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* CHAPTER VI.

OF THE ENACTMENT OF LAWS.

WHEN the supreme power of a country is wielded by a single man, or by a single body of men, any discussion in the courts of the rules which should be observed in the enactment of laws must generally be without practical value, and in fact impertinent; for, whenever the unfettered sovereign power of any country expresses its will in the promulgation of a rule of law, the expression must be conclusive, though proper and suitable forms may have been wholly omitted in declaring it. It is a necessary attribute of sovereignty that the expressed will of the sovereign is law; and while we may question and cross-question the words employed, to make certain of the real meaning, and may hesitate and doubt concerning it, yet, when the intent is made out, it must govern, and it is idle to talk of forms that should have surrounded the expression, but do not. But when the legislative power of a State is to be exercised by a department composed of two branches, or, as in most of the American States, of three branches, and these branches have their several duties marked out and prescribed by the law to which they owe their origin, and which provides for the exercise of their powers in certain modes and under certain forms, there are other questions to arise than those of the mere intent of the law-makers, and sometimes forms become of the last importance. For in such case not only is it important that the will of the law-makers be clearly expressed, but it is also essential that it be expressed in due form of law; since nothing becomes law simply and solely because men who possess the legislative power will that it shall be, unless they express their determination to that effect, in the mode pointed out by the instrument which invests them with the power, and under all the forms which that instrument has rendered essential. And if, when the con

1 A bill becomes a law only when it has gone through all the forms

made necessary by the constitution to give it validity. Jones v. Hutchinson,

stitution was adopted, there were known and settled rules and usages, forming a part of the law of the country, in reference to which the constitution has evidently been framed, and these rules and usages required the observance of particular forms, the constitution itself must also be understood as requiring them, because in assuming their existence, and being * framed [* 131] with reference to them, it has in effect adopted them as a part of itself, as much as if they were expressly incorporated in its provisions. Where, for an instance, the legislative power is to be exercised by two houses, and by settled and well-understood parliamentary law, these two houses are to hold separate sessions for their deliberations, and the determination of the one upon a proposed law is to be submitted to the separate determination of the other, the constitution, in providing for two houses, has evidently spoken in reference to this settled custom, incorporating it as a rule of constitutional interpretation; so that it would require no prohibitory clause to forbid the two houses from combining in one, and jointly enacting laws by the vote of a majority of all. All those rules which are of the essentials of law-making must be observed and followed; and it is only the customary rules of order and routine, such as in every deliberative body are always understood to be under its control, and subject to constant change at its will, that the constitution can be understood to have left as matters of discretion, to be established, modified, or abolished by the bodies for whose government in non-essential matters they exist.

Of the two Houses of the Legislature.1

In the enactment of Jaws the two houses of the legislature are of equal importance, dignity, and power, and the steps which

43 Ala. 721; State v. Platt, 2 S. C. N. s. 150; s. c. 16 Am. Rep. 647; People v. Commissioners of Highways, 54 N. Y. 276; Moody v. State, 48 Ala. 115; s. c. 17 Am. Rep. 28; Legg v. Annapolis, 42 Md. 303.

The wisdom of a division of the legislative department has been demonstrated by the leading writers on constitutional law, as well as by general experience. See De Lolme, Const. of

England, b. 2, c. 3; Federalist, No. 22; 1 Kent, 208; Story on Const. §§ 545-570. The early experiments in Pennsylvania and Georgia, based on Franklin's views, for which see his Works, Vol. V. p. 165, were the only ones made by any of the original States with a single house. The first Constitution of Vermont also provided for a single legislative body.

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result in laws may originate indifferently in either. This is the general rule; but as one body is more numerous than the other and more directly represents the people, and in many of the States is renewed by more frequent elections, the power to originate all money bills, or bills for the raising of revenue, is left exclusively, by the constitutions of some of the States, with this body, in accordance with the custom in England, which does not permit bills of this character to originate with the House [* 132] of Lords.1 To these bills, however, the other house may propose alterations, and they require the assent of that house to their passage, the same as other bills. The time for the meeting of the legislature will be such time as is fixed by the constitution or by statute; but it may be called together by the executive in special session as the constitution may prescribe, and the two houses may also adjourn any general session to a time fixed by them for the holding of a special session, if an agreement to that effect can be arrived at; and if not, power is conferred by a majority of the constitutions upon the executive to prorogue and adjourn them. And if the executive in any case undertake to exercise this power to prorogue and adjourn, on the assumption that a disagreement exists between the two houses which warrants his interference, and his action is acquiesced in by those bodies, who thereupon cease to hold their regular sessions, the legislature must be held in law to have adjourned, and no inquiry can be entered upon as to the rightfulness of the governor's assumption that such a disagreement existed.2

1 There are provisions in the Constitutions of Massachusetts, Delaware, Minnesota, Mississippi, New Hampshire, New Jersey, Pennsylvania, South Carolina, Vermont, Indiana, Oregon, Kentucky, Louisiana, Alabama, Arkansas, Georgia, Virginia, Maine, and Colorado requiring revenue bills to originate in the more popular branch of the legislature, but allowing the Senate the power of amendment usual in other cases. During the second session of the forty-first Congress, the House of Representatives by their vote denied the right of the Senate under the Constitution to originate a bill repealing a law imposing

taxes; but the Senate did not assent to this conclusion. In England the Lords are not allowed to amend money bills, and by resolutions of 5th and 6th July, 1860, the Commons deny their right even to reject them.

2 This question became important, and was passed upon in People v. Hatch, 33 Ill. 9. The Senate had passed a resolution for an adjourn ment of the session sine die on a day named, which was amended by the House by fixing a different day. The Senate refused to concur, and the House then passed a resolution expressing a desire to recede from its action in amending the resolution, and

*There are certain matters which each house deter- [* 133] mines for itself, and in respect to which its decision is conclusive. It chooses its own officers, except where, by constitution or statute, other provision is made; it determines its own rules of proceeding; it decides upon the election and qualification of its own members. These powers it is obviously proper should rest with the body immediately interested, as essential to enable it to enter upon and proceed with its legislative functions, without liability to interruption and confusion. In determining questions concerning contested seats, the house will exercise judicial power, but generally in accordance with a course of practice which has sprung from precedents in similar cases, and no other authority is at liberty to interfere.

Each house has also the power to punish members for disorderly behavior, and other contempts of its authority, as well as to

requesting a return of the resolution by the Senate. While matters stood thus, the governor, assuming that such a disagreement existed as empowered him to interfere, sent in his proclamation, declaring the legislature adjourned to a day named, and which was at the very end of the official term of the members. The message created excitement; it does not seem to have been at once acquiesced in, and a protest against the governor's authority was entered upon the journal; but for eleven days in one house and twelve in the other no entries were made upon their journals, and it was unquestionable that practically they had acquiesced in the action of the governor, and adjourned. At the expiration of the twelve days, a portion of the members came together again, and it was claimed by them that the message of the governor was without authority, and the two houses must be considered as having been, in point of law, in session during the intervening period, and that consequently any bills which had before been passed by them and sent to the governor for his approval, and which he had not returned within ten days, Sundays

excepted, had become laws under the constitution. The Supreme Court held that, as the two houses had practically acquiesced in the action of the governor, the session had come to an end, and that the members had no power to reconvene on their own motion, as had been attempted. The case is a very full and valuable one on several points pertaining to legislative proceedings and authority. As to the governor's discretion in calling an extra session and revoking the call, see ante, p. 115, note.

1 In People v. Mahaney, 13 Mich. 481, it was held that the correctness of a decision by one of the houses, that certain persons had been chosen members, could not be inquired into by the courts. In that case a law was assailed as void, on the ground that a portion of the members who voted for it, and without whose votes it would not have had the requisite majority, had been given their seats in the house in defiance of law, and to the exclusion of others who had a majority of legal votes. See the same principle in State v. Jarrett, 17 Md. 309. See also Lamb v. Lynd, 44 Penn. St. 336; Opinion of Justices, 56 N. H. 570.

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expel a member for any cause which seems to the body to render it unfit that he continue to occupy one of its seats. This power is generally enumerated in the constitution among those which the two houses may exercise, but it need not be specified in that instrument, since it would exist whether expressly conferred or not. It is a necessary and incidental power, to enable the house to perform its high functions, and is necessary to the safety of the State. It is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be affected with a contagious disease, or insane, or noisy, violent, and disorderly, or in the habit of using profane, obscene, and abusive language." And," independently of parliamentary customs and usages, our legislative houses have the power to protect themselves by the punishment and expulsion of a member;" and the courts cannot inquire into the justice of the decision, or even so much as examine the proceedings to see whether or not the proper opportunity for defence was furnished.1

[* 134] * Each house may also punish contempts of its authority by other persons, where they are committed in its presence, or where they tend directly to embarrass or obstruct its legislative proceedings; and it requires for the purpose no express provision of the constitution conferring the authority. It is not very well settled what are the limits to this power; and in the leading case in this country the speaker's warrant for the arrest of the person adjudged guilty of contempt was sustained, though it did not show in what the alleged contempt consisted. In the leading English case a libellous publication concerning the house was treated as a contempt; and punishment has sometimes been inflicted for assaults upon members of the house, not committed in or near the place of sitting, and for the arrest of members in disregard of their constitutional privilege.5 Where imprisonment

1 Hiss v. Bartlett, 3 Gray, 468. And see Anderson v. Dunn, 6 Wheat. 204.

2 Anderson v. Dunn, 6 Wheat. 204; Burdett v. Abbott, 14 East, 1; Burnham v. Morrissey, 14 Gray, 226; State v. Matthews, 37 N. H. 450. See post, p. *458, note.

3 Anderson v. Dunn, 6 Wheat. 204. And see Gosset v. Howard, 10 Q. B. 451; Stewart v. Blaine, 1 McArthur, 453.

4 Burdett v. Abbott, 14 East, 1.

5 Mr. Potter discusses such a case in his edition of Dwarris on Statutes, c. 18, and Mr. Robinson deals with the case of an arrest for a criminal act, not committed in the presence of the house, in the preface to the sixth volume of his Practice. As to the general right of Parliament to punish for contempt, see Gosset v. Howard, 10 Q. B. 411.

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