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.