, 41, and 52 being omitted from the bill as enrolled, which condition adds to the confusion and unintelligible feature of the title.
However, the last clause of the title recites, "all relating to statutory salaries and compensation of state, county, and city officers", and
this must be held to be a description of the subject-matter and object of the act in question. *Page 892 [2] The omnibus form and
incongruous subjects appearing both in the title and body of the act indicates a hurried, if not careless, consideration in the preparation
of the bill as presented to the legislature and as finally considered by it, which cannot be commended or approved, and which
necessarily must have some weight in the consideration of the constitutional legality of the act which we will later discuss. However, we
are of the opinion that the discrepancies and errors which we have noted are not sufficient in themselves, without more, upon which to
base a holding that the act is invalid.
[3] Inasmuch as the general assembly in drawing the title saw fit to specifically enumerate the sections of the statutes which it proposed
to repeal or amend, rather than to draw the title in general language, it must be held that the omission in the title of any reference to the
sections governing the salary of the members of the general assembly and of the lieutenant governor must be held to invalidate section
29 of the act (section 29, article 3, state constitution; Henkle v. Keota, 68 Iowa 334, 27 N.W. 250) and this invalidity must be
considered as having a bearing upon the constitutionality of the act, which we will later discuss.

[4] It is also claimed by the appellant that the act is not uniform in operation, is class legislation, and is in contravention of section 6 of
article 1 of the state constitution which provides that "all laws of a general nature shall have a uniform operation; the General Assembly
shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all
citizens." We are constrained to hold that the act is not subject to this attack. This operation of the act applies equally to all citizens who
fall within any particular class, as mentioned in the act. It is apparently true that the classification adopted does not bring within the
influence of the act all of the state, county, and municipal officers, but it is not necessary that the salaries of all state, county, and
municipal officers be determined upon the same basis. It must be conceded that the legislature has the power to fix and determine
salaries of all officials where they have not delegated that power to some other governmental agency. Salaries of state and other
officers are fixed in the sound judgment of the legislature with a view to, and a knowledge of, the amount of work to be done in each
particular office or class of offices. The act in question extends to and includes equally all *Page 893 persons who are or may be in like
or similar circumstances and is uniform in its operation and application; and it cannot be said where salary differences are based on
population, the amount of work to be done, and the responsibility in each particular office, that the fixing and determining of the salaries
of the respective officers and the offices included in this act is arbitrary or unreasonable, or that it does not have uniform operation or
application, or that it grants to any citizen or class of citizens privileges or immunities which upon the same terms do not belong to all
citizens falling within the various classes. Polk County v. Cope, 176 Iowa 19, 157 N.W. 245; City of Des Moines v. Bolton, 128
Iowa 108, 102 N.W. 1045, 5 Ann. Cas. 906; Cook v. Marshall County, 119 Iowa 384, 93 N.W. 372, 104 Am. St. Rep.
283; Clear Lake Live Stock Association v. Weir, 200 Iowa 1293, 206 N.W. 297.

[5] Some question is made as to the right of the legislature to reduce the salaries of public officers during the term for which they are
elected, but it must be conceded, as a general rule, that the relation between a public officer and the people is not in the nature of a
contract, and that such office has in it no element of property. It is a public trust, created for the benefit of the state and not for the
benefit of the individual citizens thereof, and the prospective emoluments of a public office are not property in any sense. Crozier v.
Lyons, 72 Iowa 401, 34 N.W. 186; Eckerson v. City of Des Moines, 137 Iowa 452, 115 N.W. 177; Shaw v. City Council of
Marshalltown, 131 Iowa 128, 104 N.W. 1121, 10 L.R.A. (N.S.) 825, 9 Ann. Cas. 1039. It must be held that the legislature has the
power to fix and determine salaries of all officials where they have not already delegated that power to some other governmental
agency, if such power is not limited or proscribed by constitutional provisions. Cook v. Marshall County, 119 Iowa 384, 93 N.W.
372, 104 Am. St. Rep. 283. And it follows that the act in question is not subject to attack on the part of the appellant in the instant
case on the ground that it reduces his salary as county treasurer during the term for which he was elected.

[6] A further question is presented to the effect that one whose rights are affected by one portion of a statute may not question the
constitutionality of the act, or another portion of it, where the operation of the provision affecting him will not be changed or influenced
by the invalidity of a contested provision. This contention is sound unless the unconstitutional portion of the *Page 894 statute, which
does not affect directly the person attacking it, in fact affects the validity of the entire act. And this brings us to a consideration of the
first important question presented upon this appeal.
[7] It must be conceded that a statute may be in part constitutional and in part unconstitutional; and if such part or parts are wholly
independent of each other and separable so that the constitutional part may stand while that which is unconstitutional may be rejected,
the statute may stand by the elimination of the unconstitutional part. 50 C.J. 639, section 205; Davidson Building Co. v. Mulock, 212
Iowa 730, 235 N.W. 45; State v. Soeder, 216 Iowa 815, 249 N.W. 412.

In this case we have first section 29 of the act which reduces the compensation of the members of the general assembly and the
lieutenant governor with no reference thereto in the title, and, as we have indicated, this section must be held to be unconstitutional and
invalid. We also have sections 26 and 27 of the act reducing the salaries of the judges of the supreme court and of the district court.
These provisions are concededly in contravention of section 9, article 5, of the state constitution, which provides that the compensation
of the supreme and district court judges "shall not be increased or diminished during the term for which they shall have been elected."
Such was the holding of the trial court, and it is so conceded in the presentation of the case in this court. We have then first to consider
whether the sections of the act referred to reducing the salaries of the judges are simply inoperative or invalid. Section 57 of the act
provides that it shall be in full force and effect on the first day of the month following its enactment and publication. The act was
approved April 24, 1933, and published April 29, 1933, and became effective on May 1, 1933. It will be noticed that the sections relating
to the reduction of the salaries of the judges do not contain any statement as to when the same should become operative, and under
section 57 of the act, which we have referred to, the sections reducing the salaries of the judges was intended to become effective on
the day that the act became in full force and effect. Under this situation it must be held that the sections referred to were and are
absolutely invalid as being in direct contravention of section 9, article 5, of the state constitution. The question now presents itself as to
whether the elimination of sections referred to, including section 29, heretofore mentioned, invalidates the entire act. It must be noted in
this connection that the act contains no *Page 895 saving clause, and that by the omission of such clause and the recitals in sections
54 and 57 of the act to the effect that an emergency exists, and that on account of the financial and economic conditions in Iowa it is
necessary to reduce the salaries to conserve the expenditure of funds, that it was intended by the legislature that the whole of said act
should be enforced, and the question immediately arises, Would the act have been approved by the legislature had the unconstitutional
and invalid provisions been eliminated? The elimination of the unconstitutional provisions must be held, in a measure, to destroy the
intended and declared purpose and object of the legislation as indicated in section 54 of the act. As we have indicated, the act does not
contain a saving clause. If such clause was inserted, the presumption might be that the legislature intended the act as divisible and
separable, but there being no such clause, the presumption must prevail that the legislature intended it to operate as a whole. This
presumption is re-enforced and made positive by the recitation in section 55 of the act, "that all provisions of the code, 1931, and laws
of the forty-fourth (44th) general assembly, relating to salaries be amended, revised and codified in accordance herewith."
In Elks v. Conn, 186 Iowa 48, 172 N.W. 173, the rule of intent and interpretation of a statute is said to be:
"This intent is to be determined by means of the rules of interpretation, and not alone from the abstract and permissible definition of the
terms used. The statute should be construed with reference to its general purpose and aim, and this involves the consideration of its
subject-matter, and the change in or addition to the law. It is proper to take into consideration the law as it was before, the mischief
sought to be remedied, and the nature and the reason of the remedy. The several sections of an act are to be construed as parts of a
connected whole, and harmonized, if possible. Appellant cites authority to these propositions: That, if the intention of the legislature
cannot be discovered, it is the duty of the court to give the statute a reasonable construction, consistent with the general principles of
law; that the reason of the law will prevail over its letter, especially where the literal meaning would work an injustice; that words may,
accordingly, be rejected and others substituted; that every statute must be construed with reference to the object intended to be
accomplished by it. In order to ascertain this object, it is proper to consider the occasion and necessity for its enactment, *Page 896 the
difficulties or evils in the former law, and the remedy provided by the new one; and the statute ought to be given that construction which
is best calculated to advance its object and suppress the mischief and secure the benefits intended."
It is obvious from the above that the intent of the legislature is the controlling element. In ascertaining such intent, it is proper to take
into consideration the object sought by the legislature, the surrounding circumstances, and the context of the act under consideration.
The act in question definitely points out the intent and object of the legislature, and that is, a conservation of the state finances by the
reduction of salaries of public officials as an emergency proposition and of immediate importance. In Vol. 6, section 125, of R.C.L., we
find this text:
"It may therefore be stated, as an additional test for determining whether the provisions of a statute are severable, that whenever the
ruling feature of a law, or an essential part from which the remaining portions take their cast, is unconstitutional, the act must fall as a
whole. * * * It is clear that the invalidity of one section of a statute which is in material relation to its other portions so as to modify,
restrict, or extend its application, will cause the failure of such other portions also. Frequently a single part of an act may be of so great
importance that, although in itself it may not be an inducing cause for the enactment of the legislation, its invalidity may render the
whole act void."
We find the further text in the same volume in section 122 as follows:
"If the objectionable parts of a statute are severable from the rest in such a way that the legislature would be presumed to have enacted
the valid portion without the invalid, the failure of the latter will not necessarily render the entire statute invalid, but the statute may be
enforced as to those portions of it which are constitutional. If, however, the constitutional and the unconstitutional portions are so
dependent on each other as to warrant the belief that the legislature intended them to take effect in their entirety, it follows that if the
whole cannot be carried into effect, it will be presumed that the legislature would not have passed the residue independently, and
accordingly the entire statute is invalid."
In the section following (123), it is further stated: *Page 897
"One of the tests used to determine whether a statute is or is not severable so that a portion may be rejected, is that it ought not to be
held wholly void unless the invalid portion is so important to the general plan and operation of the law in its entirety as reasonably to
lead to the conclusion that it would not have been adopted if the legislature had perceived the invalidity of the part so held to be
unconstitutional; but where the valid and the invalid parts are so bound together that the invalid part is a material inducement to the
valid portion, the whole is invalid. This test is merely a means of ascertaining and carrying out the presumed intention of the legislature.
If it appears that the invalid portion was designed as an inducement to pass the valid, the inference is that the legislature would not
have passed the valid portion alone."
In City of Dubuque v. C., D. M.R. Co., 47 Iowa 196, this court said:
"It is claimed that this section is compensation or inducement for the remainder of the statute, and that, this section being held
unconstitutional, the whole act is void. It has been held to be a sound construction of a statute that when one section thereof is void and
others valid, yet, if it evidently appears that one section is a compensation or inducement for another, and the connection between them
is such as to warrant the belief that the valid part would not have been passed alone, then the whole should be held void. Slauson v.
Racine, 13 Wis. 398."
See, also, Flannagan v. Jepson, 177 Iowa 393, 158 N.W. 641, L.R.A. 1918E, 548; State v. Executive Council, 207 Iowa
923, 223 N.W. 737; Geebrick v. State, 5 Iowa 491.
In Geebrick v. State, supra, we held that where one part of an act is constitutional and another part of the act is unconstitutional, is so
framed that the portion of it which is unconstitutional is a part of the constitutional part, the whole act must fail.
It will be noticed that one of the pronounced lines of distinction in the various cases relative to a statute invalid in part, and being
sustained as to that part which is valid and rejected as to that part which is invalid, is whether or not the statute under consideration
relates to two or more subjects or objects; if it relates to two objects, one being void, the other may still be complete within itself and
valid, but if the declared purpose and intent of the statute is to accomplish a single object only, and some of its *Page 898 provisions
are void, the whole act must fail unless sufficient remains to effect the declared object without the aid of the invalid part. See Cap. F.
Bourland Ice Co. v. Utilities Co.,180 Ark. 770, 22 S.W.2d 993, 68 A.L.R. 1018. It follows that the point to be determined here
is whether the unconstitutional provisions are so connected with the general scope of the act as to make it impossible, if they are
stricken out, to give full effect to what appears to have been the intent of the legislature. As bearing upon the question under
consideration, see Treasurer of Fayette County v. Bank, 47 Ohio St. 503, 25 N.E. 697, 10 L.R.A. 196; Connolly v. Union Sewer
Pipe Co.,184 U.S. 540, 22 S. Ct. 431, 46 L. Ed. 679; Chicago, M. St. P. Ry. Co. v. Westby (C.C.A.) 178 F. 619, 47 L.R.A.
(N.S.) 97; Santo v. State, 2 Iowa (Cole) 164, 205, 63 Am. Dec. 487; Davidson Building Co. v. Mulock, 212 Iowa 730, 235 N.W. 45.
Where the act is single as to its objective, or seeks to obtain a single object or purpose, then if part of the act is unconstitutional, such
part cannot be separated from the constitutional part if they are connected and dependent upon each other so that if you reject the
unconstitutional part you destroy the legislative intent, then the whole act must fall.
In the instant case, the legislature has declared the object, the intent, and the purpose of the act, and mandatorily said that it shall and
must be in force in accordance with such declared intent, purpose, and object. We are constrained to hold that the provisions of the act
applying to the various officers are so connected and interdependent in object and subject-matter, meaning, and purpose that the
elimination of the objectionable or unconstitutional sections would result in a condition not contemplated or desired by the legislature.
And it follows that the whole act must be declared unconstitutional and invalid.
[8] The next and final question which we will notice involves what is known as the Enrolled Bill Rule, and in order to discuss this
intelligently it is necessary to notice first the legislative history of the act involved. It appears from the record that there was introduced
in the lower house of the legislature a bill known as H.F. No. 290, to amend certain sections of the Code and to reduce statutory
salaries of state officers. This bill was introduced in the house of representatives on February 14, 1933, and passed the house
on *Page 899 February 23, 1933. On February 24, 1933, it was received in the senate and later referred to a sifting committee.
It further appears from the record that there was introduced in the house on February 14, 1933, a bill known as H.F. No. 291, which had
for its purpose the reduction of statutory salaries of city officers and officials of municipal, juvenile, and superior courts. This bill passed
the house on February 24, 1933, and was later received in the senate, and on March 16, 1933, referred to the sifting committee of that
body.
It further appears that on February 14, 1933, a bill was introduced in the house known as H.F. No. 292, which had for its purpose the
reducing of statutory salaries of county officers and the fluxing of salaries of their deputies. This bill passed the house on February 24,
1933, was received in the senate and referred to the sifting committee of that body on March 16, 1933.
Just what occurred in the senate after these bills were received and referred to the sifting committee is not definitely shown. However, it
is fair to assume that there was prepared and presented to the senate a substitute for the three bills which had previously been passed
by the house. What is known in the record as Senate File No. 479, no doubt was such substituted bill. This substituted bill was not
concurred in or approved by the house and was apparently referred to a conference committee composed of members of both the
house and senate, and the record in reference to any later consideration of the bill as shown by the journal of the house is found on
page 1521 of that journal, and purports to be a "report of the conference committee on Senate File No. 479." This conference
committee report appears to be supplementary to a prior report and recommends that "the House recede in its amendments to the
Senate File No. 479, as it passed the Senate, and that said bill then be amended in accordance with the first conference committee
report filed by this conference committee." A motion was made "that the House adopt the report of the conference committee and the
supplementary report thereof on Senate File No 479 and concur in the amendments as proposed therein." The question put to the
House was, "Shall the House adopt the report of the conference committee on Senate File No. 479 and the supplementary report and
concur in the amendments as proposed therein?" The ayes and nays were called upon this question, resulting in the adoption of the
motion. *Page 900
It nowhere appears in the record that the House ever voted upon the Senate Bill No. 479, or that the ayes and nays were called and
recorded on the question of the final adoption or passage of the act.
[9] Section 17 of article III of the state constitution provides:
"No bills shall be passed unless by the assent of a majority of all the members elected to each branch of the General Assembly, and the
question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal."
The bill known as Senate File No. 479 was signed by the Speaker of the House, the President of the Senate, and the Governor,
enrolled, and deposited in the office of the secretary of state. The appellee contends that when so signed, enrolled, and filed, it
becomes the ultimate exclusive and conclusive evidence, not only of its contents, but as to its constitutional journey through the
legislature. And this is the question we are now confronted with. Under the record before us, it must be held that the act in question was
never before the House for an aye and nay vote on its final passage, and that the adoption of the fragmentary report of the conference
committee did not suffice and did not meet the constitutional requirement that a vote "shall be taken immediately upon its last reading,
and the yeas and nays entered on the journal." We then must determine whether appellant is permitted to go back of the enrolled bill
and show that as a matter of fact the act in question was not passed and adopted by the House as the constitution provides. We are
constrained to hold that this may be done. If an act claimed to have been passed by the legislature is in fact not passed, there is no
authority in the presiding officers of the House and Senate to attest the same by their signatures, and no authority in the Governor to
approve, and no authority in the secretary of state to receive, file, and publish the same, and such acts including the enrollment of the
bill cannot make an act valid as a law unless it is an expression of the legislative will, and unless it has been constitutionally passed and
adopted by both branches of the legislature. Marshall Field Co. v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294; U.S. v.
Ballin, 144 U.S. 1, 12 S. Ct. 507, 36 L. Ed. 321.
Under the common-law rule, the enrolled bill was a verity and resort could not be had to the journals of the legislature to impeach the
bill. Many of the states of the Union have recognized this common-law *Page 901 rule and method of proving the passage of the bill by
the legislature, but in the states so holding, we are unable to find that such holding is in contravention of any of the provisions of their
state constitutions.
There seems to be three distinct and different rules as applicable to the enrolled bill recognized by the various courts of this country.
The first of these rules appears to be that the enrolled bill is the ultimate proof and exclusive and conclusive evidence that the bill
passed the legislature in accordance with the provisions of the constitution. Such has been the holding in California, Georgia, Kentucky,
Texas, Washington, New Mexico, Mississippi, Indiana, South Dakota, and maybe some others.
The second of the rules seems to be that the enrolled bill is a verity and resort cannot be had to the journals of the legislature to show
that the constitutional mandates were not complied with by the legislature, except as to those provisions of the constitution, compliance
with which is expressly required to be shown on the journal. This rule has been adopted in South Carolina, Montana, Oklahoma, Utah,
Ohio, New Jersey, United States, and others.
The third of the rules seems to be that the enrolled bill raises only a prima facie presumption that the mandatory provisions of the
constitution have been complied with and that resort may be had to the journals to refute that presumption, and if the constitutional
provision is one, compliance with which is expressly required by the constitution to be shown on the journals, then the mere silence of
the journals to show a compliance therewith will refute the presumption. This rule has been adopted in Illinois, Florida, Kansas,
Louisiana, Tennessee, Arkansas, Idaho, Minnesota, Nebraska, Arizona, Oregon, New Jersey, Colorado, and others.
It is claimed by the appellee in the instant case that the first rule as to an enrolled bill providing that it shall be the exclusive and
conclusive evidence and ultimate proof as to the regularity of the passage of the bill through the legislature has been adopted in Iowa,
and that we cannot go back of the enrolled bill to ascertain whether or not the constitutional provisions in reference to the passage and
adoption of bills in the legislature have been complied with, and rely upon the cases of State v. Lynch, 169 Iowa 148, 151 N.W. 81,
L.R.A. 1915D 119, and Davidson Building Co. v. Mulock, 212 Iowa 730, 235 N.W. 45, to sustain their position. *Page 902
In State v. Lynch, supra, the question before the court was whether or not the failure of the Speaker of the House to sign an enrolled bill
invalidates the bill. And this court held that the absence of such signature would, and did, invalidate the bill. The signature of the
Speaker of the House is a constitutional requirement, but no more required to be observed than is the constitutional requirement that
the House shall keep a journal and that the yea and nay vote of the members upon the final passage of a bill shall be recorded therein.
In the Davidson Building Company case, supra, the question before the court was whether the same bill had passed both houses, and
it was held there that the enrolled bill must be conclusive evidence of the text of the bill. There is dictum in both of the cited cases which
announces or approves the first division of the enrolled bill rule, which we have mentioned. The argument used as supporting this
dictum in both of the cited cases is based in part upon the case of Marshall Field Co. v. Clark, supra, from which extended quotations
are made, and also upon the cases of Duncombe v. Prindle, 12 Iowa 1, and State v. Clare, 5 Iowa 508. We do not think the cited
cases support the argument or the rule announced in the Davidson Building Company case or in State v. Lynch.
In the Marshall Field Company case, the court said:
"The argument, in behalf of the appellants, is that a bill, signed by the speaker of the house of representatives and by the president of
the senate, presented to and approved by the president of the United States, and delivered by the latter to the secretary of state, as an
act passed by congress, does not become a law of the United States if it had not in fact been passed by congress.
In view of the express requirements of the constitution, the correctness of this general principle cannot be doubted. There is no
authority in the presiding officers of the house of representatives and the senate to attest by their signatures, nor in the president to
approve, nor in the secretary of state to receive and cause to be published, as a legislative act, any bill not passed by congress." And
further in the opinion the court said: "To what extent the validity of legislative action may be affected by the failure to have those matters
entered on the journal we need not inquire. No such question is presented for determination." *Page 903
Therefore, we cannot see that the Marshall Field case is any authority for holding that the enrolled bill is the exclusive and conclusive
evidence of its constitutional passage through the legislature. The cases of State v. Clare, 5 Iowa 508, and Duncombe v. Prindle, 12
Iowa 1, arose under legislation enacted under the Constitution of 1846, and that constitution provided that "every bill having passed
both Houses, shall be signed by the Speaker and President of their respective Houses", and did not contain the requirement we now
find in section 17, article III, of our present constitution, which we have heretofore quoted. On January 21, 1857, during the
constitutional convention then in session, section 16 of the Constitution of 1846, was amended by adding thereto, "and on the final
passage of all bills the vote shall be by ayes and nays and entered upon the journal". It would appear from the foregoing history that
whatever quality as evidence the constitution makers believed the enrolled bill carried, they became convinced that it was not sufficient
evidence as to the legal passage of the bill by both branches of the legislature, and adopted the constitutional requirement that journals
be kept in both houses, and that upon the final passage of a bill the yeas and nays of the members be called and recorded. It therefore
appears conclusively that the cases of State v. Clare, supra, and Duncombe v. Prindle, supra, are of no value as precedents, since the
provision of the constitution existing at the time the opinions were adopted in those cases has been abrogated and the substitute
referred to adopted.
In the Davidson Building Company case, supra, this court also cites and quotes from State ex rel. Pangborn v. Young, 32 N.J. Law 29.
This case has been overruled by the Supreme Court of New Jersey as appears in Ex parte Hague, 104 N.J. Eq. 31, 144 A. 546.
And in the last cited case we find a most exhaustive review of authorities dealing with this question. In the New Jersey case the court
notes the fact that in twenty-eight states and also in Marshall Field Co. v. Clark (U.S.), supra, it has been held competent to impeach
the journals of the legislature directly, while but nine states hold to the contrary. And the case overrules the Pangborn-Young decision.
The North Carolina court has apparently made the distinction plain in Union Bank v. Oxford Commissioners, 119 N.C. 214,25 S.E.
966, 34 L.R.A. 487, and Comr's. of Stanly County v. Snuggs,121 N.C. 394, 28 S.E. 539, and from these cases the
American *Page 904 and English Encyclopedia of Law (2d Ed.) on page 559 of volume 26 bases the following text:
"Where the constitution contains no provision requiring entries on the journal of particular matters, such as, for example, the call of the
yeas and nays on a measure in question, the enrolled act cannot in such case be impeached by the journal; but where the state
constitution provides such formalities in the enactment of laws as require a record on the legislative journals, these journals are
conclusive not only as against a printed statute published by authority of law, but also against a duly enrolledact." (Italics ours.)
The distinction indicated in the foregoing quotation is clearly applicable to the case at bar, because our state constitution, article III,
section 17, requires entry on the journals of each house of the ayes and nays of members voting on the final passage of bills, and this
provision of our constitution is mandatory. Taft Co. v. Alber, 185 Iowa 1069, 171 N.W. 719.
In Taft Co. v. Alber, supra, in discussing the state constitution, this court said:
"The people are sovereign, and speak through their Constitution, and, when they thus speak, its mandates are binding upon all people,
and on the legislature, which is but one of the agencies of government. * * * All departments of government and officers are only the
instrumentalities through which the government acts. They are, in one sense, the agencies through which the government acts, and all
the power and authority to act and the manner of acting are controlled by the fundamental law found in the constitution. We start, then,
with the proposition that the provisions of our constitution are mandatory, and that their mandates bind as closely and as firmly the
legislative branch of the government as they do the citizen of the commonwealth. The legislative branch must obey the constitution or
fundamental law, and must follow and obey its requirements and directions. It is true some courts have held that constitutional
provisions are not mandatory. This court, however, has held consistently that the provisions of the constitution are mandatory and
binding upon the legislature, and that any act that contravenes the provisions of the constitution, or fails to come up to the
measurement of the constitutional requirements, is not binding upon the people or any of the agencies of government." Citing *Page
905 Koehler Lange v. Hill, 60 Iowa 543, 14 N.W. 738, 15 N.W. 609; State v. Lynch, 169 Iowa 148, 151 N.W. 81, L.R.A.
1915D 119.
The Iowa cases bearing upon the question now under discussion, it appears to us, have not definitely determined the question.
In Duncombe v. Prindle, 12 Iowa 1, the question decided was as to the text of the bill.
In Koehler et al. v. Hill, 60 Iowa 543, 14 N.W. 738, 15 N.W. 609, the question was the entry of a resolution to amend the
constitution on the journal of the two houses in successive general assemblies. This involved the prohibition amendment, and the
constitution requires the entry of the amendment on the journals of the houses in two successive general assemblies. It was held a
failure to do this invalidated the amendment.
In Miller v. Oelwein, 155 Iowa 706, 136 N.W. 1045, we had under discussion the violation of a joint rule requiring the signature of
the presiding officer in the presence of the assembled body.
In State v. Lynch, 169 Iowa 148, 151 N.W. 81, L.R.A. 1915D 119, the question was as to whether or not a bill which had been
signed by the President of the Senate but not signed by the Speaker of the House, approved by the Governor, and filed with the
secretary of state as an enrolled bill had become a law, and this court held that the failure of the Speaker of the House to sign the bill
invalidated it.
In Dayton v. Pac. Mutual Life Ins. Co., 202 Iowa 753, 210 N.W. 945, the question was, Did the same bill pass both houses?
In State v. Donehey, 8 Iowa 396, the question was whether the enrolled bill took precedence over other publications, and this court
held that it did. This, however, was under the Constitution of 1846.
In State v. Clare, 5 Iowa 508, it was held that the ultimate proof of the law is the original act in the office of the secretary of state. This
too, we have noted, was under the provision of the Constitution of 1846, and we are not disposed to disagree with this pronouncement.
The enrolled bill is no doubt the ultimate proof of the text of the law, but not as to the constitutional requirements in its passage.
In Davidson Building Co. v. Mulock, 212 Iowa 730, 235 N.W. 45, the question was as stated in the opinion:
"The exact contention seems to be that the journals do not show that the two houses of the legislature concurred in the same
bill." *Page 906
It should be noted here that there is no constitutional requirement for recording the bill in the journals of the two houses.
In analyzing the many decisions of the various states bearing upon the question we have under discussion, we must keep in mind that
the common-law rule, which exists in many states, is that an enrolled bill is a verity and cannot be impeached by any evidence, no
matter what kind or character the evidence may be, and no matter whether the attack is made upon the text of the bill or upon the
question as to the regularity of its adoption by the legislature. From an extensive study of practically all of the cases throwing any light
upon the question before us, we conclude that a bill may be attacked although it bears the signatures of the officers of the houses of the
legislature and the governor, and has been enrolled and filed with the secretary of state, when it appears upon the face of the bill that it
is violative of some constitutional provision. And that the bill may also be attacked, if its unconstitutionality does not appear upon its
face, by proof of extrinsic facts showing that some mandatory constitutional requirement in its passage has not been complied with. It is
the universal holding of the courts that any legislative act may be attacked as contravening some provision of the constitution if such
situation appears in the text of the bill. There seems to be, however, quite a diversity of opinion in the courts as to the right to attack an
enrolled bill on some constitutional ground which does not appear upon the face of the bill, but most of this diversity of opinion is
dispelled by a reading and analysis of the various decisions in connection with the provisions of constitutions of the states in which the
opinions were written. In Iowa, we have consistently held that our constitutional provisions are mandatory, and that they must apply to
and govern the people as well as all government agencies, including the legislature.
We are met in the case at bar with the proposition of sustaining the mandatory provisions of the constitution, particularly section 17 of
article III, or of ignoring and annulling such provision by holding that chapter 89 of the Laws of the Forty-fifth General Assembly was
validly enacted. We are firm in the judgment that any mandatory provision of the constitution should not be annulled by judicial
pronouncement, and the holding must be that the act in question in the case at bar is unconstitutional and invalid. We are of the opinion
that the rule should be that an enrolled bill which bears the signature of the presiding officers of both houses and the governor,
and *Page 907 filed in the office of the secretary of state, is the exclusive and conclusive proof and evidence of the text of the law as
announced in such bill. And that such bill cannot be impeached except and unless it shows upon its face that it violates some
constitutional provision, or that it be shown, by records which the constitution requires be kept by the legislature, that some mandatory
provision of the constitution has not been complied with in its passage by the legislature, or the signing by the officers whose signatures
the constitution requires to be attached thereto.
All prior decisions of this court touching the questions here determined are overruled so far as they may conflict with the holding herein
announced.
It follows from the foregoing discussion that the district court erred in dismissing plaintiff's petition, and a reversal necessarily follows.
The case is reversed and remanded with instructions that a judgment and decree be entered in accordance with this opinion. —
Reversed and remanded.
MITCHELL, C.J., and ALBERT, KINDIG, KINTZINGER, and DONEGAN, JJ., concur.
STEVENS, J., dissents.
U.S. Supreme Court

Field v. Clark, 143 U.S. 649 (1892)

Field v. Clark

Nos. 1052, 1049, 1050

Argued November 30, December 1-2, 1891

Decided February 29, 1892

143 U.S. 649

APPEAL FROM THE CIRCUIT COURT OF THE UNITED

STATES FOR THE NORTHERN DISTRICT OF ILLINOIS

Syllabus

The signing by the Speaker of the House of Representatives and by the President of the Senate, in
open session, of an enrolled bill is an official attestation by the two Houses of such bill as one that
has passed Congress, and when the bill thus attested receives the approval of the President and is
deposited in the Department of State according to law, its authentication as a bill that has passed
Congress is complete and unimpeachable.

Page 143 U. S. 650

It is not competent to show from the journals of either House of Congress that an act so
authenticated, approved and deposited, did not pass in the precise form in which it was signed by the
presiding officers of the two Houses and approved by the President.

Congress cannot, under the Constitution, delegate its legislative power to the President.

The authority conferred upon the President by section 3 of the Act of October 1, 1890, to reduce the
revenue and equalize duties on imports, and for other purposes, 26 state, c. 1244, pp. 567, 612, to
suspend by proclamation the free introduction of sugar, molasses, coffee, tea and hides when he is
satisfied that any country producing such articles imposes duties or other exactions upon the
agricultural or other products of the United States which he may deem to be reciprocally unequal or
unreasonable, is not open to the objection that it unconstitutionally transfers legislative power to the
President (FULLER, C.J., and LAMAR, J., dissenting), but even if it were, it does not follow that other
parts of the act imposing duties upon imported articles are inoperative.

The Court does not decide whether the provision in that act respecting bounties upon sugar
(schedule E, Sugar, 26 Stat. 583) is or is not constitutional, because it is plain from the act that these
bounties do not constitute a part of the system of customs duties imposed by the act, and it is clear
that the parts of the act imposing such duties would remain in force even if these bounties were held
to be unconstitutionally imposed. Unless it be impossible to avoid it, a general revenue statute should
never be declared inoperative in all its parts because a particular part, relating to a distinct subject,
may be invalid.

These were suits by importers to obtain a refund of duties claimed to have been illegally exacted on
imported merchandise under the Tariff Act approved October 1, 1890, 26 Stat. 567, c. 1244.

Marshall Field & Co. proceeded against John M. Clark, the collector of the port of Chicago, to recover
duties paid on woolen dress goods, woolen wearing apparel, and silk embroideries.

Boyd, Sutton & Co. proceeded against the United States and J. B. Erhardt, collector of the port of
New York, to recover duties paid upon an importation of silk and cotton laces.

H. Herrman, Sternbach & Co, proceeded against the United States to recover duties paid upon
colored cotton cloths.

The main issue in all the cases was whether that act, which purports to repeal the previous Tariff Act
of March 3, 1883, 22 Stat. 488, c. 121, had itself the force of law.

Page 143 U. S. 651

The facts which were presented in support of the contention that the bill never became a law in
accordance with the provisions of the Constitution were three.

(1) That in engrossing the bill, a clause known as section 30, relating to a rebate of taxes on tobacco,
which was shown by the journals of both the House of Representatives and the Senate to have been
regularly passed by both Houses of Congress, was omitted, and that the engrossed act, as attested
by the Vice-President and the Speaker of the House, as approved by the President and as deposited
with the Secretary of State, was not the act which passed the two Houses of Congress, and was
therefore not a statute of the United States in accordance with the provisions of the Constitution.

(2) That the first five paragraphs of Schedule E, section 1, of the act, providing for bounties to
producers of American sugar (paragraphs 231 to 235) were unconstitutional and void, no power to
enact legislation of this character having been vested in Congress by the Constitution.

(3) That section 3 of said act was unconstitutional and void in that it delegates to the President the
power of laying taxes and duties, which power, by Sections 1 and 8 of Article I of the Constitution, is
vested in Congress.

As the Court, in its opinion, post, has set forth these several matters objected to at length, it is
sufficient to refer to it for further details.

The judgment in each case of the court below was against the importer. In this Court, the three cases
were argued together, but by separate counsel for the appellants in each case, each brief covering
the whole case. In order not to go over the same ground three times, the arguments for appellants
reported are: In No. 1052 on point (1); in No. 1049 on point (2); and in No. 1050 on point (3), that
being the order in which the cases stand in the opinion of the Court.

Page 143 U. S. 662

MR. JUSTICE HARLAN delivered the opinion of the Court.

Duties were assessed and collected, according to the rates established by what is known as the
"Tariff Act of October 1,

Page 143 U. S. 663

1890," on woolen dress goods, woolen wearing apparel, and silk embroideries, imported by Marshall
Field & Co., on silk

Page 143 U. S. 664

and cotton laces imported by Boyd, Sutton & Co., and on colored cotton cloths imported by Herman,
Sternbach & Co. 26 Stat. 567, c. 1244, § 1.

Page 143 U. S. 665

The importers severally protested against the assessment upon the ground that the act was not a law
of the United

Page 143 U. S. 666

States. Upon appeal to the Board of General Appraisers under the Act of June 10, 1890, known as
the "Customs Administrative Act," the decision of the collector in each case was approved, c. 407,
secs. 14, 15, pp. 131, 137. The

Page 143 U. S. 667

judgment of the board having been affirmed by the circuit courts of the United States in the respective
districts in which these matters arose, the cases have been brought here for review.

The appellants question the validity of the Act of October 1, 1890, upon three grounds, to be
separately examined.

First. The seventh section of Article I of the Constitution of the United States provides:

"All bills for raising revenue shall originate in the House of Representatives, but the Senate may
propose or concur with amendments as on other bills. Every bill which shall have passed the House
of Representatives and the Senate shall, before it becomes a law, be presented to the President of
the United States; if the approve, he shall sign it, but if not he shall return it, with his objections, to that
house in which it shall have originated, who shall enter the objections at large on their journal, and
proceed to reconsider it. If, after such reconsideration, two-thirds of that house shall agree to pass the
bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be
reconsidered, and, if approved by two-thirds of that house, it shall become a law. But in all such
cases, the votes of both houses shall be determined by yeas and nays, and the names of the persons
voting for and against the bill shall be entered on the journal of each house, respectively. If any bill
shall not be returned by the President within ten days (Sundays excepted) after it shall have been
presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress
by their adjournment prevent its return, in which case it shall not be a law."
"Every order, resolution, or vote to which the concurrence of the Senate and House of
Representatives may be necessary (except on a question of adjournment) shall be presented to the
President of the United States, and, before the same shall take effect, shall be approved by him, or,
being disapproved by him, shall be repassed by two-thirds of the Senate and House of
Representatives, according to the rules and limitations prescribed in the case of a bill."

The Revised Statutes provide that

"Whenever a bill, order, resolution, or vote of the Senate and House of Representatives,

Page 143 U. S. 668

having been approved by the President or not having been returned by him with his objections,
becomes a law or takes effect, it shall forthwith be received by the Secretary of State from the
President, and whenever a bill, order, resolution, or vote is returned by the President with his
objections, and, on being reconsidered, is agreed to be passed, and is approved by two-thirds of both
houses of Congress, and thereby becomes a law or takes effect, it shall be received by the Secretary
of State from the President of the Senate, or Speaker of the House of Representatives, in
whichsoever house it shall last have been so approved, and he shall carefully preserve the originals."

Sec. 204.

The original enrolled act in question, designated on its face "H.R. 9416," was received at the
Department of State October 1, 1890, and, when so received, was attested by the signatures of
Thomas B. Reed, Speaker of the House of Representatives, and Levi P. Morton, Vice-President of
the United States and President of the Senate, and had thereon these endorsements:

"Approved October 1, 1890 BENJ. HARRISON"

"I certify that this act originated in the House of Representatives."

"EDW. MCPHERSON, Clerk"

It is made the duty of the Secretary of State to furnish to the congressional printer

"a correct copy of every act and joint resolution as soon as possible after its approval by the President
or after it has become a law, in accordance with the Constitution, without such approval."

That duty was performed by the Secretary of State with respect to the act in question, and the act
appears in the volume of statutes published and distributed under the authority of the United States.
Rev.Stat. §§ 210, 3803, 3805, 3807, 3808.

The contention of the appellants is that this enrolled act, in the custody of the Secretary of State and
appearing upon its face, to have become a law in the mode prescribed by the Constitution, is to be
deemed an absolute nullity in all its parts, because -- such is the allegation -- it is shown by the

Page 143 U. S. 669

congressional records of proceedings, reports of committees of each house, reports of committees of

conference, and other papers printed by authority of Congress, and having reference to House Bill
9416, that a section of the bill, as it finally passed, was not in the bill authenticated by the signatures
of the presiding officers of the respective houses of Congress and approved by the President. The
section alleged to have been omitted was as follows:

"SEC. 30. That on all original and unbroken factory packages of smoking and manufactured tobacco
and snuff, held by manufacturers or dealers at the time the reduction herein provided for shall go into
effect, upon which the tax has been paid, there shall be allowed a drawback or rebate of the full
amount of the reduction, but the same shall not apply in any case where the claim has not been
presented within sixty days following the date of reduction, and such rebate to manufacturers may be
paid in stamps at the reduced rate, and no claim shall be allowed or drawback paid for a less amount
than five dollars. It shall be the duty of the Commissioner of Internal Revenue, with the approval of
the Secretary of the Treasury, to adopt such rules and regulations, and to prescribe and furnish such
blanks and forms, as may be necessary to carry this section into effect. For the payment of the
rebates provided for in this section there is hereby appropriated any money in the Treasury not
otherwise appropriated."

The argument, in behalf of the appellants, is that a bill, signed by the Speaker of the House of
Representatives and by the President of the Senate, presented to and approved by the President of
the United States, and delivered by the latter to the Secretary of State, as an act passed by
Congress, does not become a law of the United States if it had not in fact been passed by Congress.
In view of the express requirements of the Constitution, the correctness of this general principle
cannot be doubted. There is no authority in the presiding officers of the House of Representatives
and the Senate to attest by their signatures, not in the President to approve, nor in the Secretary of
State to receive and cause to be published, as a legislative act, any bill not passed by Congress.

Page 143 U. S. 670

But this concession of the correctness of the general principle for which the appellants contend does
not determine the precise question before the Court, for it remains to inquire as to the nature of the
evidence upon which a court may act when the issue is made as to whether a bill, originating in the
House of Representatives or the Senate, and asserted to have become a law, was or was not passed
by Congress. This question is now presented for the first time in this Court. It has received, as its
importance required that it should receive, the most deliberate consideration. We recognize, on one
hand, the duty of this Court, from the performance of which it may not shrink, to give full effect to the
provisions of the Constitution relating to the enactment of laws that are to operate wherever the
authority and jurisdiction of the United States extend. On the other hand, we cannot be unmindful of
the consequences that must result if this Court should feel obliged, in fidelity to the Constitution, to
declare that an enrolled bill, on which depend public and private interests of vast magnitude, and
which has been authenticated by the signatures of the presiding officers of the two houses of
Congress, and by the approval of the President, and been deposited in the public archives as an act
of Congress, was not in fact passed by the House of Representatives and the Senate, and therefore
did not become a law.

The clause of the Constitution upon which the appellants rest their contention that the act in question
was never passed by Congress is the one declaring that

"Each house shall keep a journal of its proceedings, and from time to time publish the same, except
such parts as may in their judgment require secrecy, and the yeas and nays of the members of either
house on any question shall at the desire of one-fifth of those present, be entered on the journal."

Article I, Section 5. It was assumed in argument that the object of this clause was to make the journal
the best, if not conclusive, evidence upon the issue as to whether a bill was in fact passed by the two
houses of Congress. But the words used do not require such interpretation. On the contrary, as Mr.
Justice Story has well said,

"the object of the whole clause is to insure publicity

Page 143 U. S. 671

to the proceedings of the legislature and a correspondent responsibility of the members to their
respective constituents. And it is founded in sound policy and deep political foresight. Intrigue and
cabal are thus deprived of some of their main resources by plotting and devising measures in
secrecy. The public mind is enlightened by an attentive examination of the public measures;
patriotism and integrity and wisdom obtain their due reward, and votes are ascertained, not by vague
conjecture, but by positive facts. . . . So long as known and open responsibility is valuable as a check
or an incentive among the representatives of a free people, so long a journal of their proceedings and
their votes, published in the face of the world, will continue to enjoy public favor and be demanded by
public opinion."

2 Story on the Constitution §§ 840, 841.

In regard to certain matters, the Constitution expressly requires that they shall be entered on the
journal. To what extent the validity of legislative action may be affected by the failure to have those
matters entered on the journal we need not inquire. No such question is presented for determination.
But it is clear that in respect to the particular mode in which, or with what fullness, shall be kept the
proceedings of either house relating to matters not expressly required to be entered on the journals;
whether bills, orders, resolutions, reports, and amendments shall be entered at large on the journal,
or only referred to and designated by their titles or by numbers -- these and like matters were left to
the discretion of the respective houses of Congress. Nor does any clause of that instrument either
expressly or by necessary implication prescribe the mode in which the fact of the original passage of
a bill by the House of Representatives and the Senate shall be authenticated or preclude Congress
from adopting any mode to that end which its wisdom suggests. Although the Constitution does not
expressly require bills that have passed Congress to be attested by the signatures of the presiding
officers of the two houses, usage, the orderly conduct of legislative proceedings, and the rules under
which the two bodies have acted since the organization of the government require that mode of
authentication.

Page 143 U. S. 672

The signing by the Speaker of the House of Representatives and by the President of the Senate, in
open session, of an enrolled bill is an official attestation by the two houses of such bill as one that has
passed Congress. It is a declaration by the two houses, through their presiding officers, to the
President that a bill, thus attested, has received, in due form, the sanction of the legislative branch of
the government and that it is delivered to him in obedience to the constitutional requirement that all
bills which pass Congress shall be presented to him. And when a bill thus attested receives his
approval and is deposited in the public archives, its authentication as a bill that has passed Congress
should be deemed complete and unimpeachable. As the President has no authority to approve a bill
not passed by Congress, an enrolled act in the custody of the Secretary of State, and having the
official attestations of the Speaker of the House of Representatives, of the President of the Senate,
and of the President of the United States carries on its face a solemn assurance by the legislative and
executive departments of the government, charged, respectively, with the duty of enacting and
executing the laws, that it was passed by Congress. The respect due to coequal and independent
departments requires the judicial department to act upon that assurance, and to accept as having
passed Congress all bills authenticated in the manner stated, leaving the courts to determine, when
the question properly arises, whether the act so authenticated is in conformity with the Constitution.

It is admitted that an enrolled act thus authenticated is sufficient evidence of itself -- nothing to the
contrary appearing upon its face -- that it passed Congress. But the contention is that it cannot be
regarded as a law of the United States if the journal of either house fails to show that it passed in the
precise form in which it was signed by the presiding officers of the two houses and approved by the
President. It is said that under any other view, it becomes possible for the Speaker of the House of
Representatives and the President of the Senate to impose upon the people as a law a bill that was
never passed by Congress. But this possibility is too remote

Page 143 U. S. 673

to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the
presiding officers, the committees on enrolled bills, and the clerks of the two houses must necessarily
be parties, all acting with a common purpose to defeat an expression of the popular will in the mode
prescribed by the Constitution. Judicial action based upon such a suggestion is forbidden by the
respect due to a coordinate branch of the government. The evils that may result from the recognition
of the principle that an enrolled act in the custody of the Secretary of State, attested by the signatures
of the presiding officers of the two houses of Congress and the approval of the President, is
conclusive evidence that it was passed by Congress according to the forms of the Constitution would
be far less than those that would certainly result from a rule making the validity of congressional
enactments depend upon the manner in which the journals of the respective houses are kept by the
subordinate officers charged with the duty of keeping them.

The views we have expressed are supported by numerous adjudications in this country, to some of
which it is well to refer. In Pangborn v. Young, 32 N.J.Law 29, 37, the question arose as to the
relative value as evidence of the passage of a bill of the journals of the respective houses of the
legislature and the enrolled act, authenticated by the signatures of the speakers of the two houses
and by the approval of the governor. The bill there in question, it was alleged, originated in the House
and was amended in the Senate, but as presented to and approved by the governor did not contain
all the amendments made in the Senate. Referring to the provision in the Constitution of New Jersey
requiring each house of the legislature to keep a journal of its proceeding -- which provision is in
almost the same words as the above clause quoted from the federal Constitution -- the court,
speaking by Chief Justice Beasley, said that it was impossible for the mind not to incline to the
opinion that the framers of the Constitution, in exacting the keeping of the journals, did not design to
create records that were to be the ultimate and conclusive evidence of the conformity of

Page 143 U. S. 674

legislative action to the constitutional provisions relating to the enactment of laws. In the nature of
things, it was observed, these journals must have been constructed out of loose and hasty
memoranda made in the pressure of business and amid the distractions of a numerous assembly.
The Chief Justice said:

"Can anyone deny that if the laws of the state are to be tested by a comparison with these journals,
so imperfect, so unauthenticated, that the stability of all written law will be shaken to its very
foundation? Certainly no person can venture to say that many of our statutes, perhaps some of the
oldest and most important, those which affect large classes of persons or on which great interests
depend, will not be found defective, even in constitutional particulars, if judged by this criterion. . . . In
addition to these considerations, in judging of consequences, we are to remember the danger, under
the prevalence of such a doctrine, to be apprehended from the intentional corruption of evidences of
this character. It is scarcely too much to say that the legal existence of almost every legisaltive act
would be at the mercy of all persons having access to these journals, for it is obvious that any law can
be invalidated by the interpolation of a few lines or the obliteration of one name and the substitution of
another in its stead. I cannot consent to expose the state legislature to the hazards of such probable
error or facile fraud. The doctrine contended for on the part of the evidence has no foundation, in my
estimation, on any considerations of public policy."

The conclusion was that, upon grounds of public policy as well as upon the ancient and well settled
rules of law, a copy of a bill bearing the signatures of the presiding officers of the two houses of the
legislature and the approval of the governor, and found in the custody of the Secretary of State, was
conclusive proof of the enactment and contents of a statute, and could not be contradicted by the
legislative journals or in any other mode. These principles were affirmed by the New Jersey Court of
Errors and Appeals in Freeholders of Passaic v. Stevenson, 46 N.J.Law 173, 184, and in Standard
Underground Co. v. Attorney General, 46 N.J.Eq. 270, 276.

Page 143 U. S. 675

In Sherman v. Story, 30 Cal. 253, 276, the whole subject was carefully considered. The court,
speaking through Mr. Justice Sawyer, said:

"Better, far better, that a provision should occasionally find its way into the statute through mistake, or
even fraud, than that every act, state and national, should at any and all times, be liable to be put in
issue and impeached by the journals, loose papers of the legislature, and parol evidence. Such a
state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable. . . .
The result of the authorities in England and in the other states clearly is that at common law,
whenever a general statute is misrecited, or its existence denied, the question is to tried and
determined by the court as a question of law -- that is to say, the court is bound to take notice of it
and inform itself the best way it can; that there is no plea by which its existence can be put in issue
and tried as a question of fact; that if the enrollment of the statute is in existence, the enrollment itself
is the record, which is conclusive as to what the statute is, and cannot be impeached, destroyed, or
weakened by the journals of Parliament or any other less authentic or less satisfactory memorials,
and that there has been no departure from the principles in the United States except in instances
where a departure has been grounded on, or taken in pursuance of, some express constitutional or
statutory provision requiring some relaxation of the rule in order that full effect might be given to such
provisions, and in such instances the rule has been relaxed by judges with great caution and
hesitation, and the departure has never been extended beyond an inspection of the journals of both
branches of the legislature."

The provisions of the California Constitution, in force when the above case was decided relating to
the journals of legislative proceedings, were substantially like the clause upon that subject in the
Constitution of the United States. The doctrines of the above case were reaffirmed in People v.
Burt, 43 Cal. 560. But it should be observed that at a subsequent date, a new Constitution was
adopted in California under which the journals have been examined to impeach an

Page 143 U. S. 676

enrolled bill. County of San Mateo v Southern Pacific Railroad Co., 13 F. 722.

A case very much in point is Ex Parte Wren, 63 Miss. 512, 527, 532. The validity of a certain act was
there questioned on the ground that although signed by the presiding officers of the two houses of the
legislature and approved by the governor, it was not law because it appeared from the journals of
those bodies, kept in pursuance of the constitution, that the original bill, having passed the house,
was sent to the senate, which passed it with numerous amendments, in all of which the house
concurred, but the bill as approved by the governor did not contain certain amendments which bore
directly upon the issues in the case before the court. The court, in a vigorous opinion delivered by Mr.
Justice Campbell, held that the enrolled act, signed by the president of the senate and the speaker of
the house of representatives and the governor, is the sole exposition of its contents, and the
conclusive evidence of its existence according to its purport, and that it is not allowable to look further
to discover the history of the act or ascertain its provisions. After a careful analysis of the adjudged
cases, the court said:

"Every other view subordinates the legislature and disregards that coequal position in our system of
the three departments of government. If the validity of every act published as law is to be tested by
examining its history, as shown by the journals of the two houses of the legislature, there will be an
amount of litigation, difficulty, and painful uncertainty appalling in its contemplation, and multiplying a
hundred-fold the alleged uncertainty of the law. Every suit before every court where the validity of a
statute may be called in question as affecting the right of a litigant will be in the nature of an appeal or
writ of error or bill of review for errors apparent on the face of the legislative records, and the journals
must be explored to determine if some contradiction does not exist between the journals and the bill
signed by the presiding officers of the two houses. Where the law is to be declared by the court, it
must inform itself as best it can what is the law. If it may go beyond the enrolled and signed bill, and
try its validity by

Page 143 U. S. 677

the record contained in the journals, it must perform this task as often as called on, and every court
must do it. A justice of the peace must do it, for he has as much right, and is as much bound, to
preserve the Constitution and declare and apply the law as any other court, and we will have the
spectacle of examination of journals by justices of the peace, and statutes declared to be not law as
the result of their journalistic inquiry, and the circuit and chancery courts will be constantly engaged in
like manner, and this court, on appeal, have often to try the correctness of the determination of the
court below as to the conclusion to be drawn from the legislative journals on the inquiry as to the
validity of the statutes thus tested. . . . Let the courts accept as statutes, duly enacted, such bills as
are delivered by the legislature as their acts, authenticated as such in the prescribed mode."

In Weeks v. Smith, 81 Me. 538, 547, it was said:

"Legislative journals are made amid the confusion of a dispatch of business, and therefore much
more likely to contain errors than the certificates of the presiding officers to be untrue. Moreover,
public policy requires that the enrolled statures of our state, fair upon their faces, should not be put in
question after the public have given faith to their validity. No man should be required to hunt through
the journals of a legislature to determine whether a statute, properly certified by the speaker of the
house and the president of the senate and approved by the governor, is a statute or not. The enrolled
act, if a public law, and the original, if a private act, have always been held in England to be records
of the highest order, and, if they carry no 'death wounds' in themselves, to be absolute verity, and of
themselves conclusive."

To the same general effect are Brodnax v. Commissioners, 64 N.C. 244, 248; Nevada v. Swift, 10
Nev. 176; Evans v. Browne, 30 Ind. 514; Edger v. Randolph County Comm'rs, 70 Ind. 331,
338; Pacific Railroad v. Governor, 23 Mo. 353, 362, et seq.; Lottery Co. v. Richoux, 23 La.Ann. 743.
There are cases in other state courts which proceed upon opposite grounds from those we have
indicated as proper. But it will be found upon

Page 143 U. S. 678

examination that many of them rested upon constitutional or statutory provisions of a peculiar
character, which, expressly or by necessary implication, required or authorized the court to go behind
the enrolled act when the question was whether the act, as authenticated and deposited in the proper
office, was duly passed by the legislature. This is particularly the case in reference to the decisions in
Illinois. Spangler v. Jacoby, 14 Ill, 297; Turley v. County of Logan, 17 Ill. 151; Prescott v. Canal
Trustees, 19 Ill. 324; Supervisors v. People, 25 Ill. 181; Ryan v. Lynch, 68 Ill. 160; People v.
Baranes, 35 Ill. 121. In the last-named case, it was said:

"Were it not for the somewhat peculiar provision of our constitution, which requires that all bills, before
they can become laws, shall be read three several times in each house and shall be passed by a vote
of a majority of all the members-elect, a bill thus signed an approved would be conclusive of its
validity and binding force as a law. . . . According to the theory of our legislation, when a bill has
become a law, there must be record evidence of every material requirement, from its introduction until
it becomes a law. And this evidence is found upon the journals of the two houses."

But the court added:

"We are not, however, prepared to say that a different rule might not have subserved the public
interest equally well, leaving the legislature and the executive to guard the public interest in this
regard, or to become responsible for its neglect."

The case of Gardner v. Collector, 6 Wall. 499, 73 U. S. 511, was relied on in argument as supporting
the contention of the appellants. The question there was as to the time when an act of Congress took
effect, the doubt upon that point arising from the fact that the month and day, but not the year, of the
approval of the act by the President appeared upon the enrolled act in the custody of the Department
of State. This omission, it was held, could be supplied in support of the act from the legislative
journals. It was said by the Court:

"We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a
court of law of the existence of a statute,

Page 143 U. S. 679

or of the time when a statute took effect, or of the precise terms of a statute, the judges who are
called upon to decide it have a right to resort to any source of information which in its nature is
capable of conveying to the judicial mind a clear and satisfactory answer to such question, always
seeking first for that which in its nature is most appropriate, unless the positive law has enacted a
different rule."

There was no question in that case as to the existence or terms of a statute, and the point in
judgment was that the time when an admitted statute took effect, not appearing from the enrolled act,
could be shown by the legislative journals. It is scarcely necessary to say that that case does not
meet the question here presented.

Nor do the cases of South Ottawa v. Perkins, 94 U. S. 260; Walnut v. Wade, 103 U. S. 683, and Post
v. Supervisors, 105 U. S. 667, proceed upon any ground inconsistent with the views we have
expressed. In each of those cases, it was held that the question whether a seeming act of the
legislature became a law in accordance with the Constitution was a judicial one, to be decided by the
courts and judges, and not a question of fact to be tried by a jury, and without considering the
question on principle, this Court held, in deference to the decisions of the Supreme Court of Illinois
interpreting the constitution of that state, that it was competent for the court, in determining the validity
of an enrolled act, to consult the legislative journals.
Some reliance was also placed by appellants upon section 895 of the Revised Statutes, providing
that

"Extracts from the journals of the Senate, or of the House of Representatives, and of the executive
journal of the Senate when the injunction of secrecy is removed, certified by the Secretary of the
Senate or by the Clerk of the House of Representatives, shall be admitted as evidence in the courts
of the United States, and shall have the same force and effect as the originals would have if produced
and authenticated in court."

But referring now only to matters which the Constitution does not require to be entered on the
journals, it is clear that this is not a statutory declaration that the journals are the highest evidence of
the

Page 143 U. S. 680

facts stated in them, or complete evidence of all that occurs in the progress of business in the
respective houses, much less that the authentication of an enrolled bill by the official signatures of the
presiding officers of the two houses and of the President, as an act which has passed Congress and
been approved by the President, may be overcome by what the journal of either house shows or fails
to show.

We are of opinion, for the reasons stated, that it is not competent for the appellants to show, from the
journals of either house, from the reports of committees, or from other documents printed by authority
of Congress, that the enrolled bill, designated "H.R. 9416," as finally passed, contained a section that
does not appear in the enrolled act in the custody of the State Department.

Second. The third section of the Act of October 1, 1890, c. 1244, § 3, is in these words:

"SEC. 3. That with a view to secure reciprocal trade with countries producing the following articles,
and for this purpose, on and after the first day of January, eighteen hundred and ninety-two,
whenever and so often as the President shall be satisfied that the government of any country
producing and exporting sugars, molasses, coffee, tea, and hides, raw and uncured, or any of such
articles, imposes duties or other exactions upon the agricultural or other products of the United
States, which in view of the free introduction of such sugar, molasses, coffee, tea, and hides into the
United States he may deem to be reciprocally unequal and unreasonable, he shall have the power,
and it shall be his duty, to suspend, by proclamation to that effect, the provisions of this act relating to
the free introduction of such sugar, molasses, coffee, tea, and hides, the production of such country,
for such time as he shall deem just, and in such case and during such suspension duties shall be
levied, collected, and paid upon sugar, molasses, coffee, tea, and hides, the product of or exported
from such designated country, as follows, namely:"

"All sugars not above number thirteen Dutch standard in color shall pay duty on their polariscopic
tests as follows namely: "

Page 143 U. S. 681

"All sugars not above number thirteen Dutch standard in color, all tank bottoms, syrups of cane juice
or of beet juice, melada, concentrated melada, concrete and concentrated molasses, testing by the
polariscope not above seventy-five degrees, seven-tenths of one cent per pound, and for every
additional degree or fraction of a degree shown by the polariscopic test, two-hundredths of one cent
per pound additional."
"All sugars above number thirteen Dutch standard in color shall be classified by the Dutch standard of
color, and pay duty as follows, namely: all sugar above number thirteen and not above number
sixteen Dutch standard of color, one and three-eights cent per pound."

"All sugars above number sixteen and not above number twenty Dutch standard of color, one and
five-eighths cents per pound."

"All sugars above number twenty Dutch standard of color, two cents per pound."

"Molasses testing above fifty-six degrees, four cents per gallon."

"Sugar drainings and sugar sweepings shall be subject to duty either as molasses or sugar, as the
case may be, according to polariscopic test."

"On coffee, three cents per pound."

"On tea, ten cents per pound."

"Hides, raw or uncured, whether dry, salted, or pickled, Angora goatskins, raw, without the wool,
unmanufactured, asses' skins, raw or unmanufactured, and skins, except sheepskins, with the wool
on, one and one-half cents per pound."

26 Stat. 567, 612.

The plaintiffs in error contend that this section, so far as it authorizes the President to suspend the
provisions of the act relating to the free introduction of sugar, molasses, coffee, tea, and hides, is
unconstitutional as delegating to him both legislative and treatymaking powers, and, being an
essential part of the system established by Congress, the entire act must be declared null and void.
On behalf of the United States it is insisted that legislation of this character is sustained by an early
decision of this Court and by the practice of the government

Page 143 U. S. 682

for nearly a century, and that even if the third section were unconstitutional, the remaining parts of the
act would stand.

The decision referred to is The Brig Aurora, 7 Cranch 382, 11 U. S. 388. What was that case? The
nonintercourse Act of March 1, 1809, c. 24, secs. 4, 11, forbidding the importation, after May 20,
1809, of goods, wares, or merchandise from any port or place in Great Britain or France, provided
that

"The President of the United States be, and he hereby is, authorized, in case either France or Great
Britain shall so revoke or modify her edicts as that they shall cease to violate the neutral commerce of
the United States, to declare the same by proclamation,"

after which the trade suspended by that act and the act laying an embargo could "be renewed with
the nation so doing." 2 Stat. 528. The act of 1809 expired on the 1st of May, 1810, on which day
Congress passed another act, c. 39, § 4, declaring that in case either Great Britain or France, before
a named day, so revoked or modified her edicts
"as that they shall cease to violate the neutral commerce of the United States, which fact the
President of the United States shall declare by proclamation, and if the other nation shall not"

within a given time revoke or modify her edicts in like manner, then certain sections of the act of 1809

"shall, from and after the expiration of three months from the date of the proclamation aforesaid, be
revived and have full force and effect, so far as relates to the dominions, colonies, and dependencies,
and to the articles the growth, produce, or manufacture of the dominions, colonies, and dependencies
of the nation thus refusing or neglecting to revoke or modify her edicts in the manner aforesaid. And
the restrictions imposed by this act shall, from the date of such proclamation, cease and be
discontinued in relation to the nation revoking or modifying her decrees in the manner aforesaid."

2 Stat. 605, 606. On the 2d of November, 1810, President Madison issued his proclamation declaring
that France had so revoked or modified her edicts as that they ceased to violate the neutral
commerce of the United States. In the argument of that case, it was contended by Mr. Joseph R.
Ingersoll that

Page 143 U. S. 683

Congress could not transfer legislative power to the President, and that to make the revival of a law
depend upon the President's proclamation was to give that proclamation the force of a law. To this it
was replied that the legislature did not transfer any power of legislation to the President; that they only
prescribed the evidence which should be admitted of a fact, upon which the law should go into effect.
Mr. Justice Johnson, speaking for the whole Court, said:

"We can see no sufficient reason why the legislature should not exercise its discretion in reviving the
Act of March 1, 1809, either expressly or conditionally, as their judgment should direct. The
nineteenth section of that act, declaring that it should continue in force to a certain time, and no
longer, could not restrict their power of extending its operation without limitation upon the occurrence
of any subsequent combination of events."

This certainly is a decision that it was competent for Congress to make the revival of an act depend
upon the proclamation of the President showing the ascertainment by him of the fact that the edicts of
certain nations had been so revoked or modified that they did not violate the neutral commerce of the
United States. The same principle would apply in the case of the suspension of an act upon a
contingency to be ascertained by the President and made known by his proclamation.

To what extent do precedents in legislation sustain the validity of the section under consideration, so
far as it makes the suspension of certain provisions and the going into operation of other provisions of
an act of Congress depend upon the action of the President based upon the occurrence of
subsequent events, or the ascertainment by him of certain facts, to be made known by his
proclamation? If we find that Congress has frequently, from the organization of the government to the
present time, conferred upon the President powers, with reference to trade and commerce, like those
conferred by the third section of the Act of October 1, 1890, that fact is entitled to great weight in
determining the question before us.

During the administration of Washington, Congress, by an Act approved June 4, 1794, c. 41,
authorized the President, when Congress was not in session, and for a prescribed period,

Page 143 U. S. 684

"whenever in his opinion the public safety shall so require, to lay an embargo on all ships and vessels
in the ports of the United States, or upon the ships and vessels of the United States, or the ships and
vessels of any foreign nation, under such regulations as the circumstances may require, and to
continue or revoke the same whenever he shall think proper."

1 Stat. 372.

Congress passed, and President Adams approved, the Act of June 13, 1798, c. 53, § 5, suspending
commercial intercourse between the United States and France and its dependencies, and providing
that if the government of France, and all persons acting by or under its authority, before the then next
session of Congress,

"shall clearly disavow, and shall be found to refrain from, the aggressions, depredations, and
hostilities which have been and are by them encouraged and maintained against the vessels and
other property of the citizens of the United States, and against their national rights and sovereignty, in
violation of the faith of treaties and the laws of nations, and shall thereby acknowledge the just claims
of the United States to be considered as in all respects neutral, and unconnected in the present
European war, if the same shall be continued, then and thereupon it shall be lawful for the President
of the United States, being well ascertained of the premises, to remit and discontinue the prohibitions
and restraints hereby enacted and declared, and he shall be, and is hereby, authorized to make
proclamation thereof accordingly."

1 Stat. 565, 566. A subsequent Ac, approved February 9, 1799, c. 2, § 4, further suspending
commercial intercourse with France and its dependencies, contained this section:

"That at any time after the passing of this act, it shall be lawful for the President of the United States,
if he shall deem it expedient and consistent with the interest of the United States, by his order to remit
and discontinue for the time being the restraints and prohibitions aforesaid either with respect to the
French Republic or to any island, port, or place belonging to the said republic, with which a
commercial intercourse may safely be renewed, and also to revoke such order whenever in his
opinion the interest of the United States shall require,

Page 143 U. S. 685

and he shall be, and hereby is, authorized to make proclamation thereof accordingly."

1 Stat. 613, 615. Under the latter act, the President issued, June 26, 1799, and May 21, 1800,
proclamations declaring it lawful for vessels departing from the United States to enter certain ports of
San Domingo. Life and Works of John Adams, vol. 9, pp. 176, 177.

By an Act of Congress approved April 18, 1806, c. 29, it was made unlawful to import, after
November 15, 1806, into the United States from any port or place in Great Britain or Ireland, or in any
of the colonies or dependencies of Great Britain, articles of which leather, silk, hemp, flax, tin, or
brass was the material of chief value, woolen cloths whose invoice prices exceeded five shillings
sterling per square yard, woolen hosiery, manufactures of glass, silver and plated wares, hats, nails,
spikes, ready-made clothing, millinery, beer, ale, porter, pictures, and prints. 2 Stat. 379. The
operation of this act was suspended by the subsequent Act of December 19, 1806, c. 1, § 3, until July
1, 1807. But the last act contained this section:

"That the President of the United States be, and he is hereby, authorized further to suspend the
operation of the aforesaid act if in his judgment the public interest should require it, provided that such
suspension shall not extend beyond the second Monday in December next."
2 Stat. 411. Both of these acts received the approval of President Jefferson.

An Act of March 3, 1815, c. 77, approved by President Madison, provided that so much of the several
acts imposing duties on the tonnage of ships and vessels and on goods, wares, and merchandise
imported into the United States, as imposed a discriminating duty on tonnage between foreign
vessels and vessels of the United States, and between goods imported into the United States in
foreign vessels and vessels of the United States, be repealed so far as the same respected the
produced or manufacture of the nation to which such foreign ships or vessels belonged, such repeal
to take effect in favor of any foreign nation

"whenever the President of the United States shall be satisfied that the discriminating or
countervailing duties of such foreign nation, so far as they operate to the disadvantage of the United
States,"

had been abolished.

Page 143 U. S. 686

3 Stat. 224. Satisfactory proof having been received by President Monroe from the Free City of
Bremen that from and after the 12th of May, 1815, all discriminating or countervailing duties of the
said city, "so far as they operated to the disadvantage of the United States," had been abolished, he
issued, July 24, 1818, his proclamation stating that the acts of Congress upon that subject were
repealed so far as the same related to the produce and manufacture of that city. Similar
proclamations were issued by him in respect to the produce and manufactures of Hamburg, Lubeck,
Norway, and the Dukedom of Ogdenburg. 3 Stat.App. 1.

By an Act approved March 3, 1817, c. 39, prohibiting the importation into the United States, in any
foreign vessel, from and after July 4 of that year, of plaster of Paris, the production of any country or
its dependencies from which the vessels of the United States were not permitted to bring the same
article, it was provided that the act should continue in force five years from January 31, 1817,
provided

"that if any foreign nation or its dependencies which have now in force regulations on the subject of
the trade in plaster of Paris prohibiting the exportation thereof to certain ports of the United States
shall discontinue such regulations, the President of the United States is hereby authorized to declare
that fact by his proclamation, and the restrictions imposed by this act shall, from the date of such
proclamation, cease and be discontinued in relation to the nation, or its dependencies, discontinuing
such regulations."

3 Stat. 361. Proclamations in execution of this act were issued by President Monroe, relating to our
trade with Nova Scotia and New Brunswick. 3 Stat.App. 1.

By an act concerning discriminating duties of tonnage and impost approved January 7, 1824, c. 4, §
4, it was provided that

"Upon satisfactory evidence being given to the President of the United States by the government of
any foreign nation that no discriminating duties of tonnage or impost are imposed or levied within the
ports of the said nation upon vessels wholly belonging to citizens of the United States or upon
merchandise, the produce or manufacture thereof imported in

Page 143 U. S. 687

the same, the President is hereby authorized to issue his proclamation declaring that the foreign
discriminating duties of tonnage and impost within the United States are, and shall be, suspended
and discontinued so far as respects the vessels of the said nation and the merchandise of its produce
or manufacture imported into the United States in the same, the said suspension to take effect from
the time of such notification being given to the President of the United States and to continue so long
as the reciprocal exemption of vessels belonging to citizens of the United States, and merchandise as
aforesaid, thereon laden shall be continued, and no longer."

4 Stat. 3. A similar section was embodied in the Act of May 24, 1828, c. 111, relating to the same
subject, and is substantially preserved in section 4228 of the Revised Statutes. 4 Stat. 308. In
execution of these acts, proclamations were issued by the Presidents of the United States as follows:
Adams, July 1, 1828, 4 Stat.App. 815; Jackson, May 11, 1829, June 3, 1829, September 18, 1830,
April 28, 1835, and September 1, 1836, 4 Stat.App. 814, 815, 816; 11 Stat.App. 781, 782; Polk,
November 4, 1847, 9 Stat.App. 1001; Fillmore, November 1, 1850, 9 Stat.App. 1004; Buchanan,
February 25, 1858, 11 Stat.App. 795; Lincoln, December 16, 1863, 13 Stat.App. 739; Johnson,
December 28, 1886, and January 29, 1867, 14 Stat.App. 818, 819; Grant, June 12, 1869, November
20, 1869, February 25, 1871, December 19, 1871, September 4, 1872, and October 30, 1872, 16
Stat.App. 1127-1137, 17 Stat.App. 954-957; and Hayes, November 30, 1880, 21 Stat. 800.

A subsequent statute of May 31, 1830, c. 219, repealed all acts and parts of acts which imposed
duties upon the tonnage of ships and vessels of foreign nations, provided the President of the United
States should be satisfied that the discriminating or countervailing duties of such foreign nations, "so
far as they operate to the disadvantage of the United States," had been abolished. 4 Stat. 425. This
provision is preserved in section 4219 of the Revised Statutes.

Pursuant to the Act of Congress of August 5. 1854, c. 269, § 2, carrying into effect the Treaty
between the United States and

Page 143 U. S. 688

Great Britain of June 5, 1854, President Pierce issued his proclamation, December 12, 1855,
declaring that grain, flour, breadstuffs of all kinds, and numerous other specified articles should be
admitted free of duty from Newfoundland, he having received satisfactory evidence that that province
had consented, "in a due and proper manner," to have the provisions of the above treaty extended to
it, and to allow the United States the full benefits of all its stipulations, so far as they were applicable
to Newfoundland. 10 Stat. 587; 11 Stat.App. p. 790.

By an Act of Congress approved March 6, 1866, c. 12, the importation of neat cattle and the hides of
neat cattle from any foreign country into the United States was prohibited, the operation of the act,
however, to be suspended as to any foreign country or countries, or any parts of such country or
countries, whenever the Secretary of the Treasury should officially determine, and give public notice
thereof, that such importation would not tend to the introduction or spread of contagious or infectious
diseases among the cattle of the United States. The same act provided that

"The President of the United States, whenever in his judgment the importation of neat cattle and the
hides of neat cattle may be made without danger of the introduction or spread of contagious or
infectious disease among the cattle of the United States, may by proclamation, declare the provisions
of this act to be inoperative, and the same shall be afterwards inoperative, and the same shall be
afterwards inoperative and of no effect from said proclamation."

14 Stat. 3. These provisions constituted sections 2493 and 2494 of the Revised Statutes until the
passage of the Act of March 3, 1883 22 Stat. 489, c. 121, § 6. And by the Tariff Act of 1890, the
importation of neat cattle and the hides of neat cattle from foreign countries was prohibited, but
authority is given to the Secretary of the Treasury to suspend the operation of the act as to any
country whenever he determined that such importation will not lead to the introduction or spread of
contagious or infectious diseases among the cattle of the United States. 26 Stat. 616, c. 1244, § 20.

In execution of section 4228 of the Revised Statutes,

Page 143 U. S. 689

President Arthur issued a proclamation declaring that on and after the first day of March, 1884, so
long as the products of, and articles proceeding from, the United States, imported into the Islands of
Cuba and Porto Rico, should be exempt from discrimination customs duties, any such duties on the
products of, and articles proceeding from, Cuba and Porto Rico under the Spanish flag, should be
suspended and discontinued. 23 Stat. 835. President Cleveland, by proclamation of October 13,
1886, revoked this suspension upon the ground that higher and discriminating duties continued to be
imposed and levied in the ports named upon certain produce, manufactures, or merchandise
imported into them from the United States and from foreign countries, in vessels of the United States,
than were imposed and levied on the like produce, manufactures, or merchandise carried to those
ports in Spanish vessels. 24 Stat. 1028.

By the 14th section of the Act of June 26, 1884, c. 121, removing certain burdens on the American
merchant marine and encouraging the American foreign carrying trade, certain tonnage duties were
imposed upon vessels entering the United States from any foreign port or place in North America,
Central America, the West India Islands, Bahama Islands, Bermuda Islands, Sandwich Islands, or
Newfoundland, and the President was authorized to suspend the collection of so much of those
duties, on vessels entering from certain ports, as might be in excess of the tonnage and lighthouse
dues, or other equivalent tax or taxes, imposed on American vessels by the government of the foreign
country in which such port was situated, and should upon the passage of the act,

"and from time to time thereafter, as often as it may become necessary by reason of changes in the
laws of the foreign countries above mentioned, indicate by proclamation the ports to which such
suspension shall apply, and the rate or rates of tonnage duty, if any, to be collected under such
suspension."

23 Stat. 57. In execution of that act, Presidents Arthur and Cleveland issued proclamations
suspending the collection of duties on goods arriving from certain designated ports. 23 Stat. 841, 842,
844.

Page 143 U. S. 690

It would seem to be unnecessary to make further reference to acts of Congress to show that the
authority conferred upon the President by the third section of the Act of October 1, 1890, is not an
entirely new feature in the legislation of Congress, but has the sanction of many precedents in
legislation. * While some of these precedents are stronger than

Page 143 U. S. 691

others, in their application to the case before us, they all show that, in the judgment of the legislative
branch of the government, it is often desirable, if not essential, for the protection of the interests of our
people against the unfriendly or discriminating regulations established by foreign governments in the
interest of their people, to invest the President with large discretion in matters arising out of the
execution of statutes relating to trade and commerce with other nations. If the decision in the case
of The Brig Aurora had never been rendered, the practical construction of the Constitution, as given
by so many acts of Congress and embracing almost the entire period of our national existence,
should not be overruled unless upon a conviction that such legislation was clearly incompatible with
the supreme law of the land. Stuart v. Laird, 1 Cranch 299, 5 U. S. 309; Martin v. Hunter, 1 Wheat.
304, 14 U. S. 351; Cooley v. Board of Wardens, 12 How. 299,53 U. S. 315; Lithographic Co. v.
Sarony, 111 U. S. 53, 111 U. S. 57; The Laura, 114 U. S. 411, 114 U. S. 416.

The authority given to the President by the Act of June 4, 1794, to lay an embargo on all ships and
vessels in the ports of the United States, "whenever, in his opinion, the public safety shall so require,"
and under regulations to be continued or revoked "whenever he shall think proper," by the Act of
February 9, 1799, to remit and discontinue, for the time being, the restrains and prohibitions which
Congress had prescribed with respect to commercial intercourse with the French republic, "if he shall
deem it expedient and consistent with the interest of the United States," and "to revoke such order
whenever, in his opinion, the interest of the United States shall require;" by the Act of December 19,
1806, to suspend, for a named time, the operation of the nonimportation, act of the same year, "if in
his judgment the public interest should

Page 143 U. S. 692

require it;" by the Act of May 1, 1810, to revive a former act, as to Great Britain or France, if either
country had not, by a named day, so revoked or modified its edicts as not "to violate the neutral
commerce of the United States;" by the Acts of March 3, 1815, and May 31, 1830, to declare the
repeal, as to any foreign nation, of the several acts imposing duties on the tonnage of ships and
vessels, and on goods, wares, and merchandise imported into the United States, when he should be
"satisfied" that the discriminating duties of such foreign nations, "so far as they operate to the
disadvantage of the United States," had been abolished; by the Act of March 6, 1866, to declare the
provisions of the act forbidding the importation into this country of neat cattle and the hides of neat
cattle, to be inoperative "whenever in his judgment" their importation "may be made without danger of
the introduction or spread of contagious or infectious disease among the cattle of the United States,"
must be regarded as unwarranted by the Constitution if the contention of the appellants, in respect to
the third section of the Act of October 1, 1890, be sustained.

That Congress cannot delegate legislative power to the President is a principle universally recognized
as vital to the integrity and maintenance of the system of government ordained by the Constitution.
The Act of October 1, 1890, in the particular under consideration, is not inconsistent with that
principle. It does not in any real sense invest the President with the power of legislation. For the
purpose of securing reciprocal trade with countries producing and exporting sugar, molasses, coffee,
tea, and hides, Congress itself determined that the provisions of the Act of October 1, 1890,
permitting the free introduction of such articles, should be suspended as to any country producing
and exporting them that imposed exactions and duties on the agricultural and other products of the
United States which the President deemed -- that is, which he found to be -- reciprocally unequal and
unreasonable. Congress itself prescribed in advance the duties to be levied, collected, and paid on
sugar, molasses, coffee, tea, or hides, produced by or exported from such designated

Page 143 U. S. 693

country while the suspension lasted. Nothing involving the expediency or the just operation of such
legislation was left to the determination of the President. The words "he may deem," in the third
section, of course, implied that the President would examine the commercial regulations of other
countries producing and exporting sugar, molasses, coffee, tea, and hides and form a judgment as to
whether they were reciprocally equal and reasonable, or the contrary, in their effect upon American
products. But when he ascertained the fact that duties and exactions reciprocally unequal and
unreasonable were imposed upon the agricultural or other products of the United States by a country
producing and exporting sugar, molasses, coffee, tea, or hides, it became his duty to issue a
proclamation declaring the suspension, as to that county, which Congress had determined should
occur. He had no discretion in the premises except in respect to the duration of the suspension so
ordered. But that related only to the enforcement of the policy established by Congress. As the
suspension was absolutely required when the President ascertained the existence of a particular fact,
it cannot be said that in ascertaining that fact, and in issuing his proclamation in obedience to the
legislative will, he exercised the function of making laws. Legislative power was exercised when
Congress declared that the suspension should take effect upon a named contingency. What the
President was required to do was simply in execution of the act of Congress. It was not the making of
law. He was the mere agent of the lawmaking department to ascertain and declare the event upon
which its expressed will was to take effect. It was a part of the law itself, as it left the hands of
Congress, that the provisions, full and complete in themselves, permitting the free introduction of
sugar, molasses, coffee, tea, and hides from particular countries should be suspended in a given
contingency, and that in case of such suspension, certain duties should be imposed.

"The true distinction," as Judge Ranney, speaking for the Supreme Court of Ohio, has well said,

"is between the delegation of power to make the law, which necessarily involves a discretion as to
what it shall be, and conferring authority or

Page 143 U. S. 694

discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be
done; to the latter no valid objection can be made."

Cincinnati, Wilmington &c. Railroad v. Commissioners, 1 Ohio St. 88. In Moers v. City of Reading, 21
Penn.St. 202, the language of the court was:

"Half the statutes on our books are in the alternative, depending on the discretion of some person or
persons to whom is confided the duty of determining whether the proper occasion exists for executing
them. But it cannot be said that the exercise of such discretion is the making of the law."

So, in Locke's Appeal, 72 Penn.St. 491:

"To assert that a law is less than a law because it is made to depend on a future event or act is to rob
the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a
state of affairs not yet developed or to things future and impossible to fully know."

The proper distinction, the court said, was this:

"The legislature cannot delegate its power to make a law, but it can make a law to delegate a power
to determine some fact or state of things upon which the law makes, or intends to make, its own
action depend. To deny this would be to stop the wheels of government. There are many things upon
which wise and useful legislation must depend which cannot be known to the lawmaking power, and
must therefore be a subject of inquiry and determination outside of the halls of legislation."

What has been said is equally applicable to the objection that the third section of the act invests the
President with treatymaking power.

The Court is of opinion that the third section of the Act of October 1, 1890, is not liable to the
objection that it transfers legislative and treatymaking power to the President. Even if it were, it would
not by any means follow that other parts of the act, those which directly imposed duties upon articles
imported, would be inoperative. But we need not, in this connection, enter upon the consideration of
that question.

Third. The Act of October 1, 1890, c. 1244, sec. 1, par. 231, "Schedule E -- Sugar," provides that

"On and after July first, eighteen hundred and ninety-one, and until July first,

Page 143 U. S. 695

nineteen hundred and five, there shall be paid, from any moneys in the Treasury not otherwise
appropriated, under the provisions of section three thousand six hundred and eighty-nine of the
Revised Statutes, to the producer of sugar testing not less than ninety degrees by the polariscope,
from beets, sorghum, or sugar cane grown within the United States, or from maple sap produced
within the United States, a bounty of two cents per pound, and upon such sugar testing less than
ninety degrees by the polariscope, and not less than eighty degrees, a bounty of one and three-
fourths cents per pound, under such rules and regulations as the Commissioner of Internal Revenue,
with the approval of the Secretary of the Treasury, shall prescribe."

26 Stat. 567, 583.

Appellants contend that Congress has no power to appropriate money from the Treasury for the
payment of these bounties, and that the provisions for them have such connection with the system
established by the act of 1890 that the entire act must be held inoperative and void. The question of
constitutional power thus raised depends principally, if not altogether, upon the scope and effect of
that clause of the Constitution giving Congress power "to lay and collect taxes, duties, imposts, and
excises, to pay the debts and provide for the common defense and general welfare of the United
States." Article I, Section 8. It would be difficult to suggest a question of larger importance, or one the
decision of which would be more far-reaching. But the argument that the validity of the entire act
depends upon the validity of the bounty clause is so obviously founded in error that we should not be
justified in giving the question of constitutional power, here raised, that extended examination which a
question of such gravity would under some circumstances demand. Even if the position of the
appellants with respect to the power of Congress to pay these bounties were sustained, it is clear that
the parts of the act in which they are interested -- namely those laying duties upon articles imported --
would remain in force. "It is an elementary principle," this Court has said,

"that the same statute may be in part constitutional and in part unconstitutional, and that, if the parts
are wholly independent

Page 143 U. S. 696

of each other, that which is constitutional may stand, while that which is unconstitutional will be
rejected."

Allen v. Louisiana, 103 U. S. 80, 103 U. S. 83. And in Huntington v. Worthen, 120 U. S. 97, 120 U. S.
102, MR. JUSTICE FIELD, speaking for the Court, said:

"It is only when different clauses of an act are so dependent upon each other that it is evident the
legislature would not have enacted one of them without the other -- as when the two things provided
are necessary parts of one system -- that the whole act will fall with the invalidity of one clause. When
there is no such connection and dependency, the act will stand though different parts of it are
rejected."
It cannot be said to be evident that the provisions imposing duties on imported articles are so
connected with or dependent upon those giving bounties upon the production of sugars in this country
that the former would not have been adopted except in connection with the latter. Undoubtedly the
object of the act was not only to raise revenue for the support of the government, but to so exert the
power of laying and collecting taxes and duties as to encourage domestic manufactures and
industries of different kinds, upon the success of which, the promoters of the act claimed, materially
depended the national prosperity and the national safety. But it cannot be assumed, nor can it be
made to appear from the act, that the provisions imposing duties on imported articles would not have
been adopted except in connection with the clause giving bounties on the production of sugar in this
country. These different parts of the act, in respect to their operation, have no legal connection
whatever with each other. They are entirely separable in their nature, and in law are wholly
independent of each other. One relates to the imposition of duties upon imported articles; the other, to
the appropriation of money from the Treasury for bounties on articles produced in this country. While
in a general sense both may be said to be parts of a system, neither the words nor the general scope
of the act justifies the belief that Congress intended they should operate as a whole, and not
separately for the purpose of accomplishing the objects for which they were respectively designed.
Unless it be impossible to avoid

Page 143 U. S. 697

it, a general revenue statute should never be declared inoperative in all its parts because a particular
part relating to a distinct subject may be invalid. A different rule might be disastrous to the financial
operations of the government and produce the utmost confusion in the business of the entire country.

We perceive no error in the judgments below, and each is

Affirmed.

* For instance, as to another subject, by the Treaty of May 7, 1830, 8 Stat. 408, it was provided that

"If litigations and disputes should arise between subjects of the Sublime Porte and citizens of the
United States, the parties shall not be heard, nor shall judgment be pronounced, unless the American
Dragoman be present . . and even when they may have committed some offense, they shall not be
arrested and put in prison by the local authorities, but they shall be tried by their minister or consul,
and punished according to their offense, following in this respect the usage observed towards other
Franks."

On the 22d June, 1860, an act was passed to carry into effect this and other treaties of like character,
"giving certain judicial powers to consuls or other functionaries of the United States in those countries,
and for other purposes." 12 Stat. 72, c. 179. Under this act, the consuls of the United States in Egypt
exercised judicial powers over citizens of the United States. Dainese v. Hale, 91 U. S. 13.

On the 23d of March, 1874, an act was passed which provided, 18 Stat. 23, c. 62,

"that whenever the President of the United States shall receive satisfactory information that the
Ottoman government or that of Egypt has organized other tribunals on a basis likely to secure to
citizens of the United States, in their dominions, the same impartial justice which they now enjoy there
under the judicial functions exercised by the minister, consuls, and other functionaries of the United
States pursuant to the Act of Congress approved the twenty-second of June, eighteen hundred and
sixty, . . . he is hereby authorized to suspend the operations of said acts as to the dominions in which
such tribunals may be organized so far as the jurisdiction of said tribunals may embrace matters now
cognizable by the minister, consuls, or other functionaries of the United States in said dominions, and
to notify the government of the Sublime Porte, or that of Egypt, or either of them, that the United
States, during such suspension, will as aforesaid accept for their citizens the jurisdiction of the
tribunals aforesaid, over citizens of the United States, which has heretofore been exercised by the
minister, consuls, or other functionaries of the United States."

This statute was the response made by the United States to a suggestion coming from the Egyptian
government through the Turkish government, that mixed tribunals should be established in Egypt with
jurisdiction of "disputes in civil and commercial matters between natives and foreigners, and between
foreigners of different nationalities." 2 Foreign Relations, 1873, pp. 1100-1104. The scheme was
successful. Codes were adopted (Codes Egyptiens, Alexandrie, 1875), the proclamation of
suspension contemplated by the Act of March 23, 1874, was issued by President Grant on the 27th of
March, 1876, 19 Stat. 662; the quota of foreign judges assigned to the United States was filled by the
Khedive upon the nomination of the President, and United States citizens became justiciable by this
mixed tribunal. [Reporter.]

MR. JUSTICE LAMAR, with whom concurred MR. CHIEF JUSTICE FULLER, dissenting from the
opinion but concurring in the judgment of the Court.

The Chief Justice and myself concur in the judgment just announced. But the proposition maintained
in the opinion that the third section, known as the "Reciprocity Provision," is valid and constitutional
legislation, does not command our assent, and we desire to state very briefly the ground of our
dissent from it. We think that this particular provision is repugnant to the first section of the first article
of the Constitution of the United States, which provides that "All legislative powers herein granted
shall be vested in a Congress of the United States, which shall consist of a Senate and House of
Representatives." That no part of this legislative power can be delegated by Congress to any other
department of the government, executive or judicial, is an axiom in constitutional law, and is
universally recognized as a principle essential to the integrity and maintenance of the system of
government ordained by the Constitution. The legislative power must remain in the organ where it is
lodged by that instrument. We think that the section in question does delegate legislative power to the
executive department, and also commits to that department matters belonging to the treatymaking
power, in violation of paragraph two of the second section of Article II of the Constitution. It reads
thus:

"§ 3. That with a view to secure reciprocal trade with countries producing the following articles, and
for this purpose, on and after the first day of January, eighteen hundred and ninety-two,

Page 143 U. S. 698

whenever and so often as the President shall be satisfied that the government of any country
producing and exporting sugars, molasses, coffee, tea, and hides, raw and uncured, or any of such
articles, imposes duties or other exactions upon the agricultural or other products of the United
States, which in view of the free introduction of such sugar, molasses, coffee, tea, and hides into the
United States he may deem to be reciprocally unequal and unreasonable, he shall have the power,
and it shall be his duty, to suspend, by proclamation to that effect, the provisions of this act relating to
the free introduction of such sugar, molasses, coffee, tea, and hides, the production of such
country, for such time as he shall deem just, and in such case, and during such suspension, duties
shall be levied, collected, and paid upon sugar, molasses, coffee, tea, and hides, the product of or
exported from such designated country, as follows, namely."

26 Stat. 612.
We do not think that legislation of this character is sustained by any decision of this Court or by
precedents in congressional legislation numerous enough to be properly considered as the practice of
the government. One of the instances referred to as legislation analogous to this section is that
embodied in the acts of Congress of 1809 and 1810, known as the "Non-Intercourse Acts,"
pronounced by this Court to be valid in the case of The Brig Aurora, 7 Cranch 383. The Act of March
1, 1809, forbidding any importation after May 20, 1809, from Great Britain or France, provided that

"The President of the United States be, and he hereby is, authorized, in case either France or Great
Britain shall so revoke or modify her edicts as that they shall cease to violate the neutral commerce of
the United States, to declare the same by proclamation,"

after which the trade suspended by that act and the act laying an embargo could be renewed with the
nation so doing. 2 Stat. 528, § 11. That act having expired, Congress on the first of May, 1810,
passed an act (2 Stat. 605, § 4) which enacted

"That in case either Great Britain or France shall, before the third day of March next, so revoke or
modify her edicts as that they shall cease to violate the neutral commerce of the United States, which
fact

Page 143 U. S. 699

the President of the United States shall declare by proclamation, and if the other nation shall not,
within three months thereafter, so revoke or modify her edicts in like manner,"

the restrictions of the embargo act

"shall, from and after the expiration of three months from the date of the proclamation aforesaid, be
revived, and have full force and effect, so far as relates to . . . the nation thus refusing or neglecting to
modify her edicts in the manner aforesaid. And the restrictions imposed by this act shall, from the
date of such proclamation, cease and be discontinued in relation to the nation revoking or modifying
her decrees in the manner aforesaid."

These enactments, in our opinion, transferred no legislative power to the President. The legislation
was purely contingent. It provided for an ascertainment by the President of an event in the future -- an
event defined in the act and directed to be evidenced by his proclamation. It also prescribed the
consequences which were to follow upon that proclamation. Such proclamation was wholly in the
nature of an executive act, a prescribed mode of ascertainment, which involved no exercise by the
President of what belonged to the lawmaking power. The supreme will of Congress would have been
enforced whether the event provided for had or had not happened, either in the continuance of the
restrictions of the one hand, or, on and other, in their suspension.

But the purpose and effect of the section now under consideration are radically different. It does not,
as was provided in the statutes of 1809 and 1810, entrust the President with the ascertainment of a
fact therein defined upon which the law is to go into operation. It goes further than that, and deputes
to the President the power to suspend another section in the same act whenever "he may deem" the
action of any foreign nation producing and exporting the articles named in that section to be
"reciprocally unequal and unreasonable," and it further deputes to him the power to continue that
suspension, and to impose revenue duties on the articles named, "for such time as he may deem
just." This certainly extends to the executive the exercise of those discretionary powers which the
Constitution has vested in the lawmaking

Page 143 U. S. 700

department. It unquestionably vests in the President the power to regulate our commerce with all
foreign nations which produce sugar, tea, coffee, molasses, hides, or any of such articles, and to
impose revenue duties upon them for a length of time limited solely by his discretion, whenever he
deems the revenue system or policy of any nation in which those articles are produced reciprocally
unequal and unreasonable in its operation upon the products of this country.

These features of this section are in our opinion in palpable violation of the Constitution of the United
States, and serve to distinguish it from the legislative precedents which are relied upon to sustain it as
the practice of the government. None of these legislative precedents save the one above referred to
has as yet undergone review by this Court or been sustained by its decision. And if there be any
congressional legislation which may be construed as delegating to the President the power to
suspend any law exempting any importations from duty, or to reimpose revenue duties on them, upon
his own judgment as to what constitutes in the policy of other countries a fair and reasonable
reciprocity, such legislative precedents cannot avail as authority against a clear and undoubted
principle of the Constitution. We say "revenue policy" because the phrase "agricultural or other
products of the United States" is comprehensive, and embraces our manufacturing and mining as
well as agricultural products, all of which interests are thus entrusted to the discretion of the
President, in the adjustment of trade relations with other countries, upon a basis of reciprocity.

While, however, we cannot agree to the proposition that this particular section is valid and
constitutional, we do not regard it as such an essential part of the tariff act as to invalidate all its other
provisions, and we therefore concur in the judgment of this Court affirming the judgments of the court
below in the several cases.

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