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CHAPTER XXXIX.

THE PROCESS OF LEGISLATION AS CONSTITUTIONALLY

DETERMINED.

$248. Constitutional Provisions.

To a certain extent the manner of conducting business in Congress, and the process of legislation are determined by the Constitution. It is provided that the Vice-President shall be the president of the Senate, but shall have no vote except in case of a tie. The Senate, however, is empowered to choose its other officers, including the president pro tempore to preside in the absence of the Vice-President or when he is exercising the office of President of the United States. The House is empowered to choose all of the officers, including its presiding officer, the Speaker.

It is required that Congress shall assemble at least once in every year, and that such meeting shall be on the first Monday in December, unless by law a different day is appointed.

A majority of each House is fixed as a quorum to do business, but a smaller number is competent to adjourn from day to day, and to compel the attendance of absent members in such manner and under such penalties as each House may provide.

Each House is authorized to determine the rules of its procedure, to punish its members for disorderly behavior, and, as we have seen, with the concurrence of two-thirds to expel a member.

Neither House may, without the consent of the other House, during a session of Congress adjourn for more than three days, nor to any other place than that in which the Houses are sitting.

Each House is required to keep a journal of its proceedings, and from time to time to publish the same, excepting such parts as may in their judgment require secrecy; and it is ordered that, at the desire of one-fifth of those present, the yeas and nays of members of either House on any question shall be entered on this journal.

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The foregoing constitutional provisions impose duties upon and grant powers to the two Houses of Congress, the fulfilment and exercise of which are placed within the discretion of the Houses themselves. Very few questions arising under these clauses have, therefore, been, or could have been, brought before the courts. One important point has, however, been raised and deserves attention. This is discussed in the next section.

§ 249. Conclusiveness of the Records of Congressional Proceedings.

In a few instances the validity of laws purported to have been enacted by Congress has been questioned upon the ground that they have not, in fact, been enacted by that body in accordance with the requirements of the Constitution. This has necessitated the examination of the records of the proceedings of Congress and a determination of the evidential value to be given to these proceedings.

In Field v. Clark' it was contended by the appellants that an enrolled act in the custody of the Secretary of State, and appearing upon its face to be a law enacted by Congress, was a nullity, because, as was shown by the records of proceedings in Congress, and the reports of committees, including that of the committee on conference, a section of the bill as finally passed was not in the bill authenticated by the signatures of the presiding officers of the two Houses and signed by the President. The court, however, declared that the attestation of the Speaker of the House and of the President of the Senate, the signature of the President of the United States, and the deposit of a measure as a law in the public archives are to be taken as unimpeachable evidence that the constitutional requirements for legislation have been satisfied, and that the measure as thus certified to has received the approval of the legislative branch of the government. The opinion concludes: "We are of the 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, 1143 U. S. 649; 12 Sup. Ct. Rep. 495; 36 L. ed. 294.

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."

In United States v. Ballin2 the evidential value of records of congressional proceedings was again considered. The points involved and their decision sufficiently appear from the following quotation from the opinion: "Two questions only are presented: first, was the Act of May 9, 1890, legally passed and, second, what is the meaning? The first is the important question. The enrolled bill is found in the proper office, that of the Secretary of State, authenticated and approved in the customary and legal form. There is nothing on the face of it to suggest any invalidity. Is there anything in the facts disclosed by the journal of the House, as found by the general appraisers, which vitiates it? We are not unmindful of the general observations found in Gardner v. Barney (6 Wall. 499; 18 L. ed. 890) '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 stalute, 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.' And we have at the present term, in the case of Field v. Clark, had occasion to consider the subject of an appeal to the journal in a disputed matter of this nature. It is unnecessary to add anything here to that general discussion. The Constitution (Article I, Section 5) provides that 'each House shall keep a journal of its proceedings;' and that'the yeas and nays of the members of either House on any question shall at the desire of onefifth of those present, be entered on the journal.' Assuming that by reason of this latter clause reference may be had to the journal, to see whether the yeas and nays were ordered, and if so what was the vote disclosed thereby; and assuming, though without 2144 U. S. 1; 12 Sup. Ct. Rep. 507; 36 L. ed. 321.

deciding, that the facts which the Constitution requires to be placed on the journal may be appealed to on the question whether a law has been legally enacted, yet if reference may be had to such journal, it must be assumed to speak the truth. It cannot be that we can refer to the journal for the purpose of impeaching a statute properly authenticated and approved and then supplement and strengthen that impeachment by parol evidence that the facts stated on the journal are not true, or that other facts existed which, if stated on the journal, would give force to the impeachment."

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§ 250. Constitutional Force of Rules of the House and Senate. In United States v. Ballin was also raised an interesting question as to the constitutional validity of a certain rule of procedure adopted by the House of Representatives. As to this the court, in its opinion, say: "The Constitution provides, that each House may determine the rules of its proceedings.' It appears that, in pursuance of this authority, the House had, prior to that day, passed this as one of its rules: Rule XV. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the journal, and reported to the Speaker with the names of the persons voting, and be counted and announced in determining the presence of a quorum to do business.' (House Journal, 230, Feb. 14, 1890.) The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this rule, and not what methods the Speaker may of his own motion resort to

3 With reference to laws of the States, the Supreme Court in Duncan v. McCall (139 U. S. 449; 11 Sup. Ct. Rep. 573; 35 L. ed. 219) say: "It is unnecessary to enter upon an examination of the rulings in the different States upon the question whether a statute duly authenticated, approved and enrolled can be impeached by resort to the journals of the legislature, or other evidence, for the purpose of establishing that it was not passed in the manner prescribed by the state Constitution. The decisions are numerous and the results reached fail of uniformity. The courts of the United States necessarily adopt the adjudication of the state courts on the subject" [citing cases].

for determining the presence of a quorum, nor what matters the Speaker or clerk of their own volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial consideration. With the courts the question is only one of power. The Constitution empowers each House to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other method would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal. The Constitution provides that a majority of each [House] shall constitute a quorum to do business.' In other words, when a majority are present, the House is in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and when that majority are present the power of the House arises. But how shall the presence of a majority be determined? The Constitution has prescribed no method of making this determination, and it is therefore within the competence of the House to prescribe any method which shall be reasonably certain to ascertain the fact. It may prescribe answer to rollcall as the only method of determination; or require the passage of members between tellers, and their count as the sole test; or the count of the Speaker and the clerk, and an announcement from the desk of the names of those who are present. Any one of these methods, it must be conceded, is reasonably certain of ascertainng the fact, and as there is no constitutional method prescribed, and no constitutional inhibition of any of those, and no violation

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