The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1873-01-12

Fowed by s9bseQuent de0isfons. Tho |
ohief Of 5these dspisions may be found !
Ii tho cases 81 Biisooe %. tho Bank OF |
Kentucky, III Peters.) already. referred
10; Darlington d. the State Bank Of |
Alabama, Us Howard, p. Ill aud in |
several cases arising in State courts,
generally known ao the cases OF the |
Bank Of Illinois. the Bank Of Arkansas,
and the State Bank Of South Carolina,
already referred to.
The points made in all these cases are
made not to overrule the reasoning or
conclusion reached in the leading case Of
once to confirm the ruling in that case,
and to show that the later cases do not
come within the principle of the leading
case. But the great argument of Judge
Story, in his dissenting opinion in the
case of Briscoe ps. the Bank Of Ken.
tuoky. in which he says that Chief JUS
tice Marshall, then dead, had agreed
with him, seems to overwhelm even the
distinction taken in latter GLASS Of cases.
But the later cases are law. Let us.
therefore, take the cage of the Bank OF
the Commonwealth of Kentucky as our
guido; and what are there declared to be
bills of credit within the meaning of
the Constitutions? I. They must be bills
issued BY the Stste. 2. They must be
issued upon the credit of the State g.
They must be intended to circulate as
money.
We are willing to rest this argument
upon the definition of q bill OF credit,
recognized by q majority of the court in
the Kentucky case. By that case let us
test the revenue bond scrip, issued under
the Act Of 1872. The name is nothing.
The Constitution is dealing with things,
not names. az Chief Justice Marshall hos
we'll expressed it. l. Is this bond scrip
issued by the State? I refer to several
sections OF the Act Of 1872 Is it issued
on the credit of the State? Let the Act
of 1872 answer this question. II it in
ten ed to circulate as money? Again We
refer to provisions of the Act of 1872.
The intention must be drawn from the
words and general provisions of the ACT.
To these we appeal. AS to what is ''oir-
culatiap," is also question of construc-
tion; and the test is given by Chief JUS
tice Marshall, which has never been de-
parted from, viz: thut which passes be.
tween Government aud individuals,
and between individuals;" and as to what
is "money. II do not know that it is
possible to improve upon what has been
said in tue judgment Of Mr. Justice Will
lard in the case &c reldtione Gary. loon.
slider that complete. The form Of the
bill. its uses, the mode of its being han
died, the denominations Of tho bills.
from one dollar upwards, are all there,
aud distinctly and ably set forth.
We have, then, in this case, all the
elements present--the issue by the State
on the credit Of the State, with the in
sention that it should circulate, and that
such circulation should be as money At
this point, it may be useful that the
court should compare the Missouri bill,
which is called 'certiicate." by the
Missouri Act, aud is set out in Craig
case. with the bond scrip, which is also
called "certifcate," by the Act of 1872.
a copy Of which is in the possession Of
the court.
g. The only remaining question under
this general division of the argument is:
Are these bills absolutely vo,d? To say
that they are unconstitutional is simply
purposes. An Act may be poid in part
under the Constitution, und good in
part; but when the thing named in the
Act itself has been declared unconstitu-
tional, do not understand how such
nDconstitutionality tdins it for all pur.
poses.
Mr.. Cooley, in his work on Constitu-
tlonal Limitations, ut page l80, says:
"Wh"n statute is ndjndg.a unconstl-
tutional, it is as if it had never been -
When the bond scrip itself ia deol,red
/ to be unconstitutional, it is the sams as
If it had never been. The case Of Craig
us. Missouri is full to the same point; the
| certificate" III that Case was adjudged
unconstitutional, and the bills, together
| with tue contract founded upon them.
were utterly set aside ~ unlawful; nud
the contract itself was declared to be u
void contract. Mr.. Sedgewiok. in his
work on the Construction of Statutes
aud the Constitution. is full to the same
| point. refer, also, generally to the
New York cases, cited and commented
upon by the counsel WHO preceded me,
| (Mr. Haskell
In the petition and in the argument,
We have the words State and the
Contract OF the State" &c., used aud
repeated as if the ''State' aud the lie.
gIslaturs" were, in fact, the same thing;
wherous the very point We make is that
tho Legislature" is not the "State;"
and k<,p l. i