# Field v. Clark/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Lamar
United States Supreme Court
143 U.S. 649
Field v. Clark
Duties were assessed and collected, according to the rates established by what is known as the 'Tariff Act of October 1, 1890,' on woolen dress goods, woolen wearing apparel, and silk embroideries, imported by Marshall Field & Co., on silk and cotton laces imported by Boyd, Sutton, & Co.; and on colored cotton cloths imported by Herman, Sternbach & Co. 26 St. p. 567, c. 1244, § 1.
The importers severally protested against the assessment, upon the ground that the act was not a law of the United 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. Chapter 407, §§ 14, 15, pp. 131, 137, 26 St. The 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.
1. The seventh section of article 1 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 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.' Section 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 indorsements:
'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. St. §§ 210, 3803, 3805, 3807, 3808.
The contention of the appellants is that this enrolled act, in the custody of the sectetary 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 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.
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 1, § 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 to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constitutents. 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, Const. §§ 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.
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 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 co-ordinate 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 proceedings,-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 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 any one 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 constradicted 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 Cable Co. v. Attorney General, 46 N. J. Eq. 270, 276, 19 Atl. Rep. 733.
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 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 relazed 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 enrolled bill. County of San Mateo v Southern Pac. R. R. Co., 8 Sawy. 238, 294, 13 Fed. Rep. 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 cereful 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 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, 18 Atl. Rep. 325, 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 spealer 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. Groom, 64 N. C. 244, 248; State of Nevada v. Swift, 10 Nev. 176; Evans v. Browne, 30 Ind. 514; Edger v. Commissioners, 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 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. Trustees, 19 Ill. 324; Supervisors v. People, 25 Ill. 181; Ryan v. Lynch, 68 Ill. 160; People v. Starne, 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, 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, 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 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.
2. The third section of the act of October 1, 1890, (chapter 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 belevied, 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: 'All sugars not above number thirteen Dutch standard in color, all tank bottoms, sirups 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 goat-skins, raw, without the wool, unmanufactured, asses' skins, raw or unmanufactured, and skins, except sheep-skins, with the wool on, one and one-half cents per pound.' 26 St. pp. 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 unconstitional, as delegating to him both legislative and treaty-making 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 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 Aurora, 7 Cranch, 382, 388. What was that case? The non-intercourse act of March 1, 1809, c. 24, §§ 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 laying an embargo could 'be renewed laying an embargo could 'be renewed with the nation so doing.' 2 St. p. 528. The act of 1809 expired on the 1st of May, 1810, on which day congress passed another act, (chapter 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 St. pp. 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 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, 'whenever, in his opinion, the public sarety 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 St. p. 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 St. pp. 565, 566. A subsequent act, 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; and he shall be, and hereby is, authorized to make proclamation thereof accordingly.' 1 St. pp. 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. 9 Life and Works of John Adams 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 St. p. 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 St. p. 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. 3 St. p. 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 St. 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 4th 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 St. P. 361. Proclamations in execution of this act were issued by President Monroe, relating to our trade with Nova Scotia and New Brunswick. 3 St. 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 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 St. p. 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 St. p. 308. In execution of these acts, proclamations were issued by the presidents of the United States as follows: Adams, July 1, 1828, (4 St. App. 815;) Jackson, May 11, 1829, June 3, 1829, September 18, 1830, April 28, 1835, and September 1, 1836, (4 St. App. 814, 815, 816; 11 St. App. 781, 782;) Polk, November 4, 1847, (9 St. App. 1001;) Fillmore, November 1, 1850, (9 St. App. 1004;) Buchanan, February 25, 1858, (11 St. App. 795;) Lincoln, December 16, 1863, (13 St. App. 739;) Johnson, December 28, 1886, and January 29, 1867, (14 St. App. 818, 819;) Grant, June 12, 1869, Novemver 20, 1869, February 25, 1871, December 19, 1871, September 4, 1872, and October 30, 1872, (16 St. App. 1127-1137, 17 St. App. 954-957;) and Hayes, November 30, 1880, (21 St. 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 St. 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 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 St. p. 587; 11 St. 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 St. p. 3. These provisions constituted sections 2493 and 2494 of the Revised Statutes until the passage of the act of March 3, 1883. 22 St. p. 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. Chapter 1244, § 20, p. 616, 26 St.
In execution of section 4228 of the Revised Statutes, President Arthur issued a proclamation declaring that on and after the 1st 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 St. p. 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 St. p. 1028.
By the fourteenth section of the act of June 26, 1884, c. 121, removing certain burdens on the American merchant marine, and encouraging the American foreign carring 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, Saudwich 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 St. p. 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 St. 841, 842, 844.
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 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 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, 309; Martin v. Hunter, 1 Wheat. 304, 351; Cooley v. Board of Wardens, 12 How. 299, 315; Lithographic Co. v. Sarony, 111 U.S. 53, 57, 4 Sup. Ct. Rep. 279; The Laura, 114 U.S. 411, 416, 5 Sup. Ct. Rep. 881.
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 becontinued 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 non-importation, act of the same year, 'if in his judgment the public interest should 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 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 law-making 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 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.' Railroad Co. v. Commissioners, 1 Ohio St. 88. In Moers v. City of Reading, 21 Pa. 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 Pa. 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 law-making 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 treaty-making 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 treaty-making 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.
3. The act of October 1, 1890, c. 1244, § 1, par. 231, 'Schedule E-Sugar,' provides that 'on and after July first, eighteen hundred and ninety-one, and until July first, 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 St. pp. 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 1, § 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 of each other, that which is constitutional may stand, while that which is unconstitutional will be rejected.' Allen v. Louisiana, 103 U.S. 80, 83. And in Huntington v. Worthen, 120 U.S. 97, 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 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.
Mr. Justice LAMAR, with whom concurred Mr. Chief Justice FULLER, dissenting.

## Notes

* ↑ 7 Sup. Ct. Rep. 469.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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