t NITKI) STATKS. 



729 



rr.-.r.t, or circulating notes receivable for Govern- 

 ing, mi.! payable, so fur ut louat OB partiea are 

 v illinu' to receive thorn, in discharge of Government 

 IOIH ; it \vill I'lioilitate the use of Buoh notes in 

 dkbanements to make them a legal tender in pay- 

 incut of existing dobta; therefore, Congress may 

 mako such notes a legal tender. 



It is difficult to say to what express power the au- 

 thority to make notes a legal tender in payment of 

 l^bts pnsOxisUing in contract may not bo upheld aa 

 ncidentul upon the principles of this argument. Is 

 ;uiy )i,iwi-r which docs not involve the use of 

 money J And is there any doubt that Congress may 

 issue and use bills of credit as money in the execu- 

 tion of any power? The power to establish post- 

 offices and post-roads, for example, involves the col- 

 lection and disbursement of a groat revenue. Is not 

 the power to make notes a legal tender as clearly in- 

 cidental to this power as to the war power ? 



The answer to this question does not appear to us 

 doubtful. The argument, therefore, seems to prove 

 too much. It carries the doctrine of implied powers 

 very far beyond any extent hitherto given to it. It 

 assorts that whatever in any degree promotes an end 

 within the scope of a general power, whether in tlio 

 correct sense of the word appropriate or not, may be 

 done in the exercise of an implied power. Can this 

 proposition be maintained ? 



It is said that this is not a question for the court 

 deciding a cause, but for Congress exercising the 

 power ; but the decisive answer to this is, that the 

 admission of a legislative power to determine finally 

 what powers have the described relation as means to 

 the execution of other powers plainly granted, and 

 then to exercise absolutely and without liability to 

 question, in cases involving private rights, the powers 

 thus determined to have that relation, would com- 

 pletely change the nature of the American Govern- 

 ment. It would convert the Government which the 

 people ordained as a Government of limited powers 

 into a Government of unlimited powers. It would 

 obliterate every criterion which this court, speaking 

 through the venerated chief justice in the case already 

 cited, established for the determination of the ques- 

 tion whether legislative acts are constitutional or un- 

 constitutional. 



Undoubtedly, among means appropriate, plainly 

 adapted, really calculated, the Legislature has unre- 

 stricted choice. But there can be no implied power 

 to use means not within this description. 



No one questions the general constitutionality, 

 and not very many, perhaps, the general expediency, 

 of the legislation by which a note currency has been 

 authorized in recent years. The doubt is as to the 

 power to declare a particular class of these notes to 

 be a legal tender in payment of preexisting debts. 



The only ground upon which this power is asserted 

 is, not that the issue of notes was an appropriate 

 and plainly-adapted means for carrying on the war, 

 for that is admitted, but that the making of them 

 a legal tender to the extent mentioned was such a 

 means. 



This the court are not ready to admit, and 

 say: 



We are unable to persuade ourselves that an ex- 

 pedient of this sort is an appropriate and plainly- 

 adapted moans for the execution of the power to de- 

 clare and carry on war. If it adds nothing to the 

 utility of the notes, it cannot bo upheld as a means 

 to the end in furtherance of which the notes are 

 issued. Nor can it, in our judgment, be upheld as 

 such, if, while facilitating in some degree the circula- 

 tion of the notes, it debases and injures the currency 

 in its proper use to a much greater degree. * * 



But there is another view which seems to us de- 

 cisive, to whatever express power the implied power 

 in question may be referred. 



In the rule stated by Chief- Justice Marshall, the 

 words "appropriate," "plainly adapted," "really 



calculated," are qualified by the limitation that the 

 means miwt be "not prohibited," but " conjtistent 

 with tin: letter and spirit of the Constitution." 

 Nothing so prohibited or Inconsistent can bo regard- 

 ed as appropriate or plainly adapted or really calcu- 

 lated mean* to any end. 



Let us inquire, then, first, whether making bills of 

 credit a legal tender to the extent indicated is con- 

 sistent with the spirit of the Constitution. 



After an examination of this point, the 

 Chid' Justice concludes as follows: 



Wo are obliged to conclude that an act making 

 mere promises to pay dollars a legal tender in pay- 

 ment of debts previously contracted is not a means 

 appropriate, plainly adapted, really calculated to carry 

 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 Consti- 

 tution. 



A dissenting opinion was delivered by Mr. 

 Justice Miller, in which Justices Swayne and 

 Davis concurred. 



At the same term of the court, the authori- 

 ty of Congress to tax the circulation of State 

 banks was sustained. The Chief Justice said : 



Having thus, in the exercise of undisputed consti- 

 tutional power, undertaken to provide a currency for 

 the whole country, it cannot be questioned that Con- 

 gress may constitutionally secure the benefit of it to 

 the public by appropriate legislation. To this end 

 Congress has denied the quality of legal tender to 

 foreign coins, and has provided by law against the 

 imposition of counterfeit and base coin on the com- 

 munity. To the same end Congress may discourage 

 by suitable enactments the circulation as money of 

 any notes not issued under its own authority. With- 

 out this power, indeed, its attempt to secure a sound 

 and uniform currency for the country must be futile. 

 Viewed in this light as well as in the other light of 

 a duty on contracts or property, we cannot doubt 

 the constitutionality of the tax under consideration. 

 The three questions certified from the Circuit Court 

 of the District of Maine must, therefore, be answered 

 affirmatively. 



Mr. Justice Kelson dissented, and read an 

 opinion, which was concurred in by Mr. Justice 

 Davis, in which, after noting the fact that 

 there were four State banks in existence at 

 the time of the adoption of the Federal Consti- 

 tution, it was held that it is competent for the 

 States to charter and establish State banks, 

 and stated that this view had been three 

 times distinctly affirmed by the court. It was 

 then said that the bills or notes issued by State 

 banks and put in circulation, instead of being 

 the property of the banks issuing them, were 

 in fact but their indebtedness, and as such 

 they were not liable to the tax imposed. The 

 General Government cannot tax the franchise 

 nor the indebtedness of these institutions. The 

 view was taken that this tax upon the issues 

 of the banks hi question was an unjustifiable 

 attempt to crush them out of exisience. 



In regard to the right of a State to tax the 

 shares of national banks, a case came np on a 

 writ of error from the Court of Appeals in 

 Kentucky, when the issue had been to recover 

 a tax of fifty cents per share on the shares of 

 the Bank of Louisville. Mr. Justice Miller 

 delivered the opinion of the court, and said : 



If the State cannot require of the bank to pay tlid 



