New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1870-02-08
DISSENTING OPINION.
TIE ACT HELD TO BE ENTIRELY CoNsTIrU-
TIONAG.

4 TIE ACT HELD TO BE ENTIREL1 CONollio-
| TIONAL.
| Susan fP. Hepburn and another agt. Henry
| A. Girls wold-Mr. Justice Miller dissenting:
The provisions of the Constitution Of the United states
which have direct reference to the function OF legisa
ton may DO divided Into three primary classes; FIRST
those which confer legislative powers on Congress;
second those which prohibit the exercise OF legislative
powers by Congress- third, those which prohibit Tue
states from exercising certain legislative powers Tie
powers conferred on Congress may DO snbdiyded lU'o
the positive aud the auxiliary they more u-
ally called the express aud implied powee AS instances
] OF Tho former class may be mentioned the power
1 10 borrow money. to raise and suppo' a'
| miles, and to coin money and reguiee 'no
| value thereof. The implied or auxiliary p"ees oi
legislation arc founded largely that general provision
which closes the enumeration Of powers grated In eh
press terms by tho declaration that Congress sha also
have power make all laws which shall De necessary
and proper for carrying into execution tie foregoing
powers and all powers vested by this CONSTITUTION
10 the Government of the United States. In any de
partment or officer thereof.
The question which this Court is caei upon to con-
slider whether authority 70 make the notes OF the
United States lawful tender In payment OF debts to be
found Congress uRde. either OF these classes OF essia
tive power As one OF the clements Of is question: ana
in order to negative any idea that the exercise OF such
power invasion OF the rights reserved 10 the
States 1t may be well to ut the outset that TINS Is
among the subjects of legislation forbidden to the states
by the Constitution the unequiyocal utterances
OF that instrument this subject OF lawful tender Is
that which declares that State shall coin money grant
bills OF credit or make anything but gold and silver
tender In payment ot debts thus removing the whoe
matter from the dominion OF State legislation No such
prohibition placed upon the power OF congress ovGr
this subject though these are, as we have already saul
matters expressly forbidden TO Congress, out heilcr
Of legal tender nor the power TO emit bs OF credit
or 10 Impair the obligation OF Congress Is among them
and though it must be obvious that III prohibiting tis
legal tender 10 the States tue attention OIL Cue
Convention must have directed 10 the proprety OF
limitation Of the power Of Congress- On the contrary.
G,irttss did y2Fas~ AUTHORIZED 10 com money anu "
nuush the counterielhs vi such eoin anu Va 'No '
| p" Of the United States. ,,.. -. .
'l has been strongly argued by able Jurists that
these latter clauses fairly construed confer the power
Ia make the securities OF the United states awiul ten
der In payment 0 debts. While an not nDe 70 see III
item standing alone sufficient warrant for the exer-
else of this power without decided weight
when consider the question OF the existence
necessary anu proper Tor carry llS
into execution ether admitted powers OF the Government
| for they show that so far AS the trainers Vi the
| over the lawful money OF the country. it
wis coned Congress- aud not 10 the States and is
unreasonable inference That II 1t should be FOUND Me-
cessary carrying INTO effect some OF the powers Oh te
Government essential 10 It's successful operation. to
make It's securities perform the payment OF debts such
legislation would be in harmony with the power over
| money granted IN express terms.
II being conceded then that power under consider
alton would not, exercised by Congress be an Invasion
of any right reserved the United states. but one
which they are forbidden employ aud that Is not in
terms either granted denied To Congress- can III De
| IL
was enacted for carrying into execution any OF these
that expressly granted either 10 Congress or
10 tho Government 10 any department thereof From
the organzaton Of the under the present
there have been from time To time attempts
row and literal rule of aud
specially directed 10 the general clause winch we have
cited the chief foundation OF the auxiliary powers Of
II has been said that this clause far from auhor
| ing the use OF which could not have been
used without it, is restriction upon the powers necessa
ry implied by instrument general In its language
phaAa
20 the test Of clause Of the Constitution IL OF neces
sty be absolute and It's adoption to the conceded
been met with emphatic denial more satisfic
tory reputation than IN this Court That eminent JaIist
| 10 years Chief Justice commenced very
and whose opinions have done as much to x It's mean
ing those Of any man living or dead has given TINS
In the case OF the United States agt. Fisher. "a Cranch
35,. decided In 1901 the point IN issue was the priority
claimed for the United States rs creditor of bankrupt
over ali other creditors. 1t argued mainly the
construction Of the satutes but the power Congress
20 pass such law was also denied. The Chief Justice
said; -,
Consultation The GosenweHt or In department thereof
| In constituting this clause It would be incorrect. and
would produce endless difficulties II the opinion should
be maintained that law authorized which wac
ndispensaby necessary to give effect to specified
power various systems might be adopted for that
purpose 1t might be said, with respect to each, that
because the end might be attained by
Congress the choice OF means
and be empowered to use any means which are N
fact conductive to tho exercise of tho power granted by
the Constitution. IL was accordingly held that under
the authority pay the debts OF the Union IL could pass
law giving priority for its own debts in case Of bank
But in the memorable case OF McCuerch, versus the
State Of Maryland "A whaln, 1851 the most exhaustive
discussion OF this clause found in the opinion OF the
eminent expOunder OF the Constitution. That case
involved, as Is we'll known. the right Of Congress 10
tablsh the Bank of the United states and to authorize
u notes circulation conceded. that the
right to incorporate create such bank had no specific
grant In clause OF the Constitutions still less the right
to authorize IL 10 issue notes for circulation a. money