Edwards v. United States, 286 U.S. 482 (1932)

Attorney General Mitchell, with whom Solicitor General Thacher, Assistant Attorney General Rugg, and Mr. p. 483482 Argument for the United States.

Congress has no function to perform in respect of bills which have been approved, so there is no good reason why the President should not approve bills after adjournment. Public interest requires that he be given the full ten days contemplated by the Constitution to consider measures passed by Congress. In directing that every bill shall be presented to the President, the Constitution provides “ if he shall approve, he shall sign it.” It does p. 484not expressly say when he shall sign it, or that he shall sign it while Congress is in session. The argument that if he may approve a bill after the adjournment he has an indefinite time to act, finds no support in the Constitution. That he must sign within ten days is necessarily implied; for, if he does not and Congress shall have adjourned, it is provided that the bill shall not become a law.

Private Bill No. 510 of the 71st Congress (c. 595, 46 Stat. 2163) provided that the Court of Claims should have jurisdiction to adjudicate a certain claim of the plaintiff against the Government. The court states that the bill was approved by the President on March 5, 1931, that is, p. 485within ten days (Sundays excepted) after it was presented to him, but after the final adjournment of the Congress which passed it. The following question is certified:

“ Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, p. 486with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. ... If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

The last sentence of this provision clearly indicates two definite and controlling purposes: First. To insure promptness and to safeguard the opportunity of the Congress for reconsideration of bills which the President disapproves; hence, the fixing of a time limit so that the status of measures shall not be held indefinitely in abeyance through inaction on the part of the President. Second. To safeguard the opportunity of the President to consider all bills presented to him, so that it may not be destroyed by the adjournment of the Congress during the time allowed to the President for that purpose. As this Court said in The Pocket Veto Case, 279 U. S. 655, 677, 678: “ The power thus conferred upon the President cannot be narrowed or cut down by Congress, nor the time within which it is to be exercised, lessened, directly or indirectly.” The constitutional provision is explicit as to the consequences in case the bill is not signed by the President within the time fixed. The bill then becomes a law, unless the Congress by adjournment has prevented the return of the bill, and, in the latter event, it is not to be a law. But the provision is not explicit as to the consequence in case the bill is approved by the President p. 487within the time fixed and in the meantime the Congress has adjourned.

The proceedings and debates of the Constitutional Convention throw no light upon this question. See The Pocket Veto Case, supra, at p. 675. Nor has the provision received a practical construction so positive and consistent as to be determinative. The general practice of Presidents, in being present at the Capitol for the purpose of signing bills during the closing hours of the sessions of the Congress, has indicated the existence of doubt and the desire to avoid controversy.1 It appears that the question was raised during the administration of President Monroe, and, in view of a difference of opinion among his advisers, the bill in question was not signed.12 .President p. 488Lincoln, on March 12,1863, approved a bill after the Congress had adjourned sine die on March 4, 1863, the bill having been passed on March 3, 1863 (c. 120, 12 Stat. 820). This action was not left unchallenged. The Judiciary Committee of the House of Representatives made a unanimous report, in response to a resolution of the House, that the Act was not in force.*3* It does not appear that the House acted upon this report. But the Congress soon after passed an Act which referred to the Act of p. 489March 12,1863, as having been approved, and added to its provisions. Act of July 2, 1864, c. 225, 13 Stat. 375.4 The Act of March 12,1863, was the subject of several decisions of this Court, and in these no question appears to have been raised as to its validity in view of the time of its approval by the President.5 President Johnson refused to sign a bill which he received on April 1, 1867, as the Congress had taken a recess from March 30, 1867, to July 3, 1867.6

It appears that President Cleveland was urged to approve a bill after the adjournment of the Congress, but he did not do so.7 President Harrison, acting on the advice of Attorney General Miller (20 Op. A. G. 503), signed a number of bills during a recess of the Congress. Upon the opinion of Attorney General Palmer that the action was constitutional (32 Op. A. G. 225), President Wilson signed several bills after the adjournment sine die p. 490of the second session of the 66th Congress.8 This precedent was followed in the instant case by President Hoover, relying upon the opinion of Attorney General Mitchell that there was no ground for a distinction as to the President’s power in this respect between the case of adjournment at the close of a session and the final adjournment of the Congress.

The Court’s reasoning in the case cited also meets the objection that if the President may approve bills after adjournment, his action would be free of any limitation of time. The constitutional provision does not admit of such a construction. The intention is clearly shown that in any event the President must act within the prescribed ten days, and the opinion in the La Abra case is explicit as to the President’s duty in this respect. The Court said (id., pp. 453, 454): “ The time within which he [the President] must approve or disapprove a bill is prescribed. If he approve a bill, it is made his duty to sign it. The Constitution is silent as to the time of his signing, except that his approval of a bill duly presented to him—if the bill is to become a law merely by virtue of such approval—must be manifested by his signature within ten p. 492days, Sundays excepted, after the bill has been presented to him. It necessarily results that a bill when so signed becomes from that moment a law. But in order that his refusal or failure to act may not defeat the will of the people as expressed by Congress, if a bill be not approved and be not returned to the House in which it originated within that time, it becomes a law in like manner as if it had been signed by him.” But if this limitation of time applies to the President’s action when the Congress is in recess, it is apparent that the limitation equally governs his action when the Congress has adjourned. The constitutional provision affords no basis for a distinction between the two cases.

There is nothing in the words of the Constitution which prohibits the President from approving bills, within the time limited for his action, because the Congress has adjourned; and the spirit and purpose of the clause in question forbid the implication of such a restriction. The provision that a bill shall not become a law if its return has been prevented by the adjournment of Congress is apposite to bills that are not signed, not to those that are signed. There is no requirement that bills that are signed should be returned. No further action is required by Congress in respect of a bill which has been presented to the President, unless he disapproves it and returns it for reconsideration as the Constitution provides. We may quote again from the opinion in the La Abra case (id.): “ It has properly been the practice of the President to inform Congress by message of his approval of bills, so that the fact may be recorded. But the essential thing to be done in order that a bill may become a law by the approval of the President is that it be signed within the prescribed time after being presented to him. That being done, and as soon as done, whether Congress is informed or not by message from the President of the fact of his approval of it, the bill becomes a law, and is p. 493delivered to the Secretary of State as required by law.” 1011

Colorado challenges the bill by a motion to dismiss in the nature of a demurrer. The principal grounds of the motion are, (1) that the bill proceeds upon the theory that the prior decree determined, as against Colorado and her water users, the full quantity of water which rightfully may be diverted from the stream within that State, and likewise the quantity which Wyoming and her water users are entitled to receive and use from the stream p. 497within that State—all of which, it is insisted in the motion, is refuted by the record, opinion and decree in the prior suit; (2) that the bill shows that the acts complained of are not acts done by Colorado, or under her authority, but acts done by private corporations and individuals not parties to the present suit and with respect to which no relief can be had against Colorado; and (3) that, in any event, the bill fails to show with certainty any violation of the decree or any damage to Wyoming or her water users.

That suit was brought by Wyoming against Colorado and two Colorado corporations. The corporations, with Colorado’s authority and permission, were proceeding to divert water from the Laramie in Colorado and to conduct it through a proposed tunnel into the valley of the Cache la Poudre in Colorado, there to be used in irrigation. The project was designed to divert from the Laramie 56,000 acre feet per annum at first and 15,000 more later on. The purpose of the suit was to prevent the proposed diversion, and to that end the complaint set forth, among other things, that the doctrine of appropriation for beneficial use, whereby priority in time gives priority in right, was recognized and applied by both Colorado and Wyoming in adjusting conflicting claims to the use of waters of natural streams; that Wyoming and her citizens had been for many years irrigating and thereby making highly productive very large amounts of land along the Laramie and its tributaries in that State through the use of waters appropriated for that purpose from those streams, and expenditures running into milions of dollars had been made in the construction of reservoirs, canals and other appliances for the purpose of so using such waters; that these appropriations and this use had been maintained from a time long prior to the commencement of the Laramie-Poudre tunnel project in Colorado; that the date when that project was commenced was “ on or about the first day of December, 1909 ”; that before that project was commenced Colorado and certain of her citizens had appropriated water from the Laramie in Colorado for the irrigation of lands (meadow lands) in that State adjacent to that stream, but that the total amount of water reasonably and beneficially used upon such lands did not exceed 6,000 acre feet per annum; that “ no other appropriations or use of said waters of p. 499said Laramie River or its tributaries had been made by the State of Colorado or its citizens, or within the said State of Colorado, prior to the appropriations of said waters by your orator and its citizens as herein set forth ”; that prior to the commencement of the Laramie-Poudre tunnel project in Colorado, Wyoming and her citizens had appropriated all of the available waters of the Laramie and its tributaries for the actual irrigation of lands in Wyoming aggregating hundreds of thousands of acres and supporting thousands of people; that without the use of the waters so appropriated these lands would be to a large extent valueless and incapable of supporting any considerable population; and that the consummation of the proposed Laramie-Poudre tunnel diversion would deprive Wyoming and her citizens of a very large amount of water to the use of which they were rightly entitled in virtue of their appropriations, and would take from many of their lands much of their value.

Colorado, in answering the complaint, admitted that before the commencement of the Laramie-Poudre tunnel project certain of her citizens had appropriated water from the Laramie and its tributaries in that State for the irrigation of adjacent lands (meadow land), but averred that these appropriations amounted to about 8,000 acre feet per annum; alleged that “ other appropriations of said waters of said Laramie River and its tributaries had been made by the State of Colorado and its citizens within the State of Colorado prior to the appropriations of said waters by complainant and its citizens”; averred that the right to the proposed Laramie-Poudre tunnel diversion was initiated, by commencement of construction, August 25, 1902, and that at the time of such initiation there was abundant water in the Laramie to satisfy all p. 500prior appropriations then in existence in Colorado and Wyoming; denied that Wyoming and her citizens had appropriated all of the available waters of the Laramie and its tributaries prior to that threatened diversion, and averred that there was ample water in those streams to supply the threatened diversion and all prior rights in Wyoming; alleged that when the right to make that diversion was initiated, the appropriations effected or initiated in Wyoming did not exceed 50,000 acre feet; averred that the maximum diversion which could be made through the Laramie-Poudre tunnel project did not exceed 70,000 acre feet annually, and the topographical and physical conditions were such that “ by the system sought to be enjoined herein, and all other available means, no more than 90,000 acre feet annually can be diverted from said stream and its tributaries for use upon lands lying within the State of Colorado ”; and denied that the consummation of the threatened diversion would work any injury to Wyoming or her citizens or the lands in that State.

Respecting the available supply of water the Court found from the evidence that Sand Creek is nominally but not actually a tributary of the Laramie, and therefore not to be considered; that at Woods, a gauging station near the Colorado-Wyoming Stateline, the natural flow of the Laramie after the “ recognized Colorado p. 504appropriations ” are satisfied is such as to afford an available supply of 170,000 acre feet per year, but not more; that the stream receives below Woods contributions of 93,000 acre feet from the Little Laramie and 25,000 acre feet from smaller affluents, making the entire available supply 288,000 acre feet, apart from the quantities required to satisfy the “recognized Colorado appropriations”; and that

From the evidence bearing upon the relative priorities of the proposed Colorado appropriation and the Wyoming appropriations the Court found that work on the former p. 505was begun in the latter part of October, 1909, and was prosecuted with such diligence that the appropriation should be accorded a priority as of the date when the work was begun; that some of the Wyoming appropriations were senior and others junior to that appropriation; that those which were senior to it and dependent on the common source of supply amounted to 272,500 acre feet per annum; and that

“ Provided, that this decree shall not prejudice the right of the State of Colorado, or of any one recognized by her as duly entitled thereto, to continue to exercise the right now existing and hereby recognized to divert and take from such stream and its tributaries in that State eighteen thousand (18,000) acre-feet of water per annum in virtue of and through what is designated in the pleadings and p. 506evidence as the Skyline Ditch appropriation in that State; nor prejudice the right of that State, or of any one recognized by her as duly entitled thereto, to continue to exercise the right now existing and hereby recognized to divert and take from such stream and its tributaries in that State four thousand two hundred and fifty (4,250) acre-feet of water per annum in virtue of and through the meadow-land appropriations in that State which are named in the pleadings and evidence; nor prejudice or affect the right of the State of Colorado or the State of Wyoming, or of any one recognized by either State as duly entitled thereto to continue to exercise the right to divert and use water from Sand Creek, sometimes spoken of as a tributary of the Laramie River, in virtue of any existing and lawful appropriation of the waters of such creek.”

We are of opinion that the record, opinion and decree in the prior suit, here reviewed at length, show very plainly that the decree must be taken as determining the p. 507relative rights of the two States, including their respective citizens, to divert and use the waters of the Laramie and its tributaries. These rights were put in issue by the pleadings, displayed in the evidence, and considered and resolved in the opinion. Not only so, but the question of priority in time and right as between the appropriations in Colorado and those in Wyoming was directly . presented by the pleadings and evidence and distinctly dealt with and resolved in the opinion.

But it is said that water claims other than the tunnel appropriation could not be, and were not, affected by the decree, because the claimants were not parties to the suit or represented therein. In this the nature of the suit is misconceived. It was one between States, each acting p. 509as a quasi-sovereign and representative of the interests and rights of her people in a controversy with the other. Counsel for Colorado insisted in their brief in that suit that the controversy was “ not between private parties ” but “between the two sovereignties of Wyoming and Colorado ”; and this Court in its opinion assented to that view, but observed that the controversy was one of immediate and deep concern to both States and that the interests of each were indissolubly linked with those of her appropriators. 259 U. S. 468. Decisions in other cases also warrant the conclusion that the water claimants in Colorado, and those in Wyoming, were represented by their respective States and are bound by the decree.5

Messrs. Clarence L. Ireland, Attorney General of Colorado, George A. Crowder, Assistant Attorney General, and p. 512Joel E. Stone, District Attorney, Arapahoe County, were on the brief of petitioner.

An officer should not assault or beat any individual under the color of his commission or authority without lawful necessity. Colo. Comp. L., 1921, §6793; People ex rel. Little v. Hutchinson, 9 F. (2d) 275; Brown v-Wyman, 224 Mich. 360; U. S. ex rel. McSweeney v. Fullhart, 47 Fed. 802; United States v. Kaplan, 286 Fed. 963; Castle v. Lewis, 254 Fed. 917; Scibor v. Oregon- p. 513510 Argument for Respondents.

State courts are substantially unanimous in holding that acts are done under “ color of office ” when they are p. 514done under a pretense or claim of right, even though they are in fact wholly unwarranted. See Mobile County v. Williams, 180 Ala. 639; Luther v. Banks, 111 Ga. 374; State n . Fowler, 88 Md. 601; Thomas v. Connelly, 104 N. C. 342; Smith v. Patton, 131 N. C. 396. Cf. McCain v. Des Moines, 174 U. S. 168; Iowa v. Des Moines, 96 Iowa 521.

November 9, 1931, the prosecuting attorney of Arapahoe county, Colorado, filed an information in the state court charging that on November 7 Henry Dierks killed and murdered Melford Smith. A warrant issued, the accused was arrested thereon and admitted to bail. He filed a petition for a writ of habeas corpus cum causa in the United States district court alleging that he is a United States prohibition agent and other facts on which he claims immunity from prosecution in the state court and prayed removal of the case to the federal court under Judicial Code, § 33 as amended. 28 U. S. C., § 76. The district judge granted the writ, the marshal served it as required by the statute, and so the case was taken from the state court. The prosecuting attorney promptly p. 515moved to remand on the ground that the petition is not sufficient to give the federal court jurisdiction. His motion was denied. 55 F. (2d) 371. Thereupon, leave having been granted, the State acting through its governor filed a motion in this court for a rule requiring the district judge to show cause why a writ of mandamus should not issue to compel him to remand the case. The motion was granted and the judge has made his response to the rule in which he maintains that mandamus should not be granted. The case is submitted by the State on the brief of its attorney general. The Solicitor General of the United States submits a brief in opposition.

November 7, 1931, he and one Ejjsworth, another prohibition agent, were directed by the administrator in charge to investigate a complaint of violations of the prohibition act and revenue laws reported as being committed at No. 3005 South Broadway, in Englewood. About 9.30 in the evening they went to that place for the purpose of investigating such violations. It was a hamburger stand or restaurant. Petitioner exhibited his badge and p. 516informed the man in charge that he was a prohibition agent and had come to investigate reports of violations of the Act and was given permission to search the premises. While he “ was in the act of observing and searching said premises, one Melford Smith entered . . . seated himself on an unoccupied stool at the counter . . . took out a pint bottle of wine from his inside coat pocket, and set the said bottle of wine on the counter ... in full and open view of your petitioner, and . . . then proceeded to look for a drinking glass.”

And the petitioner goes on to say that when Smith was placed in the jail he did not appear to have received injury, but that on the following day he became sick and died and petitioner ■1 alleges that the said Melford Smith p. 517did die from an injury to his head caused by a blow given . . . by your petitioner during the scuffle . . .” And petitioner states “ he is not guilty of the crime of murder, or any other offense ” and that the criminal proceeding “ arises out of and solely by reason of the acts performed by your petitioner as an officer acting” under the authority of the revenue laws and the National Prohibition Act.

examined the proceedings against him and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said district court, if in session, or if it be not, to the clerk thereof at his office, and shall p. 519unequivocally verified by himself all the facts relating to the occurrence, as he claims them to be, on which the accusation is based. Without such disclosure the court cannot determine whether he is entitled to the immunity. No question of guilt or innocence arises and no determination of fact is required, but it must fairly appear from the showing made that petitioner’s claim is not without foundation and is made in good faith.

As said by Chief Justice Taft speaking for the Court in Maryland v. Soper, supra, 33: “ It must appear that the prosecution . . . has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and he must by direct averment exclude the possibility that it was based on acts or conduct of his not justified by his federal duty. . . . [p. 34]. In invoking the protection of a trial of a state offense in a federal court under section 33, a federal officer abandons his right to refuse to testify because accused of crime, at least to the extent of disclosing in his application for removal all the circumstances known to him out of which the prosecution arose. The defense he is to make is that of his immunity from punishment by the state, because what he did was justified by his duty under the federal law, and because he did nothing else on which the prosecution could be based. He must establish fully and fairly this defense by the allegations of his petition for removal before the federal court can properly grant it. It is incumbent on him, conformably to the rules of good pleading, to make the case on which he relies, so that the court may be fully advised and the state may take issue by a motion to remand.” And the opinion pointed out (p. 35) that the allegations of the petition for removal there under consideration did not negative the possibility that the accused were doing other than official acts at the time or on the occasion of the alleged murder or “make it clear and specific that whatever was done by them leading to the p. 520prosecution was done under color of their federal official duty. ... In order to justify so exceptional a procedure, the person seeking the benefit of it should be candid, specific and positive in explaining his relation to the transaction growing out of which he has been indicted, and in showing that his relation to it was confined to his acts as an officer.”

While phrases such as those quoted may appropriately be used to characterize facts that have been disclosed, p. 521they are not calculated to give specific information as to the details of the occurrence. The statements of the petition are so vague, indefinite and uncertain as not to commit petitioner in respect of essential details of the defense he claims. They are not sufficient to enable the court to determine whether his claim of immunity rests on any substantial basis or is made in good faith. The narrative is manifestly incomplete in respect of matters known to the petitioner and which under the established construction of the statute he was bound to disclose. The motion to remand should have been granted.