by yeas and nays as follows: yeas 56, nays 19." As this is the only time the bill was before the house, we must find that the bill passed the house without an enacting clause, unless the contrary can be shown by other evidence. Counsel undertook to show that it was amended in this particular, by the records of the senate, and the testimony of the clerk of the house. The evidence is in brief, that previous to the passage of the bill in the house the clerk noticed the absence of the enacting clause, and brought it to the attention of the house, and said that he would enter one, and accordingly wrote the words in the original bill, i. e., the one. which was then before the house. He did not testify that the house took any action upon it, or that any record was made of it. The senate record shows that the bill was subsequently returned to the senate, accompanied by a letter from the clerk of the house, reading as follows: "To the President of the Senate: "House of Representatives, "Sir-I am instructed by the House to return to the Senate the following bill: Senate bill No 6, file No. 24, entitled "A bill to prevent deception in the manufacture and sale of imitation butter" and to inform the Senate that the House has amended the same as follows: By inserting in line 1, Section 1, after the words 'Section 1,' the words 'The People of the State of Michigan enact.' "Very respectfully, "LEWIS M. MILLER, "Clerk of the House of Representatives. "In the passage of which, as thus amended the House has concurred by a majority vote of all the members elect." It further appears that the senate concurred in such amendment. We must determine, therefore, whether the house is shown to have amended the bill by inserting an enacting clause and if not whether the law is valid without it. The most that can be claimed is that there is oral testimony, that the clerk announced its absence and stated that he would supply it. Inferentially perhaps we may say that there was no objection made, but the evidence is silent as to what, if anything, occurred. There is nothing but this inference of silence which imports acquiescence in the amendment. There is nothing to show definite action by the house which alone had power to amend the bill before it. So that if the clause is essential to the validity of the act we need not discuss the propriety of admitting parol evidence to prove an amendment which should be shown by the record if one was authorized. See Attorney General v. Rice, 64 Mich., 391. Hart v. McElroy, 72 Mich., 446. Sackrider v. Supervisors, 79 Mich., 66. Is the constitutional enacting clause a requisite to a valid law? This must depend upon whether the constitutional provision is to be considered a mandatory provision or directory merely. See Constitution, Art. IV., Sec. 48. Among the authorities cited by the relator in support of his contention, is that of Swann v. Buck, 40 Miss. 268. The constitutional provision is similar to ours, and it was held that a substantial compliance was sufficient. In that case the style of the resolution was: "Resolved by the legislature of the State of Mississippi." The court was unable to discover a previous judicial decision of the question, but quoted Mr. Cushing to the effect that the prescribed "form must be strictly pursued, and that no equivalent language will be sufficient," and while declining to accept his rule said: "It is necessary that every law should show on its face the authority by which it is adopted, and promulgated, and that it should clearly appear that it is intended by the legislative power that enacts it that it should take effect as a law. These conditions being fulfilled all that is absolutely necessary is expressed. The word 'resolved' is as potent to declare the legislative will, as the word 'enacted.'" The case of McPherson v. Leonard, 29 Md. 377, held that the provision of the constitution of Maryland was directory, and that the omission of the words, "by the general assembly of Maryland," did not render the law invalid. The question appears to have been treated as a new one. The case of Cape Girardeau v. Riley, 52 Mo. 427, follows the Maryland case, in holding the provision directory; the court saying that after diligent search, no case holding to the contrary had been found. In this case, like the one before us, the entire enacting clause was wanting. In this connection we may add that previous decisions of the same court, holding the provision that writs should run in the name of the state, was directory, were given weight. In our State a contrary holding will be found. See Forbes v. Darling, 94 Mich, 621. There are, however, cases which take a contrary view of the law, and adhere to the doctrine asserted by Mr. Cushing, and the late Mr. Justice Cooley, in his work on constitutional limitations, 6 Ed., p. 93, viz.: "But the courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceedings, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims and fix those unvarying rules by which all departments of the government must at all times shape their conduct, and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a constitutional provision which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument, which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the time or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised, in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end. Especially when, as has already been said, it is but fair to presume that the people in their constitution have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, and with a view to leave as little as possible to implication." There are some cases, however, where the doctrine of directory statutes has been applied to constitutional provisions, but they are so plainly at variance with the weight of authority upon the precise points considered that we feel warranted in saying that the judicial decisions as they now stand do not sanction the application. The question arose in Washington territory over a law fixing the seat of government, and the opinion of Cushing was quoted and followed. 1 Wash. Ter. 116. The case of Nevada v. Rogers, 10 Nevada 250, decided in 1875, did the same. An extended discussion of the subject will be found in that case, in support of the proposition that the language of the constitution should be literally followed. The opinion concludes with the following pertinent and emphatic language: "Our constitution expressly provides that the enacting clause of every law shall be "The People of the State of Nevada, represented in senate and assembly, do enact as follows.' This language is susceptible of but one interpretation. There is no doubtful meaning as to the intention. It is, in our judgment, an imperative mandate of the people in their sovereign capacity to the legislature, requiring that all laws to be binding upon them shall, upon their face, express the authority by which they were enacted, and as this act comes to us without such authority appearing upon its face, it is not a law." The case of the State v. Patterson, 98 N. C. 662, is strong in its condemnation of the practice of treating constitutional requirements as directory. The case of Powell v. Jackson, 51 Mich. 130, is not in point, as the bill was duly and seasonably amended, if we may accept the statement of the briefs of the counsel and the syllabus. The trend of the weight of the authority is in our opinion against the relator's contention. It is urged with some plausibility that the insertion of this provision previous to the signature by the Governor is a sufficient compliance with the constitution, from which we understand the claim to be made that although the enacting clause was wanting when the bill came to the Governor it might have been supplied by him. But it is thought that this proposition is tenable only upon the assumption that the constitutional provision is directory merely. The Governor has no power to make laws. The legislative power is in no part vested in him, being by Sec. 1, Article IV, of the constitution, vested in the senate and house of representatives. It is not the design of the constitution that he should legislate. His office is a check upon the legislature and he may compel a reconsideration of a bill by seasonably returning it to the appropriate house with his objections to it, and when the legislature has adjourned his neglect to sign it prevents it from becoming a law, but he has not the slightest power in framing the law. Indeed, it is a fundamental principal in American constitutions that the executive shall not make laws. The following language from the opinion in the case of State of Nevada v. Rogers, 10 Neb. 250, is apropos to this subject: "Without the concurrence of the senate the people have no power to enact any law. Every person at all familiar with the practice of legislative bodies is aware that one of the most common methods adopted to kill a bill and prevent its becoming a law, is for a member to move to strike out the enacting clause. If such motion is carried the bill is lost. Can it be seriously contended that such a bill, with its head cut off, could thereafter by any legislative action become a law? Certainly not. The certificates of the proper officers of the senate and assembly, that such an act was passed in their respective houses, do not, and could not impart vitality to any act which, upon its face, failed to express the authority by which it was enacted." This being so, the only justification for the insertion of the enacting clause by the Governor is to be found in the assumption that it is a clerical omission of an unimportant matter and it might as well be held that one of the houses, or a clerk, or even the printer of the laws might make the correction, as that the Governor might do it. Some of the states have sustained laws without enacting clauses, but we do not know of one that has made their validity depend upon the unauthorized action of some officer or person. They have preferred to rest their action upon the well recognized distinction between mandatory and directory provisions. If the provision is mandatory that the law shall have a prescribed style and the making of laws is confined to the legislative branch of the government, it cannot be consistently held that omissions of essential parts of law may be supplied and corrections made by persons without authority; and the public necessities should be much greater than in the present case, before such a proposition should be seriously considered. If on the other hand there is warrant for treating the provision as directory, a much less dangerous precedent is established. But as has been shown, the weight of authority forbids it, and in our opinion it will be an unfortunate day for constitutional rights when courts begin the insidious process of undermining constitutions by holding unambiguous provisions and limitations to be directory merely, to be disregarded at pleasure. In the present case it will be much better that the legislature shall correct its mistake, than that the courts shall sanction the irregular correction. We are therefore constrained to hold that the law under discussion is void, and in the certiorari case the order is affirmed, in that of Dettenthaler the conviction is reversed and no new trial ordered. The other justices concurred. GROSVENOR v. DUFFY. (Opinion filed September 18, 1899.) Pure Food Law-Sale of Oleomargarine Colored to Imitate Butter-Constitutionality of Act. The sale of oleomargarine colored with a harmless substance to imitate June butter, but which is sold and purchased as oleomargarine, is not in violation of section 3 of Act 118 of the Public Acts of 1897, being an act to prohibit and prevent adulteration, fraud and deception in the manufacture and sale of articles of food and drink. Certiorari to review the action of the Washtenaw circuit judge in refusing the application of Elliot O: Grosvernor, Dairy and Food Commissioner, for mandamus to compel John L. Duffy, justice of the peace, to issue a warrant. Affirmed. Smedley & Corwin, for relator. John J. Speed and J. P. Lee, for respondent. The relator presented to a justice of the peace a complaint in writ ing, charging that "Casper Rinsey did unlawfully offer and expose for sale, and did unlawfully sell and deliver to said Elliot O. Grosvenor, a large quantity, to wit, one pound of oleomargarine, which was then and there an article of food intended to be eaten by man, and which was then and there adulterated within the meaning of act No. 193 of the Public Acts of Michigan for the year 1895, as amended by act No. 118 of the Public Acts of Michigan for the year 1897, in this, to wit: that said oleomargarine was then and there an imitation of another article of food, to wit, an imitation of a rich June butter; and said oleomargarine had been and was then and there colored, whereby inferiority was concealed and by which means it was made to appear better and of greater value than it really was, to wit, in this: That it was thereby made to appear like butter of a grade which was then and there of a greater value than the said oleomargarine; that the said oleomargarine was labeled 'oleomargarine' and stamped with the seller's name; and that the tub and wrapper which contained the same bore the name and address of the manufacturer and was distinctly labeled oleomargarine." "Said complainant on his oath aforesaid, further says, that he called for oleomargarine, and that the said oleomargarine was sold to him as oleomargarine the same as to an ordinary customer, freely and without objection, and that for this reason he did not take the steps required by section 6, act No. 154 of the Public Acts of Michigan for the year 1897." The justice refused to entertain the complaint and issue a warrant, whereupon the relator applied to the circuit court for Washtenaw county for the writ of mandamus to compel the justice to issue a warrant and proceed to hear the case. The circuit court refused the writ and the case is brought to this court by certiorari for review. Grant, C. J. (after stating the facts). The title of the act reads "An act to prohibit and prevent adulteration, fraud and deception in the manufacture and sale of articles of food and drink." Sec. 3, as amended by act No. 118, Public Acts 1897, so far as it applies to this case, reads: "An article shall be deemed to be adulterated within the meaning of this act: * * "Fourth-If it is an imitation of, or sold under the name of another "Sixth-If it is colored, coated, polished or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is. "Seventh-If it contains any added substance or ingredient which is poisonous or injurious to health: Provided, That nothing in this act shall prevent the coloring of pure butter: And provided further, That the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale, bear the name and address of the manufacturer and be distinctly labeled under its own distinctive name, and in a manner so as to plainly and correctly |