Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-02-09

stftution
Another provision found in the fifth
amendment must be considered in this
connection. We refer to that which or
dams that private property shall not be
taken for public use without compensation.
This provision is kindred in spirit to that
which forbids legislation impalring obliga-
tons of contracts, but unlike that it is adj
dressed directly and solely to national gov
eminent. 1t does not in terms prohibit
legislation which appropriates the private
property of one class of citizens to the use
of another class; but if such property can
not be taken for the benefit Of all without
compensation, It is difficult to understand
how it can be so taken for the benefit of
part without violating the spirit Of the pro-
hibition.
But there is another provision in the
same amendment which, in our Judgment
cannot have its full and intended effect, I'M
less construed as a direct prohibition Of the
legislation which we have been consider
ing. 1t is that which declares no person
shall be deprived Of life, liberty or prop
erty without due process of law 1t Is not
doubted that all the provisions of the
amendment operate directly as a limitation
and restraint of the Legislative powers con-
ferred by the Constitution. The question
Is whether an act which compels all those
who hold contracts for the payment of gold
or silver money to accept in payment a
currency Of inferior value deprives such
persons OF property without due process Of
law.
1t is quite clear that whatever may be
the operation Of such an act, the process
Of law makes no part Of it. Does it de-
prlVe any person. Of property? A very
large proportion Of property of civilized
men exists in form of contracts. These
contracts almost invariably stipulate for
the payment Of money, and we have al
ready seen that contracts in the United
States, prior to the act under consideration
for the payment Of money were contracts
to pay sums specified in gold and silver
coin, and it is beyond doubt that holders
Of these contracts were and are as fully
entitled TO the protection of a eonstitu-
tional provision as the holders Of any other
description Of property. But it may be
| said that holders Of no description Of prop
| erty are protected by it from legislation
which incidentally only, impairs its value;
and it may be urged, in illustration, that
| holders of stock in a turnpike, a bridge, or
manufacturing corporation, or an insurance
| company or bank, cannot by authorizing
| similar works or corporations reduce its
price in market. But all this does not ap-
pear to meet the real difficulty. In the
cases mentioned injury is purely conting-
ent and incidental. In the case we are
considering it is direct and inevitable If
In the case mentioned the holders of stock
| were required to convey it on demand to
any one who should think fit to offer half
value for it, analogy would be moro obvi- |
e1s
No one probably could be found to con-
tend that an act enforcing the acceptance of |
fifty or seveuty-fiTe acres Of land in satis- |
faction Of a contract to convey one hun
! dred would not come within the prohibi- |
ton against arbitrary deprivation of prop |
erty. We confess ourselves unable to per
ceive any solid distinction between such an
act and an act compelling all citizens to ac- |
eept in satisfaction Of all contracts for |
| money one half or three-quarters or any
| other proportion less than the whole Of |
| the value actually due according in their |
| terms 1t is difficult to conceive what |
act would take private property without
| process of law, if such an act would not
| We are obliged to conclude that an act
| making mere promises to pay dollars le-
| gal tender Ia payment Of debts previously
| contracted, is not a means appropriate,
| plainly adapted or really calculated to car
| ~ into effect any express power vested in
Congress; that such an act is inconsistent
with the spirit of the Constitution, and
that it is prohibited by the Constitution.
It is not surprising that amid the tumult of
| the late civil war, and under the influence
of apprehensions for the safety of the Re
public almost universal, different views
| never before entertained by American
statesmen or jUTists were adopted by many.
The time was not favorable to considerable
reflection upon the constitutional limits of
legislation or executive authority If pow
| er was assumed for patriotic motives. its
assumption found ready justification in pa
| triotic hearts. Many who doubted yielded
| their doubts. Many who did not doubt
| were silent. Some who were strongly
averse to making Government notes a le-
| gal tender felt themselves constrained TO
| acquiesce in the views of advocates of the
| measure. Not a few who then insisted
| upon its necessity or acquiesced in that
view, have, since the return of peace, and
under the influence of calmer times, re-
| considered their conclusions, and now con-
cur in the views which we have Just an
nounced.
These conclusions seem to DO fully
hstL4ClAOuDI by Nuo A0LlGL anu hDiAlL VI Tie
Constitution We are obliged, therefore,
to hold that the defendant in error was not |
bound to receive from the plaintiff the |
currency rendered to him in payment of |
the note made before the passage of the |
act of Feb. %, 1862. 1t follows that the |
Judgment of the Court of Appeals of |
Kentucky must be affirmed.
DISSENTING OPINION BY JUSTICE MILLER.
After arguing the case at much length, |
he says:
The legal tender clause of the
statute under consideration were based |
emphatically by those who enacted them |
upon their necessity to further borrowing !
of money, and maintaining the army and |
navy. 1t was done reluctantly and with |
hesitation, and only after the necessity had |
had been demonstrated, and had become |
imperative. Our statesmen had been |
trained in schools which looked upon such /
legislation with something more than dis
trust. The debates Of the two houses Of |
Congress show that on this necessity alone |
could this clause Of the bill have been car
ried, and they also prove, as 1 think, very
clearly the existence of that necessity.
The history of that gloomy time is not /
to be readily forgotten by the lover of his
clear and ample vindicatiOn Of the exercise |
Of this power by Congress, as its results
have demonstrated the sagacity of those /
who originated and carried through the |
measure. Certainly it seems 10 the best
judgment that L can bring to bear on the
subject that this law was a necessity in the
most stringent sense in which that word |
can be used. But it is said that the law is
in conflict with the spirit if not the letter /
of several provisions of the Constitution.
Undoubtedly it is law impairing the OBJ
legations of contracts made before its pas
sage; but while the Constitution fOrbids
States to pass such laws, it does not forbid /
Congress. On the contrary, Congress is
expressly authorized to establish uniform
system of bankruptcy, the object of
which is to discharge debtors from obliga-
tons of their contracts and in pursuance
Of this power Congress has three times
passed such law, which in every instance
operated on contracts made before it was
passed. Such a law is now in force. Soft
is said that the provisions that private
property shall not be taken for public use
without Just compensation, and that no
person shall be deprived Of life, liberty or
property, without due course of law, are
opposed to the acts under consideration.
The argument is too fine for my perception
by which the indirect effect Of a new pub
lie measure in depreciating the value of
lands, stocks, bonds, and other contracts
render such laws invalid, as taking private
property for public use, or as depuving the
owner of it without due course of law. A
declaration of war with maritime power