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military lands. The preamble to the re the principles of sound legislation.
Hiram Craig, John Moore, and Ephraim Moore vs.
The State of
This was a writ of error to the Su- made, was for the loan of loan office preme Court of the State of Missouri. certificates, loaned by the state at her
The action arose on a promissory note loan office at Chariton; which certifigiven for certificates issued at the loan cates were issued, and the loan made in office of Chariton in Missouri, payable to the manner pointed out by an act of the the State of Missouri, under the act of legislature of the said state of Missouri, the legislature establishing loan of- approved the 27th day of June, 1821, fices.'
entitled an act for the establishment of Mr Sheffey, for the plaintiffs in error, loan offices, and the acts amendatory and contended, that this act of the legislature supplementary thereto : and the court was unconstitutional and void; being do further find, that the plaintiff has susrepugnant to the provision of the consti- tained damages by reason of the nontution of the United States, which de- performance of the assumptions and unclares that no State shall emit bills of dertakings of them, the said defendants, credit.
to the sum of two hundred and thirtyMr Benton appeared for the defendant seven dollars and seventynine cents, in error.
and do assess her damages to that sum. Mr Chief Justice Marshall delivered Therefore it is considered,' &c. the opinion of the court: Justices Thomp The first inquiry is into the jurisdicson, Johnson and McLean dissenting. tion of the court.
The twentyfifth section of the judicial This is a writ of error to a judgment act declares, that a final judgment or rendered in the court of last resort, in decree in any suit in the highest court the state of Missouri ; affirming a judg- of law or equity of a state, in which in ment obtained by the State in one of its decision in the suit could be had, where inferior courts against Hiram Craig and is drawn in question' the validity of a others, on a promissory note.
statute of, or an authority exercised unThe judgment is in these words: “and der any state, on the ground of their afterwards at a court,' &c, 'the parties being repugnant to the constitution, came into court by their attorneys, and, treaties or laws of the United States, neither party desiring a jury, the cause and the decision is in favor of such their is submitted to the court; therefore, all validity,' may be re-examined, and reand singular the matters and things be- versed or affirmed in the Supreme Court ing seen and heard by the court, it is of the United States.' found by them, that ihe said defendants To give jurisdiction to this court, it did assume upon themselves, in manner must appear in the record, 1. That the and form, as ihe plaintiff by her counsel validity of a statute of the State of Misalleged. And the court also find, that souri was drawn in question ; on the the consideration for which the writing ground of its being repugnant to the declared upon and the assumpsit was . Constitution of the United States. 2.
That the decision was in favor of its ity to the court. The one course or the validity.
other would have shown that the validity 1. To determine whether the validity of the act of assembly was drawn into of a statute of the State was drawn in question, on the ground of its repugnancy question, it will be proper to inspect the to the Constitution; and that the decision pleadings in the cause, as well as the of the court was in favor of its validity: judgment of the court.
But the one course or the other, would The declaration is on a promissory have required both a court and jury. note, dated on the 1st day of August, Neither could be pursued where the 1822, promising to pay to the State of office of the jury was performed by the Missouri, on the 1st day of November, court. In such a case, the obvious sub1822, at the loan office in Chariton, thé stitute for an instruction to the jury, or a sum of one hundred and ninetynine special verdict, is a statement by the dollars ninetynine cents, and the two court of the points in controversy, on per cent per annum, the interest accru- which its judgment is founded. This ing on the certificates borrowed from the may not be the usual mode of proceeding, 1st of October, 1821. This note is obvi- but it is an obvious mode ; and if the ously given for certificates loaned under court of the state has adopted it, this the aci, "for the establishment of loan court cannot give up substance for form. offices.' That act directs that loans on The arguments of counsel cannot be personal securities shall be made of sums spread on the record. The points urged less than two hundred dollars. This in argument cannot appear. But the note is for one hundred and ninetynine motives stated by the court on the record dollars ninetynine cents. The act di- for its judgment, and which form a part rects that the certificates issued by the of the judgment itself, must be considerState shall carry two per cent interest ed as exhibiting the points to which those from the date, which interest shall be arguments were directed, and the judgcalculated in the amount of the loan. ment as showing the decision of the court The note promises to repay the sum, upon those points. There was no jury with the two per cent interest accruing to find the facts and refer the law to the on the certificates borrowed, from the court; but if the court, which was sub1st day of October, 1821. It cannot be stituted for the jury, has found the facts doubted that the declaration is on a note on which its judgment was rendered : its given in pursuance of the act which has finding must be equivalent to the finding been mentioned.
of a jury. Has the court, then, substiNeither can it be doubted that the tuting itself for a jury, placed facts upor plea of non-assumpsit allowed the de- the record, which, connected with the iendants to draw into question at the pleadings, show that the act in pursuance trial the validity of the consideration on of which this note was executed was which the note was given. Everything drawn into question, on the ground of its which disaffirms the contract, everything repugnancy to the Constitution? which shows it to be void, may be given After finding that the defendants did in evidence on the general issue in an assume upon themselves, &c, the court action of assumpsit. The defendants, proceeds to find that the consideration therefore, were at liberty to question the for which the writing declared upon and validity of the consideration which was the assumpsit was made, was the loan of the foundation of the contract, and the loan office certificates loaned by the State constitutionality of the law in which it at her loan office at Chariton; which originated.
certificates were issued and the loan Have they done so ?
made, in the manner pointed out by an Had the cause been tried before a act of the legislature of the said State of jury, the regular course would have Missouri, approved the 27th of June, been to move the court to instruct the 1821, entitled ' &c. jury that the act of assembly, in pursu Why did not the court stopimmediately ance of which the note was given, was after the usual finding that the defendrepugnant to the Constitution of the ants assumed upon themselves? Why United States; and to except to the proceed to find that the note was given charge of the judges, if in favor of its for loan office certificates issued under the validity; or a special verdict might have act contended to be unconstitutional, and been found by the jury, stating the act loaned in pursuance of that act; if the of assembly, the execution of the note in matter thus found was irrelevant to the payment of certificates loaned in pursu- question they were to decide ? ance of that act; and referring its valid Suppose the statement made by the
court to be contained in the verdict But this question has frequently occurof a jury which concludes with referring red and has, we think, been frequently to the court the validity of the note thus decided in this Court. Smith ds. The taken in pursuance of the act; would State of Maryland, 6 Cranch, 286. Marnot such a verdict bring the constitution. tin vs. Hunter's Lessee, 1 Wheat. 255. ality of the act, as well as its construc- Miller os. Nicholls, 4 Wheat. 311. Wiltion, directly before the court? We liams vs. Norris, 12 Wheat. 117. Wilson think it would ; such a verdict would and others rs. The Black Bird Creek find that the consideration of the note Marsh Company, 2 Peters, 245, and was loan office certificates, issued and Harris vs. Dennie, in this term ; are all, loaned in the manner prescribed by the we think, expressly in point. There act. What could be referred to the has been perfect uniformity in the concourt by such a verdict, but the obliga- struction given by this court to the tion of the law? It finds that the certifi- twenty fifth section of the judicial act. cates for which the note was given, were That construction is, that it is not necesissued in pursuance of the act, and that sary to state, in terms, on the record, the contract was made in conformity with that the Constitution, or a treaty or law it. Admit the obligation of the act, and of the United States has been drawn in the verdict is for the plaintiff; deny its question, or the validity of a State law, obligation, and the verdict is for the de- on the ground of its repugnancy to the fendant. On what ground can its obli- Constitution. It is sufficient if the record gation be contested, but its repugnancy shows that the Constitution, or a treaty to the Constitution of the United States? or law of the United States must have No other is suggested. At any rate, it is been construed, or that the constitutionopen to that objection. If it be in truth ality of a State law must have been repugnant to the Constitution of the Uni- questioned ; and the decision has been ted States, that repugnancy might have in favor of the party claiming under such been urged in the State, and may conse- law. quently be urged in this court ; since it
We think, then, that the facts stated is presented by the facts in the record
on the record presented the question of which were found by the court that
repugnancy between the Constitution of tried the cause.
the United States and the act of MisIt is impossible to doubt that, in point souri to the court for its decision. If it of fact, the constitutionality of the act
was presented, we are to inquire, under which the certificates were issued that formed the consideration of this note,
2. Was the decision of the Court in constituted the only real question made favor of its validity ? by the parties, and the only real question The judgment in favor of the plaintiff decided by the Court. But the record is a decision in favor of the validity of is to be inspected with judicial eyes; the contract, and consequently of the and, as it does not state in express terms validity of the law by the authority of that this point was made, it has been which the contract was made. contended that this Court cannot assume The case is, we think, within the the fact that it was made or determined twentyfifth section of the judicial act, in the tribunal of the State.
and consequently within the jurisdiction The record shows distinctly that this of this court. point existed, and that no other did exist; This brings us to the great question in the special statement of facts made by the cause; Is the act of the legislature the Court as exhibiting the foundation of of Missouri repugnant to the Constituits judgment contains this point and no tion of the United States ? other. The record shows clearly that The counsel for the plaintiffs in error the cause did depend, and must depend, maintain that it is repugnant to the Conon this point alone. If in such a case, stitution, because its object is the emisthe mere omission of the Court of Mis- sion of bills of credit contrary to the exsouri, to say, in terms, that the act of press prohibition contained in the tenth the legislature was constitutional, with section of the first article. draws that point from the cause, or must The act under the authority of which close the judicial eyes of the appellate the certificates loaned to the plaintiff's tribunal upon it; nothing can be more in error were issued, was passed on the obvious, than that the provisions of the 26th of June, 1821, and is entitled • an Constitution, and of an act of Congress, act for the establishment of loan offices.' may be always evaded ; and may be The provisions that are material to the often, as we think they would be in this present inquiry, are comprehended in case, unintentionally defeated.
the third, thirteenth, fifteenth, sixteenth,
twentythird and twentyfourth sections State ; are hereby pledged and constituof the act, which are in these words : ted a fund for the redemption of the cer
Section the third enacts : 'that the tificates hereby required to be issued, auditor of public accounts and treasurer, and the faith of the State is hereby also under the direction of the governor, shall pledged for the same purpose.' and they are hereby required to issue Section twentyfourth. That it shall certificates, signed by the said auditor be the duty of the said auditor and treaand treasurer, to the amount of two hun- surer to withdraw annually from circuladred thousand dollars, of denominations tion, one tenth part of the certificates not exceeding ten dollars, nor less than which are hereby required to be issued,' fifty cents (to bear such devices as they &c. may deem the most safe,) in the follow The clause in the Constitution which ing form, to wit: “ This certificate shall this act is supposed to violate, is in these be receivable at the treasury, or any of words : No State shall’. emit bills of the loan offices of the State of Missouri, credit.' in the discharge of taxes or debts due to What is a bill of credit? What did the State for the sum of $—, with the Constitution mean to forbid ? interest for the same, at the rate of two In its enlarged, and perhaps its literal per centum per annum from this date, sense, the term 'bill of credit' may comday of 182 ."
prehend any instrument by which a The thirteenth section declares ; that State engages to pay money at a future the certificates of the said loan ofhce shall day ; thus including a certificate given be receivable at the treasury of the State, for money borrowed. But the language and by all tax gatherers and other public of the Constitution itself, and the misofficers, in payment of taxes or other chief to be prevented, which we know moneys now due to the State or to any from the history of our country, equally county or town therein and the said certi- limit the interpretation of the terms. ficates shall also be received by all officers The word 'emit,' is never employed in civil and military in the State, in the dis- describing those contracts by which a charge of salaries and fees of office.' State binds itself to pay money at a
The fifteenth section provides : "that future day for services actually received, the commissioners of the said loan offices or for money borrowed for present use; shall have power to make loans of the nor are instruments executed for such said certificates, to citizens of this State, purposes, in common language, denomresiding within their respective districts inated 'bills of credit. To emit bills only, and in each district a proportion of credit,' conveys to the mind the idea shall be loaned to the citizens of each of issuing paper intended to circulate county therein, according to the number through the community for its ordinary thereof,' &c.
purposes, as money, which paper is Section sixteenth. “That the said redeemable at a future day. This is the commissioners of each of the said offices sense in which the terms have been are further authorized to make loans on always understood. personal securities by them deemed good At a very early period of our colonial and sufficient, for sums less than two history, the attempt to supply the want hundred dollars : which securities shall of the precious metals by a paper medium be jointly and severally bound for the was made to a considerable extent; and payment of the amount so loaned, with the bills emitted for this purpose have interest thereon,' &c.
been frequently denominated bills of Section twentythird. “That the gene- credit. During the war of our revolural assembly shall, as soon as may be, tion, we were driven to this expedient ; cause the salt springs and lands attached and necessity compelled us to use it to thereto, given by Congress to this State, a must fearful extent. The term bas to be leased out, and it shall always be acquired an appropriate meaning; and the fundamental condition in such leases, bills of credit' signify a paper medium, that the lessee or lessees shall receive intended to circulate between individuthe certificates hereby required to be als, and between government and indiissued, in payment for salt, at a price not viduals, for the ordinary purposes of exceeding that which may be prescribed society. Such a medium has been by law : and all the proceeds of the said always liable to considerable fluctuation. salt springs, the interest accruing to the Its value is continually changing ; and State, and all estates purchased by offi- these changes, often great and sudden, cers of the said several offices under the expose individuals to immense loss, are provisions of this act, and all the debts the sources of ruinous speculations, and now due or hereafter to be due to this destroy all confidence between man and
man. To cut up this mischief by the be performed by the substitution of a roots, a mischief which was felt through name? That the Constitution, in one the United States, and which deeply of its most important provisions, may be affected the interest and prosperity of openly evaded by giving a new name to all; the people declared in their Constitu- an old thing ? We cannot think so. We tion, that no State should emit bills of think the certificates emitted under the credit. If the prohibition means any- authority of this act, are as entirely bills thing, if the words are not empty sounds, of credit, as if they had been so denoninit must comprehend the emission of any ated in the act itself. paper medium, by a State Government, But it is contended, that though these for the purpose of common circulation. certificates should be deemed bills of
What is the character of the certifi- credit, according to the common accepcates issued by authority of the act under tation of the term, they are not so in the consideration? What office are they to sense of the Constitution ; because they perform? Certificates signed by the are not made a legal tender. auditor and treasurer of the State, are to The Constitution itself furnishes no be issued by those officers to the amount countenance to this distinction. The of two hundred thousand dollars, of de prohibition is general. It extends to all nominations not exceeding ten dollars, bills of credit, not to bills of a particular nor less than fifty cents. The paper pur. description. That tribunal must be bold ports, on its face to be receivable at the indeed, which, without the aid of other treasury, or at any loan office of the State explanatory words, could venture on this of Missouri, in discharge of taxes or debts construction. It is the less admissible due to the State.
in this case, because the same clause of The law makes them receivable in dis- the Constitution contains a substantive charge of all taxes, or debts due to the prohibition to the enactment of tender Slate, or any County or town therein ; laws. The Constitution, therefore, conand of all salaries and fees of office, to siders the emission of bills of credit, and all officers civil and military within the the enactment of tender laws, as distinct State ; and for salt sold by the lessees operations, independent of each other, of the public salt works. It also pledges which may be separately performed. the faith and funds of the State for their Both are forbidden. To sustain the one, redemption.
because it is not also the other ; to say It seems impossible to doubt the inten- that bills of credit may be emitted, if tion of the legislature in passing this act, they be not made a tender in payment of or to mistake the character of these cer debts; is, in effect, to expunge that distificates, or the office they were to pertinct independent prohibition, and to form. The denominations of the bills, read the clause as if it had been entirely from ten dollars to fifty cents, fitted them omitted. We are not at liberty to do for the purpose of ordinary circulation; this. and their reception in payment of taxes, The history of paper money has been and debts to the government and to cor- referred to, for the purpose of showing porations, and of salaries and fees, would that its great mischief consists in being give them currency. They were to be made a tender; and that therefore the put into circulation ; that is, emitted, by general words of the Constitution may ihe government. In addition to all these be restrained to a particular intent. evidences of an intention to make these Was it even true, that the evils of pa. certificates the ordinary circulating me. per money resulted solely from the qualdium of the country, the law speaks of ity of its being made a tender, this court them in this character; and directs the would not feel itself authorized to disauditor and treasurer to withdraw annu- regard the plain meaning of words, in ally one tenth of them from circulation. search of a conjectural intent to which Had they been termed bills of credit,' we are not conducted by the language instead of certificates,' nothing would of any part of the instrument. But we have been wanting to bring them within do not think that the history of our the prohibitory words of the Constitu- country proves either, that being made tion.
a tender in payment of debts, is an esAnd can this make any real difference? sential quality of bills of credit, or the Is the proposition to be maintained, that only mischief resulting from them. It the Constitution meant to prohibit names may, indeed, be the most pernicioùs ; and not things? That a very important but that will not authorize a court to act, big with great and ruinous mischief, convert a general into a particular pro. which is expressly forbidden by words hibition. most appropriate for its description, may We learn from Hutchinson’s History