1892 Ballin · Founding Made Plain

1UNITED STATES v BALLIN 1892

2 Supreme Court 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321

3UNITED STATES v. BALLIN et al.

4 February 29, 1892.

5Petition by Ballin, Joseph & Co.

6 to review the decision

7 of the board of general appraisers

8 affirming the action

9 of the collector of New York

10 in classifying certain imported

11 worsteds as 'woolen cloths.'

12Their decision was reversed in

13 the circuit court, (45 Fed. Rep. 170,)

14 and the United States appeals.

15 Reversed.

16 STATEMENT BY MR. JUSTICE BREWER.

17 In July, 1890,

18 the appellees imported into New York

19 certain goods,

20 which they claimed to be dutiable

21 as manufactures of worsted

22 at the rate described

23 in Schedule K

24 of the act of March 3, 1883.

25 The collector assessed them

26 at the rate prescribed

27 in that schedule

28 as manufactures of wool.

29 This he did

30 by reason of an act

31 claimed to have passed by congress in 1890,

32 as follows:

33 "Chapter 200.

34 An act providing for the classification

35 of worsted cloths as woolens.

36 Be it enacted, etc.,

37 that the secretary of the treasury be,

38 and he hereby is,

39 authorized and directed

40 to classify as woolen cloths

41 all imports of worsted cloth

42 whether known under the name of 'worsted cloth'

43 or under the names of 'worsteds' or 'diagonals,'

44 or otherwise.

45 Approved May 9, 1890."

46 The board of general appraisers found these facts:

47 (1) That the goods in question

48 are worsted, and not woolen goods.

49 (2) That the secretary of the treasury

50 never examined or classified

51 the goods in question.

52 (3) That the journal of the house of representatives

53 shows the facts attending the passage

54 of the act of May 9, 1890, thus:

55 "The speaker laid before the house

56 the bill of the house (H. R. 9548)

57 providing for the classification

58 of worsted cloths as woolens,

59 coming over from last night

60 as unfinished business,

61 with the previous question,

62 and the yeas and nays ordered.

63 The house having proceeded to the consideration,

64 and the question being put,

65 Shall the bill pass?

66 There appeared,

67 Yeas — 138.

68 Nays — 3.

69 Not voting — 189.

70 The said roll-call having been recapitulated,

71 the speaker announced,

72 from a list noted and furnished by the clerk,

73 at the suggestion of the speaker,

74 the following named members

75 as present in the hall

76 when their names were called,

77 and not voting, viz.:

78 The speaker thereupon stated

79 that the said members present and refusing to vote,

80 (74 in number,)

81 together with those recorded as voting,

82 (138 in number,)

83 showed a total of 212 members present,

84 constituting a quorum present to do business;

85 and that the yeas being 138,

86 and the nays none,

87 the said bill was passed."

88 On appeal,

89 the circuit court of the United States

90 for the southern district of New York

91 sustained the claim of the importers,

92 and reversed the decision of the collector,

93 from which judgment

94 the United States appealed to this court.

95 Mr. Justice BREWER delivered the opinion of the court.

96 Two questions only are presented:

97 First, was the act of May 9, 1890, legally passed?

98 and, second, what is its meaning?

99 The first is the important question.

100 The enrolled bill is found

101 in the proper office,

102 that of the secretary of state,

103 authenticated and approved

104 in the customary and legal form.

105 There is nothing on the face of it

106 to suggest any invalidity.

107 Is there anything in the facts

108 disclosed by the journal of the house,

109 as found by the general appraisers,

110 which vitiates it?

111 We are not unmindful

112 of the general observations found

113 in Gardner v. Collector, 6 Wall. 499, 511,

114 "that whenever a question arises

115 in a court of law

116 of the existence of a statute,

117 or of the time when a statute took effect,

118 or of the precise terms of a statute,

119 the judges who are called upon to decide it

120 have a right to resort

121 to any source of information

122 which in its nature is capable

123 of conveying to the judicial mind

124 a clear and satisfactory answer

125 to such question;

126 always seeking first for that

127 which in its nature is most appropriate,

128 unless the positive law

129 has enacted a different rule."

130 And we have at the present term,

131 in the case of Field v. Clark,

132 12 Sup. Ct. Rep. 495,

133 had occasion to consider the subject

134 of an appeal to the journal

135 in a disputed matter of this nature.

136 It is unnecessary to add anything here

137 to that general discussion.

138 The constitution (art. 1, § 5) provides

139 that "each house shall keep

140 a journal of its proceedings;"

141 and that "the yeas and nays

142 of the members of either house

143 on any question shall,

144 at the desire of one-fifth

145 of those present,

146 be entered on the journal."

147 Assuming that by reason of this latter clause

148 reference may be had to the journal,

149 to see whether the yeas and nays were ordered,

150 and, if so, what was the vote

151 disclosed thereby;

152 and assuming, though without deciding,

153 that the facts which the constitution

154 requires to be placed on the journal

155 may be appealed to

156 on the question whether a law

157 has been legally enacted,

158 yet, if reference may be had

159 to such journal,

160 it must be assumed to speak the truth.

161 It cannot be that we can refer to the journal

162 for the purpose of impeaching a statute

163 properly authenticated and approved,

164 and then supplement and strengthen

165 that impeachment by parol evidence

166 that the facts stated on the journal

167 are not true,

168 or that other facts existed

169 which, if stated on the journal,

170 would give force to the impeachment.

171 If it be suggested

172 that the speaker might have made a mistake

173 as to some one or more of these 74 members,

174 or that the clerk may have falsified the journal

175 in entering therein a record of their presence,

176 it is equally possible

177 that in reference to a roll-call

178 and the yeas and nays

179 there should be a like mistake or falsification.

180 The possibility of such inaccuracy or falsehood

181 only suggests the unreliability of the evidence,

182 and the danger of appealing to it

183 to overthrow that furnished

184 by the bill enrolled and authenticated

185 by the signatures of the presiding officers

186 of the two houses

187 and the president of the United States.

188 The facts, then, as appearing from this journal,

189 are that at the time of the roll-call

190 there were present 212 members of the house,

191 more than a quorum;

192 and that 138 voted in favor of the bill,

193 which was a majority of those present.

194 The constitution, in the same section,

195 provides that "each house may determine

196 the rules of its proceedings."

197 It appears that in pursuance of this authority

198 the house had, prior to that day,

199 passed this as one of its rules:

200 "Rule 15. * * * (3)

201 On the demand of any member,

202 or at the suggestion of the speaker,

203 the names of members sufficient

204 to make a quorum in the hall of the house

205 who do not vote

206 shall be noted by the clerk

207 and recorded in the journal,

208 and reported to the speaker

209 with the names of the members voting,

210 and be counted and announced

211 in determining the presence

212 of a quorum to do business."

213 H. J. 230, Feb. 14, 1890.

214 The action taken was in direct compliance

215 with this rule.

216 The question, therefore, is as to the validity

217 of this rule,

218 and not what methods the speaker

219 may of his own motion resort to

220 for determining the presence of a quorum,

221 nor what matters the speaker or clerk

222 may of their own volition place

223 upon the journal.

224 Neither do the advantages or disadvantages,

225 the wisdom or folly,

226 of such a rule

227 present any matters for judicial consideration.

228 With the courts the question is only one of power.

229 The constitution empowers each house

230 to determine its rules of proceedings.

231 It may not by its rules

232 ignore constitutional restraints

233 or violate fundamental rights,

234 and there should be a reasonable relation

235 between the mode or method of proceeding

236 established by the rule

237 and the result which is sought to be attained.

238 But within these limitations

239 all matters of method

240 are open to the determination of the house,

241 and it is no impeachment of the rule

242 to say that some other way would be better,

243 more accurate, or even more just.

244 It is no objection to the validity of a rule

245 that a different one has been prescribed

246 and in force for a length of time.

247 The power to make rules

248 is not one which once exercised is exhausted.

249 It is a continuous power,

250 always subject to be exercised by the house,

251 and, within the limitations suggested,

252 absolute and beyond the challenge

253 of any other body or tribunal.

254 The constitution provides

255 that "a majority of each [house]

256 shall constitute a quorum to do business."

257 In other words,

258 when a majority are present

259 the house is in a position to do business.

260 Its capacity to transact business

261 is then established,

262 created by the mere presence of a majority,

263 and does not depend upon the disposition

264 or assent or action

265 of any single member or fraction

266 of the majority present.

267 All that the constitution requires

268 is the presence of a majority,

269 and when that majority are present

270 the power of the house arises.

271 But how shall the presence of a majority

272 be determined?

273 The constitution has prescribed

274 no method of making this determination,

275 and it is therefore within the competency

276 of the house to prescribe any method

277 which shall be reasonably certain

278 to ascertain the fact.

279 It may prescribe answer to roll-call

280 as the only method of determination;

281 or require the passage of members

282 between tellers, and their count,

283 as the sole test;

284 or the count of the speaker or the clerk,

285 and an announcement from the desk

286 of the names of those who are present.

287 Any one of these methods,

288 it must be conceded,

289 is reasonably certain of ascertaining the fact;

290 and as there is no constitutional method prescribed,

291 and no constitutional inhibition of any of those,

292 and no violation of fundamental rights in any,

293 it follows that the house may adopt

294 either or all,

295 or it may provide for a combination

296 of any two of the methods.

297 That was done by the rule in question,

298 and all that that rule attempts to do

299 is to prescribe a method

300 for ascertaining the presence of a majority,

301 and thus establishing the fact

302 that the house is in a condition

303 to transact business.

304 As appears from the journal,

305 at the time this bill passed the house

306 there was present a majority, a quorum,

307 and the house was authorized

308 to transact any and all business.

309 It was in a condition to act on the bill

310 if it desired.

311 The other branch of the question is

312 whether, a quorum being present,

313 the bill received a sufficient number of votes;

314 and here the general rule

315 of all parliamentary bodies

316 is that, when a quorum is present,

317 the act of a majority of the quorum

318 is the act of the body.

319 This has been the rule for all time,

320 except so far as in any given case

321 the terms of the organic act

322 under which the body is assembled

323 have prescribed specific limitations.

324 As, for instance, in those states

325 where the constitution provides

326 that a majority of all the members elected

327 to either house

328 shall be necessary for the passage

329 of any bill.

330 No such limitation is found

331 in the federal constitution,

332 and therefore the general law

333 of such bodies obtains.

334 It is true that most of the decisions

335 touching this question

336 have been in respect to the actions

337 of trustees and directors

338 of a private corporation,

339 or of the minor legislative bodies

340 which represent and act

341 for cities and other municipal corporations;

342 but the principle is the same.

343 The two houses of congress

344 are legislative bodies

345 representing larger constituencies.

346 Power is not vested in any one individual,

347 but in the aggregate of the members

348 who compose the body,

349 and its action is not the action

350 of any separate member or number of members,

351 but the action of the body as a whole;

352 and the question which has,

353 over and over again,

354 been raised is,

355 what is necessary to constitute

356 the official action

357 of this legislative and representative body?

358 In Rex v. Monday, 1 Cowp. 530, 538,

359 Lord MANSFIELD said:

360 "I will take it for granted

361 that a majority of the mayor and aldermen

362 for the time being

363 was sufficient

364 to constitute the corporate assembly,

365 and the fact found by the special verdict

366 is that the majority of those in being

367 did meet.

368 When the assembly are duly met,

369 I take it to be clear law

370 that the corporate act

371 may be done

372 by the majority of those

373 who have once regularly constituted

374 the meeting."

375 In 5 Dane, Abr. p. 150,

376 the rule is thus stated:

377 "When a corporation

378 is composed of a definite number,

379 and an integral part of it

380 is required to vote in an election,

381 a majority of such integral definite part

382 must attend,

383 aliter there is no elective assembly,

384 but a majority of those present

385 when legally met

386 will bind the rest."

387 In 1 Dill. Mun. Corp. (4th Ed.) § 283,

388 the rule is thus stated:

389 "And, as a general rule,

390 it may be stated

391 that not only where the corporate power

392 resides in a select body,

393 as a city council,

394 but where it has been delegated

395 to a committee or to agents,

396 then, in the absence of special provisions

397 otherwise,

398 a minority of the select body,

399 or of the committee or agents,

400 are powerless to bind the majority

401 or do any valid act.

402 If all the members of the select body

403 or committee,

404 or if all the agents are assembled,

405 or if all have been duly notified,

406 and the minority refuse or neglect

407 to meet with the others,

408 a majority of those present may act,

409 provided those present constitute

410 a majority of the whole number.

411 In other words, in such case,

412 a major part of the whole

413 is necessary to constitute a quorum,

414 and a majority of the quorum may act.

415 If the major part withdraw

416 so as to leave no quorum,

417 the power of the minority to act is,

418 in general, considered to cease."

419 This declaration has been quoted approvingly

420 by this court

421 in the case of Brown v. District of Columbia,

422 127 U. S. 579, 586, 8 Sup. Ct. Rep. 1314.

423 In 2 Kent, Comm. 293,

424 the author draws a distinction

425 between what is necessarily a meeting

426 of a representative and a constituent body

427 in these words:

428 "There is a distinction taken

429 between a corporate act

430 to be done by a select and definite body,

431 as by a board of directors,

432 and one to be performed

433 by the constituent members.

434 In the latter case,

435 a majority of those who appear may act;

436 but in the former,

437 a majority of the definite body

438 must be present,

439 and then a majority of the quorum

440 may decide."

441 See, also,

442 Ex parte Willcocks, 7 Cow. 402;

443 Com v. Green, 4 Whart. 531;

444 State v. Green, 37 Ohio St. 227;

445 Launtz v. People, 113 Ill. 137;

446 Gas Co. v. City of Rushville,

447 121 Ind. 206, 23 N. E. Rep. 72;

448 Gosling v. Veley,

449 7 Adol. & E. (N. S.) 406, 4 H. L. Cas. 679.

450 In State v. Deliesseline, 1 McCord, 52,

451 it is said:

452 "For, according to the principle

453 of all the cases referred to,

454 a quorum possesses all the powers

455 of the whole body;

456 a majority of which quorum must,

457 of course govern.

458 * * *

459 The constitutions of this state

460 and the United States

461 declare that a majority

462 shall be a quorum to do business,

463 but a majority of that quorum

464 are sufficient to decide

465 the most important question."

466 In Wells v. Rahway Co., 19 N. J. Eq. 402,

467 we find this language:

468 "A majority of the directors

469 of a corporation,

470 in the absence of any regulation

471 in the charter,

472 is a quorum,

473 and a majority of such quorum,

474 when convened,

475 can do any act within the power

476 of the directors."

477 And in Attorney General v. Shepard,

478 62 N. H. 383, 384,

479 the question was

480 whether an amendment to a city charter

481 had been properly adopted

482 by the board of aldermen.

483 All the members of the board were present

484 but one.

485 The ordinance was duly read and put to a vote,

486 and declared by the chair to be passed.

487 The yeas and nays were then called;

488 three voted in the affirmative,

489 three refused to vote,

490 and the chair declared the ordinance passed.

491 The court held,

492 Chief Justice DOE delivering the opinion,

493 that the amendment to the charter

494 was legally adopted by the board of aldermen.

495 He said:

496 "The exercise of law-making power

497 is not stopped by the mere silence

498 and inaction of some of the law-makers

499 who are present.

500 An arbitrary, technical,

501 and exclusive method of ascertaining

502 whether a quorum is present,

503 operating to prevent the performance

504 of official duty

505 and obstruct the business of government,

506 is no part of our common law.

507 The statute requiring the presence

508 of four aldermen

509 does not mean that,

510 in the presence of four,

511 a majority of the votes cast

512 may not be enough.

513 The journal properly shows

514 how many members were there

515 when the vote was taken by yeas and nays;

516 there was no difficulty

517 in ascertaining and recording the fact;

518 and the requirement of a quorum at that time

519 was not intended to furnish a means

520 of suspending the legislative power

521 and duty of a quorum.

522 No illegality appears

523 in the adoption of the amendment."

524 Summing up this matter,

525 this law is found

526 in the secretary of state's office,

527 properly authenticated.

528 If we appeal to the journal of the house,

529 we find that a majority of its members

530 were present when the bill passed,

531 a majority creating by the constitution

532 a quorum,

533 with authority to act upon any measure;

534 that the presence of that quorum

535 was determined in accordance

536 with a valid rule theretofore adopted

537 by the house;

538 and that of that quorum

539 a majority voted in favor of the bill.

540 It therefore legally passed the house,

541 and the law,

542 as found in the office of the secretary of state,

543 is beyond challenge.

544 With reference to the other question:

545 The opinion of the circuit court

546 seemed to be

547 that the act cast upon the secretary

548 of the treasury

549 a special duty of classification

550 in all cases of the importation

551 of worsted cloths,

552 and that unless he so acted

553 in any particular case

554 the duty remained as it was

555 prior to the passage of the act.

556 We quote its language:

557 "This act, however,

558 proceeds upon an entirely novel theory.

559 It provides expressly for a classification

560 in direct non-conformity to the facts.

561 It authorizes an officer of the government

562 who may find an import

563 to be in fact an article

564 which under the tariff laws

565 pays one rate of duty

566 to call it something else,

567 which it is not,

568 in order to enable the revenue officers

569 to levy upon it a rate of duty

570 which that other article,

571 which it is not, pays.

572 * * *

573 I do not mean by that to suggest

574 for one moment that,

575 under the phraseology of this act,

576 it is the duty of the secretary

577 of the treasury

578 to himself examine the packages of goods,

579 to handle or see their contents;

580 but, having been informed and advised

581 as to the facts

582 in the same way in which he is informed

583 and advised upon any facts

584 upon which he is required to pass,

585 by the examination and report

586 of such trustworthy subordinates

587 as he may select,

588 the final classification

589 of the particular articles

590 is one to be made by him."

591 We do not so construe the act.

592 We understand it rather

593 as a declaration by congress

594 as to the construction to be placed

595 upon that portion of the act of 1883

596 which refers to imported woolen cloths.

597 It was an act suggested by the contest

598 then pending in the courts,

599 and which was finally decided

600 adversely to the government

601 in the case of Seeberger v. Cahn,

602 137 U. S. 95, 11 Sup. Ct. Rep. 28,

603 in which it was held by this court

604 that "cloths popularly known as 'diagonals,'

605 and known in trade as 'worsteds,'

606 and composed mainly of worsted,

607 but with a small proportion of shoddy

608 and of cotton,

609 are subject to duty

610 as a manufacture of worsted,

611 and not as a manufacture of wool,

612 under the act of March 3, 1883, c. 121."

613 The form of expression used in the act

614 may be novel,

615 but the intent of congress is quite clear.

616 Recognizing the fact

617 that the secretary of the treasury

618 is the head of the financial department

619 of the government,

620 that to him, as its chief administrative official,

621 is given the supervision of the tariff

622 and all the collections thereunder,

623 it directs him to classify

624 all worsted cloths as woolen cloths,

625 and it gives to him no discretion.

626 He may not classify some worsteds as woolens

627 and others as not.

628 There is given no choice or selection,

629 but it is the imperative direction of congress

630 to him,

631 as the chief administrative officer

632 in the collection of duties,

633 to place all worsted cloths,

634 by whatever name properly known

635 or known to the trade,

636 within the category of woolen cloths,

637 and, of course, if placed within that category,

638 or, using the familiar language of the tariff,

639 if "classified as woolen cloths,"

640 subject to the duty imposed on such cloths.

641 If action were necessary

642 by the secretary of the treasury

643 to put this act into force,

644 which we think it was not,

645 such action was taken

646 by the circular letter of May 13, 1890,

647 from the treasury department

648 to all customs officers,

649 publishing the act

650 for the information and guidance

651 of the public.

652 Our conclusion, therefore, is

653 that the act was legally passed,

654 and that by its own terms,

655 and irrespective of any action

656 by the secretary of the treasury,

657 the duties on worsted cloths

658 were to be such as were placed

659 by the act of 1883 on woolen cloths.

660 The judgment of the circuit court

661 will be reversed,

662 and the case remanded

663 for further proceedings

664 in accordance with this opinion.