tempted to consent, or waive the exemption.

And in Taylor v. Knipe (1870) 2 Pearson (Pa.) 151, it was decided that the delay of a board of school control, in failing to move to set aside an attachment of a claim against the public corporation for about nine months after the appearance was entered, did not give the court power to proceed, as the want of power was jurisdictional, and could not be waived.

The position has been taken in some cases that the immunity belonged to the creditor of the municipal corporation, and could not, therefore, be waived by the latter.

Thus, in School Dist. v. Gage (1878) 39 Mich. 484, 33 Am. Rep. 421, it was held not consistent with public policy to subject the wages of school-teachers to garnishment, or to allow public corporations to be brought needlessly into litigation; and that the right of exemption of the wages of a teacher belonged to him, and that the school district could not waive it by appearing and answering in a garnishment proceeding.

And in Sherman v. Shobe (1900) 94 Tex. 126, 86 Am. St. Rep. 825, 58 S. W. 949, where it was sought to garnish a county for money due on account of the care of smallpox patients, it was held that it was the interest of the creditor whose right was involved, and that the garnishee could not, as against him, waive the right of exemption. The court said: "The claim that a county could waive the want of a law to subject it to the process of garnishment, when brought to its last analysis, amounts to the assertion that a debtor may elect to pay his debt to the creditor of his creditor, rather than to the creditor himself. On the contrary, the rule is that the garnishee cannot, as against the defendant in the judgment or in the original proceeding, even accept or waive service of the writ."

As before stated, a conflict exists as to the right of a municipal corporation to waive the right of immunity.

In Las Anamas County v. Bond (1877) 3 Colo. 411, the court stated that the exemption of a county from

garnishment might be waived by appearance and submission to liability, but held that there was no waiver in that case, as the county had entered no appearance.

This case was cited in Stermer v. La Plata County (1895) 5 Colo. App. 379, 38 Pac. 839, as holding that a county's exemption from garnishment might be waived by appearance and submission to liability, but it was held that no waiver resulted in the case at bar, by reason of the county clerk's having filed an answer and supplemental answer, as he had no authority to do so; nor by reason of a filing of a motion to dismiss by the county attorney, as this was not a submission to, but a denial of, liability.

The right to waive the immunity has also been recognized in Iowa. Thus, in Clapp v. Walker (1868) 25 Iowa, 315, it was held that the privilege of exemption, given by a statute. providing that a municipal corporation should not be garnished, was one which such a corporation might insist upon, or waive, as it deemed best; and it was held that the privilege was waived, where a school district which was garnished filed an answer, admitting indebtedness to a certain amount, and the garnish or filed a replication, claiming a greater indebtedness, and a trial was had on this issue, resulting in the garnishor's favor; whereupon the garnishee moved for a new trial, but did not set up its right of exemption, and failed to assert it until the second trial was in progess.

And in Tone Bros. v. Shankland (1900) 110 Iowa, 525, 81 N. W. 789, in a proceeding in the nature of garnishment against a municipality, the court stated, in answer to the contention that a city could not be garnished, that only the garnishee could plead the exemption, and that it had not done so; apparently taking the view that the municipality might waive its right of exemption.

And in Dollman v. Moore (1892) 70 Miss. 267, 19 L.R.A. 222, 12 So. 23, where the proceeding was an attachment in equity, praying that a board of school trustees be directed to pay over funds in their hands, due for.

building a school, and the trustees answered, admitting the indebtedness, it was held that the objection to holding the municipality liable in such proceeding, not being jurisdictional, could be, and was, waived, and that the creditor of the municipality could not raise the objection.

The municipal corporation in Dollar v. Allen-West Commission Co. (1900) 78 Miss. 274, 28 So. 876, objected to garnishment proceedings against it, and on this ground it was distinguished from Dollman V. Moore (Miss.) supra; but the court stated that while the matter was not jurisdictional in the discretion of the court, so as to prevent a decree, where the municipality submitted itself to the jurisdiction the courts must always entertain and sustain its objection; that the municipality, and not the court, was the judge whether the proceeding would hamper or restrict it in the performance of public functions.

In Baird v. Rogers (1895) 95 Tenn. 492, 32 S. W. 630, it was held, citing Clapp v. Walker (Iowa) and Las Anamas County v. Bond (Colo.) supra, that a municipality may waive its privilege of exemption, and that the municipality in the case at bar had done so, it having answered, admitting its indebtedness, and expressing its willingness to pay to either party.

The decision in Clapp v. Walker (Iowa) supra, was also relied upon in Switzer v. Wellington (1888) 40 Kan. 250, 10 Am. St. Rep. 196, 19 Pac. 620, but it was held that in the case at bar there had been no waiver by the city of its right of exemption, by reason of an answer filed by the mayor in the garnishee proceedings, where it asserted its right to exemption as soon as an action was brought against

it to recover the amount of the indebtedness.

And in Jenks v. Osceola Twp. (1877) 45 Iowa, 554, the court held that a township had not waived its right to claim its exemption from garnishment, by failing to assert its claim before a commissioner appointed to take its answer as to the indebtedness; but that the question was raised in time, where it was asserted at the same term that the commissioner's report was filed.

In Des Moines County v. Hinkley (1883) 62 Iowa, 637, 17 N. W. 915, where a county filed an answer in a garnishment suit, claiming exemption, and subsequently brought an action against the garnishor and others in relation to the money due the creditor, in which it stated that it was indebted to the latter, and expressed its readiness to pay, the court doubted whether, by so doing, it had waived its right to exemption, but found it unnecessary to determine the question.

In First Nat. Bank v. Ottawa (1890) 43 Kan. 294, 23 Pac. 485, where the city answered various garnishee proceedings, admitting its indebtedness, but, in another proceeding by another creditor, admitted its indebtedness, but set up the other garnishee proceedings, and prayed that all claimants to the fund be brought into court and their rights determined, the court stated that each claimant had the right to contest the liens of the others; that it could not be permitted that a city should waive considerations of public policy, by answering garnishee process in favor of one party, and insist on the observance of these considerations by refusing to answer the attempted garnishment of another party. J. T. W.

poses 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 WebbKenyon 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, 55 L. ed. 389, 410, 31 Sup. Ct. Rep. 342, Ann. Cas. 1912B, 1312; Rainey v. United States, 232 U. S. 310, 317, 58 L. ed. 617, 620, 34 Sup. Ct. Rep. 429), 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.

66

The proposition concerns clause 2 of 7 of article 1 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, If, after such 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 be likewise reconsidered, and if ap

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. 1), 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 passing bill with the two houses over vetoas organized and entitled to exert legislative power, it follows that to state the contention is to adversely dispose of it.

Congress

two-thirds vote.

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 the bodies as thus organized. A further confirmation of this view is afforded by the fact that there is no indication in the constitutions and laws of the several states existing before the Constitution of the United States was framed that it was deemed that the

legislative body which had power to pass a bill over a veto was any other than the legislative body organized conformably to law for the purpose of enacting legislation, and hence that the majority fixed as necessary to override a veto was the required

majority of the body in whom the power to legislate was lodged. Indeed, the absolute identity between the body having authority to pass legislation and the body having the power, in case of a veto, to override it, was clearly shown by the Constitution of New York, since that Constitution, in providing for the exercise of the right to veto by the council, directed that the objections to the bill be transmitted for reconsideration to the senate or house in which it originated; "but if, after such reconsideration, two thirds of the senate or house of assembly shall, notwithstanding such objections, agree to pass the same, it shall 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,"-thus identifying the bodies embraced by the words, "senate" and "house," and definitely fixing the two-thirds majority required in each as two thirds of the members present.

The identity between the provision of article 5 of the Constitution, giving the power by a twothirds vote to submit amendments, and the requirements we are considering as to the two-thirds vote necessary to override a veto, makes the practice as to the one applicable to the other.

At the first session of the first Congress, in 1789, a consideration of the provision authorizing the submission of amendments necessarily arose in the submission by Congress of the first ten amendments to the Constitution, embodying a Bill of Rights. They were all adopted and submitted by each house organized as a legislative body pursuant to the Constitution, by less than the vote which would have been necessary had the constitutional provision been given the significance now attributed to it. Indeed, the resolutions by which the action of the two houses was recorded demonstrate that they were formulated with the purpose of refuting the contention

now made. The Senate Record was as follows:

"Resolved: That the Senate do concur in the resolve of the House of Representatives on 'Articles to be proposed to the legislatures of the states as amendments to the Constitution of the United States,' with amendments; two thirds of the Senators present concurring therein." 1st Cong., 1st Sess., Sept. 9, 1789, Senate Journal, 77.

And the course of action in the House and the record made in that body is shown by a message from the House to the Senate, which was spread on the Senate Journal as follows:

"A message from the House of Representatives. Mr. Beckley, their clerk, brought up a resolve of the House of this date, to agree to the amendments proposed by the Senate to 'Articles of amendment to be proposed to the legislatures of the several states as amendments to the Constitution of the United States,' . . two thirds of the members present concurring on each vote; 1st Cong., 1st Sess., Sept. 21, 1789, Senate Journal, 83.

When it is considered that the chairman of the committee in charge of the amendments for the House was Mr. Madison, and that both branches of Congress contained many members who had participated in the deliberations of the convention or in the proceedings which led to the ratification of the Constitution, and that the whole subject was necessarily vividly pres

ent in the minds of those who dealt with it, the convincing effect of the action cannot be overstated.

But this is not all, for the Journal of the Senate contains further evidence that the character of the twothirds vote exacted by the Constitution (that is, two thirds of a quorum) could not have been overlooked, since that Journal shows that at the very time the amendments just referred to were under consideration there were also pending other proposed amendments,