* CHAPTER VI.

OF THE ENACTMENT OF LAWS.

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WHEN the supreme power of a country is wielded by a single man, or by a single body of men, few questions can arise in the courts concerning the manner of its exercise, and any discussion of rules by which it is to be governed, in the enactment of laws, can be of very little practical value. For whenever the sovereign power expresses its will that a certain rule shall be established, that expression must be conclusive, whether such forms have been observed in making the declaration as are customary and proper or not. We may query whether the will has been declared; we may question and cross-question the words employed, to ascertain the real sense that they express; we may doubt and hesitate as to the intent; but when discovered, 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 constitution 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 [*131] being * framed 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 laws the two houses of the legislature are of equal importance, dignity, and power, and the steps which 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

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.

with the custom in England which does not permit bills of this character to originate with the House of Lords.1 To these *bills, however, the other house may propose alterations, [*132] 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, and Maine, 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 adjournment 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 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

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*There are certain matters which each house determines for itself, and in respect to which its decision is conclusive. It chooses its own officers, except where, by constitution or statute, it is otherwise provided; 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 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 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.

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.

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 opportunity for defence was furnished or not.1

* Each house may also punish contempts of its authority [* 134] by other persons, without express authority from the constitution therefor; 2 but where imprisonment is imposed as a punishment, it must terminate with the final adjournment of the house, and if the prisoner be not then discharged by its order, he may be released on habeas corpus.3

By common parliamentary law, the members of the legislature are privileged from arrest on civil process during the session of that body, and for a reasonable time before and after to enable them to go to and return from the same. By the constitutions of some of the States this privilege has been enlarged, so as to exempt the persons of legislators from any service of civil process,1 and in others their estates are exempt from attachment for some prescribed period. For any arrest contrary to the parliamentary

1 Hiss v. Bartlett, 3 Gray, 468. And see Anderson v. Dunn, 6 Wheat. 204. * Anderson v. Dunn, 6 Wheat. 204; Burdett v. Abbott, 14 East, 1; Stockdale v. Hansard, 9 Ad. & El. 231; Burnham v. Morissey, 14 Gray, 226; State v. Matthews, 37 N. H. 450.

Jefferson's Manual, § 18; Prichard's Case, 1 Lev. 165.

"Senators and representatives shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest. They shall not be subject to any civil process during the session of the legislature, or for fifteen days next before the commencement and after the termination of each session." Const. of Mich. art. 4, § 7. The same exemption from civil process is found in the Constitutions of Kansas, Nebraska, Alabama, Arkansas, California, Missouri, Mississippi, Wisconsin, Indiana, and Oregon: Exemption from arrest is not violated by the service of citations or declarations in civil cases. Gentry v. Griffith, 27 Texas, 461; Case v. Rorabacker, 15 Mich. 537.

• The Constitution of Rhode Island provides that "the person of every member of the General Assembly shall be exempt from arrest, and his estate from attachment, in any civil action, during the session of the General Assembly, and two days before the commencement and two days after the