Gandy v. Main Belting Co., 143 U.S. 587 (1892)

The machinery for manufacturing the belting is also set forth in the specification, but the only claim alleged to be infringed in this case is the second, which reads as follows: p. 588“ 2. The improved article of manufacture consisting of a hard, even surfaced, rigid, impervious, non-elastic belt composed of cotton canvas or duck having its warp thread larger than the weft, both warp and weft being hard spun, the fabric tight woven and folded, stitched and saturated with linseed oil.”

On May 9, 1877, plaintiff Gandy, who is an alien, and a subject of Her Britannic Majesty, deposited at the office of the British Commissioner of Patents a provisional specification, upon which a patent was subsequently issued for an improvement in machinery belts. He stated the object of his invention to be the manufacture of belts of cotton canvas that would not give out by stretching, or be detrimentally affected by variations in the atmosphere, and at the same time be sufficiently pliable to allow of their running around small pulleys without cracking. To accomplish this he p. 589manufactured his belts of cotton canvas or duck, “hard woven,” put together either by hand or by folders, and formed into a belt of the desired width and thickness, stitched with rows of stitching, and then soaked or saturated in linseed oil. After the saturation, the canvas is formed into a belt by folding and stitching. After this, it is passed through rolls to squeeze out the superfluous oil, and it is then dried and painted, and lastly stitched. The claim of this patent was “ for constructing belts or bands for driving machinery of cotton canvas or duck, ‘ woven hard,’ and stitched, and saturated or soaked with oil, such as linseed oil or any combination thereof, as herein described or set forth, or any modification thereof.” In 1883 this patent became the subject of litigation in the chancery division of the High Court of Justice, and was held to be invalid. In delivering the opinion of the court, Mr. Justice Pearson expressed a serious doubt whether the patentee could claim as a new invention a belt made of hard woven canvas, when belts made of other descriptions of canvas and saturated with oil were well known and manufactured years before. He did not, however, debide the case upon this point, but upon the ground that Gandy had not taken out his patent for his real invention. “ I think,” he said, “ he has described something in his patent which was not his invention, and he has not described in his patent that which was really his invention. • . . It appears that in the beginning of the year 1877 Mr. Gandy was making various experiments in order to perfect a belt which he was intending to patent, and having made those various experiments with different kinds of canvas he at last discovered that a canvas of a particular strength in the warp was the best canvas that could be used for making these belts. . . . But in the patent which he took out there is not a single word to indicate that the warp ought to be stouter than the weft; least of all is there any indication that one particular strength in the warp and one particular strength in the weft would make the best canvas.” The learned judge held the patent to be bad because it did not disclose the very best way of making the manufacture, remarking that in a patent subsequently obtained by him, in 1879, p. 590he did describe the mode in which the belt was to be made, by saying that the canvas in the warp was to be stouter than in the weft.

(1) The defence to this patent is that on the 31st day of July, 1878, one Jones filed a provisional specification with the British Commissioner of Patents for an improvement in belts, which consisted in increasing the strength of the warp or p. 591longitudinal fibres or yarns over the weft or cross fibres — in other words, precisely the same specification as that contained in the second claim of the plaintiff’s patent, or at least for the only element of such claim which is novel. Plaintiff’s reply to this is that, while Jones’ application antedates his own in point of time, his own invention was prior in point of fact, and in proof of this he produces the three small pieces of belt attached to his application of December 1, 1877, which the Commissioner of Patents has certified were filed in the Patent Office by Gandy at that date, and more than six months before the Jones specification was filed in the British Patent Office. This canvas is really the only one for which the patentee has sought to obtain a patent, although his first application was refused because he neglected to describe his real invention. Each of these belts is made of canvas with warp obviously larger than the weft, and containing every other element of the second claim of the patent. In relation to this Mr. Gandy also testifies that he was acquainted with Jones, who was a member of the firm of Garnock, Bibby & Co., of Liverpool, and were customers of.his. “They also,” said he, “ made a stitched sail-cloth belting, and when they found I had taken a patent for a belting that was a success, they also applied for a patent. Seeing which in the papers, I asked Mr. Jones to tell me what he was patenting, as he need have no hesitation in doing so, seeing he had filed his provisional specification. He at once told me that it was for a belt made with the warp stouter than the weft. I told him if he would walk along to my factory I would show him that I had been using for some time before his application a cloth to make my belts in which the warp was stouter than the weft. He went with me and saw the cloth and the belts and was satisfied that such was the case, and hence went no further with his patent, but abandoned the application.” The fact that no patent appears ever to have been issued upon Jones’ application makes the truth of this statement seem quite probable. The canvas of which Gandy made use in England, it seems, was manufactured by the Mt. Vernon Company of Baltimore, and in further proof of the date of his invention, p. 592he produced the testimony of the shipping clerk of that firm, who swore that as early as 1876 the firm shipped to Gandy belting canvas having the warp threads stouter than the weft; there being six plies in the warp and only four in the weft. Mr. Gandy also swears that since 1875 all the canvas ordered by him was made with the warp stouter than the weft. As there is no testimony to contradict this it must be accepted as a fact in the case.

(2) The court below, however, found that, conceding that his invention was made as early as 1876, antedating the filing of Jones’ specification by some two years, the same testimony also proved that it had been in public use more than two years before filing his application, and that under Rev. Stat, section 4886, the patent was therefore void. All that the evidence upon this point shows is that Gandy ordered all his canvas made by the Mt. Vernon Company and shipped to him at Liverpool. There is no direct testimony to show whether this canvas was made up into belting, or when the belts were first publicly used or sold abroad. Indeed, nothing to show that it was in publie use or on sale before the application for the patent in this suit was filed. Even if we were authorized to presume that such canvas was manufactured into belting and sold or used in England, there is not a particle of testimony tending to show that it was publicly used or put on sale in this country. Conceding that there was sufficient evidence of the use of such belting in England, we think that this does not vitiate the patent. Section 4886 declares that “ any person who has invented or discovered any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement thereof, not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country before his invention or discovery thereof, and not in public use or on sale for more thorn two yea/rs prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor.” It is true that the language of this section contains no restriction as to the place or country wherein the public use p. 593is made of the invention; but taken in connection with section 4887, providing that no person shall be debarred from receiving a patent, by reason of the invention being first patented abroad, “ unless the same has been introduced into public use in the United States for more than two years prior to the application,” we think that the public use or sale contemplated by section 4886 must be limited to a use or sale in this country. That this was the intent of Congress is also manifest from section 4923, providing that whenever it appears the patentee believed himself to be the original and first inventor of the thing patented, his patent shall not be held void “ on account of the invention or discovery, or any part thereof, having been known or used in a foreign country before his invention or discovery thereof, if it had not been patented or described in a printed publication.” So also in section 4920, providing what the defendant may plead under the general issue in actions for infringement, there is included the defence “that it had been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned tb the public.”

vol. cxLin—38 p. 594belts made of ordinary soft canvas proved to be wholly impracticable owing to their apparently endless capacity for stretching. He next experimented with hard-spun and tight-woven canvas, specially manufactured for this purpose. This did not stretch, but developed another fault, of wrinkling and cracking when running around pulleys. This he obviated by saturating it with linseed oil; but found another objection in the unequal strain on the several thicknesses when passing around the pulleys, which tended to break the stitching and permitted the plies to separate. He then conceived the idea that by decreasing the thickness of the belt, without diminishing its tensile strength, he would bring the diameter of the exterior plies more nearly level with the inner plies next the pulley, and thus more nearly equalize the strain on all parts of the belt, increasing its effective strength and diminishing the tendency of the plies to separate or wrinkle. It is obvious even to a non-expert that, if the belting be made very thick, there is a much greater strain upon the exterior plies, when passing around a small pulley, than upon the inner plies, and that the effect must be both to unduly strain the exterior plies, rendering th^m liable to break, and to wrinkle the inner ones, subjecting them to the danger of cracking; and that the ideal belting would be made as thin as would be consistent with the requisite strength and inflexibility. In view of the fact that previous attempts, of which there appear to have been several, to make a practical canvas belt had been failures, and that Gandy had been experimenting with the subject for several years before he discovered that a change was necessary in the structure of the canvas itself, we do not think his improvement is a change in degree only, or such an one as would have occurred to an ordinary mechanic, and our opinion is that it does involve an exercise of the inventive faculty. The change is such as would only have occurred to one familiar, not alone with the impossibility of making a practical belt out of the ordinary canvas, but to one who had bestowed considerable thought upon the method of overcoming the difficulty. While some of the testimony would seem to indicate that there is no great advantage in this method of p. 595construction, we think the fact that it has been largely adopted by manufacturers and that all the modern improved belting ordered or made by Gandy and in general use both in this country and in Europe, is made in this way, is, for the purposes of this case, sufficient evidence of its utility. Magowan v. New York Belting Co., 141 U. S. 332.

The language of Mr. Justice Woods, in delivering the opinion of this court in Lehnbeuter v. Holthaus, 105 U. S. 94, 96, is equally pertinent to this branch of the case: “The patent is p. 596prima facie evidence both of novelty and utility, and neither of these presumptions has been rebutted by the evidence. On the contrary, they are strengthened. No anticipation of the design is shown, although the attempt has been made to prove anticipation. The fact that it has been infringed by defendants, is sufficient to establish its utility, at least as against them.”

The Chicago, Rock Island and Colorado Railway Company contracted with the Denver and Rio Grande Railroad Company for the use by the former of the tracks, stations, sidings, switches, etc. of the latter company between Colorado Springs and Denver, (except its shops at Burnham), and also for its terminal facilities at Denverrand, having so contracted made its connections and entered on the enjoyment of its rights under the contract. Shortly afterwards the Chicago, Rock Island and Pacific Railway Company was organized and acquired the property and rights of the Chicago, Rock Island and Colorado Railway and entered into the enjoyment of them, and its rights were recognized by the Denver and Rio Grande Railroad Company. The Rock Island and Pacific Coim pany then acquired a right to connect with the Union Pacific Rai roa p. 597Company at Limon, and to run its eastern trains over the tracks of the latter company to Denver, which it did. The distance from Limon to Denver by this route was sixty-four miles less than by the way of Colorado Springs and the Denver and Rio Grande road. Although it had diverted its Denver traffic, it continued to use the Rio Grande road for its Pueblo traffic, and it claimed the use of the terminal facilities of that road at Denver for all, and also the use of some land at Burnham not actually used for shops. It also claimed the right under the contract to put in its own switching forces and cleaning gangs. The Denver and Rio Grande Company then gave notice that it would exclude from the Denver terminals all business coming over the Union Pacific tracks. Thereupon the Rock Island Company filed a bill in equity and obtained a restraining order. By amendments and supplemental bills there were brought into the controversy other matters of difference between the two companies and a final decree was made settling their rights under the contract as follows: (1), that the new Rock Island Company was the successor of the old, and had the right under the contract to operate its trains over the Rio Grande Company’s line; (2), that it had not the right, under the contract, to bring its trains to the Denver terminals over the Union Pacific; (3), that it had the right to employ separate switching crews and separate employes to perform other services in the yards of the Rio Grande Company under the control and subject to the direction of the agent of that company; (4), that the words “ shops at Burnham ” in the contract included all lands used or procured for shop purposes and appurtenant to the shops located at Burnham; (5), that a track should be set apart at Denver on which the Kansas Pacific Company might clean its cars; (6), that each party should pay one-half of all costs. On appeal this court Held, (1) That the plaintiff was entitled to file this bill;

This was a bill in equity brought by the Chicago, Rock p. 598Island and Pacific Railway Company, (hereafter designated as the Rock Island Company,) against the Denver and Rio Grande Railroad Company, (hereinafter designated as the Denver Company,) to enforce an alleged right to certain terminal facilities at the city of Denver, and for certain incidental purposes, hereinafter stated in the opinion. There was also a cross-bill filed to enjoin the plaintiff from making use of such facilities, and for other purposes, which was subsequently dismissed by stipulation of the parties.

Sec. 2. It will, from and after the completion of its railway from the boundary line of the State of Kansas to a connection with the railway of p. 600notice to the defendant company that the Chicago Company elected, as provided by the contract of February 15, 1888, “ to

If the Chicago Company shall at any time during the continuance of the term of this indenture desire any side, spur, or other tracks, other than those above specified, connecting any track described in article 1, section 1, hereof, with its own tracks, or with the tracks of any other railway company, or to any industry, or shall desire any facilities or conveniences which do not now exist, it shall give to said Denver Company notice of p. 602ready for operation on or before the thirty-first day of December, in the year one thousand eight hundred and eighty-nine.”

Pacific tracks, under the contract made with the Chicago Company. The parties being unable to agree upon a proper construction of the contract, the defendant gave notice that it would, on August 1, 1890, exclude from its Denver terminals all business brought over the Union Pacific tracks. Thereupon the Rock Island Company filed this bill, and applied for a restraining order, which was granted. By amendments and supplemental bill there were brought into the controversy other matters of difference which had arisen between the two companies. Upon the hearing in the Circuit Court a decree1 p. 606was made settling the rights of the two companies to this contract (45 Fed. Rep. 304), from which both parties appealed to this court.

It is unnecessary to set forth at length the numerous steps by way of assignments, leases and consolidations by which p. 608the Rock Island Company became the assignee of the Chicago Company under this contract. It is sufficient, for the purposes of this case, that it assumed to take the place of the Chicago Company; that it entered into open possession of the property of that company, and upon the performance of this contract, on the first of January, 1889; that it was recognized by the Denver Company as taking the place of the Chicago Company; that this was done with the consent of that company, and that no question was ever made by the Denver Company of its rights under this contract until its answer was filed in this case: and in its cross-bill the Denver Company prayed for the specific performance of the contract against it. From the time of the consolidation in June, 1888, business was transacted with the defendant in the name of the Chicago, Kansas and Nebraska Company, the consolidated company; and the defendant in issuing its time-cards, at the time connection was made and trains began to run, upon the information furnished» it by the officers of that road, designated its trains as the “ Chicago, Kansas and Nebraska Express,” etc. In May, 1889, upon the request of plaintiff’s officers, the caption was changed to the “ Chicago, Rock Island and Pacific.” On May 16, a notice was issued stating that plaintiff had assumed the operation of the. Chicago, Kansas and Nebraska Railway. Upon this coming to the hands of the law department of the defendant in July, some correspondence was had, by which the defendant was apprised that the Rock Island Company was operating the line of the other under a lease. Upon this information, the managing officers of the defendant recognized the plaintiff as the successor in interest under the contract, and made no question of its rights for more than a year thereafter. Had the Denver Company refused to recognize the plaintiff as the legal successor of the Chicago Company, and refused to acknowledge its contract with the Chicago Company as importing any obligation or liability on its part towards the plaintiff, a serious question might have arisen as to the rights of the latter, under this alleged assignment, as the successor of the Chicago Company. But, under the circumstances of this case, a court of equity will treat the p. 609assignee in fact as the legal assignee, possessed of the rights and charged with the obligations of the original party to the contract. Wiggins Ferry Co. v. Ohio & Mississippi Railroad, 142 U. S. 396. In short, we find no difficulty in holding that the plaintiff was entitled to file this bill.

vol. cxLin—39 p. 610from its eastern boundary. Its officers had not, however, settled upon the particular route — whether they should build an independent road from the Kansas State line to Denver, with a branch to Pueblo, or build a connection with the defendant’s road at Colorado Springs, thence reaching Denver and Pueblo over defendant’s line. This connection had not been made at the time the contract was entered into, though there is a preliminary recital that “the Chicago Company owns a railway which is being constructed from the western boundary of the State of Kansas, at which point it will connect with the Chicago, Kansas and Nebraska Railway, to the city of Colorado Springs,” indicating very clearly that this was the road within the contemplation of the parties. Indeed, there was an express provision in the body of the contract (art. Ill, § 10) that the Chicago Company should, on or before the first day of April, 1888, notify the Denver Company whether or not it elected to build its line to Colorado Springs, and that if it should elect to build such line it was to complete the same and to occupy the line of the Denver Company, and to be bound by the terms of the contract, on or before the thirty-first day of December, 1889. “ If it shall elect not to build said line, this contract shall on the said first day of April, in the year 1888, become void and of no effect;” — in other words, the very life of the contract was made to depend upon the fact whether this connection was made, and until that time it was not to go into operation. It is quite evident from this that if, instead of completing its road to Colorado Springs, the Chicago Company had made the connection with the Union Pacific which it subsequently did make, the Denver Company would not have been under the slightest obligation to afford the terminal facilities which the plaintiff now claims. The Denver Company as well as the Chicago Company undoubtedly had an object in view in making the contract, which was largely, at least, to obtain a revenue from the use of its tracks between Denver and Pueblo, of which the ter minal facilities at these points were but an incident.

Indeed, the contract from beginning to end is full of pro visions which indicate that the minds of the parties met on y p. 611upon an understanding that the Chicago Company should make its connection with the Denver road at Colorado Springs, and should make a constant use of its tracks from that point to Denver and Pueblo, and, inferentially at least, that the Denver Company would not have consented to it upon any other theory. The preamble contains a recital that “ the interest of both parties and of the public will be promoted by the establishment and operation of a through line of railway between all the points on the line of the railway of the Denver Company, between and including Denver and South Pueblo, and all points on the line of railway which will be operated by the Chicago Company, and on the system of railways of which the Chicago Company will form a part.” By art. II, § 3, the Chicago Company covenanted that it had power to construct a line from the western boundary of Kansas to Colorado Springs. By art. I, § 3, the Denver Company is to furnish “all water and coal which the Chicago Company will need for the operation of its trains over the railway of the Denver Company. It agrees, if so required, to provide and maintain engine-houses to properly and safely shelter all locomotive engines which said Chicago Company may have occasion to use on the railway of the Denver CompanyC (Art. I, § 5.) The rent payable by the Chicago Company began to run “from and after the completion of its railway from the boundary line of the State of Kansas to a connection with the railway of the Denver Company at or near Colorado Springs.” (Art. II, § 2.) And there was a further express provision that “ no compensation will accrue or be paid to the Denver Company from or by the Chicago Company for the use and occupation of said premises, before the railway of the Chicago Company shall be completed from its initial point on the western boundary of the State of Kansas to a connection with the railway of the Denver Company within the time hereinafter specified.” (Art. II, § 2, sub. 10.) Among the payments to be made was a proportionate amount of the cost or expenses for keeping the railway and appurtenant property in repair, and supplying it (the Chicago Company) with water, “as the number of wheels per mile run by it, the Chicago p. 612Company, over said railway, or any part thereof, bears to the whole number of wheels per mile run over the same during the same period,” (Art. II, § 2, sub. 4,) — a provision wholly inapplicable to the separate use of terminal facilities; since it needs no argument to show that the amount of compensation for the use of such facilities cannot be practically determined upon a wheelage basis.

By art. Ill, § 4, the Chicago Company agrees to do no business as a carrier of persons or property between Denver and Colorado Springs, or between intermediate stations between Colorado Springs and Pueblo, or between any such intermediate stations and Denver, Colorado Springs or Pueblo; but it was to have the right “ to transport persons and property between stations on its railway and connecting lines, and all points between and including Denver and South Pueblo: Provided, however, that if the Chicago Company shall at any time acquire by purchase, construction or otherwise, a railway extending not less than fifty miles from Pueblo, it shall have the right to transport persons and property between any point on such line and Denver.” There is certainly an inference from this proviso that it was not contemplated that the Chicago Company should acquire similar rights upon railways from other points than Pueblo. In addition to this, the situation and plan of the Denver station grounds show that while they possess every facility for the admission of trains from the southward, their connection with the Union Pacific to the northward is by two tracks, one of which is wholly used for the transfer of freight cars to other systems of railways, the other only making direct connection with the station of the Union Pacific — an obviously inadequate provision for a large and continuous traffic. Taking all the facts of this contract together, we regard it as quite clear that it was never intended to grant the use of terminal facilities except as appurtenant to the use of the road itself. Indeed, where a road is leased with its terminal facilities the implication is strong that it was the lease of the road which induced the lease of the terminals, and the contract should not be construed as importing a separate lease of such terminals‘without clear language to that effect. p. 613If plaintiff’s contention be correct, we see no reason why it may not construct or lease another track direct from Limon to Pueblo, and demand .the use of the defendant’s terminals at that point, and practically, at least, abandon its line to Colorado Springs.

In ascertaining the scope of this exception little aid can be derived from the illustrations employed by counsel upon both sides, since the meaning of the reservation must be determined in every case by the particular facts of such case. For instance, if the vendor of a city lot should, in a deed of such lot, reserve to himself a building standing thereon, it would be manifest that he reserved only the right to remove such building, since a different construction would be destructive of the grant. On the other hand, if a testator devised to his sons a large farm, reserving to his widow the right to occupy the farm-house during her life, it might, and probably would, be held to include the out-buildings and gardens, or. messuage. p. 614So, while a shop in which an individual carried on a trade might be limited to the particular building, and even to the particular room in which his work was- done, we should not apply this narrow construction to the shops in which a large railroad corporation carries on its manufacturing and repairing. The intent of the parties must be gathered from the character of the conveyance, the nature and situation of the property conveyed and of the property excepted, and the purpose of such exception.

The grant in this case was of the “ possession and use of all its tracks, buildings, stations, sidings and switches on and along its line of railway between and including Denver and South Pueblo, . . . intending hereby to include in the description aforesaid all and every portion of its railway and appurtenant property between and at the points aforesaid,” etc. No specific mention is here made of real estate, and while, as we have had recent occasion to hold, New Orleans Pacific Railway v. Parker, ante, 42, land is not ordinarily appurtenant to other land, much less to personal property, there can be no doubt that, under this grant, all land occupied by the stations, tracks, water tanks, etc., and all other land habitually used in the daily operation of the road, would pass as appurtenant to the railway. The very fact that the grant is so liberal in its terms is an indication that the exception also should not be narrowly construed. It is evident that an interpretation which would limit it to the buildings actually used for mechanical purposes would fail to express the intention of the parties with regard to this exception, since repairs are frequently made to cars while standing in the yards, and track room must be provided for cars while they are waiting their turn in the shops, as well as round-houses for the accommodation of locomotives. As the Denver Company owned and operated some fifteen hundred miles of railway, and had its principal shops for making and repairing its rolling stock, and for storing its cars, supplies and materials for its whole line of road, at Burnham, it is manifest that extensive buildings, grounds, tracks and other appliances would be required for such purposes. The amount originally purchased seems p. 615to have been about forty acres ; but finding this to be insufficient, from time to time other purchases were made, including the two tracts in question, and at the date of the contract the ground purchased for the use of the shops and intended to be devoted to such purposes embraced about sixty acres. There was a map of these lands published In 1884, entitled “ A New Map of the Denver and Rio Grande Railway shops at Burnham” which it is probable, at least, was consulted by the parties before this contract was made. While there is some conflict of testimony as to what occurred at that time, it seems somewhat improbable that, in making a contract of this magnitude, some reference should not have been made to this map, a glance at which would have apprised plaintiff of what the defendant claimed to be embraced under the designation of the Burnha/m, shops. For these reasons, we think that the plaintiff’s theory that the exception applies only to the shop buildings is untenable.

The contract is silent upon this point. The Denver Company does, however, agree (art. I, § 1) to let the Chicago Company into the full, equal, joint and perpetual possession and use of its property, and is bound to do so wherever a joint operation of such property is practicable. There is also a provision (art. II, § 2, sub. 6) for the payment by the Chicago Company, as part of the consideration, of “ an amount equal to a proportionate share of the expenses actually incurred in paying p. 617proper salaries to the general superintendent and subordinate employes, including switchmen, telegraph operators, train dispatchers and others necessarily employed in the performance of the duties incident to the joint use and occupation of said railway, not including train men, which proportion shall be ascertained in the manner . . . above set out.” This provision seems to contemplate that the plaintiff shall employ its own operatives upon its own trains, the defendant retaining the general management of the road, and*the direction of such employes as are necessary to its operation, and to the regular and ordinary movements of the trains of both companies, in order to prevent confusion and accidents.

In reply to this letter, under date of February 22, Mr. Cable, plaintiff’s president, said that they acted on the theory “ that the movement of trains on your tracks must be under the direction of your operating officers; that operations in the yards must conform to reasonable yard rules, and that in all p. 618other respects we have exclusive control of our engines and cars.” On the 26th, Mr. Smith said in reply: “ This company is at all times ready and willing to unite with you in making and modifying rules and regulations for the movement of engines and trains in such a way as to accord equality of right, privilege and advantage as far as practicable. But in the execution of these rules and regulations there can be no divided authority.” This was the construction put upon this contract by the parties shortly after it went into operation, and we think it accords with its spirit, and is not inconsistent with its letter. It is obviously necessary to the harmonious working of the two systems that the general control and management of the yard should remain with the defendant; but it is not easy to see why that control may not be as well exercised over two switching crews belonging to two different companies as over two crews belonging to the same company. The evidence shows that the defendant has nine crews working by day and six by night. There was a good deal of conflicting testimony upon the question whether such joint operation was practicable, and a large number of witnesses were sworn on both sides. Upon the whole, we have come to the conclusion that, while at times it may not be convenient, it is by no means impossible, and the correspondence between the parties indicates that it was not considered objectionable. The gist of the testimony upon this point seems to be that if the employes of the two companies desire to work harmoniously together there is little difficulty in doing so; but if either party chooses to be technical in the assertion of its rights, there is abundant opportunity for friction. It occurs to us that it would cause fully as much inconvenience to transfer the control of trains from the employes of one company to those of another, as such trains entered or left the terminal yard, as it would to permit the switching of such trains within the yard by the hands that brought them in or were to take them out. It appears that yards are jointly operated in this manner in such large railway centres as Kansas City, Toledo, and Chicago without serious difficulty. We think the same rule should also be applied to those employed in handling the p. 619freight. With reference to this, the decree of the court below provided that the plaintiff had a right, at its option, to employ its separate switching crews, and operate its own switching engines in the yards of the defendant company, under the sole and absolute supervision, direction and control, however, of the yard master or other properly constituted officer or agent of the defendant, and subject to the orders and instructions of such yard master, etc., and in this there was no error.

(6) Plaintiff also assigns as error the omission of the court to provide in its decree that the defendant should discharge p. 620any of its employes engaged in the operation of any part of the road jointly occupied and used under the contract, upon the demand of the plaintiff that such employe be removed from that portion of the line. In this particular the contract provides (art. Ill, § 3) that “ any employe of one company engaged in the operation of any part of the railway jointly occupied and used under this contract, shall be removed from that portion of said line upon the request of the other.” The allegation of the bill in that particular is, that for the purpose of facilitating the transportation of passengers from all points on one road to all points upon the other road, the plaintiff placed in the hands of station agents at the stations between Denver and Pueblo tickets to be sold to passengers who should desire such transportation, and that defendant uniformly and persistently thwarted, when it had power to do so, all attempts to secure the movement of traffic over such through line, and instructed such agents, who were paid for their services jointly by plaintiff and defendant, to refuse to sell such tickets, and to falsely state to passengers that plaintiff’s trains would not stop at such stations; and that plaintiff demanded that a number of such agents, who made such statements, should be removed; but the contract in that particular was disregarded by the defendant. In its answer, the defendant admitted that plaintiff demanded that certain of its agents be removed, but alleged that such demand was made during the pendency of these proceedings, within a few days before the filing of the supplemental bill, and that such agents had not as yet been removed by reason of the manifest oversight of the plaintiff in ignoring its time tables and the instructions therein contained, and because it believed that upon a further consideration of the facts plaintiff would withdraw the request. This point was waived in the court below upon a statement of facts made as to the particular agents in the supplemental bill named, and while there seems to be a radical difference between the parties as to a proper interpretation of this clause of the contract, the question as here presented is only a moot one, and we do not feel called upon to settle it.

“ Sec. 25. That inasmuch as there is a controversy between the United States and the State of Texas as to the ownership p. 622of what is known as Greer County, it is hereby expressly provided that this act shall not be construed to apply to said Greer County until the title to the same has been adjudicated and determined to be in the United States; and in order to provide for a speedy and final judicial determination of the controversy aforesaid, the Attorney General of the United States is hereby authorized and directed to commence in the name and on behalf of the United States, and prosecute to a final determination, a proper suit in equity in the Supreme Court of the United States against the State of Texas, setting forth the title and claim of the United States to the tract of land lying between the North and South Forks of the Red River where the Indian Territory and the State of Texas adjoin, east of the one hundredth degree of longitude, and claimed by the State of Texas as within its boundary and a part of its land, and designated on its map as Greer County, in order that the rightful title to said land may be finally determined; and the court, on the trial of the case may, in its discretion, so far as the ends of justice will warrant, consider any evidence heretofore taken and received by the Joint Boundary Commission under the act of Congress approved January thirty-first, eighteen hundred and eighty-five; and said case shall be advanced on the docket of said court, and proceeded with to its conclusion as rapidly as the nature and circumstances of the case permit.”

“ 1. That it appears by the complainant’s own showing by the said bill that she is not entitled to the relief prayed by the bill against this defendant, in that complainant seeks by her said bill to obtain from this court a decree judicially settling p. 623and determining the true boundary line between the United States of America and the State of Texas, which question is political in its nature and character and not susceptible of judicial determination by this court in the exercise of its jurisdiction as conferred by the Constitution and laws of the United States.

“ 4. That this court sitting as a court of equity has no jurisdiction to hear and determine this controversy between complainant and defendant, because, as appears from complainant’s bill and amended bill, complainant’s cause of action is legal and not equitable, and that it is a suit or action to recover certain real property claimed by complainant and fully described in the bill of complaint; and if complainant has any right to recover, such right must be asserted, if at all, in a court of law and not in a court of equity as herein attempted. And this defendant further says that so much of the Act of Congress of May 2, 1890, under which this suit is brought, and which authorizes and directs the Attorney General of the United States to commence in this court in the name and on behalf of the United States and to prosecute to a final determination a proper suit in equity setting forth the title and claims of the United States to the tract of land in controversy, is unconstitutional and void in this, that it is not competent under the Constitution of the United States for the Congress of the United States to declare that a suit at law shall be a suit in equity, and that legal rights shall be tried p. 624and determined in the courts of the United States as if they were equitable rights.”

II. The first demurrer suggests not only that the question is in its nature political but that, contrary to the rule governing controversies between two States of the Union, it is such a political question that this court cannot judicially determine it in the exercise of the jurisdiction conferred by the p. 625Constitution. That a controversy respecting the boundary between two independent nations is a political and not a judicial question is well settled. A question like this respecting the boundaries of nations, is, as has been truly said, more a political than a legal question ; and in its discussion the courts of every country must respect the pronounced will of the legislature. “ The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided.” Foster v. Neilson, 2 Pet. 253, 306; Cherokee Nation v. Georgia, 5 Pet. 1; United States v. Arredondo, 6 Pet. 691, 710 ; Garcia v. Lee, 12 Pet. 511.

VOL. CXLm—40 p. 626United States, and especially the original jurisdiction of this court, does not extend to controversies between the United States and an individual State.

The clause establishing the judicial power is arranged by subjects and parties, carefully and accurately grouped, and the cases in which the United States shall be a party are distinctly separated from those in which a State may be. The cases of which this court has original jurisdiction are defined alone by reference to the parties and only two classes of cases are included, namely: those affecting ambassadors, other public ministers and consuls, and those in which a State, in cases over which the judicial power is by the preceding clause extended, shall be a party. In all the other cases mentioned the jurisdiction is declared to be appe p. 627late. It seems manifest to us, therefore, that the judicial power does not extend to controversies between the United States and an individual State, nor is the Supreme Court given original jurisdiction in such cases. In this connection, as strengthening this position and illustrating the purpose of the framers of the Constitution, it is worthy of mention that although it was proposed in the Convention to stretch the judicial power to all questions which “involve the national peace and harmony ” and “ all controversies between the United States and an individual State or the United States and the citizens of an individual State,” neither of the propositions, in the breadth proposed, were adopted.

“ In distributing this jurisdiction, the Constitution has provided that, in all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have p. 628appellate jurisdiction. One of the other cases before mentioned, is a controversy to which the United States is a party..

“ And when it says: ‘ In all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction, it means, in all the cases before enumerated in which a State shall be a party. Indeed, it says so, in express terms, when it p. 629speaks of the other cases where appellate jurisdiction is given.

If it be true that the right asserted under the act of p. 630Congress and set out in the bill is a legal and not an equitable right, there can be no doubt of the want of authority in Congress to direct its prosecution by proceedings in equity, for the distinction between legal and equitable rights and remedies is recognized by the Constitution. Bennett v. Butterworth, 11 How. 669; Thompson v. Railroad Companies, 6 Wall. 134; Scott v. Neely, 140 U. S. 106.

This suit was brought by original bill in this court pursuant to the act of May 2, 1890, providing a temporary government for the Territory of Oklahoma. The 25th section recites the existence of a controversy between the United States and the State of Texas as to the ownership of what is designated on the map of Texas as Greer County, and provides that the act shall not be construed to apply to that county until the title to the same has been adjudicated and determined to be in the United States. In order that there might be a speedy and final judicial determination of this controversy the Attorney General of the United States was authorized and directed to commence and prosecute on behalf of the United States a p. 631proper suit in equity in this court against the State of Texas, setting forth the title of the United States to the country lying between the North and South Forks of the Red River where the Indian Territory and the State of Texas adjoin, east of the one hundredth degree of longitude, and claimed by the State of Texas as within its boundary. 26 Stat. 81, 92, c. 182, § 25.

“Art. 3. The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea, continuing north, along the western bank of that river, to the 32d degree of latitude; thence, by a line due north, to the degree of latitude where it strikes the Rio Roxo of Natchitoches or Bed Biver; p. 632then following the course of the Rio Roxo, westward, to the degree of longitude 100 west from London and 23 from Washington; then, crossing the said Red River, and running thence, by a line due north, to the river Arkansas ; thence; following the course of the southern bank of the Arkansas, to its source, in latitude 42 north; and thence, by that parallel of latitude, to the South Sea. The whole being as laid down in Melish’s map of the United States, published at Philadelphia, improved to the 1st of January, 1818. But, if the source of the Arkansas River shall be found to fall north or south of latitude 42, then the line shall run from the said source due south or north, as the case may be, till it meets the said parallel of latitude 42, and thence, along the said parallel, to the South Sea. All the islands in the Sabine, and the said Red and Arkansas Rivers, throughout the course thus described, to belong to the United States; but the use of the waters, and the navigation of the Sabine to the sea, and of the said rivers Roxo and Arkansas, throughout the extent of the said boundary, on their respective banks, shall be common to the respective inhabitants of both nations.

For the purpose of fixing the line with precision, and of placing landmarks to designate the limits of both nations, it was stipulated that each appoint a commissioner and a surveyor, who should meet, before the end of one year from the ratification of the treaty, at Natchitoches, on the Red River, and run and mark the line “ from the mouth of the Sabine to the Red River, and from the Red River to the River p. 633Arkansas, and to ascertain the latitude of the source of the said river Arkansas, in conformity to what is above agreed upon and stipulated, and the line of latitude 42, to the South Sea;” making out plans and keeping journals of their proceedings, and the result to be considered as part of the treaty, having the same force as if it had been inserted therein. Art. 4, 8 Stat. 256.

“ Art. 2. And it is agreed that until this line is marked out as is provided for in the foregoing article, each of the p. 634contracting parties shall continue to exercise jurisdiction in all territory over which its jurisdiction has hitherto been exercised, and that the remaining portion of the said boundary line shall be run and marked at such time hereafter as may suit the convenience of both the contracting parties, until which time each of the said parties shall exercise without the interference of the other, within the territory of which the boundary shall not have been so marked and run, jurisdiction to the same extent to which it has been heretofore usually exercised.” 8 Stat. 511.

By an act of Congress, approved September 9, 1850, certain propositions were made on behalf of the United States to the State of Texas, to become obligatory upon the parties when accepted by Texas, if such acceptance was given on or before December 1, 1850. One of those propositions was that Texas would agree that its boundary on the north should commence at the point at which the meridian of one hundred degrees west from Greenwich is intersected by the parallel of thirty-six degrees thirty minutes north latitude, and run from that point due west to the meridian of one hundred and three degrees west from Greenwich, thence due south to the thirty-second degree of north latitude, thence on the parallel of. thirty-two degrees of north latitude to the Rio Bravo de Norte, and thence with the channel of said river to the Gulf of Mexico; another, that Texas cede to the United States all her claim to territory exterior to the above limits and boundaries. In consideration of said establishment of boundaries, cession of claim to territory and relinquishment of claims, the United States agreed to pay to Texas the sum of ten p. 635millions of dollars in. a stock bearing five per cent interest, and redeemable at the end of fourteen years, the interest payable half-yearly at the Treasury of the United States. 9 Stat. 446, c. 49.

After the commissioners of the United States and Texas had failed to reach an agreement, the legislature of Texas, by an act approved February 8, 1860, declared, “ that all the territory contained in the following limits, to wit: Beginning at the confluence of Red River and Prairie Dog River, thence running up Red River, passing the mouth of South Fork and following main or North Red River to its intersection with the twenty-third degree of west longitude; thence due north across Salt Fork and Prairie Dog River, and thence following that river to the place of beginning; be, and the same is hereby, created into a county to be known by the name and style of the county of Greer.” And by acts of its officers. p. 636proceeding under its statutes, Texas assumed and exercised control and jurisdiction of the territory constituting what is called the county of Greer.

Under the last-mentioned acts a joint commission was organ' ized, and it assembled at Galveston, Texas, on February 23, 1886. Being unable to agree as to whether the stream now known as the North Fork of the Red River, or that now called the South Fork or Main Red River, was the river referred to in the treaty of 1819, the joint commission adjourned sine die with the understanding that each commission would make its report to the proper authorities and await instructions. The commissioners on the part of the United States reported that “the Prairie Dog Town Fork is the true boundary, and that the-monument should be placed at the p. 637intersection of the one hundredth meridian with this stream; ” while the commission on the part of Texas reported that “the North Fork of Red River, as now named and delineated on the maps, is the Rio Roxo or Red River delineated on Melish’s maps, described in the treaty of February 22,1819, and is the boundary line of said treaty to the point where the one hundredth degree of west longitude crosses the same.”

These authorities do not control the present case. They relate to questions of boundary between independent nations, and have no application to a question of that character arising between the General Government and one of the States composing the Union, or between two States of the Union. By the Articles of Confederation, Congress was made “ the last resort on appeal in all disputes and differences ” then subsisting or which thereafter might arise “between two or more States concerning boundary, jurisdiction or any other cause whatever; ” the authority so conferred to be exercised by a special tribunal to be organized in the mode prescribed in those Articles, and its judgment to be final and conclusive. Art. 9. At the time of the adoption of the Constitution there existed, as this court said in Rhode Island v. Massachusetts, 12 Pet. 657, 723, 724, controversies between eleven States, in respect to boundaries, which had continued from the first settlement of the colonies. The necessity for the creation of some tribunal for the settlement of these and like controversies that might arise, under the new government to be formed, must, therefore, have been perceived by the framers of the Constitution, and, consequently, among the controversies to which the judicial power of the United States was extended p. 640by the Constitution, we find those between two or more States. And that a controversy between two or more States, in respect to boundary, is one to which, under the Constitution, such judicial power extends, is no longer an open question in this court. The cases of Rhode Island v. Massachusetts, 12 Pet. 657; New Jersey n. New York, 5 Pet. 284, 290; Missouri v. Iowa, 7 How. 660; Florida v. Georgia, 17 How. 478; Alabama v. Georgia, 23 How. 505; Virginia v. West Virginia, 11 Wall. 39, 55; Missouri v. Kentucky, 11 Wall. 395; Indiana v. Kentucky, 136 U. S. 479; and Nebraska v. Iowa, ante, 359, were all original suits, in this ,court, for the judicial determination of disputed boundary lines between States. In New Jersey n. New York, 5 Pet. 284, 290, Chief Justice Marshall said: “It has then been settled by our predecessors, on great deliberation, that this court may exercise its original jurisdiction in suits against a State, under the authority conferred by the Constitution and existing acts of Congress.” And in Virginia v. West Virginia, it was said by Mr. Justice Miller to be the established doctrine of this court “ that it has jurisdiction of questions of boundary between two States of this Union, and that this jurisdiction is not defeated, because in deciding that question it becomes necessary to examine into and construe compacts or agreements between those States, or because the decree which the court may render, affects the territorial limits of the political jurisdiction and sovereignty pf the States which are parties to the proceeding.” So, in Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 287, 288 ; “ By the Constitution, therefore, this court has original jurisdiction of suits brought by a State against citizens of another .State, as well as of controversies between two States. . . . As to ‘controversies between two or more States.’ The most numerous class of which this court has entertained jurisdiction is that of controversies between two States as to the boundaries of their territory, such as were determined before the Revolution by the King in Council, and under the Articles of Confederation (while there was no national judiciary) by committees or commissioners appointed by Congress.”

“ In all cases, affecting ambassadors or other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such p. 643exceptions, and under such regulations as the Congress shall make.” Art. 3, § 2. “ The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.” 11th Amendment.

The words, in the Constitution, “ in all cases ... in which a State shall be party, the Supreme Court shall have original jurisdiction,” necessarily refer to all cases mentioned in the preceding clause in which a State may be made, of right, a party defendant, or in which a State may, of right, be p. 644a party plaintiff. It is admitted that these words do not refer to suits brought against a State by its own citizens or by citizens of other States, or by citizens or subjects of foreign States, even where such suits arise under the Constitution, laws and treaties of the United States, because the judicial power of the United States does not extend to suits of individuals against States. Hans v. Louisiana, 134 U. S. 1, and authorities there cited; North Caroli/na v. Temple, 134 IL S. 22, 30. It is, however, said that the words last quoted refer only to suits in which a State is a party, and in which, also, the opposite party is another State of the Union or a foreign State. This cannot be correct, for it must be conceded that a State can bring an original suit in this court against a citizen of another State. Wisconsin v. Pelica/n Ins. Co., 127 U. S. 265, 287. Besides, unless a State is exempt altogether from suit by the United States, we do not perceive upon what sound rule of construction suits brought by the United States in this court — especially if they be suits the correct decision of which depends upon the Constitution, laws or treaties of the United States — are to be excluded from its original jurisdiction as defined in the Constitution. That instrument extends the judicial power of the United States “ to all cases,”* in law and equity, arising under the Constitution, laws and treaties of the United States, and to controversies in which the United States shall be a party, and confers upon this court original jurisdiction “in all cases” “in which a State shall be party,” that is, in all cases mentioned in the preceding clause in which a State may, of right, be made a party defendant, as well as in all cases in which a State may, of right, institute a suit in a court of the United States. The present case is of the former class. We cannot assume that the framers of the Constitution, while extending the judicial power of the United States to controversies between two or more States of the Union, and between a State of the Union and foreign States, intended to exempt a State altogether from suit by the General Government. They could not have overlooked the possibility that controversies, capable of judicial solution, might arise between the United States and some p. 645of the States, and that the permanence of the Union might be endangered if to some tribunal was not entrusted the power to determine them according to the recognized principles of law. And to what tribunal could a trust so momentous be more appropriately committed than to that which the people of the United States, in order to form a more perfect Union, establish justice and insure domestic tranquillity, have constituted with authority to speak for all the people and all the States, upon questions before it to which the judicial power of the nation extends ? It would be difficult to suggest any reason why this court should have jurisdiction to determine questions of bQundary between two or more States, but not jurisdiction of controversies of like character between the United States and a State.

Mr. Justice Bradley, speaking for the .court in Hans v. Louisiana, 134 U. S. 1, 15, referred to what had been said by certain statesmen at the time the Constitution was under submission to the people, and said: “ The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. . . . The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. Some things, undoubtedly, were made justiciable which were not known as such at the common law; such, for example, as controversies between States as to boundary lines, and other questions admitting of judicial solution. And yet the case of Penn v. Lord Baltimore, 1 Ves. Sen. 444, shows that some of these unusual subjects of litigation were not unknown to the courts even in colonial times; and several cases of the same general character arose under the Articles of Confederation, and were brought before the tribunal provided for that purpose in those articles. 131 U. S. App. 50. The establishment of this new branch of jurisdiction seemed to be Necessary from the extinguishment of diplomatic relations between the States.” That case, and others in this court relating to the suability of States, proceeded upon the broad ground that “it is inherent in the nature of sovereignty not p. 646to be amenable to the suit of an Individual without its consent.”

It is contended that, even if this court has jurisdiction, the p. 647dispute as to boundary must be determined in an action at law, and that the act of Congress requiring the institution of this suit in equity is unconstitutional and void as, in effect, declaring that legal rights shall be tried and determined as if they were equitable rights. This is not a new question in this court. It was suggested in argument, though not decided, in Fowler v. Lindsey, 3 Dall. 411, 413. Mr. Justice Washington, in that case, said: “ I will not say that a State could sue at law for such an incorporeal right as that of-sovereignty and jurisdiction ; but even if a court of law would not afford a remedy, I can see no reason why a remedy should not be obtained in a court of equity. The State of New York might, I think, file a bill against the State of Connecticut, praying to be quieted as to the boundaries of the disputed territory ; and this court, in order to effectuate justice, might appoint commissioners to ascertain and report those boundaries.” But the question arose directly in Rhode Island v. Massachusetts, 12 Pet. 657, 734, which was a suit in equity in this court involving the boundary line between two States. The court said: “ No court acts differently in deciding on boundary between States, than on lines between separate tracts of land ; if there is uncertainty where the line is, if there is a confusion of boundaries by the nature of interlocking grants, the obliteration of marks, the intermixing of possession under different proprietors, the effects of accident, fraud or time or other kindred causes, it is a case appropriate to equity. An issue at law is directed, a commission of boundary awarded ; or, if the court are satisfied without either, they decree what and where the boundary of a farm, a manor, a province or a State is and shall be.” When that case was before the court at a subsequent term, Chief Justice Taney, after stating that the case was of peculiar character, involving a question of boundary between two sovereign States, litigated in a court of justice, and that there were no precedents as to forms and modes of proceedings, said: “ The subject was however fully considered at January term, 1838, when a motion was made by the defendant to dismiss this bill. Upon that occasion the court determined to frame their proceedings according to those wThich had been

This court has original jurisdiction of two classes of cases p. 649only, those affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party.

Where a bill, which passed both the House of Represent- p. 652£52 OCTOBER TERM, 1891.

In all these cases the decision was that the entire act is rendered void whenever there has been a material variance between the bill as passed and the bill as signed and approved. The same may be said of the whole list of cases decided with reference to their having an object or purpose not expressed in the title, under constitutions requiring that each bill have reference to but one subject, and more are included. In all such cases the entire acts have always been held void, and not merely the purpose unexpressed or the subject in excess, as p. 653will appear in the following cases: Callaghan v. Chipman, 59 Michigan, 610; Ragio v. State, 86 Tennessee, 272; Leach v. People, 122 Illinois, 420; People v. Beadle, 60 Michigan, 22; In re Blodgett, 89 N. Y. 392; Grover v. Ocean Grove Camp Meeting, 45 N. J. Law (16 Vroom) 399; State n. Barrett, 27 Kansas, 213; Madison County v. Baher, 80 Indiana, 374.

It is submitted that under the doctrines of the text books and decisions on this question, the moment a doubt was established as to which law governed, the former law, or the alleged law largely increasing duties, that moment should p. 655have solved the doubt against the government, and in favor of the citizen who has the burden to bear, the money to pay: that the Board of Appraisers erred in affirming the decision of the collector of the port upholding an appraisement under an alleged act, largely increasing the burdens of taxation upon a citizen, when it was seriously in doubt whether the alleged act had been constitutionally enacted and become a valid law; which error was continued in the pro forma decision of the Circuit Court affirming the decision of the Board of Appraisers. See also Gurr v. Scudds, 11 Exch. 190; Conroy v. Warren, 3 Johns. Cas. 259; & C. 2 Am. Dec. 156 ; Wright v. Briggs, 2 Hill, 77; The Liverpool Hero, 2 Callison, 184; Adams v. Bancroft, 3 Sumner, 384 ; Richardson v. Emswiler, 14 La. Ann. 658; Chase v. New York Central Railroad, 26 N. Y. 352.

In Allen v. Louisiana, 103 U. S. 80, 83, Chief Justice Waite said: “ It is an elementary principle that the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other that which is constitutional may stand, while that which is p. 656unconstitutional will be rejected. ‘But’as was said by Chief Justice Shaw, in Warren v. JWayor and Aidermen of Charlestown, 2 Gray, 84, ‘If they are so mutually connected with and dependent on each other as conditions, considerations or compensations for each other as to warrant a belief that the legislature intended them as a whole and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected must fall with them.’ The point to be determined is, whether the unconstitutional provisions are so connected with the general scope of the law as to make it impossible if they are stricken out, to give effect to what appears to have been the intent of the legislature.” The principle governing these decisions, as enunciated by Chief Justice Shaw in this case, has been universally cited with approval and followed. The application of it to the case at bar under the decisions quoted seems perfect. The same doctrine is held in Eckhart v. State, 5 West Va. 515; Tillman n. Cocke, 9 Baxter, 429; Meyer s. Berlandi, 39 Minnesota, 438; State v. Sank County, 62 Wisconsin, 376; State v. Hanger, 5 Arkansas, 412; Thorne v. Cramer, 15 Barb. 112; Pa/rker v. Commonwealth, 6 Penn. St. 507; xS". C. 47 Am. Dec. 480; Meshmeier v. State, 11 Indiana, 482; Lathrop v. Mills, 19 California, 513; State v. Copeland, 3 R. I. 33; State n. Sinks, 42 Ohio St. 345 ; State v. Pugh, 43 Ohio St. 98; Rader v. Union Township, 39 N. J. Law (10 Vroom) 509 ; Flanaga/n n. Plainfield, 44 N. J. Law (15 Vroom) 118; W. U. Tel. Co. v. State, 62 Texas, 630; Childs v. Shower, 18 Iowa, 261; Union Pacific Railroad n. Atchison, 28 Kansas, 453; Moore v. New Orleans, 32 La. Ann. 726.

Section 3 of the act commonly called the “ reciprocity section” is unconstitutional because it is a delegation of legislative power to the executive. It delegates to the President the power to determine, as to the five articles therein specified: (1) From what countries they must pay duty ; (2) When they p. 657shall begin to pay it; (3) How long they shall continue to pay it. The only point not left to his discretion is the amount to be paid. The Constitution, Art. 1, sec. 8, says: The Congress shall have power to lay and collect taxes, duties, imports and excises.

The rule was changed and the enrolled act held conclusive of its valid p. 6631890, on woollen dress goods, woollen wearing apparel and silk embroideries, imported by Marshall Field & Co.; on silk

Michigan. — In this State the enrolled act is controlled by the entries on the journals. Southworth v. Palmyra dp Jackson Railroad, 2 Gibbs, 287; Green V- Graves, 1 Douglass, 351; Hurlbut v. Britain, 2 Douglass, 191; People v. Mahaney, 13 Mich. 481; People V. Onondaga County Supervisors, 16 Mich. 254; Steckert v. East Saginaw, 22 Mich. 104; Pack n. Barton, 47 Mich. 520; Attorney General y. Joy, 55 Mich. 94; Callaghan V. Chipman, 59 Mich. 610; Attorney General v. Rice, 64 Mich. 385; People ex rel. Hart v. McElroy, 72 Mich. 446; Sackrider v. Saginaw County Supervisors, 79 Mich. 59; Stow v. Grand p. 664and cotton laces imported by Boyd, Sutton & Co.; and on colored cotton cloths imported by Herrman, Sternbach & Co. 26 Stat. 567, c. 1244, § 1.

facts stated therein. There was also a provision that no bill should be deemed to be passed by the assent of two-thirds of the members, unless the fact was certified by the presiding officer of each house. The question arose in a number of cases whether certain acts had been passed which were acts of incorporation and were required by the constitution of New York to be adopted by a two-thirds vote. It was held that, for the purpose of ascertaining the vote, recourse might be had to the original enrolled act on file in the Secretary of State’s office, and that the absence of the certificate of the presiding officers to a two-thirds vote avoided the act. Thomas v. Dakin, 22 Wend. 9; Warner n. Beers, 23 Wend. 103; Hunty. Van Alstyne, 25 Wend. 603; People v. Purdy, 2 Hill, 31; Purdy n. People, 4 Hill, 384; De Bow N. People, 1 Denio, 9; Commercial Bank of Buffalo v. Sparrow, p. 666States. Upon appeal to the Board of General Appraisers under the act of June 10,1890, known as the Customs Administrative Act, the decision of the collector in each case was approved, c. 407, secs. 14, 15, 26 Stat. 131, 137. The p. 667judgment of the board having been affirmed by the Circuit Courts of the United States in the respective districts in which these matters arose, the cases have been brought here for review.

The Revised Statutes provide that “ whenever a bill, order, resolution or vote of the Senate and House of Representatives, p. 668having been approved and signed 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.” Sec. 204.

• The contention of the appellants is, that this enrolled act, in the custody of the Secretary of State, and appearing, upon its face, to have become a law in the mode prescribed by the Constitution, is to be deemed an absolute nullity, in all its parts, because — such is the allegation — it is shown by the p. 669Congressional record of proceedings, reports of committees of each house, reports of committees of conference, and other papers printed by authority of Congress, and having reference to house bill 9416, that a section of the bill, as it finally passed, was not in the bill authenticated by the signatures of the presiding officers of the respective houses of Congress, and approved by the President. The section alleged to have been omitted was as follows:

The clause of the Constitution upon which the appellants rest their contention that the act in question was never passed by Congress is the one declaring that “ each house shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one-fifth of those present, be entered on the journal.” Art. 1, sec. 5. It was assumed in argument that the object of this clause was to make the journal the best, if not conclusive, evidence upon the issue as to whether a bill was, in fact, passed by the two houses of Congress. But the words used do not require such interpretation; On the contrary, as Mr. Justice Story has well said, “ the object of the whole clause is to insure publicity p. 671to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents. And it is founded in sound policy and deep political foresight. Intrigue and cabal are thus deprived of some of their main resources, by plotting and devising measures in secrecy. The public mind is enlightened by an attentive examination of the public measures; patriotism, and integrity, and wisdom obtain their due reward; and votes are ascertained, not by vague conjecture, but by positive facts. ... So long as known and open responsibility is valuable as a check or an incentive among the representatives of a free people, so long a journal of their proceedings and their votes, published in the face of the world, will continue to enjoy public favor and be demanded by public opinion.” 1 Story, Constitution, §§ 840, 841.

It is admitted that an enrolled act, thus authenticated, is sufficient evidence of itself — nothing to the contrary appearing upon its face — that it passed Congress. But the contention is, that it cannot be regarded as a law of the United States if the journal of either house fails to show that it passed in the precise form in which it was signed by the presiding officers of the two houses, and approved by the President. It is said that, under any other view, it becomes possible for the Speaker of the House of Representatives and the President of the Senate to impose upon the people as a law a bill that was never passed by Congress. But this possibility is too remote p. 673to be seriously considered in the present inquiry. It suggests a deliberate conspiracy to which the presiding officers,' the committees on enrolled bills and the clerks of the two houses must necessarily be parties, all acting with a common purpose to defeat an expression of the popular will in the mode prescribed by the Constitution. Judicial action based upon such a suggestion is forbidden by the respect due to a coordinate branch of the government. The evils that may result from the recognition of the principle that an enrolled act, in the custody of the Secretary of State, attested by the signatures of the presiding officers of the two houses of Congress, and the approval of the President, is conclusive evidence that it was passed by Congress, according to the forms of the Constitution, would be far less than those that would certainly result from a rule making the validity of Congressional enactments depend upon the manner in which the journals of the respective houses are kept by the subordinate officers charged with the duty of keeping them.

vol. cxlih —43 p. 674legislative action to the constitutional provisions relating to the enactment of laws. In the nature of things, it was observed, these journals must have been constructed out of loose and hasty memoranda made in the pressure of business and amid the distractions of a numerous assembly. The Chief Justice said: “Can any one deny that, if the laws of the State are to be tested by a comparison with these journals, so imperfect, so unauthenticated, that the stability of all written law will be shaken to its very foundation ? Certainly no person can venture to say that many of our statutes, perhaps some of the oldest and most important, those which affect large classes of persons or on which great interests depend, will not be found defective, even in constitutional particulars, if judged by this criterion. ... In addition to these considerations, in judging of consequences, we are to remember the danger under the prevalence of such a doctrine to be apprehended from the intentional corruption of evidences of this character. It is scarcely too much to say that the legal existence of almost every legislative act would be at the mercy of all persons having access to these journals; for it is obvious that any law can be invalidated by the interpolation of a few lines or the obliteration of one name and the substitution of another in its stead. I cannot consent to expose the state legislation to the hazards of such probable error or facile fraud. The doctrine contended for on the part of the evidence has no foundation, in my estimation, on any considerations of public policy. The conclusion was, that upon grounds of public policy, as well as upon the ancient and well settled rules of law, a copy of a bill bearing the signatures of the presiding officers of the two houses of the legislature and the approval of the governor, and found in the custody of the Secretary of State, was conclusive proof of the enactment and contents of a statute, and could not be contradicted by the legislative journals or in any other mode. These principles were affirmed by the New Jersey Court of Errors and Appeals in Freeholders of Passaic v. Stevenson, 46 N. J. Law (17 Vroom) 173,184, and in Standard Underground Go. v. Attorney General, 46 N. J. Eq. (1 Dickinson) 270, 276.

In Sherman v. Story, 30 California, 253, 275, the whole subject was carefully considered. The court, speaking through Mr. Justice Sawyer, said: “Better, far better, that a provision should occasionally find its way into the statute through mistake, or even fraud, than that every act, state and national, should at any and all times be liable to be put in issue and impeached by the journals, loose papers of the legislature and parol evidence. Such a state of uncertainty in the statute laws of the land would lead to mischiefs absolutely intolerable. . . . The result of .the authorities in England and in the other States clearly is, that, at common law, whenever a general statute is misrecited, or its existence denied, the question is to be tried and determined by the court as a question of law — that is to say, the court is bound to take notice of it, and inform itself the best way it can; that there is no plea by which* its existence can be put in issue and tried as a question of fact; that if the enrollment of the statute is in existence, the enrollment itself is the record, which is conclu sive as to what the statute is, and cannot be impeached, destroyed or weakened by the journals of Parliament or any other less authentic or less satisfactory memorials; and that there has been no departure from the principles of the common law in this respect in the United States, except in instances where a departure has been grounded on, or taken in pursuance of, some express constitutional or statutory provision requiring some relaxation of the rule, in order that full effect might be given to such provisions; and in such instances the rule has been relaxed by judges with great caution and hesitation, and the departure has never been extended beyond an inspection of the journals of both branches of the legislature.” The provisions of the California constitution, in force when the above case was decided, relating to the journals of legislative proceedings, were substantially like the clause upon that subject in the Constitution of the United States. The doctrines of the above case "were reaffirmed in People v. Burt, 43 California, 560. But it should be observed that at a subsequent date a new constitution was adopted in California, under which the journals have been examined to impeach an p. 676enrolled bill. County of San Mateo v. Southern Pacific Railroad Co., 8 Sawyer, 238, 294.

A case very much in point is Ex parte Wren, 63 Mississippi, 512, 527, 532. The validity of a certain act was there questioned on the ground that, although signed by the presiding officers of the two houses of the legislature, and approved by the governor, it was not law, because it appeared from the journals of those bodies, kept in pursuance of the constitution, that the original bill, having passed the house, was sent to the Senate, which passed it with numerous amendments, in all of which the house concurred; but the bill, as approved by the governor, did not contain certain amendments which bore directly upon the issues in the case before the court. The court, in a vigorous opinion delivered by Mr. Justice Campbell, held that the enrolled act, signed by the President of the Senate, and the Speaker of the House of Representatives and the governor is the sole exposition of its contents, and the conclusive evidence of its existence according to its purport, and that it is not allowable to look further to discover the history of the act or ascertain its provisions. After a careful analysis of the adjudged cases the court said: “Every other view subordinates the legislature and disregards that coequal position in our system of the three departments of government. If the validity of every act published as law is to be tested by examining its history, as shown by the journals of the two houses of the legislature, there will be an amount of litigation, difficulty and painful uncertainty appalling in its contemplation, and multiplying a hundredfold the alleged uncertainty of the law. Every suit before every court, where the validity of a statute may be called in question as affecting the right of a litigant, will be in the nature of an appeal or writ of error or bill of review for errors apparent on the face of the legislative records, and the journals must be explored to determine if some contradiction does not exist between the journals and the bill signed by the presiding officers of the two houses. What is the law to be declared by the court ? It must inform itself as best it can what is the law. If it maX go beyond the enrolled and signed bill and try its validity by p. 677the record contained in the journals, it must perform this task as often as called on, and every court must do it. A justice of the peace must do it, for he has as much right, and is as much bound to preserve the constitution and declare and apply the law as any other court, and we will have the spectacle of examination of journals by justices of the peace, and statutes declared to be not law as the result of their journalistic history, and the Circuit and Chancery Courts will be constantly engaged in like manner, and this court, on appeal, have often to try the correctness of the determination of the court below, as to the conclusion to be drawn from the leffislative journals on the inquiry as to the validity of the statutes thus tested. . . . Let the courts accept as statutes, duly enacted, such bills as are delivered by the legislature as their acts authenticated as such in the prescribed mode.”

To the same general effect are Brodnax v. Commissioners, 64 Nor. Car. 244, 248; State of Nevada v. Swift, 10 Nevada, 176; Evans v. Browne, 30 Indiana, 514; Edgar v. Ra/ndolph County Comers, 70 Indiana, 331, 338; Pacific Railroad v. The Governor, 23 Missouri, 353, 362 et seg. ; Louisiana Lottery Co. v. Richoux, 23 La. Anp. 743. There are cases in other state courts which proceed upon opposite grounds from those we have indicated as proper. But it will be found, upon p. 678examination, that many of .them rested upon constitutional or statutory provisions of a peculiar character, which, expressly, or by necessary implication, required or authorized the court to go behind the enrolled act when the question was, whether the act, as authenticated and deposited in the proper office, was duly passed by the legislature. This is particularly the case in reference to the decisions in Illinois. Spangler v. Jacoby, 14 Illinois, 297; Turley v. County of Logan, 17 Illinois, 151; Prescott v. Canal Trustees, 19 Illinois, 324; Supervisors v. People, 25 Illinois, 181; Ryan v. Lynch, 68 Illinois, 160; People v. Barnes, 35 Illinois, 121. In the last-named case it was said: “ Were it not for the somewhat peculiar provision of our Constitution, which requires that all bills before they can become laws shall be read three several times in each house, and shall be passed by a vote of a majority of all the members-elect, a bill thus signed and approved would be conclusive of its validity and binding force • as a law. . . . According to the theory of our legislation, when a bill has become a law, there must be record evidence of every material requirement, from its introduction until it becomes a law. And this evidence is found upon the journals of the two houses.” But the court added: “We are not, however, prepared to say that a different rule might not have subserved the public interest equally well, leaving the legislature and the executive to guard the public interest in this regard, or to become responsible for its neglect.”

The question there was as to the time when an act of Congress took effect; the doubt, upon that point, arising from the fact that the month and day, but not the year, of the approval of the act by the President appeared upon the enrolled act in the custody of the Department of State. This omission, it was held, could be supplied in support of the act from the legislative journals. It was said by the court: “We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, p. 679or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always' seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule.” There was no question in that case as to the existence or terms of a statute, and the point in judgment was that the time when an admitted statute took effect, not appearing from the enrolled act, could be shown by the legislative journals. It is scarcely necessary to say that that case does not meet the question here presented.

Some reliance was also placed by appellants upon section 895 of the Revised Statutes, providing that “ extracts from the journals of the Senate, or of the House of Representatives, and of the Executive Journal of the Senate when the injunction of secrecy is removed, certified by the secretary of the Senate or by the clerk of the House of Representatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and effect as the originals would have if produced and authenticated in court.” But referring now only to matters which the Constitution does not require to be entered on the journals, it is clear that this is not a statutory declaration that the journals are the highest evidence of the p. 680facts stated in them, or complete evidence of all that occurs in the progress of business in the respective houses; much less that the authentication of an enrolled bill, by the official signatures of the presiding officers of the two houses and of the President, as an act which has passed Congress, and been approved by the President, may be overcome by what the journal of either house shows or fails to show.

The plaintiffs in error contend that this section, so far as it authorizes the President to suspend the provisions of the act relating to the free introduction of sugar, molasses, coffee, tea, and hides, is unconstitutional, as delegating to him both legislative and treaty-making powers, and, being an essential part of the system established by Congress, the entire act must be declared null and void. On behalf of the United States it is insisted that legislation of this character is sustained by an early decision of this court and by the practice of the p. 682government for nearly a century, and that, even if the third section were unconstitutional, the remaining parts of the act would stand.

606. On the 2d of November, 1810, President Madison issued his proclamation declaring that France had so revoked or modified her edicts as that they ceased to violate the neutral commerce of the United States. In the argument of that case it was contended by Mr. Joseph R. Ingersoll that p. 683Congress could not transfer legislative power to the President, and that to make the revival of a law depend upon the President’s proclamation was to give that proclamation the force of a law. To this it was replied that the legislature did not transfer any power of legislation to the President; that they only prescribed the evidence which should be admitted of a fact, upon which the law should go into effect. Mr. Justice Johnson, speaking for the whole court, said: “We can see no sufficient reason why the legislature should not exercise its discretion in reviving the act of March 1, 1809, either expressly or conditionally, as their judgment should direct. The 19th section of that act, declaring that it should continue in force to a certain time, and no longer, could not restrict their power of extending its operation without limitation upon the occurrence of any subsequent combination of events.” This certainly is a decision that it was competent for Congress to make the revival of an act depend upon the proclamation of the President, showing the ascertainment by him of the fact that the edicts of certain nations had been so revoked or modified that they did not violate the neutral commerce of the United States. The same principle would apply in the case of the suspension of an act upon a contingency to be ascertained by the President, and made known by his proclamation.

During the administration of Washington, Congress, by an act approved June 4, 1794, c. 41, authorized the President, when Congress was not in session, and for a prescribed period, p. 684“ whenever, in his opinion, the public safety shall so require, to lay an embargo on all ships and vessels in the ports of the United States, or upon the ships and vessels of the United States, or the ships and vessels of any foreign nation, under such regulations as the circumstances may require, and to continue or revoke the same, whenever he shall think proper.” 1 Stat. 372.

An act of March 3,1815, c. 77, approved by President Madison, provided that so much of the several acts imposing duties on the tonnage of ships and vessels, and on goods, wares and merchandise imported into the United States, as imposed a discriminating duty on tonnage between foreign vessels and vessels of the United States, and between goods imported into the United States in foreign vessels and vessels of the United States, be repealed, so far as the same respected the produce or manufacture of the nation to "which such foreign ships or vessels belonged; such repeal to take effect in favor of any foreign nation, “whenever the President of the United States shall be satisfied that the discriminating or countervailing duties of such foreign nation, so far as they operate to the disadvantage of the United States,” had been abolished. p. 6863 Stat. 224. Satisfactory proof having been received by President Monroe from the Free City of Bremen that from and after the 12th of May, 1815, all discriminating or countervailing duties of the said city, “ so far as they operated to the disadvantage of the United States,” had been abolished, he issued, July 24, 1818, his proclamation stating that the acts of Congress, upon that subject, were repealed, so far as the same related to the produce and manufacture of that city. Similar proclamations were issued by him in respect to the produce and manufactures of Hamburg, Lubec, Norway and the Dukedom of Oldenburg. 3 Stat. App. I, pp. 792, 793, 794, 795.

By an act concerning discriminating duties of tonnage and impost, approved January 7, 1824, c. 4, § 4, it was provided that “ upon satisfactory evidence being given to the President of the United States, by the government of any foreign nation, that no discriminating duties of tonnage or impost are imposed or levied within the ports of the said nation, upon vessels wholly belonging to citizens of the United States, or upon merchandise, the produce or manufacture thereof, imported m p. 687the same, the President is hereby authorized to issue his proclamation, declaring that the foreign discriminating duties of tonnage and impost within the United States are, and shall be, suspended and discontinued, so far as respects the vessels of the said nation, and the merchandise of its produce or manufacture, imported into the United States in the same; the said suspension to take effect from the time of such notification being given to the President of the United States, and to continue so long as the reciprocal exemption of vessels belonging to citizens of the United States, and merchandise as aforesaid, thereon laden shall be continued, and no longer.” 4 Stat. 3. A similar section was embodied in the act of May 24, 1828, c. Ill, relating to the same subject, which is substantially preserved in section 4228 of the Revised Statutes. 4 Stat. 308. In execution of these acts, proclamations were .issued by the Presidents of the United States as follows: Adams, July 1, 1828, 4 Stat. App. 815; Jackson, May 11, 1829, June 3, 1829, September 18, 1830, April 28, 1835, and September 1, 1836, 4 Stat. App. 814, 815, 816, 11 Stat. App. 781, 782; Polk, November 4, 1847, 9 Stat. App. 1001; Fillmore, November 1, 1850, 9 Stat. App. 1004; Buchanan, February 25,1858,11 Stat. App. 795 ; Lincoln, December 16,1863, 13 Stat. App. 739; Johnson, December 28, 1866, and January 29, 1867, 14 Stat. App. 818, 819; Grant, June 12, 1869, November 20, 1869, February 25, 1871, December 19, 1871, September 4, 1872, and October 30, 1872, 16 Stat. App. 1127, 1130 to 1137, 17 Stat. App. 954, 956, 957; and Hayes, November 30, 1880, 21 Stat. 800.

Pursuant to the act of Congress of August 5,1854, c. 269, § 2, carrying into effect the treaty between the United States and p. 688Great Britain of June 5,1854, President Pierce issuad his proclamation, December 12, 1855, declaring that grain, flour, breadstuffs of all kinds, and numerous other specified articles, should be admitted free of duty from Newfoundland, he having received satisfactory evidence that that province had consented, “in a due and proper manner,”.to have the provisions of the above treaty extended to it, and to allow the United States the full benefits of all its stipulations, so far as they were applicable to Newfoundland. 10 Stat. 587; 11 Stat. 790.

In execution of section 4228 of the Revised Statutes, p. 689President Arthur issued a proclamation declaring that on and after the first day of March, 1884, so long as the products of, and articles proceeding from the United States, imported into the Islands of Cuba and Porto Rico, should be exempt from discriminating customs duties, any such duties on the products of, and articles proceeding from Cuba and Porto Rico under the Spanish flag, should be suspended, and discontinued. 23 Stat. 835. President Cleveland, by proclamation of October 13, 1886, revoked this suspension upon the ground that higher and discriminating duties continued to be imposed and levied in the ports named upon certain produce, manufactures or merchandise imported into them from the United States and from foreign countries, in vessels of the United States, than were imposed and levied on the like produce, manufactures or merchandise carried to those ports in Spanish vessels. 24 Stat. 1028.

It would seem to be unnecessary to make further reference to acts of Congress to show that the authority conferred upon the President by the third section of the act of October 1, 1890, is not an entirely new feature in the legislation of Congress, but has the sanction of many precedents in legislation.1 While some of these precedents are stronger than p. 691others, in their application to the case before us, they all show that, in the judgment of the legislative branch of the government, it is often desirable, if not essential for the protection of the interests of our people, against the unfriendly or discriminating regulations established by foreign governments, in the interests of their people, to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations. If the decision in the case of The Brig Aurora had never been rendered, the practical construction of the Constitution, as given by so many acts of Congress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legislation was clearly incompatible with the supreme law of the land. Stuart v. Laird, 1 Cranch, 299, 309; ALartin v. Hunter, 1 Wheat. 304, 351; Cooley n. Port Wardens, 12 How. 299, 315; Lithographic Co. n. Sarony, 111 U. S. 53, 57; The Laura, 114 U. S. 411, 416.

The authority given to the President by the act of June 4, 1794, to lay an embargo on all ships and vessels in the ports of the United States, “ whenever, in his opinion, the public safety shall so require,” and under regulations, to be continued or revoked “ whenever he shall think proper; ” by the act of February 9, 1799, to remit and discontinue, for the time being, the restraints and prohibitions which Congress had prescribed with respect to commercial intercourse with the French Republic, “ if he shall deem it expedient and consistent with the interest of the United States,” and “to revoke such order, whenever, in his opinion, the interest of the United States shall require; ” by the act of December 19, 1806, to suspend, for a named time, the operation of the non-importation act of the same year, “ if in his judgment the public interest should p. 692require it;” by the act of May 1,1810, to revive a former act, as to Great Britain or France, if either country had not, by a named day, so revoked or modified its edicts as not “ to violate the neutral commerce of the United States;” by the acts of March 3, 1815, and May 31, 1830, to declare the repeal, as to any foreign nation, of the several acts imposing duties on the tonnage of ships and vessels, and on goods, wares and merchandise imported into the United States, when he should be “satisfied” that the discriminating duties of such foreign nations, “so far as they operate to the disadvantage of the United States,” had been abolished; by the act of March 6, 1866, to declare the provisions of the act forbidding the importation into this country of neat cattle and the hides of neat cattle, to be inoperative, “ whenever in his judgment ” their importation “ may be made without danger of the introduction or spread of contagious or infectious disease among the cattle of the United States;” must be regarded as unwarranted by the Constitution, if the contention of the appellants, in respect to the third section of the act of October 1,1890, be sustained.

That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution. The act of October 1, 1890, in the particular under consideration, is not inconsistent with that principle. It does not, in any real sense, invest the President with the power of legislation. For the purpose of securing reciprocal trade with countries producing and exporting sugar, molasses, coffee, tea and hides, Congress itself determined that the provisions of the act of October 1, 1890, permitting the free introduction of such articles, should be suspended as to any country producing and exporting them, that imposed exactions and duties on the agricultural and other products of the United States, which the President deemed, that is, which he found to be, reciprocally unequal and unreasonable. Congress itself prescribed, in advance, the duties to be levied, collected and paid, on sugar, molasses, coffee, tea or hides, produced by or exported from such designate p. 693country, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. The words, “ he may deem,” in the third section, of course, implied that the President would examine the commercial regulations of other countries producing and exporting sugar, molasses, coffee, tea and hides, and form a judgment as to whether they were reciprocally equal and reasonable, or the contrary, in their effect upon American products. But when he ascertained the fact that duties and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. Legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What the President was required to do was simply in execution of the act of Congress. It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect. It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars, molasses, coffee, tea and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspensions certain duties should be imposed.

“ The true distinction,” as Judge Ranney speaking for the Supreme Court of Ohio has well said, “ is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or p. 694discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” Cincinnati, Wilmington &c. Railroad v. Commissioners, 1 Ohio St. 88. In Moers v. City of Reading, 21 Penn. St. 188, 202, the language of the court was: “ Half the statutes on our books are in the alternative, depending on the discretion of some person or persons to whom is confided the duty of determining whether the proper occasion exists for executing them. But it cannot be said that the exercise of such discretion is the making of the law.” So, in Lochds. Appeal, 72 Penn. St. 491, 498 : “ To assert that a law is less than a law, because it is made to depend on a future event or act, is to rob the legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed, or to things future and impossible to fully know.” The proper distinction the court said was this: “ The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and, must, therefore, be a subject of inquiry and determination outside of the halls of legislation.”

Third. The act of October 1,1890, c. 1244, sec. 1, par. 231, “Schedule E — Sugar,” provides that “on and after July first, eighteen hundred and ninety-one, and until July first, p. 695nineteen hundred and five, there shall be paid, from any moneys in the Treasury not otherwise appropriated, under the provisions of section three thousand six hundred and eighty-nine of the Revised Statutes, to the producer of sugar testing not less than ninety degrees by the polariscope, from beets, sorghum or sugar-cane grown within the United States, or from maple sap produced within the United States, a bounty of two cents per pound; and upon such sugar testing less than ninety degrees by the polariscope, and not less than eighty degrees, a bounty of one and three-fourths cents per pound, under such rules and regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe.” 26 Stat. 567, 583.

pendent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected.” Alien x. Louisiana, 103 U. S. 80, 83. And in Huntington v. Worthen, 120 U. S. 97, 102, Mr. Justice Field, speaking for the court, said: “ It is only when different clauses of an act are so dependent upon each other that it is evident the legislature would not have enacted one of them without the other — as when the two things provided are necessary parts of one system — that the whole act will fall with the invalidity of one clause. When there is no such connection and dependency, the act will stand, though different parts of it are rejected.” It cannot be said to be evident that the provisions imposing duties on imported articles are so connected with or dependent upon those giving bounties upon the production of sugars in this country that the former would not have been adopted except in connection with the latter. Undoubtedly, the object of the act was not only to raise revenue for the support of the government, but to so exert the power of laying and collecting taxes and duties as to encourage domestic manufactures and industries of different kinds, upon the success of which, the promoters of the act claimed, materially depended the national prosperity and the national safety. But it cannot be assumed, nor can it be made to appear from the act, that the provisions imposing duties on imported articles would not have been adopted except in connection with the clause giving bounties on the production of sugar in this country. These different parts of the act, in respect to their operation, have no legal connection whatever with each other. They are entirely separable in their nature, and, in law, are wholly independent of each other. One relates to the imposition of duties upon imported articles; the other, to the appropriation of money from the Treasury for bounties on articles produced in this country. While, in a general sense, both may be said to be parts of a system, neither the words nor the general scope of the act justifies the belief that Congress intended they should operate as a whole, and not separately for the purpose of accomplishing the objects for -which they were respectivelv designed. Unless it be impossible to avoi p. 697it, a general revenue statute should never be declared inopera*tive in all its parts because a particular part relating to a distinct subject may be invalid. A different rule might be disastrous to the financial operations of the government, and produce the utmost confusion in the business of the entire country.

‘ § 3. That with a view to secure reciprocal trade with countries producing the following articles, and for this purpose, on and after the first day of January, eighteen hundred and ninety- p. 698two, whenever, and so often as the President shall be satisfied that the government of any country producing and export-* ing sugars, molasses, coffee, tea and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agricultural or other products of the United States, which in view of the free introduction of such sugar, molasses, coffee, tea and hides into the United States he may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea and hides, the production of such country, for sudh time as he shall deem just, and in such case and during such suspension duties shall be levied, collected and paid upon sugar, molasses, coffee, tea and hides, the product of or exported from such designated country as follows, namely.” 26 Stat. 612.

383. The act of March 1, 1809, forbidding any importation after May 20, 1809, from Great Britain or France, provided that “ the President of the United States be, and he hereby is, authorized, in case either France or Great Britain shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States, to declare the same by proclamation,” after which the trade suspended by that act and the act laying an embargo could be renewed with the nation so doing. 2 Stat. 528, c. 24, § 11. That act having expired, Congress, on the first of May, 1810, passed an act, (2 Stat. 605, c. 39, § 4,) which enacted “ that in case either Great Britain or France shall, before the third day of March next, so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact p. 699the President of the United States shall declare by proclamation, and if the other nation shall not, within three months thereafter, so revoke or modify her edicts in like manner,” the restrictions of the embargo act, “shall, from and after the expiration of three months from the date of the proclamation aforesaid, be revived and have full force and effect, so far as relates to . . . the nation thus refusing or neglecting to modify her edicts in the manner aforesaid. And the restrictions imposed by this act shall, from the date of such proclamation, cease and be discontinued in relation to the nation revoking or modifying her decrees in the manner aforesaid.”

But the purpose and effect of the section now under consideration are radically different. It does not, as was provided in the statutes of 1809 and 1810, entrust the President with the ascertainment of a fact therein defined upon which the law is to go into operation. It goes farther than that, and deputes to the President the power to suspend another section in the same act whenever “ he may deem ” the action of any foreign nation producing and exporting the articles named in that section to be “ reciprocally unequal and unreasonable; ” and it further deputes to him the power to continue that suspension and to impose revenue duties on the articles named “ for such time as he may deem just.” This certainly extends to the executive the exercise of those discretionary powers which the Constitution has vested in the law-making p. 700department. It unquestionably vests in the President the power to regulate our commerce with all foreign nations which produce sugar, tea, coffee, molasses, hides or any of such articles; and to impose revenue duties upon them for a length of time limited solely by his discretion, whenever he deems the revenue system or policy of any nation in which those articles are produced reciprocally unequal and unreasonable, in its operation upon the products of this country.

On motion of George Harding, Esq., of Pennsylvania, the chair appointed George Frisbie Hoar, Esq., of Massachusetts, George Harding, Esq., Cortlandt Parker, Esq., of New Jersey, J. Hubley Ashton, Esq., Thomas J. Semmes, Esq., of Louisiana, Joseph H. Choate, Esq., of New York, John T. Morgan, Esq., of Alabama, and John B. Henderson, Esq., of Missouri, a committee to prepare and report resolutions for consideration and adoption by the p. 702meeting. Mr. Harding, on behalf of the committee, reported a series of resolutions which, after remarks by Mr. Parker, Mr. Harding, Mr. A. Q. Keasbey, of New Jersey, Mr. Samuel Dixon, of Pennsylvania, and Mr. J. Dixon, of New Jersey, were unanimously adopted; after which, on motion of Mr, Ashton, the meeting adjourned.

These occasions are recurring with painful frequency. In each of the years 1887, 1888, 1889, 1890, and now again at the threshold of 1892, an honored member of this court has been summoned into p. 703that presence of inconceivable solemnity, where all must appear at last to answer for duty done or duty neglected. Well may the bar and the court say they are “ becoming reluctant to grant these, their last highest honors.” Yet neither in length of days, nor in their results, is the end of the life of Justice Bradley untimely. Having passed the limit prescribed by the Psalmist, and “by reason of strength ” attained almost fourscore years, all the journey rich and useful in the fruits of his talents, his industry, and his learning, “ like the mildness, the serenity, the continuing benignity of the summer’s day he has gone down with slow, descending, grateful, long-lingering light,” the radiance of the evening giving sure promise of a morning and a morrow of endless brightness.

The means of his parents, who at his birth were only nineteen years old, were slender, and the circumstances of his childhood and youth were .very hard. The little farm was rugged, almost mountainous, the soil thin and barren. The meagre crops were eked out by cutting wood from the hillsides and burning it into charcoal, which young Bradley peddled about the streets of Albany. But though sore pressed to supply the needs of their fast-growing flock, this father and mother were of the intelligent farmer class, so often ambitious to give their children a better chance than their own, and they did for their boy the best they could. A few months’ country school in winter, and a few books, were the foundation on which a great superstructure of learning was built, a foundation which, with all due respect to so-called improved school systems and modern methods, it is believed was all the better for the ambitious boy, because the opportunities were rare and the few books so entirely mastered. In the intervals of necessary work we can imagine this boy, in garments homespun and homemade, every thread and every stitch inwoven with the warmth of a mother’s love, slight of form but full of life and energy, quick of motion and quick of temper, eager and apt in all the sports with his fellows, but even more eager and more apt in the use of his slight opportunities, by book or school, to feed the beginnings of that p. 704hunger of the mind which was the spur of his whole life and which to the last was insatiable.

His study of the law was not as something abstract, speculative, lifeless, but in its relations to society — yea, as the very essence, the lifeblood of civil society, even as the surgeon studies the life of his living subject. He had not the gift of eloquence, as the p. 707term is generally understood in its relation to juries; but he had what is vastly more important to a lawyer and a judge, the power of clear, terse, vigorous statement, which, illuminating the subject under discussion, if it does not enlist the feelings, does convince the understanding.

He had not only the “inquiring” but the “intending” mind. He not only looked into things, but threw himself upon them and possessed himself of them. In each instance, his nature seemed subdued to what it worked in, “ like the dyer’s hand.” Minuteness and comprehensiveness went together, so that to his understanding the illustration from the Arabian Nights might well be applied, as it was to .Bacon, that it resembled the fairy’s tent, which could be placed, perfect in its proportions, on the hand, but p. 709set up upon the plain, whole armies could encamp beneath its shade.

The President of the United States, in acknowledging the official notification of Mr. Justice Bradley’s death, said: “He was not only learned in the law, but the temper of his mind was so fine and his wisdom so great that I do not wonder that you valued his p. 710counsels so highly.” This observation is discriminating and just, for it touches that reserved force, termed character, which gave Mr. Justice Bradley an influence beyond the mere words he wrote or uttered. Fineness of mind, wisdom of thought, cordiality of heart, simplicity of manner, conscientious devotion to duty, an absolute integrity—these he had, and possessing these, he has left no unfinished window in the palace of the reputation bequeathed to posterity. Never suffering the talents given him to be weakened or extirpated by disuse, he persevered in the performance of public duty far beyond the period assigned as entitling to well-earned repose.