54TH CONGRESS SENATE {REPORT 2d Session {No. 1335 ============================================================================ INQUIRY IN REGARD TO RIVER AND HARBOR ACT. --------------- January 26, 1897.--Ordered to be printed --------------- Mr. HILL, from the Committee on the Judiciary, submitted the following R E P O R T. The Committee on the Judiciary, under the authority and direction of the resolution of the Senate agreed to on February 20, 1896, which resolution is as follows: Resolved, That the Committee on the Judiciary be, and is hereby, directed to inquire and report to the Senate whether, under the provisions of the river and harbor act approved July 13, 1892, the resolution mentioned in the last paragraph of that law is required to be a joint resolution, and whether concurrent resolutions generally are required to be submitted to the President of the United States. having duly considered the same, hereby submit the following report: THE QUESTION PRESENTED. The committee regard the general question presented as involving the proper construction of a portion of section 7 (to wit, subdivision 3) of article 1 of the Constitution, which reads in this wise: 3. Every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. It will be observed that the terms of this section are very broad and sweeping, and on the face thereof, especially under a technical or narrow construction, are sufficient to justify the contention that every resolution, whether joint or concurrent, or whatever may be its mere form (unless it relate to a question of adjournment), must be presented to the President for his approval, in case it is one to which the concurrence of the two Houses is necessary. In one view every joint and every concurrent resolution requires the concurrence of the two Houses from its very nature, from the form thereof, irrespective of its subject-matter. In other words such a resolution, purporting on its very face to be passed through the agreeing action of both Houses, must of course receive such actual concurrence, or it would not be in fact a joint nor concurrent resolution. But it is apprehended that the Constitution looks beyond the mere form of a resolution in determining whether it should be presented to the President, and looks rather to the subject-matter of the resolution itself to ascertain whether it is one "to which the concurrence of the Senate and House of Representatives may be necessary." The Constitution prescribes no definite form in which legislation shall be framed. The manner by which the legislative will may be expressed 2 INQUIRY IN REGARD TO RIVER AND HARBOR ACT. seems to be left to the discretion of Congress, except that section 7 (article 1) seems to imply that it is to be done *by bill* as it expressly provides that "*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" (subdivision 2); and it is also to be implied from the provisions of subdivision 3 (article 1, sec. 7) that it *may* be done by "order, resolution, or vote," and in that case it must also be presented to the President as "in the case of a bill." It is clear that *every bill* must be presented to the President, irrespective of the nature or contents thereof. Upon that point the Constitution is explicit, but whether an "order, resolution, or vote" (except on a question of adjournment) must be presented to the President, depends upon the fact whether the concurrence of the two Houses was actually necessary. The precise question presented involves the proper construction to be given to the sentence "to which the concurrence of the Senate and House of Representatives *may* be necessary," and these words are believed to relate to more than the mere form of the "order, resolution, or vote," as otherwise *every action* of Congress (other than pertaining to adjournment) contained in an "order, resolution, or vote" would have to be presented to the President, as Congress consists of two Houses and can not act or speak as such without the joint concurrent action or otherwise express consent of both bodies. If permissible a more acceptable construction would be that no "order, resolution, or vote" need be presented to the President unless its subject-matter is legislation to which the Constitution expressly requires in the first instance the assent of both Houses, matter to which such assent is constitutionally necessary. In other words, the phrase "to which the concurrence * * * may be necessary" should be held to refer to the "concurrence" made "necessary" by the other provisions of the Constitution and not to the mere form of the procedure; so that no mere resolution, joint, concurrent, or otherwise, need be presented to the President for his approval unless it relates to matter of legislation to which the Constitution requires the concurrence of both Houses of Congress and the approval of the President--in other words, unless such Congressional action be the exercise of "legislative powers" vested in Congress under the provisions of section 1, article 1. A brief history of the use made of joint and concurrent resolutions since the organization of the Government may tend to elucidate the question involved. JOINT RESOLUTIONS. The first Congress of the United States began legislating both by bill and resolution. At its first session, which began in New York on March 4, 1789, and continued to September 29, 1789, it passed 27 bills and 4 resolutions. The bills all contained the same enacting clause now used, to wit, "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled." The first resolution presented to the President and approved by him (August 26, 1789) was neither a joint nor a concurrent resolution, but was a simple resolution, as follows: 1. *Resolved*, That the survey directed by Congress in their act of June the sixth, 1788, be made and returned to the Secretary of the Treasury without delay; and that the President of the United States be requested to appoint a fit person to complete the same, who shall be allowed five dollars per day whilst actually employed in the said service, with the expenses necessarily attending the execution thereof. INQUIRY IN REGARD TO RIVER AND HARBOR ACT. 3 The Second resolution passed and approved (September 23, 1789) was a joint resolution containing the same resolving words as are used at the present time, to wit, "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled," and provided "That it be recommended to the legislatures of the several states to pass laws making it expressly the duty of the keepers of their gaols to receive and safely keep therein all prisoners committed under the authority of the United States," and then prescribed the compensation which the United States should pay for the use and keeping of such gaols. The third was a simple resolution, as follows: 3. *Resolved*, that it shall be the duty of the Secretary of State to procure from time to time such as the statutes of the several States as may not be in his office. (Approved September 23, 1789.) The fourth was a joint resolution in the usual form, declaring-- That John White, late a commissioner to settle the accounts between the United States and the State of Pennsylvania * * * and his clerks * * * be considered as in office until the 4th day of February 1789. (Approved September 29, 1789.) It should be noted that each of these resolutions relate to matters of legislation proper, which could as well have been provided for by bill. The journals of the two Houses show that at this same first session, to wit, on August 6, 1789, both Houses adopted certain joint rules providing for the enrollment of bills and their examination by a joint committee, and providing further as follows: All orders, resolutions, and votes which are to be presented to the President of the United States for his approbation, shall also, in the same manner, be previously enrolled, examined, and signed, and shall be presented in the same manner and by the same committees as is provided in case of bills. These joint rules, although adopted by resolutions and requiring the concurrence of both Houses, were never presented to the President nor approved by him. The subject matter thereof was not legislation per se. The rules themselves fairly imply that there were some joint "orders, resolutions, and votes" which need not be presented to the President for his approbation, as they require only those to be enrolled, examined, and signed "which *are* to be presented to the President." At the second session of the same First Congress there were passed 47 bills and 5 joint resolutions, all of which were approved by the President; and at the third session thereof 28 bills and 5 joint resolutions were passed and approved. At the first session of the Second Congress 1 joint resolution and 44 bills were passed and approved, while at the second session thereof 32 bills and no joint resolutions were passed. At the first session of the Third Congress 65 bills and 8 joint resolutions were passed and approved, and at the second session thereof 53 bills were passed, and 1 joint resolution was also passed by both Houses on March 3, 1795, but does not seem to have been presented to the President, and was not approved, but it is printed in volume 1 of the United States Statutes at Large, page 444, compiled by authority of Congress. All the resolutions, joint and otherwise, which previously had been passed and approved contained appropriate matters of legislation, but this last one simply requested the President to give directions to the Attorney General to collect, digest, and report to the next Congress the charters, treaties, and other documents relative to and explanatory of the title to some lands claimed by certain companies. It was an ordinary resolution for information from a Department of the 4 INQUIRY IN REGARD TO RIVER AND HARBOR ACT. Government which either House separately might appropriately pass and although it was joint in form there was no *necessity* for its presentation to the President, unless *all joint* resolutions must be so presented regardless of their substance. This resolution clearly raised the question whether it is the form or the substance of a resolution which determines the necessity for its presentation to the President. During the first session of the Fourth Congress 54 bills and 1 joint resolution were passed and approved, the resolution containing legislative matter; while in the second session thereof 28 bills and 2 similar joint resolutions were passed and approved. At the first session of the Fifth Congress 17 bills were passed but no joint resolutions, and at the second session thereof 89 bills and 1 joint resolution were passed and approved, the resolution authorizing and directing the Secretary of State to cause certain printing to be done. In the third session of the same Congress 48 bills and 1 joint resolution were passed and approved, the resolution authorizing and directing the Secretary of the Senate and the Clerk of the House to procure certain books. During the Sixth and Seventh Congresses, in addition to a large number of bills, 8 joint resolutions of a legislative character were passed and approved. At the first session of the Eighth Congress a joint resolution was passed, but not presented to the President nor approved by him (but printed in volume 2, Statutes at Large of United States, p. 306) which simply instructed the Joint Committee on Enrolled Bills to wait on the President and ask for the return of an enrolled bill which had been incorrectly engrossed in order to correct the error. The resolution did not purport to enact any legislation and this is probably the reason it was not approved by the President. During the second session of the same Congress 2 joint resolutions were passed and approved, expressing the thanks of Congress to certain naval officers and *providing for an allowance to them of certain extra pay*. This provision in reference to pay clearly gave the resolution a legislative character and necessitated the approval of the President. At the first session of the Ninth Congress a joint resolution was passed and approved, which, after the resolving clause, was as follows: That the President of the United States be requested to cause to be made known to Nicholas C. Nissen, esq., His Danish Majesty's consul, residing in Tripoli, the high sense entertained by Congress of his disinterested and benevolent attentions manifested to Captain Bainbridge, his officers, and crew during their captivity in Tripoli. It is difficult to discover why this resolution required the signature of the President, unless upon the theory that *all* joint resolutions so require it, or unless a *request* of the President is deemed equivalent to a *direction*--a courteous method of expressing the desire of Congress--and that a *direction* necessarily partakes of the character of legislation. One joint resolution was passed and approved in the second session of the Ninth Congress, 1 in the first session of the Tenth Congress, none in the first session of the Eleventh Congress, and 1 in the second session thereof, each of the said resolutions being of a legislative character. In the third session of the Eleventh Congress only 1 joint resolution was passed and approved (by President Madison) which was as follows: Taking into view the peculiar situation of Spain, and of her American provinces, and considering the influence which the destiny of the territory adjoining the southern border of the United States may have upon their security, tranquility, and commerce: Therefor, INQUIRY IN REGARD TO RIVER AND HARBOR ACT. 5 *Resolved by the Senate and House of Representatives of the United States of America in Congress assembled*, That the United States, under the peculiar circumstances of the existing crisis, can not, without serious inquietude, see any part of the said territory pass into the hands of any foreign power, and that a due regard to their own safety compels them to provide, under certain contingencies, for the temporary occupation of the said territory; they, at the same time, declare that the said territory shall, in their hands, remain subject to future negotiations. It will not escape attention that this resolution did not merely express the sense of *Congress", but assumed to speak for the *United States*-- for the Government--and declare a certain policy for the Government to pursue, and hence its passage was properly regarded as the exercise of legislative powers. At the first session of the Twelfth Congress 3 joint resolutions were passed, 2 relating to legislation which were approved, and 1 which was not approved appointing a joint committee to wait on the President and request that he recommend a day of public humiliation and prayer to be observed by the people of the United States. (This resolution is printed in volume 2, Statutes at Large of the United States, p. 786.) The omission to approve this resolution was probably based upon the ground that a mere request *which involved no expense to the Government* was not properly legislative matter with which the President could interfere. During the second session of the Twelfth Congress two joint resolutions were passed and approved requesting the President to present to certain officers of the Navy gold and silver medals and swords for their gallant conduct. The approval was appropriate upon the ground that the resolutions involved expenses and therefore were a legislative matter. Perhaps it was also proper upon the ground that the request therein contained was in effect a *direction* to the President, although placed in the form of a request, as a matter of official courtesy. If, however, the latter explanation is tenable, it is difficult to discover why the resolution requesting the President to appoint a day for public prayer did not also require approval. It is deemed unnecessary to especially review or notice the other joint resolutions which have been passed from and after the Thirteenth Congress up to the present time. It is sufficient to state, after a careful examination thereof, that, while the great bulk of the legislation enacted by Congress during that period has been by bill, a number of joint resolutions have also been passed at nearly every session, and although during the first fifty years of the Government the whole number of such resolutions did not exceed 200, they thereafter gradually increased until in the Forty-first Congress alone the number exceeded 500. That form of legislation has also been largely used since then, but not to the extent it reached in the Forty-first Congress. It has been the uniform practice of Congress (except in the few instances heretofore mentioned occurring in the very early Congresses) to present all joint resolutions to the President for his approval and for the President to act upon the same. Such resolutions have usually embraced only matters of a conceded legislative character. CONCURRENT RESOLUTIONS. The passage of concurrent resolutions by Congress began immediately upon the organization of the Government. They differ very little from simple resolutions, Senate concurrent resolutions being in form substantially as follows: "Resolved by the Senate (the House of Representatives concurring therein), That, etc." They have not been used (except as hereinbefore stated) for the purpose of enacting legislation, 6. INQUIRY IN REGARD TO RIVER AND HARBOR ACT. but to express the sense of Congress upon a given subject, to adjourn longer than three days, to make, amend, or suspend joint rules, and to accomplish similar purposes, in which both Houses have a common interest, but with which the President has no concern. They are frequently used in ordering the printing of documents, in paying therefor, and in incurring and paying other expenses where the moneys necessary therefor have previously been appropriated and set apart by law for the uses of the two Houses. Concurrent resolutions from their very nature require the *concurrence* of both Houses to make them effectual, and if the Constitution in section 7, before quoted, has reference solely to the form, and not to the substance of such resolutions, they must of course be presented to the President for his approval. For over a hundred years, however, they have never been so presented. They have uniformly been regarded by all the Departments of the Government as matters peculiarly within the province of Congress alone. They have never embraced legislative provisions proper, and hence have never been deemed to require Executive approval. This practical construction of the Constitution, thus acquiesced in for a century, must be deemed the true construction, with which no court will interfere (Stuart v. Laird, 1 Cranch, 299). If it be contended that the exception in section 7 (whereby adjournment resolutions are excluded from those which must be presented to the President, although they require the concurrence of both Houses) somewhat corroborates the theory that all *other* concurrent resolutions are intended to be included, regardless of their character,it may be answered that such exception was rendered necessary because of that other provision of the Constitution (art. 1, sec. 5, subdiv. 4) which prevents adjournments for more than three days without the consent of each House. Such adjournment resolutions were therefore constitutionally required to be concurrent because the "concurrence" of both Houses was under the Constitution itself necessary thereto to make them valid, and if there had been no exception contained in said section 7 all such resolutions would have been required to be presented to the President, which would be an unprofitable and useless proceeding, as Congress itself should have the sole right to determine the question of its own adjournment, the President being sufficiently protected in such matters by his power to convene Congress whenever he deems it desirable. In other words, the exception was necessary in order to take certain adjournment resolutions out of the category of those "to which the concurrence of the Senate and House of Representatives may be necessary," under the other provisions of the Constitution, and for that good reason *all* adjournment resolutions were appropriately excepted. The provisions of chapter 9 of the laws of 1874, incorporated in the Revised Statutes (2d ed., 1878, p. 33) as section 205, which do not seem to have been repealed, imply that there may be resolutions, other than joint resolutions, in which legislation may properly be embraced, requiring the approval of the President. They are as follows: Whenever a bill, order, resolution, or vote of the Senate and House of Representatives, having been approved by the President or not having been returned by him with his objections, becomes a law or takes effect, it shall forthwith be received by the Secretary of State from the President. And whenever a bill, order, resolution, or vote is returned by the President with his objections, and on being reconsidered is agreed to be passed, and is approved by two thirds of both Houses of Congress, and thereby becomes a law or takes effect, it shall be received by the Secretary of State from the President of the Senate or Speaker of the House of Representatives, in whichsoever House it shall last have been so approved, and he shall carefully preserve the originals. INQUIRY IN REGARD TO RIVER AND HARBOR ACT. 7 It will be observed that this statute uses the broad phrase "order, resolution, or vote," the same as used in the Constitution, without making any distinction between joint and concurrent resolutions. Neither do the provisions of the act of February 25, 1871 (now incorporated in the Revised Statutes, 2d ed., 1878, p. 2, secs. 7 and 8), throw much light on the subject. They simply prescribe the *form* of bills and *joint* resolutions, and are as follows: SEC.7. The enacting clause of all acts of Congress hereinafter enacted shall be in the following form: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled." SEC. 8. The resolving clause of all joint resolutions shall be in the following form: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled." From these provisions it may properly be inferred that Congress did not intend or contemplate that any legislation should thereafter be enacted except by bill or joint resolution. That is a fair inference, because it has provided no form of legislation by concurrent resolution; but of course these provisions, which must largely be regarded as directory--could not bind subsequent Congresses, which possess the inherent right to prescribe their own forms of legislation notwithstanding this statute. The rules of the respective Houses treat bills and joint resolutions alike, and do not contemplate that legislation shall be enacted in any other form or manner; but it is still true that rules may be suspended at the pleasure of either House, and legislation may also be enacted by a majority in evasion or violation of rules, and even in the absence of rules, without affecting its constitutionality or validity. This principle is plainly deducible from the case of Field v. Clark (143 U.S.R., 649) and other authorities. The act of January 12, 1895, providing for the public printing, recognizes the distinction for what we contend. It provides (chap. 23 of the laws of 1895, sec. 59) that-- Orders for printing extra copies shall be by single, concurrent, or joint resolution. Either House may print extra copies to the amount of five hundred dollars by simple resolution; if the cost exceeds that sum the printing shall be ordered by concurrent resolution, except when the resolution is self-appropriating, when it shall be by joint resolution. It will thus be observed that a joint resolution is only to be used when an appropriation is desired additional to the amount already appropriated for printing purposes in the general appropriations bills--I other words, when the resolution is *self-appropriating*, thereby rendering it legislation per se. When there is no appropriation, but the expense is to be borne by the fund already on hand, placed at the disposal of the two Houses, then a simple or concurrent resolution is appropriate, depending upon the amount involved. The printing act before mentioned (chap. 23, laws of 1895, sec. 73) contains a departure from the practice which prevailed since the organization of the Government. It requires the Statutes at Large to contain "all laws, joint, and concurrent resolutions passed by Congress, and also all conventions, treaties, proclamations, and agreements." *Concurrent* resolutions had never theretofore been printed in the Statutes at Large, but are now so printed under the authority of this act. The necessity or propriety of their publication among our statute laws, (except for ready reference as a matter of convenience simply) may be open to question. They are not approved by the President and are not laws in any sense. 8 INQUIRY IN REGARD TO RIVER AND HARBOR ACT. It should also be stated that it has been the uniform practice of Congress, since the organization of the Government, not to present concurrent resolutions to the President for his approval, and to avoid incorporating in such resolutions any matter of strict legislation requiring such presentation. As a matter of propriety and expediency it is believed to be wise to continue that course in the future. CONCLUSIONS AS TO CONCURRENT RESOLUTIONS. We conclude this branch of the subject by deciding the general question submitted to us, to wit, "whether concurrent resolutions are required to be submitted to the President of the United States," must depend, not upon their mere form, but upon the fact whether they contain matter which is properly to be regarded as legislative in its character and effect. If they do, they must be presented for his approval; otherwise, they need not be. In other words, we hold that the clause in the Constitution which declares that every order, resolution, or vote must be presented to the President, to "which the concurrence of the Senate and House of Representatives may be *necessary*," refers to the necessity occasioned by the requirement of the other provisions of the Constitution, whereby every exercise of "legislative powers" involves the concurrence of the two Houses; and every resolution not so requiring such concurrent action, to wit, not involving the exercise of legislative powers, need not be presented to the President. In brief, the nature or substance of the resolution, and not its form, controls the question of its disposition. CONCLUSION AS TO RIVER AND HARBOR ACT. In answer to the specific question submitted, to wit, whether under the provisions of the river and harbor act approved July 13, 1892, the resolution mentioned in the last paragraph of that law is required to be a joint resolution, we report that in our opinion it need not be. The section containing the paragraph in question is as follows: SEC. 8. For preliminary examination, contingencies, expenses connected with inspection of bridges, the service of notice required in such cases, the examination of bridge sites and reports thereon, and for incidental repairs for which there is no special appropriation for rivers and harbors, one hundred and twenty-five thousand dollars: *Provided*, That no preliminary examination, survey, project, or estimate for new works, other than those designated in this act, shall be made: *And provided further*, That after the regular or formal report on any examination, survey, project, or work under way or proposed is submitted, no supplemental or additional report or estimate for the same fiscal year shall be made unless ordered by a resolution of Congress. The Government shall not be deemed to have entered upon any project for the improvement of any waterway or harbor mentioned in this act until funds for the commencement of the proposed work shall have been actually appropriated by law. The requirement of "a resolution of Congress" mentioned above as a condition for the making of a supplemental or additional report or estimate will be fully answered by a concurrent resolution. A direction for the making of a mere report or estimate involving no appreciable expense in itself can not be said to be strictly matter of legislation, but rather partakes of the character of an ordinary request or direction for information from a Department which has never been deemed to require the approval of the President. Neither the request for the information nor the information itself can be said to be legislation per se. The information is desired preliminarily to enable Congress to frame legislation--it is a mere initiatory step, and no good INQUIRY IN REGARD TO RIVER AND HARBOR ACT. 9 reason can be suggested why the President should be consulted in advance. Congress has the right of its own motion by resolution to *require* information to be furnished and reports to be made from all the Departments, except the Executive Department. (Opinions of Attorney Generals, vol. 6, pp. 333 and 683.) It seems to have been assumed since 1892 that joint resolution were required for the purpose of procuring the reports or estimates aforesaid, and many such have been passed, presented to, and approved by the President,and are printed in the Statutes at Large for 1895-96. Any resolution of Congress, whether joint or concurrent, simply seeking such information need not be approved by the President. We suggest that in order to preserve the harmony of parliamentary procedure, and to remove any obscurity which may be imagined to exist, it might be well enough to amend section 8 of the laws of 1892 by expressly providing for a concurrent resolution instead of "a resolution of Congress," but we do not regard such amendment as essential.