X. CONSTITUTIONAL LAW.

GEORGE SMITH VS. HEALTH COMMISSIONER OF THE PORT OF NEW-YORK.

Reported in Howard's Reports, Vol. VII., year 1849.

Statutes of the States of New-York and Massachusetts, imposing taxes upon alien passengers arriving in the ports of those States, declared to be contrary to the Constitution and laws of the United States, and therefore null and void.

On the part of the plaintiff in error, it was contended

1. That the act in question is a regulation of commerce of the strictest and most important class, and that Congress possesses the exclusive power of making such a regulation.

2. That the act is an impost or duty on imports, and so expressly prohibited by the Constitution, or is in fraud of that prohibition.

XL. THE RIGHTS OF STATES.

S. A. WORCESTER VS. THE STATE OF Georgia.

Reported in Peters' Reports, Vol. VI., year 1832.

A writ of error was issued to "the judges of the Superior Court for the County of Gwinnett, in the State of Georgia," commanding them to send to the Supreme Court of the United States the record and proceedings in the said Superior Court of the County of Gwinnett, between the State of Georgia, plaintiff, and SAMUEL A. WORCESTER, defendant, on an indictment in that court. The record of the court of Gwinnett was returned, certified by the clerk of the court, and was also authenticated by the seal of the court. It was returned with, and annexed to, a writ of error issued in regular form, the citation being signed by one of the associate justices of the Supreme Court, and served on the governor and attorney-general of the State more than thirty days before the commencement of the term to which the writ of error was returnable.

The act of the State of Georgia under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.

The acts of the legislature of Georgia interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our Constitution, is committed exclusively to the government of the Union.

They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it, and recognize the pre-existing power of the nation to govern itself.

They are in equal hostility with the acts of Congress for regulating this intercourse and giving effect to the treaties.

XII. TAXATION BY STATES.

DOBBINS VS. ERIE COUNTY COMMISSIONERS, PA.

Reported in Peters' Reports, Vol. XVI., year 1842.

DANIEL DOBBINS, a captain of the United States revenue cutter on the Erie station, in Pennsylvania, was rated and assessed for county taxes, as an officer of the United States, for his office. Held, that he was not liable to be rated and assessed for his office under the United States, for county rates and levies.

The question presented in the case before the courts of Pennsylvania was, whether the office of captain of the revenue cutter of the United States was liable to be assessed for taxes under the laws of Pennsylvania. The validity of the laws of Pennsylvania imposing such taxes was in question in the case, on the ground that the laws were repugnant to the Constitution and laws of the United States; and the court decided in favor of the validity of the law. The Supreme Court of the United States has jurisdiction in a writ of error in such a case.

Taxation is a sacred right, essential to the existence of government; an incident of sovereignty. The right of legislation is co-extensive with the incident, to attach it upon all persons and property within the jurisdiction of a State. But in our system there are limitations upon that right. There is a concurrent right of legislation in the States and the United States, except as both are restrained by the Constitution of the United States. Both are restrained by express prohibitions in the Constitution; and the States by such as are reciprocally implied, when the exercise of the right by a State conflicts with the perfect execution of another sovereign power delegated to the United States. That occurs when taxation by a State acts upon the instruments, and emoluments, and persons, which the United States may use and employ, as necessary and proper means, to execute their sovereign power. The government of the United States is supreme within its sphere of action. The means necessary and proper to carry into effect the powers in the Constitution are in Congress.

The compensation of an officer of the United States is fixed by a law made by Congress. It is in its exclusive discretion to declare what shall be given. It exercises the discretion and fixes the amount, and confers upon the officer the right to receive it when it has been earned. Any law of a State imposing a tax upon the office, diminishing the recompense, is in conflict with the law of the United States which secures the allowance to the officer.

LEGAL TENDER NOTES.

DECISION OF THE SUPREME COURT OF THE STATE OF NEW-YORK, SUSTAINING THE CONSTITUTIONALITY OF LEGAL TENDER NOTES OF THE UNITED STATES.

DELIVERED AT ROCHESTER, APRIL 4, 1863.

PAUL D. HAGUE VS. DANIEL W. POWERS.

Statement.-PAUL D. HAGUE, plaintiff, and DANIEL W. POWERS, defendant, both citizens of the State of New-York, being parties to a question of difference, have agreed upon this case, containing the facts upon which the controversy depends, and submitted the same to the Supreme Court of the State of New-York, under section 372 of the Code of Procedure.

The facts are these: The defendant is a banker, in the city of Rochester, and, as such, was indebted to the plaintiff in the sum of one hundred and thirty dollars, for so much lawful money of the United States, deposited with him prior to February, 1862, payable upon demand. The plaintiff heretofore, and since the 25th day of February, 1862, duly demanded of the defendant payment of said debt. The defendant then and there tendered to the plaintiff thirteen certain United States Treasury notes, known as "Legal Tender Notes," of uniform description, for ten dollars each, in payment of said demand.

The plaintiff refused to receive said notes, upon the ground that the act of Congress of February 25th, 1862, under which the notes were issued and declared a legal tender, is not warranted by the Constitution, and insisted on being paid in gold or silver coin; and the defendant refused to pay otherwise than in such notes, claiming that the same were lawful money of the United States, or a legal tender.

At the time of such demand and tender, the notes aforesaid would purchase, in the markets of this State, eighty-seven dollars of gold or silver coin of the United States, and no more; which relative market rates have been and are fluctuating from day to day.

Since the spring of 1861, the government of the United States have been continuously waging a war of hitherto unexampled magnitude, for the suppression of a powerful rebellion, and have been compelled, in so doing, to make expenditures amounting to over one thousand millions of dollars. The whole controversy between the parties is, whether such notes are, or are not, lawful money or a legal tender.

The cause was argued at the March General Term of the Supreme Court, at the city of Rochester, by E. PESHINE SMITH and T. C. MONTGOMERY, of counsel for the plaintiff, and G. F. DANFORTH and W. F. COGSWELL, for the defendant, before Justices E. DARWIN SMITH, presi

ding, THOMAS A. JOHNSON and HENRY WELLES. At a subsequent term, held at the city of Rochester, on the 4th day of April, 1863, the court ordered judgment for the defendant, and delivered the following opinions:

E. DARWIN SMITH, P. J. The question presented for our decision in this case is, whether the act of Congress, passed February 25th, 1862, authorizing the issue of Treasury notes to the amount of $150,000,000, and declaring that such notes "shall be lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest on bonds and notes of the United States," is a constitutional and valid law. The whole provision is as follows:

"That the Secretary of the Treasury is hereby authorized to issue, on the credit of the United States, one hundred and fifty millions of dollars of United States notes, not bearing interest, payable to bearer at the Treasury of the United States, and of such denomination as he may deem expedient, not less than five dollars each; Provided, That such notes herein authorized shall be receivable in payment of taxes, interest, duties, debts and demands of every kind due to the United States, except duties on imports, and of all claims and demands against the United States of every kind whatsoever, except for interest upon bonds and notes, which shall be paid in coin, and shall also be lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest as aforesaid."

The case states that the defendant was indebted to the plaintiff in the sum of $130, for money deposited with him prior to February, 1862, and the plaintiff demanded payment of such debt. That the plaintiff tendered to him thirteen so-called legal tender notes, of uniform description, for ten dollars each, in payment of such deposits, which was refused, upon the ground that the said act of Congress, under which the notes are issued and declared a legal tender, is not warranted by the Constitution, and insisted upon being paid in gold or silver coin; "and that the defendant refused to pay otherwise than in such notes, claiming that the same were lawful money of the United States, or a legal tender."

It is impossible for us to approach the examination and discussion of the questions arising upon this submission without a deep sense of their great magnitude, and of the very serious interests and consequences, public and private, involved in their ultimate decision. Perhaps in no single action questions of equal, certainly none of greater importance, were ever submitted to a judicial tribunal in this or any other country.

It is, however, a source of some gratification and relief to us, that the responsibility for their final decision will devolve upon others, and that we shall probably do nothing more than contribute something to the discussion which they will be likely to undergo in their progress to the tribunal constituted for the final determination of all questions arising under the Constitution of the United States.

We are called upon to declare the act of Congress of February 25th, 1862, above mentioned, unconstitutional. The consideration of this question requires us to give a construction to the Constitution of the United States, or to several of its provisions.

Under our system of government, it is the province and duty of the judiciary, when properly called upon so to do, to bring all acts of Congress and of the State legislatures to the test of the Constitution, and to declare all laws invalid which are clearly and palpably in conflict with the fundamental law. But the presumption is in favor of the validity of all acts of the legislature, whether State or national, and the courts should only declare acts unconstitutional when they are clearly so, beyond all reasonable doubt. This is the settled rule. (FLETCHER vs. PECK, & Crand. 128; OGDEN vs. SAUNDERS, 12 Wheaton, 29; 24 Barbour, 446; 14 Mass. 345.)

The chief questions for examination resolve themselves into two leading points of inquiry:

1st. Has Congress the power to authorize the issue of Treasury notes to circulate as money? 2d. If such power exists in Congress, can it make such Treasury notes lawful money, and a legal tender in payment of public and private debts?

Before proceeding to the discussion of these questions, it is important to determine the principles of interpretation which should be applied in the construction of the Constitution of the United States. That Constitution was framed and designed for the establishment of a national government.

The confederacy of the revolution, after four or five years of peace, had proved a failure. It was found entirely inadequate for the purpose for which it was formed, when the pressure of war was withdrawn from the colonies, and the people turned their attention to the arts of peace, and began to develop the enterprise and resources of the country.

The convention which met in Philadelphia in 1787, to revise the artiticles of confederation, were deeply impressed with a sense of their utter insufficiency, and after some discussion, exhibiting their defects, as its first deliberate act, after its organization, resolved, "that a national government ought to be established, consisting of a supreme legislative, executive and judiciary."

After this the convention proceeded to devise and frame the present Constitution, except the few supplementary sections afterwards added upon the recommendation of the State conventions or legislatures. The Constitution, upon its face, was designed to be, and is, a great fundamental charter of government. It provides for an organization of government, to be possessed of the chief attributes of sovereignty and supremacy. The Constitution was to be, and is, the supreme law of the land, and all the powers exercised under it, executive, legislative and judicial, within their appropriate spheres, were, and are, sovereign and paramount. The character of the provisions enumerated and granted in the Constitution, all tend to the conclusion that it was the purpose of its authority to make the American people one nation. The The power of making treaties, of declaring war and making peace, of imposing taxes for the national defence and general welfare, of enacting uniform laws for naturalization and bankruptcy, and the provision that the citizens of one State should have equal rights and privileges in all others, and that allegiance should be due to the general government, and all officers, State