ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS
White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
To avoid penalties sought to be imposed upon it for illegally carrying intoxicating liquors from another State into Kansas, the defendant railroad, plaintiff in error, asserted as follows: (1) That the state law was void as an attempt by the State to regulate commerce and thus usurp the authority alone possessed by Congress; (2) that if such result was sought to be avoided because of power seemingly conferred upon the State by the Act of Congress known as the Webb-Kenyon Law (Act of March 1, 1913), c. 90, 37 Stat. 699), such act was void for repugnancy to the Constitution of the United States because in excess of the power of Congress to regulate commerce and as a usurpation of rights reserved by the Constitution to the
States; (3) because, even if the Webb-Kenyon Law was held not to be repugnant to the Constitution for the reasons stated, nevertheless, that assumed law afforded no basis for the exertion of the state power in question, because it had never been enacted by Congress conformably to the Constitution, and therefore, in legal intendment, must be treated as non-existing.
It is conceded that the ruling of this court, sustaining the Webb-Kenyon Law as a valid exercise by Congress of its power to regulate commerce (Clark Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 311, 325), disposes of the first two contentions and leaves only the third for consideration. In fact, in argument it is admitted that such question alone is relied upon. The proposition is this: That as the provision of the Constitution exacting a two-thirds vote of each house to pass a bill over a veto means a two-thirds vote, not of a quorum of each house, but of all the members of the body, the Webb-Kenyon Act was never enacted into law, because after its veto by the President it received in the Senate only a two-thirds vote of the Senators present (a quorum), which was less than two-thirds of all the members elected to and entitled to sit in that body.
Granting the premise of fact as to what the face of the journal discloses, and assuming for the sake of the argument (Flint v. Stone Tracy Co., 220 U.S. 107, 143; Rainey v. United States, 232 U.S. 310, 317,) that the resulting question would be justiciable, we might adversely dispose of it by merely referring to the practice to the contrary which has prevailed from the beginning. In view, however, of the importance of the subject, and with the purpose not to leave unnoticed the grave misconceptions involved in the arguments by which the proposition relied upon is sought to be supported, we come briefly to dispose of the subject.
The proposition concerns clause 2 of § 7 of Article I of
the Constitution, providing that in case a bill passed by Congress is disapproved by the President --" . . . he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two thirds of that house, it shall become a law. . . ."
The extent of the vote exacted being certain, the question depends upon the significance of the words "that house;" that is, whether those words relate to the two houses by which the bill was passed and upon which full legislative power is conferred by the Constitution in case of the presence of a quorum, (a majority of the members of each house; § 5, Art. I); or whether they refer to a body which must be assumed to embrace, not a majority, but all its members, for the purpose of estimating the two-thirds vote required. As the context leaves no doubt that the provision was dealing with the two houses as organized and entitled to exert legislative power, it follows that to state the contention is to adversely dispose of it.
But, in addition, the erroneous assumption upon which the contention proceeds is plainly demonstrated by a consideration of the course of proceedings (in the convention which framed the Constitution,) since, as pointed out by Curtis (History of the Constitution, vol. 2 p. 267, note), it appears from those proceedings that the veto provision as originally offered was changed into the form in which it now stands after the adoption of the Article fixing the quorum of the two houses for the purpose of exerting legislative power and with the object of giving the power to override a veto to ...