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2. COURTS
CERTIFICATE
FACTS.

384-CERTIFIED QUESTIONS EVIDENTIAL AND ULTIMATE

of the act referred to in the next preceding par- | may not so blend facts with questions of law agraph [inserted in the margin].1 The final as to require separation for a conclusion as to clause of the act, which declares that this section shall apply as well to foreign vessels as to those of the United States, and that in case of violation a clearance shall be refused them, is a clear indication that Congress did not in this section refer to the shipment of seamen in foreign ports, but had in view acts done in the United States alone. The provision of the statute as to payment of advance wages is not intended to apply to seamen shipped in foreign ports."

Recitals of certificate on certification of questions from Circuit Court of Appeals must distinguish between merely evidential facts and those which are ultimate, and so could furnish support for the legal propositions as to which instructions are asked.

3. COURTS 384 - CERTIFIED QUESTIONSSENDING UP WHOLE RECORD.

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Exercise of the discretion which Judicial Code, § 239 (Comp. St. 1916, § 1216), gives the Supreme Court when questions are certified from Circuit Court of Appeals, to direct the sending up of the whole record, is not called for where the certificate is of such character as not to be embraced by the statute.

Mr. Justice Clarke dissenting in part.

*We are unable to assent. We regard the
act of Congress as clear and that the theater
of its injunction is the harbors of the United
States. It is misleading to dwell upon the
jurisdiction of other places, which is but an-
other name for control. The jurisdiction.
control, is in and by the United States and
the command is that advances shall not be de-
ducted from wages of seamen on vessels,
American or foreign, while in the waters of
the United States. Where they were made or
under what circumstances made are not fac-
tors in judgment. They are the mere acci-cuit
dents of the situation and if they reach the
importance and have the embarrassment de-
picted by counsel, the appeal must be to Con-
gress, which no doubt will promptly correct
the improvidence, if it be such, of its legis-
lation. We have already expressed our view
of the control of the language of the law and
that it is a barrier against alarms and fault-
finding.

It hence follows that we are of opinion the judgment of the Circuit Court of Appeals in each case should be reversed and that of the District Court affirmed.

(248 U. S. 178)

CLEVELAND-CLIFFS IRON CO. et al. v.
ARCTIC IRON CO.

On Certificate from the United States CirCourt of Appeals for the Sixth Circuit. Suit by the Arctic Iron Company against the Cleveland-Cliffs Iron Company and another. From decree for complainant, de fendants appealed to the Circuit Court of appeals which certifies questions. 261 Fed. 15. Certificate dismissed.

Messrs. A. C. Dustin, Horace Andrews, and W. P. Belden, all of Cleveland, Ohio, for Cleveland-Cliffs Iron Co.

Messrs. S. W. Shaull, of Tropico, Cal., and C. C. Daniels, of New York City, for Arctic Iron Co.

*Mr. Chief Justice WHITE delivered the opinion of the Court.

The certificate upon which this case is before us contains what are denominated

(Argued Nov. 22, 1918. Decided Dec. 23, 1918.) findings of fact grouped under eighteen para

No. 75.

1. COURTS 384-CERTIFIED QUESTIONS
CERTIFICATE-FACTS AND QUESTIONS.
The certificate on certification of questions
from Circuit Court of Appeals for instructions

graphs covering eight pages of the record. Upon these findings we are asked to instruct as to six propositions of law, really amounting to twelve since each is twofold, that is, stated in the alternative. But we are of opinion that we may not instruct as to these 1"236. No Advance Wages.-Except in case of whaling vessels, it is not lawful to pay any seaman propositions for the following reasons: wages before leaving the port at which such sea[1] In the first place, because we think it man may be engaged in advance of the time when is clear that the statements which are dehe has actually earned the same, or to pay such ad-clared in the certificate to be findings of fact vance wages to any other person, or to pay to any one except an officer authorized by Act of Congress are in no true sense entitled to that charto collect fees for such service, any remuneration for the shipment of a seaman. If any such advance wages or remuneration shall have been paid or contracted for the Consul, in making up the account of wages due the seaman upon his discharge, will disregard such advance payment or agreement and award to the seaman the amount to which he would be entitled if no such payment or agreement had been made. Nor should Consuls permit the statute to be evaded indirectly, as by part payment in advance and then stating rate of wages too small.

R. S. Secs. 4532, 4533; 23 Stat. L. 55, Sec. 10; 24 Id. 80, Sec. 3; 27 Fed. Rep. 764."

acterization, since the statements amount but to a narrative of facts mixed with questions of law so interblended, the one with the other, as to cause it to be impossible to conclude as to either the law or the facts without a separation of the two, a duty which we may not be called upon to perform in giving instructions upon questions of law propounded under the statute controlling that subject.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*179

[2] In the second place, because even if of the questions of law involved. The certhe admixture of law and fact which inheres tificate concludes with this statement: in the recitals in the certificate be overlook

ed, the recitals nevertheless, in and of themselves, fail to distinguish between facts which are merely evidential and those which are ultimate and which for that reason would be susceptible of furnishing support *for the legal propositions as to which instructions are asked.

[3] It is true, indeed, that the statute gives us the discretion, when a case is certified, to direct the sending up of the whole record, but obviously the exercise of that discretionary power is not called for by a case where the certificate is of such a character as not to be embraced by the statute.

It must be, therefore, that this case affords no ground for directing the sending up of the whole record since here the certificate is inadequate to sustain the right to answer the questions stated. To hold to the contrary 'would be to cause a mistaken exercise of the right to certify specific questions to become the instrument by which the division of powers made by the statute would be disregarded.

The views which we have stated are in ac

cord with the settled rules concerning the power to certify which have prevailed from the beginning. See Dillon v. Strathearn Steamship Co., 248 U. S. 182, 39 Sup. Ct. 83, 63 L. Ed. 199, this day decided, and the authorities therein cited. It follows that the

certificate must be and is dismissed.

Mr. Justice CLARKE, dissenting. I greatly regret that I cannot concur in the conclusion of the court just announced. That the certificate of the Circuit Court of Appeals is longer and more detailed than is usual is sufficiently explained by the unusual character of the facts in the case and

"However, we consider that No. 5 presents a question of law which is, in the view most favorable to plaintiff, the ultimate one; and we desire that this question be answered, without prejudice from the inclusion of others in this certificate, if it shall be thought that the inclusion of the *others is not in accordance with the practice of the supreme court in this respect.”

Question No. 5 is in the alternative, viz. : "5a. When it appeared that the Cliffs had interests and desires pertaining to the new lease which might conflict with the course Kaufman and Breitung desired the Arctic to take, did the Cliffs and Mather perform every duty which by law rested upon him as director of the Arctic and through him upon the Cliffs when Mather withdrew from any further participation in the matter and notified Kaufman and Breitung that they could go ahead and make for the Arctic a contract satisfactory to them, and that the Cliffs and Mather would acquiesce therein? or

"5b. Was it the duty of Mather as director in the Arctic, either to disclose to Kaufman and Breitung what he had done and the knowledge he had acquired as an officer of the Cliffs and on behalf of the Cliffs, or else to resign as a director in the Arctic?"

While these two questions run into each other and could, perhaps, have been written as one, nevertheless, in my judgment, each presents a question of law, arising upon recited facts, and each is stated with sufficient precision to bring it within the terms of section 239 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1157 [Comp. St. 1916, § 1216]) and Rule 37 of this court (32 Sup. Ct. xiv), and I therefore think that these two questions, at least, should have been answered, or that this court should have required that the whole record of the case be sent up for its consideration.

*181

*278

(248 U. S. 276)

late commerce (Clark Distilling Co. v. West

MISSOURI PAC. RY. CO. v. STATE OF ern Maryland Ry. Co., 242 U. S. 311, 325, 37

KANSAS.
(Submitter. Nov. 13, 1918. Decided Jan. 7,
1919.)
No. 14.

STATUTES 35 PASSING OVER VETO-TWO-
THIRDS OF "HOUSE."

"House," within Const. art. 1, § 7, cl. 2, requiring a two-thirds vote of each house to pass a bill over a veto, means not the entire membership, but the quorum by section 5 given legislative power.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, House.]

In Error to the Supreme Court of the State of Kansas.

The Missouri Pacific Railway Company was prosecuted by the State of Kansas for violation of a liquor ståtute. Judgment of conviction was affirmed by the State Supreme Court (96 Kan. 609, 152 Pac. 777, Ann. Cas. 1917A, 612), and defendant brings error. Affirmed.

Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845), disposes of the first two contentions and leaves only the third for consideration. In fact, in argument it is admitted that such question alone is relied upon. The proposition is this, that as the provision of the Constitution exacting a two-thirds vote of each house to pass a bill over a veto means a two-thirds vote, not of a quorum of each house, but of all the members of the body, the Webb-Kenyon Act was never enacted into law, because after its veto by the President it received in the Senate only a two-thirds vote of the Senators present (a quorum), which was less than two-thirds of all the members elected to and entitled to sit in that body.

Granting the premise of fact as to what the face of the journal discloses, and assuming for the sake of the argument (Flint v. Stone Tracy Co., 220 U. S. 107, 143, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312; Rainey v. United States, 232 U. S. 310, 317, 34 Sup. Ct. 429, 58 L. Ed. 617) that the resulting question would be justiciable, we might adversely dispose of it by merely referring to the practice to the contrary which has prevailed from the beginning. In view, however, of the importance of the subject, and with the purpose not to leave unnoticed the grave misconceptions involved in the arguments by which the proposition relied upon *Mr. Chief Justice WHITE delivered the is sought to be supported, we come briefly to opinion of the Court.

Messrs. William P. Waggener and B. P. Waggener, both of Atchison, Kan., for plain

tiff in error.

Messrs. James P. Coleman, of Topeka, Kan., and Wayne B. Wheeler, of Washington, D. C., for the State of Kansas.

To avoid penalties sought to be imposed upon it for illegally carrying intoxicating liquors from another state into Kansas, the defendant railroad, plaintiff in error, asserted as follows: (1) That the state law was void as an attempt by the state to regulate commerce and thus usurp the authority alone possessed by Congress; (2) that if such result was sought to be avoided because of power seemingly conferred upon the state by the act of Congress known as the WebbKenyon Law (Act March 1, 1913, c. 90, 37 Stat. 699 [Comp. St. 1916, § 8739]), such act was void for repugnancy to the Constitution

of the United States because in excess of the power of Congress to regulate commerce and as a usurpation of rights reserved by the Constitution to the *states; (3) because, even if the Webb-Kenyon Law was held not to be repugnant to the Constitution for the reasons stated, nevertheless, that assumed law afforded no basis for the exertion of the state power in question, because it had never been enacted by Congress conformably to the Constitution, and therefore, in legal intendment, must be treated as nonexisting.

It is conceded that the ruling of this court, sustaining the Webb-Kenyon Law as a valid exercise by Congress of its power to regu

dispose of the subject.

The proposition concerns clause 2 of section 7 of article 1 of the Constitution, providing that in case a bill passed by Congress is disapproved by the President

* 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.

The extent of the vote exacted being certain, the question depends upon the significance of the words "that house"; that is, whether those words relate to the two houses by which the bill was passed and upon which full legislative power is conferred by the Constitution in case of the presence of a quorum (a majority of the members of each house; section 5, art. 1); or whether they refer to a body which must be assumed to embrace, not a majority, but all its members for the purpose of estimating the twothirds vote required. As the context leaves no doubt that the provision was dealing with the two houses as organized and enti

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*279

*280

tled to exert legislative power, it follows | Constitution, by less than the vote which that to state the contention is to adversely would have been necessary had the constitudispose of it. tional provision been given the significance now attributed to it. Indeed, the resolutions by which the action of the two houses was recorded demonstrate that they were formulated with the purpose of refuting the contention now made. The Senate Record was as follows:

two

And the course of action in the House and the record made in that body is shown by a message from the House to the Senate which was spread on the Senate Journal as follows:

"A message from the House of Representatives. Mr. Beckley, their clerk, brought up a

But, in addition, the erroneous assumption upon which the contention proceeds is plainly demonstrated by a consideration of the course of proceedings in the convention which framed the Constitution, since, as pointed out by Curtis (History of the Constitution, vol. 2, p. 267 note), it appears from "Resolved: That the Senate do concur in the those proceedings that the veto provision as resolve of the House of Representatives on ‘aroriginally offered was changed into the form ticles to be proposed to the Legislatures of the in which it now stands after the adoption states as amendments to the Constitution of of the article fixing the quorum of the two the United States,' with amendments; houses for the purpose of exerting legislative thirds of the Senators present concurring therepower and with the object of giving the pow-in." 1st Cong. (1st Sess.) September 9, 1789, Senate Journal, 77. er to override a veto to the bodies as thus organized. A further confirmation of this view is afforded by the fact that there is no indication in the Constitutions and laws *of the several states existing before the Constitution of the United States was framed that it was deemed that the legislative body which had power to pass a bill over a veto was any other than the legislative body organized conformably to law for the purpose of enacting legislation, and hence that the ma-ate to 'Articles of amendment to be proposed to jority fixed as necessary to override a veto the Legislatures of the several states as amendwas the required majority of the body in ments to the Constitution of the United States,' * ; two-thirds of the members present whom the power to legislate was lodged. 1st Cong. Indeed, the absolute identity between the concurring on each vote. body having authority to pass legislation and (1st Sess.) Sept. 21, 1789, Senate Journal, 83. the body having the power in case of a veto to override it was clearly shown by the Constitution of New York, since that Constitution, in providing for the exercise of the right to veto by the council, directed that the objections to the bill be transmitted for reconsideration to the Senate or House in which it originated. "but if, after such reconsideration, two-thirds of the Senate or House of Assembly shall, notwithstanding such objections, agree to pass the same, it sent to the other branch

shall be

*

of the Legislature, where it shall also be reconsidered, and if approved by two-thirds of the members, present, shall be a law," thus identifying the bodies embraced by the words "Senate" and "House" and definitely fixing the two-thirds majority required in each as two-thirds of the members present.

The identity between the provision of article 5 of the Constitution, giving the power by a two-thirds vote to submit amendments, and the requirements we are considering as to the two-thirds vote necessary to override a veto makes the practice as to the one applicable to the other.

At the first session of the first Congress in 1789 a consideration of the provision authorizing the submission of amendments necessarily arose in the submission by Congress of the first ten amendments to the Constitution embodying a bill of rights. They were all adopted and submitted by each house organized as a legislative body *pursuant to the

resolve of the House of this date, to agree to

the *

* amendments proposed by the Sen

* *

When it is considered that the chairman

of the committee in charge of the amendments for the House was Mr. Madison, and that both branches of Congress contained many members who had participated in the deliberations of the convention or in the proceedings which led to the ratification of the Constitution, and that the whole subject was necessarily vividly present in the minds of those who dealt with it, the convincing effect of the action cannot be overstated.

Those

But this is not all, for the Journal of the Senate contains further evidence that the character of the two-thirds vote exacted by the Constitution (that is, two-thirds of a quorum) could not have been overlooked, since that Journal shows that at the very time the amendments just referred to were under consideration there were also pending other proposed amendments, dealing with the treaty and lawmaking power. concerning the treaty-making power provided that a two-thirds vote of all the members (instead of that proportion of a quorum) should be necessary to ratify a treaty dealing with enumerated subjects, and exacted even a larger proportionate vote of all the members in order to ratify a treaty dealing with other mentioned subjects; and those dealing with the lawmaking power required that a two-thirds (instead of a majority) vote of a quorum should be necessary to pass a law concerning specified subjects.

The construction which was thus given to

*283

the Constitution in dealing with a matter of such vast importance, and which was necessarily sanctioned by the states and all the people, has governed as to every amendment to the Constitution submitted from that day to this. This is not disputed, and we need not stop to refer to the precedents demonstrating its accuracy. The settled rule, however, was so clearly and aptly stated by the Speaker, Mr. Reed, in the House, on the passage in 1898 of the amendment to the Constitution providing for the election of Senators by vote of the people, that we quote It.

after deliberation, as to its correctness by many illustrious men.

While there is no decision of this court? covering the sub*ject, in the state courts of last resort the question has arisen and been passed upon, resulting in every case in the recognition of the principle that, in the ab sence of an express command to the contrary, the two-thirds vote of the house required to pass a bill over a veto is the twothirds of a quorum of the body as empow ered to perform other legislative duties. Warehouse v. McIntoch, 1 Ala. App. 407, 56 The ruling was made under these cir- South. 102; State v. McBride, 4 Mo. 303, 29 cumstances: When the vote was announced, Am. Dec. 636; Southworth v. Railroad, 2 yeas, 184, and nays, 11, in reply to an in- Mich. 287; Smith v. Jennings, 67 S. C. 324, quiry from the floor as to whether such vote 45 S. E. 821; Green v. Weller, 32 Miss. 650. was a compliance with the two-thirds rule | We say that the decisions have been without fixed by the Constitution, as it did not con- difference, for the insistence that the ruling stitute a two-thirds vote of all the members in Minnesota ex rel. Eastland v. Gould, 31 elected, the speaker said: Minn. 189, 17 N. W. 276, is to the contrary

"The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision *of the Constitution says 'two-thirds of both houses.' What constitutes a house? A quorum of the membership, a majority, one-half and one more. That is all that is necessary to constitute a house to do all the business that comes before the House. Among the business that comes before the House is the

reconsideration of a bill which has been vetoed
by the President; another is a proposed amend-
ment to the Constitution; and the practice is
uniform in both cases that if a quorum of the
House is present the House is constituted, and
two-thirds of those voting are sufficient in order
to accomplish the object.
5 Hinds'
Precedents of the House of Representatives, pp.
1009-1010.

*

is a wholly mistaken one, since the decision in that case was that, as the state Constitution required a vote of the majority of all the members elected to the house to pass a law, the two-thirds vote necessary to override a veto was a two-thirds vote of the same body.

Any further consideration of the subject is unnecessary, and our order must be, and is,

Judgment affirmed.

(248 U. S. 369) ERIE R. CO. v. HAMILTON, County Treas

urer.

No. 112.

COURTS 391(1)-STATE COURTS-MODE OF
REVIEW - WRIT OF ERROR-VALIDITY OF
TREATY.

Validity of treaty is not drawn in question, so as to allow, under Judicial Code, § 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. 1916, § 1214), review of decision of state court by writ of error, but the remedy is by certiorari, decision being merely as to special construction of treaty as giving a consul certain power, under which a right is claimed.

This occurrence demonstrates that there is (Argued Dec. 19, 1918. Decided Jan. 7, 1919.) no ground for saying that the adherence to the practice settled in both houses in 1789 resulted from a mere blind application of an existing rule, a conclusion which is also clearly manifested, as to the Senate, by proceedings in that body in 1861 where, on the passage of a pending amendment to the Constitution, as the result of an inquiry made by Mr. Trumbull relative to the vote required to pass it, it was determined by the Senate by a vote of 33 to 1 that two-thirds of a quorum only was essential. 36 Cong. (2d Sess.) March 2, 1861, Senate Journal, 383. In consequence of the identity in principle between the rule applicable to amendments to the Constitution and that controlling in passing a bill over a veto, the rule of twothirds of a quorum has been universally applied as to the two-thirds vote essential to pass a bill over a veto. In passing from

In Error to the Supreme Court of the State of New York.

Action by Walter G. Hamilton, County Treasurer, etc., against the Erie Railroad Company. Judgment for plaintiff (170 App. Div. 901, 154 N. Y. Supp. 1125) was affirmed by the Court of Appeals of New York (219 N. . 343, 114 N. E. 399, Ann. Cas. 1918A, 928), and defendant brings error. Writ dismissed. Mr. William C. Cannon, of New York City

the subject, however, we again direct atten-
tion to the fact that in both cases the contin-
ued application of the rule was the result of
no mere formal following of what had gone
before but came from conviction expressed, for plaintiff in error.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

$285

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