The sun., 1870-02-08


the Court Of Appeals Of Kentucky must be affirmed.
Dissenting Opinion.
Sus an p. Hepburn and another agt. Henry A.
Grtswold.-Mr Justice Miller dissenting.
Tie provisions Of the Consultation OF the United
States. which have dlrcc, reference to the function
OF Legislation, NAV be divided into tlree primary
classes. First. those which confer legislative powers
On Congr,ss; second, those which prohibit the ex.
ercise Of LEGISLATIVE powers by Congress; Third,
those which prohibit the States from exercising GER
tain legislative powers
TIE POWERS coSFEuREp OK CONGRESS
may be subdlyded into the positive and the AuXill
ary or as they arc more usually called the express
aud implied power. As instances OF the former class
may be mentioned, the power to borrow money, 10
raise and support armies, and TO coin money and
to regulate the value thereof The implied or auxh
general provision which the enumeration Of
powcrs granted on express terms by the declaration
which shalt be necessary and proper for carrying
Ito ea'sS,SS the ,oTegonS P9wers n and @ az Sssr
ment OF the United States or n any department or
onicer thereof. The question which this
Court Is called upon to consider is,
OF the Uuited States lawful tender in paymcnt OF
debts Is 10 be found IN Congress, under either OF
these classes Of legislative power. As one OF the
elements OF this question and order negative
anv idea that the exercise OF such apower would be
invasion Of the rights reserved 70 the States, It
may be ~ well TO say at the outset, that TINS 10
az org the subjects OF legislation forbidden to the
States bythc Constitution. Among the unequivocal
mi tender " that when declares that state shall
eoin money, grant bills Of cre5ii, or make anything
bat
COLD AND SILVER AItsDER IS PAYMENT OF prDrs,
thus removing the whole matter from the dominion
" state l-1slation. No such prohibition " placed
upon the power OF Congress over this subject
though these sre as we Lave already said, matters
expressly forbidden 10 Congress, but neither this Of
legal tender, nor tie power 10 emit bills OF credit
70 Impair the Obligation Of Congress Is among thcm
ard though II must be obvious that in prohibiting
ths ega tender power To the states tie attention OF
the Convention must have been directed 10 the pro-
prlety OF a Limitation of the power OF Congress. On
tAe contrary. Congress is expressly autlorE.d 10
coin nancy aad 10 regulate the value thereof and Of
iorclgn coin, and To punish the coun erfcitng OF
such coin and OF the securities of the United States
II has been strongly argued by many able juri~ts
that thess latter clauses, fairly constfued confer the
power to make the securities Of the United States
IS,ul tender IN payment OF debts. While am not
able 20 sc IN them, standing aloue, sufficient
RAM ror the exercise OF tnls power, they are not
without decided weight when we come 10 consider
the question Of the existence Of tins power ~ ono
necessary and proper for carrying Into execution
other admitted powers OF the Government, for
they show that, 50 far as the ffamers Of
the Constitution did go, In granting express
was conhded to Congress nnd not TO tue Slatcs and
IL Is ne unreasonable inference tnat IL IL should be
found necessary in carving into effect some o9 the
powers OF the Cove nment essential to its successful
operation. TO make s securities perform the pay men
o its debts. Such legislation " puld be In harulony
terms. It be,as conceded then that the pow or un.
der consideratlon would not, II exercised BY Con-
United States but one which they are forhldden Z,
employ, and that II is not IN terms either granted or
denied To Congress, can IL be sustained As
LAW NECESSARY AND rRorsH,
at the time II wis enacted. for carrying into e1ecu
ton any Of these powers that arc expressly granted
etaer o Congress or to the Government or 10 any
department thereof Tie doctrine Is tnat, when an
act Of Congress is brought TO toe test of this clause
the constitution, II necessarily must be absolute
and lis adoopuon TO the conceded purpose
UNREASONABLE No where has thi, principle
In the case Of tic United states W. Fisher ~
branch @ s5sl decided in lSi the point in issue Was
tor OF bankrupt over all other creditors. IL was
argued mainy on the construction Of the statutes ;
but the power OF Congress TO pass such law was
also denied. The Chiel Justice said, II !. claimed
under the authority To maze oil laws which shall be
necessary and proper to carry mo execution the
ment or IN any deOnrtmrnt thereo..' In constituting
tins clause 1t would he incorrect, AMI would pro.
be maintained, that po law was suthofzed
which was not lndispensahy necessary
to give effect 10 specified power, when various
systems might be adopted Tor that purpose. II might
be SAID with rtspec 10 each, that II was not neces
shry' because tlr end might be attained by other
means Congress md-t possess the choice of means
and must be empowered % use sny means which are
N mct conductive 10 the exercise OF the power
granted bl tie constitution. II was accordingly
held TINT ungcr the authority TO pay the debts of
the Union, ireuuld pass law giving priority Tor It's
own debts In case OF ba krupcy. but IN tue memor
able case Oi Mct u'reh a-t the state OF MARYLAND
a Whnhn 8iGl tie most exhaustive discussion ~
th- clause 10 found In the opiaion OF the same emf
nent eHt ounder Of the Constitution. That case in
vowed, - ~ vel known tue right Of Congress to
establish tie Bln6 of the United states
and 10 authorize It To issue notes for circulation IL
was Conceded hat the right to Incorporate or create
such banK had no specific grant In any clause of
the Constitution, stil less the rigdt to authorze II
to r.ue notes for circulation money But II was
argued that Us measure necessary TO enable tic
ooveruulent to collect, transfer, and pay cut rs
revenues the organization Of bank with this func-
tOn was within the power of Congress. In aDeak.
ing oi the uue meaning tae word "uuneces,ary -
IN tins clause of the Constitution, ic says, docs II
always lmpart IN absolute physcal LeCefslty IA
strong that one tmn3 to which another NAV be
termed necessary cannot exist without itY We
tlnk II does not If reference bv had To it, use In
The common anars Of the world, or In approved
authors, W. md that IL frequently imparts no more
than lat one tlng - cunyenieLt or useu on essen.
tal to another,
To employ
MEANS NECESSARY TO AN END
gem rally understood as eIap'oylng an moan. en-,
tulaled W Ir'uure the end, and not ~ being con
hh'l 10 lh"-t rIugc mCats without when lnc ,ni
would G unat lutlIe. The word "nucc,- "a" All
mitS, ho say tf all degrees OF comparison 4 thins
nny ho Necessary. very necessary absolutely or in.
dwpenhabN nee ssaTl This word theO, Like others
" usu IN Various stnhss, and IA It's construction,
lhe suy CT The context tue idtcnhon Of the person
using them are To b. taken into VIeW. L1t this be
LONE In th'a case under consideration.
The subject II the sK cution OF those
great powers on which the welfare of a
intention OF those who gave these powers to insure
rs lar As human prudence could insure their bench
cllI eHecu' Thi- ooud not he done by combining
the choice Of mcus T. such narrow nmus ~ uot To
l'nNe II IN the power OF Ongress Ia ado any Which
might be- up rOprlNie aud Iich were conducive to
The cDd rhls provision ~ IlIdc In CONSTITUTION
ln'tn"ed q endure for ages TO come, ani
SCqueDtly IN be adapted to various rrisyp Of hu.
ll.Ala DFANCrlDgu