Gardner v. The Collector

ERROR to the Circuit Court for the Southern District of New York.

The Constitution of the United States says, under the legislative head, as follows:

'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 he approve he shall sign it, but if not, he shall return it, with his objections, to that House in which it shall have originated. . . . If any bill shall not be returned by the President within ten days (Sunday excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it.'

And an act of September 15th, 1789, creating the Department of State, provides that whenever a bill, order, resolution or vote of the Senate and House of Representatives, having been approved and signed by the President of the United States, or not having been returned by him with his objections, shall become a law, or take effect, it shall forthwith thereafter be received by the said Secretary from the President, and he shall carefully preserve the originals, and cause them to the recorded in books provided for that purpose. An act of July 7th, 1838, dispenses with this recording in a book.

With these provisions in force, Congress passed through both houses, in December, 1861, a bill which declared 'that from and after the date of the passage of the act,' the duties on tea should be twenty cents per pound. A previous statute had fixed the duty at fifteen cents. The roll of the engrossed bill was taken to the President, and by him thus signed, no year being indicated:

'APPROVED December 24.

ABRAHAM LINCOLN.'

The record kept in the office of the Secretary of State showed, however, that this enrolled statute, with the President's approval on it, was filed in that office December 26th, 1861, and the journal of the House of Representatives, in Congress, showed that a message was received from the President January 6th, 1862, stating that on the 24th day of the preceding month he had approved this bill.

In the volume of the statutes of the United States, published by authority in 1863, the act was presented with an approval thus indicated:

'APPROVED December 24 [1861].'

In this state of things, Gardner, in 1864, entered at the custom-house in New York certain packages of tea, on which the collector of the customs there, assuming that there was a statute laying that duty, required him to pay twenty cents per pound. Gardner declined to pay twenty cents per pound on the ground that there was no statute fixing that duty, but offered to pay fifteen cents, the duty fixed by what he asserted to be the only act in the case. Being compelled to pay the twenty cents, and having paid it under protest, he brought suit in the court below to recovert he excess. The court below gave judgment against him, and on error here the question was, whether the bill fixing the twenty cents had passed, or, in other words, whether it was a law on the 28th April, 1864, when the teas in question were entered.

Mr. George Ticknor Curtis, for the plaintiff in error:

The President's certificate on the roll is a record of the strictest character. It cannot be explained, controlled or aided by any other evidence whatever. This follows from the requirement of the Constitution, that if he approve the bill he shall sign it. That the roll is in all cases the record or 'original' of a statute, is shown by the acts of Congress of September 15th, 1789, and of July 7th, 1838.

Now, whatever methods may be adopted of proving copies of the roll itself, no proof can be admitted to supply what the record does not contain. A law may be construed, judicially, if the means of ascertaining the legislative intention exist in the law itself. But if there is a positive omission in a law of what is essential to its operation, the omission cannot be supplied. A record imports absolute verity. It is of so high a nature, says Lord Coke, that it can be tried only by itself. And that this principle extends by the common law to the records of statutes, is evident from the rule that a statute cannot be proved from a journal of Parliament, but must be proved from the roll, which is the record; and from the further rule, that if it purports to be a general statute, the judges will take notice from the record whether it be a statute or not, and thus the plea of nul tiel record, or denial that there is such a record, cannot be interposed. These principles appear to have been adopted into our legislation, which makes the bill signed by the President, and deposited in the Department of State, the 'original,' or record of the statute.

If, then, there be in the Department of State a record which purports to contain a general statute, the judges will take notice of that record, and on it will proceed to determine whether it be a statute or not.

The date of the executive approval of a bill is an essential part of this record, and it is, under our Constitution, and in the modern English practice, necessarily the date of the passage of the law. In England, prior to 1792-3, all acts took date from the first day of the session. Great mischiefs followed from the enforcement of this rule. They culminated in Latless v. Holmes, where an act by its terms was to take effect from and after its passage. It was held that the time of its actual passage could not be shown; and that there could be no relief against its retrospective operation, great as the hardship manifestly was. This led to the act, 33 Geo. III, chap. 13, which directed that the day, month and year of the royal assent be indorsed on the roll, and that such indorsement be taken as a part of the act, and as the date of its commencement when no other commencement is therein provided.

As our Constitution does not permit any bill to become a law before it has been presented to the President, and requires him, if he approves it, to sign it, those who fixed our first precedents, which have never been departed from, established by them the rule that the President must record the date of his approval, and this must be the date of the passage of the law. Matthews v. Zane fully recognizes this rule.

Now, a law which is to operate from the date of its passage, and which has yet no date, can have no operation, especially if its provisions would supersede some former law. The former law remains in force, and in order to make a date, the year, as well as the day of the month, must appear. How is it to be known, judicially, in what year occurred that 24th day of December on which the President signed this roll?

Parol evidence is out of the question. That would break in upon the rule that a record must prove itself, and would oblige the citizen, when seeking the date of the President's approval, to inquire whether there are living witnesses who can prove that date.

Other records, such as the journals of the two Houses, would require an inference to be drawn, that is to say, they supply defects in one record by arguments from another, and so break down the rule that a record must prove itself.

A resort to the calendar would afford no aid here, because the 24th day of December occurs in every year, and consequently the calendar of any year since the passage of the former law, which made the duties fifteen cents per pound, would determine nothing as to the year in which the President signed a law making the duties twenty cents.

Our conclusion is,

1. That the President alone can make the record which is to show the date of his approval.

2. That if the President's record is defective in respect to the year when it was made, no resort can be had to extrinsic evidence to supply that defect.

Mr. Ashton, contra:

1. The Constitution says that if the president approves, he shall SIGN. It requires nothing but his signature. The word approved is surplusage. And for the same reason, and to the same extent, in a legal sense, is the date of approval. In a practical sense it may be, and is important. The best evidence of that time is, of course, the contemporaneous memorandum of the signer himself: and usage has accepted that memorandum, not as a record, perhaps, but as the best proof that the nature of the case admits. But what is the rule when the usual and conclusive evidence of the time of signing is absent? That the bill has been approved is certain. If so, it has become a law. Shall this be made null-declared not to have been at all-the approval, the signing, the going into offect, contrary to the truth of the case, because we cannot admit unquestionable evidence of the day when the final act was done? The question seems to carry its own answer.

2. But conceding that the time of the approval can only be proved by the record, what is the 'record?' It consists of the recorded proceedings connected with, and leading to, and following after, the law-the journals of Congress, the records and files of the office of the Secretary of State,-and all these may be resorted to for the purpose of determining the time when the approval of the President occurred.

In the Matter of Welman, the court say:

'It may be necessary and admissible in some instances, particularly when an act becomes a law by not being either signed or returned with objections, to carry back the inquiry to the legislative journals. But it would be unsafe, as it would be unfit, to allow the commencement of a public law, whenever the question may arise, to depend on the uncertainty of parol proof, or upon anything extrinsic to the law and the authenticated recorded proceedings in passing it.'

So cases settle that the court may inspect those journals to correct clerical mistakes, or carelessness. Even to correct an erroneous entry of the date of approval; or to ascertain whether an act was passed by ayes and nays. The court may inquire whether an act, coming within the twothird clause of the Constitution, have passed by the requisite number of votes. Parol evidence will be received, too, to show that an actual signing of the bill, as approved, was done by mistake.

In Pennsylvania, the constitution does not require a bill to be signed by the speakers of the two houses of the legislature; and it was there held, that the signatures, though proper, were not essential to the validity of the law. The fact of its passage and approval was held to be provable by the certificate of the Secretary of State that the bill was duly enrolled in his office.

Mr. Justice MILLER delivered the opinion of the court.