final perfected form, is as follows: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to the end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."'8 This dictum means that Congress may, in the execution of a power expressly granted, adopt any means which (1) are not expressly prohibited by the Constitution, nor (2) inconsistent with the letter and spirit of the Constitution, and which are (3) not the only possible means, nor an absolutely or indispensably necessary means, but an appropriate and plainly adapted means, to the attainment of an end authorized by the Constitution. From this it follows, that if the relation of the means to the end be shown to exist, and if the use of the particular means be not expressly or impliedly forbidden by the Constitution, the question of the degree of its appropriateness, of its greater or less adaptation, and of its relative or absolute necessity is purely political, and the determination of Congress with regard thereto is binding upon the courts. Illustrations of the exercise of the implied powers. 12. Under the doctrine of the implied powers, it has been held that Congress may enact statutes creating banking corporations as fiscal aids to the government; imposing upon national and state banks a tax upon the amount of the notes of state banks paid out by them; 10 giving priority to the United States as a creditor in the * The opposing view, sustaining the strict construction of the Constitution, is, perhaps, most strongly put by Mr. Jefferson. Memoirs, Vol. IV, pp. 197, 207, 526; 4 Elliot's Debates, 609. McCulloch v. Maryland, 4 Wheat. 316; Osborn v. The Bank of the U. S., 9 id. 738. 10 Veazie Bank v. Fenno, 8 Wall. 533. distribution of the assets of a bankrupt; 11 declaring that the embezzlement by a guardian of his ward's pension granted by the United States is a crime against the United States; 12 taxing lands in the District of Columbia; 13 declaring it to be a crime to bring into the United States from a foreign place counterfeit coins forged in the similitude of coins of the United States; 14 constituting a judicial system to carry into execution the judicial powers vested by the Constitution in the United States; regulating the carriage of the mails and determining what may be transported and what must be excluded from the mails; 16 punishing for contempt others than members of Congress; 17 protecting citizens of the United States in the exercise of the rights of suffrage at elections for members of Congress; 18 authorizing a limited intercourse on prescribed conditions with the enemy in time of war; 19 prescribing the effect to be given in state courts to judgments and decrees rendered in courts of the United States; 20 authorizing the issue by courts of the United States of writs of habeas corpus ad subjiciendum in cases of restraint of personal liberty under the process of state courts issued in violation of rights claimed under the Constitution or laws of the United States; 21 authorizing the removal to the courts of the United States of 11 U. S. v. Fisher, 2 Cr. 358. 12 U. S. v. Hall, 98 U. S. 343. 18 Loughborough v. Blake, 5 Wheat. 317. 14U. S. v. Marigold, 9 How. 560. 15 Ableman v. Booth, 21 How. 506, 521. 16 Ex parte Jackson, 96 U. S. 727; In re Rapier, 143 id. 110. 17 Anderson v. Dunn, 6 Wheat. 204; In re Chapman, 166 U. S. 661. see Kilbourn v. Thompson, 103 id. 168. 18 Ex parte Yarbrough, 110 U. S. 651. 19 Hamilton v. Dillin, 21 Wall. 73. 20 Embry v. Palmer, 107 U. S. 3. But Ex parte Royall, 117 U. S. 241; Ex parte Fonda, ibid. 516; In re Neagle, 135 id. 1; Ohio v. Thomas, 173 id. 276; Boske v. Comingore, 177 id. 459; cf. Minnesota v. Brundage, 180 id. 499. causes depending in state courts and involving questions of federal cognizance; 22 exercising the right of eminent domain with regard to land within the bounds of a state and held in private ownership; 23 in order to protect purchasers under the homestead laws of lands belonging to the United States but situated within the limits of a state, punishing those who conspire to intimidate such purchasers and drive them away from the land so purchased; 24 prohibiting, under penalties, officers of the United States from requesting, giving to, or receiving from any other officer money or property, or other things of value, for political purposes; 25 protecting against unlawful violence prisoners accused of committing crimes against the United States,26 and private citizens giving information against prisoners so held; 27 providing for the acquisition of territory; 28 establishing consular tribunals in foreign lands; 29 and providing for the exclusion 30 or expulsion 31 of aliens from the limits of the United States. Martin v. Hunter's Lessee, 1 Wheat. 304, 349; Bock v. Perkins, 139 U. S. 628; Marshall v. Holmes, 141 id. 589; Martin v. B. & O. R., 151 id. 673. *Kohl v. U. S., 91 U. S. 367; Luxton v. N. R. Bridge Co., 153 id. 525; Chappell v. U. S., 160 id. 499; U. S. v. G. E. Ry., ibid. 668. 24 U. S. v. Waddell, 112 U. S. 76. "Ex parte Curtis, 106 U. S. 371; Stat. 15th Aug., 1876, c. 287, sec. 6. For further illustrations of the implied powers of legislation which Congress may exercise, see the judgments of Story, J., in Prigg v. Penna., 16 Pet. 619; of Strong, J., in The Legal Tender Cases, 12 Wall. 457, 535; of Gray, J., in Juilliard v. Greenman, 110 U. S. 421, 444; of Miller, J., in Ex parte Yarbrough, ibid. 658, and in In re Neagle, 135 id. 1, and of Bradley, J., in Mormon Church v. U. S., 136 id. 1. In Downes v. Bidwell, 182 id. 244, and again in Dooley v. U. S., 183 id. 151, the court sustained an act of Congress which imposed duties for the exclusive benefit of those who were not citizens of the United States. 26 Logan v. U. S., 144 U. S. 263. 27 In re Quarles and Butler, 158 U. S. 532. 28 A. I. Co. v. Canter, 1 Pet. 511; De Lima v. Bidwell, 182 U. S. 1. In re Ross, 140 U. S. 453. 20 Chinese Exclusion Case, 130 U. S. 581; Lem Moon Sing v. U. S., id. 538. 158 Fong Yue Ting v. U. S., 149 U. S. 698; Japanese Immigrant Case, 189 id. 86. The legal tender question. 13. It has also been held that Congress may issue a paper currency and declare that that currency shall be a legal tender in payment of debts. Until in 1862 the financial needs of the government in carrying on a war for the suppression of the rebellion rendered it, in the opinion of Congress, necessary that the treasury notes of the United States should be made a legal tender in the payment of debts, neither statesmen nor jurists had asserted that Congress had, under the Constitution, the power of making anything but gold or silver coin a legal tender. The acts of Congress of 25th February, 1862, 11th July, 1862, and 3d March, 1863,32 declared that the notes issued thereunder should be "lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports, etc." Under these acts it has been decided that neither taxes imposed by state authority,33 nor private obligations payable by their terms in gold or silver coin,84 are debts within the terms of the acts of Congress dischargeable by payment in legal tender notes. In Hepburn v. Griswold,35 the court held that the Legal Tender Acts applied to debts contracted before as well as to debts contracted after the enactment of those statutes, and that, so far as they applied to debts contracted before their passage, the statutes were unconstitutional, but in the Legal Tender Cases 36 Hepburn v. Griswold was overruled, so far as regards the second branch of the proposition laid down in it, and the constitutionality of the Legal Tender Acts 32 12 Stat. 345, 532, 709. Lane County v. Oregon, 7 Wall. 71; Hagar v. Reclamation District, 111 U. S. 701. "Bronson v. Rodes, 7 Wall. 229; Butler v. Horwitz, ibid. 258; Bronson v. Kimpton, 8 id. 444. 858 Wall. 603. 36 12 Wall. 457. was sustained, the ground of decision being that the power to impress the notes of the government with the quality of legal tender, though not expressed in the Constitution, was "necessary and proper for carrying into execution" the express powers to "coin money," "to regulate the value thereof," "to pay the debts," "to borrow money," "to raise and support armies," and "to provide and maintain a navy;" that the Constitution does not expressly prohibit the issue of legal tender notes by the United States; that their issue is not inconsistent with the letter or the spirit of the Constitution, and that the end being constitutional and the means being appropriate, the degree of its appropriateness is subject to legislative, and not judicial, determination. The Legal Tender Cases are followed and supported by Dooley v. Smith,37 Bigler v. Waller,38 N. & W. R. v. Johnson 39 and Julliard v. Greenman,40 in the last of which cases it was held, that the power to make treasury notes a legal tender exists in time of peace as well as in time of war, and that legal tender notes when redeemed by the Treasury and reissued under the Act of 31st May, 1878, retain their legal tender quality. The legal tender which the law compels a creditor to accept in satisfaction of a debt payable in money should never be anything other than that money which has a market value as a commodity, independently of any governmental fiat and of all legal tender laws. The giving of the legal tender quality to currency of inferior purchasing power has never succeeded in increasing that purchasing power, but it has in many instances enabled debtors to defraud creditors. ST 13 Wall. 604. |