office under the United States, shall be a member of either house during his continuance in office." This prohibition as finally adopted is far less sweeping than the one originally drafted. The report of the Committee of the Whole to the Constitutional Convention contained provisions making representatives and senators ineligible to any office established by a particular State, or under the authority of the United States except those pertaining particularly to the first (second-in case of senators) branch of Congress during their term of service, and under the national government for the space of one year after its expiration. The most important effect of this restriction has been to prevent the formation of anything similar to the English ministry system, by preventing the members of the Cabinet from holding seats in Congress.

70

The provision as finally inserted contains two restrictions. If a civil office has been created or the emoluments thereof have been increased while any person is a member of Congress he cannot be appointed to such office during the time for which he was elected, even if he resign his membership in Congress. If a person thus disqualified is nominated and confirmed to an office, he will not become entitled to it even after his ineligibility has ceased. A senator or representative may become eligible to any other office under the United States than those in the above mentioned class, by resigning his seat in Congress; and any person who holds any incompatible office and is elected to Congress, may take his seat therein by resigning such other office. A representative in Congress does not become a member of the House until he takes the oath of office as such representative; and therefore, he may lawfully hold any office from his election until that time.72 The acceptance by any member of any office under the United States, after he has been elected to and taken his seat in Congress, operates as a forfeiture of his seat.

71

73

No state office is incompatible with that of a member of Congress; in two recent instances a United States senator has temporarily retained the office of Governor of his State.

74

§ 133. Bills for Raising Revenue. All bills for raising revenue must originate in the House of Representatives, the Senate, however, may amend such bills.75 This provision was first inserted into the Constitution, as a part of the Connecticut Compromise. It was supposed to be a concession to the larger states; the larger states, however, from the debates in the Convention, seemed to have attached little importance to it.

This provision has been given a narrow interpretation and its application has been confined to bills to levy taxes in the strict sense of the words, and has not been understood to extend to bills for other purposes which incidentally create revenue.76 A provision in an act of Congress increasing the rate of postage from one cent for two ounces to one cent an ounce was held constitutional although the clause originated in the Senate and was not an amendment to a bill for raising revenue originàting in the House of Representatives."7

§ 134. The Veto Power.-A veto power is vested in the President of the United States. This power is legislative and not executive and is therefore treated in this chapter. The President, in addition to his executive powers becomes, in respect to his veto power, practically a third branch of Congress; a branch, however, with merely negative powers.

Every bill which has passed both houses of Congress, and also every order, resolution, or vote which requires the concurrent vote of both houses (except on a question of adjournment) must be presented to the President. If he approves it, it becomes a law upon his signing it. If he disapproves the bill, and desires to veto it, he must return it, together with his objections, within ten days, to the house where it originated; this house then enters the objections at large upon their journal and proceeds to

74 Governor Hill of New York and Governor La Follette of Wisconsin.

75 United States Constitution, Art. I., Sec. VII., Clause I.

70 United States v. Norton, 91 W. S. 569.

"United States v. James, 13 Blatchford, 207, 26 Fed. Cases No. 15, 464.

reconsider the bill. If after such reconsideration it is passed by the house by a two-thirds vote it is sent to the other house, and if repassed by that house also by a two-thirds vote it becomes a law. In voting on a bill which has been vetoed by the President, both houses must vote by aye and naye vote and the names of the members voting for and against the bill must be entered on the journal of each house respectively. In case the President neither signs nor vetoes the bill, within ten days (Sundays excepted) after it shall have been presented to him, it becomes a law without his signature, unless Congress has adjourned within the ten days, in which case it does not become a law.

This veto power of the President is carefully discussed in United States v. Weil, where the court said: "The well-known encomium of Blackstone upon the British constitution, in which he says, 'It is highly necessary for preserving the balance of the constitution that the executive power should be a branch, though not the whole, of the legislative,' and likens the Commons, Lords, and Crown to 'three distinct powers in mechanics; they jointly impel the machine of government in a direction different from what either, acting by itself, would have done, but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community,' has done much to fasten an erroneous belief upon the American legal mind. There was a time when that wonderful analysis of the laws of England was read by every law student and its statements accepted as unquestionable truths. The great commentator was well characterized by the historian Gibbon as the 'orthodox Judge Blackstone.' As an instructor of English youth it was his mission to uphold the prerogatives of the Crown, and he believed with his whole heart in the supreme wisdom of the constitution which he extolled. Dealing with an unwritten constitution, which changes insensibly, the time had not then come when a professor of law in an English university could say that one of its cardinal articles had been expunged and was now obsolete. Yet such was the fact. When he was reading his lectures to young Englishmen at Oxford in 1756 the words of royal dissent, le roi

78 29 Ct. Cl. 538.

s'avisera, had not been spoken of an English statute for sixtyfour years. When he published his lectures in 1765, the legislative power of the Crown had passed out of the British constitution and was never to be exercised again. When the convention in 1787 was framing the legislative articles of the Constitution it had not been exercised, as he believed within the lifetime of the oldest member. At the time of the adoption of the Constitution it was as distant from the men of that day as the proceedings of the convention are distant from ourselves. It existed only in theory and the pages of Blackstone. The ceremony of approving bills continued and still continues; but approval where there can be no disapproval is but a form. During the reign of Elizabeth forty-eight bills were vetoed at a single session; during the last century the royal power of dissent was exercised but once, and for the last time in 1708, and related to a Scottish bill. The members of the convention were men of profound political wisdom, struggling with real problems that lesser men would have found insoluble, and intent on practical results which should be as little objectionable as possible to their countrymen, but for the permanent welfare of their country; and it is inconceivable that, for fanciful reasons, they would have imported an obsolete relic of the British constitution which had again and again been a cause of disaster to the nation and of danger to the Crown. Ten years before the convention assembled in Philadelphia, which in the brief period of a hundred days was to forge 'the most wonderful work ever struck off at one time by the brain and purpose of man,' the people of the state of New York framed their first Constitution. The third article of that instrument is in these words: 'And whereas laws inconsistent with the spirit of this constitution, or with the public good, may be hastily and unadvisedly passed: Be it ordained that the governor for the time being, the chancellor, and judges of the Supreme Court, or any two of them, together with the governor, shall be, and hereby are, constituted a council to revise all bills about to be passed into laws by the legislature; and for that purpose shall assemble themselves from time to time when the legislature shall be convened; for which, nevertheless, they shall not receive any salary or consideration, under any

pretense whatever. And that ali bills which have passed the Senate and Assembly shall, before they become laws, be presented to the said council for their revisal and consideration; and if, upon such revision and consideration, it should appear improper to the said council, of a majority of them, that the said bill should become a law of this state, that they return the same, together with their objections thereto, in writing, to the Senate or House of Assembly (in whichsoever the same shall have originated), who shall enter the objections sent down by the council at large in their minutes, and proceed to reconsider the said bill. But if, after such reconsideration, two-thirds of the said Senate or House of Assembly shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the legislature, where it shall also be reconsidered, and, if approved by two-thirds of the members present, shall be a law. And in order to prevent any unnecessary delays, be it further ordained, that if any bill shall not be returned by the council within ten days after it shall have been presented, the same shall be a law, unless the legislature shall, by their adjournment, render a return of the said bill within ten days impracticable, in which case the bill shall be returned on the first day of the meeting of the legislature after the expiration of the said ten days. Constitution, New York, 1777, art. III. (The underlined words in the above are used in the Constitution of the United States, verbatim, except where the plural has been changed to the singular.) Here, then, we find the Constitution, clause by clause, word for word. (1) That every bill shall be subject to revision. (2) That 'before it shall become a law' it shall be presented' to the revising power. (3) That if not approved it shall be 'returned.' (4) That when returned there shall be sent with it the objections' there may be against it. (5) That it shall be returned to the House in which it 'originated.' (6) That the objections shall be entered 'at large' on the journal. (7) That the House 'shall proceed to reconsider' the bill. (8) That it shall require a 'two-thirds' vote to pass it. (9) That it shall then 'together with the objections' be sent to the other' House. (10) That it shall there also be 'reconsidered.' (11) That if it be likewise 'approved by