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insolvent court of a debt due by one of the citizens of such state is no bar to an action brought in such state by a citizen of another state, when such citizen was not a party to the insolvency proceedings.1

Congress may coin money and



§ 442. By the fifth clause of the eighth section of the first article of the constitution congress has power "to coin money and regulate the value thereof and of regulate its foreign coin." In the first clause of the tenth section of the same article it is further provided that no state shall "coin money," nor "make anything but gold and silver a tender in payment of debts." It became necessary, in view of the variation in values of coin uttered under the confederation, to bestow the exclusive power of coining on the general government. "Coining," in the sense in which the term is used, is the shaping and stamping of metal to serve as money; and this power is exclusive in congress. It is also clear that the states cannot make anything but gold and silver a legal tender; though whether they can make anything but United States coin a legal tender is still an open question. The question whether congress can make treasury notes a legal tender has been much discussed. When it was brought before the supreme court of the United States after the close of the war, a statute making such notes a legal tender, as to debts contracted both before and after the passage of the statute, was held unconstitutional by a majority of one of the judges. Subsequently, on the accession to the court of two new judges, this decision was reversed, and the constitutionality of the statute was affirmed by a majority of one. The question has ceased to have a practical interest since all treasury notes have become redeemable in gold. But in view of the fact that the power to establish a currency is limited

Infra, § 495; Cook v. Moffatt, 5 How. 295; Baldwin v. Hale, 1 Wall. 223; Felch v. Bugbee, 48 Me. 9; Hills v. Carlton, 74 Me. 156; Scribner v. Fisher, 2 Gray, 43; Kelley u. Drury, 9 Allen, 27; Choteau v. Richardson, 12

Allen, 365, and cases cited infra, § 495. As to effect of removal into an other state, see infra, § 495.

2 Hepburn v. Griswold, 8 Wall. 603. Legal Tender Cases, 12 Wall. 457.

by the constitution to the coining of money, and of the fact, also, that no statute can, from the nature of things, make irredeemable paper a permanent currency, the better view is that the power of congress to make such paper a legal tender can only be sustained as a temporary war measure. So far as concerns the states, it may be added that they may constitutionally designate the currency in which they will receive debts due to themselves for taxes.2 It is admissible for a creditor, also, to stipulate in a contract in what currency the debt due him is to be paid.3

State can

not coin

money nor

emit bills

of credit.

443. Under the tenth section of the first article of the constitution, a state, as we have seen, cannot "coin. money," nor "emit bills of credit." The limitation as to coining money has been already discussed. Bills of credit, in the sense in which the term is here used, are promissory notes, or bills issued by a state government exclusively on the credit of the state, and intended to circulate through the community for its ordinary purposes as money redeemable at a future date, and for the payment of which the faith of the state is pledged. There is nothing, therefore, in the limitation to preclude the issue of the notes of state banks, even though guaranteed by the state, or though the state was the sole stockholder. Nor are promises in writing of a state to pay on a future day a fixed price for services received, "bills of credit, under the constitution."8

§ 444. Congress, also, has power to "provide for the punishment of counterfeiting the securities and current coin of the United States." Under these general Congress terms is included the power to punish the uttering counterfeitand publishing of forged securities and coin, and

1 Supra, § 26.

2 Lane County v. Oregon, 7 Wall. 71. 3 Bronson v. Rodes, 7 Wall. 229; see Butler v. Horwitz, 7 Wall. 258. That a statute making paper money a legal tender must ultimately become inoperative, see supra, § 26.

41 Kent's Com., 408, citing Craig v. Missouri, 4 Pet. 410.

5 State v. Billis, 2 McCord, 12.

may punish


6 Darrington v. Bank, 13 How. 12. 1 Briscot v. Bank, 11 Pet. 257; and see McCoy v. Washington Co., 3 Wall. Jr. 381; Bailey v. Milner, 1 Abb. U.S. 261, 35 Ga. 330.

8 Craig v. Missouri, 4 Pet. 410. As to currency and legal tenders, see supra, § 442.

9 Const., art. I., § 8, cl. 6.

having them in possession for the purpose of uttering. How far this jurisdiction is exclusive is elsewhere considered.'

Congress has power

to make


ments for

postal service.


446. Nowhere is the doctrine of the evolution and modification of political power by environment more strikingly illustrated than in the clause which we have now to consider next in order. Congress has power, so it is said, "to establish post-offices and post-roads." These words, when they were written, described a few modest offices in the principal towns along the sea-coast in which, at the utmost, half a dozen clerks distributed mails which arrived bi-weekly by post-boys on horseback or in the pouches of wagons. Now the word "offices," which formerly described, in most instances, one or rooms in a building used in the main for other purposes, is applied to stately palaces in which are employed multitudes of clerks who receive, sort, and distribute letters which, in several of our cities, are nearly six thousand times greater in bulk than the entire mail of the country at the time when the constitution was adopted. "Post-roads" have undergone a still greater variation and extension of application. Not long before the days when the constitution was adopted, the nail between New York and Boston was carried by Dr. Franklin or his immediate deputies, at uncertain intervals, over the cir cuitous country roads which skirted the northern shore of Long Island Sound, and then taking the western shore of Narragansett Bay, struck upwards through Providence to Massachusetts. For a while, under the constitution, "postroads" designated these and similar lines of travel, sometimes fit for wagons, sometimes only passable by post-boys on

1 Infra, § 524; supra, § 381.

2 In 1790 there were seventy-five post-offices in the United States, and mails were carried only twice a week between New York and Boston in winter, and three times a week in summer. In 1882 there were 46,231 post-offices, with mails between the great cities three times a day. In

1790 the extent of the post-routes was
1875 miles; in 1882, 343,618 miles.
In 1790, letters from New York to
Philadelphia cost 25 cents; in 183,
from New York to San Francisco tvo
cents, and postal cards one cent.
1790, the revenue of the post-office was
$37,935; in 1882, $41,876,410; see sz
pra, § 555.


horseback. But even this "road" did not exclusively relate to land travel, since between New York and Providence, and between Philadelphia and the southern ports, the mail was frequently taken in coasting vessels. Shortly afterwards, steamboats were introduced, and as soon as their superior expedition and punctuality as modes of travel were ascertained, the tracks they took were regarded as "roads ;" and in the same category were subsequently placed the canals which, between Albany and Buffalo, and Philadelphia and Pittsburgh, formed for a time part of the line of ordinary conveyance of passengers and goods. In our own day, the mail is almost exclusively carried on railroads; though in almost all great thoroughfares, e. g., between Philadelphia and New York, where the Hudson River has to be passed, these are helped and supplemented by steam ferry-boats. No one has ever doubted that the tracks traversed by these various vehicles of transportation are "post-roads" in the sense of the clause before us. "Post-road," therefore, may be defined as the medium by which information is transmitted from point to point. If the track of water over which a ferry-boat passes is a post-road, so we may hold to be the wire over which pass the messages of the telegraph or telephone. In other words, "post-road" is to be read in the sense of "agency for the transmission of information."




§ 447. The meaning of the word "establish,” however, in this connection, has been the object of animated controversy. On the one side it has been argued that congress, under this term, has power only to use established routes and conveyances for the transmission of the mail. On the other side it has been insisted that it is the right and duty of congress to

1 As to constitutionality of laws restricting the transmission of mail matter, see infra, § 555.

The Federal statute of July 24, 1866, authorizing telegraph companies to maintain and operate lines of telegraph "over and along any of the military or post-roads of the United States which have been or may hereafter be declared such by act of con

can create roads" is political

66 post

not ju


gress," is constitutional; and prohibits the directors of any railroad declared to be a post-road from preventing any particular telegraph companies from putting up a line of poles on its roadbed; Pensacola Tel. Co. v. West. Union Co., 96 U. S. 1; West. Union Tel. Co. v. Am. Union Co., 19 Am. Law Reg. 173; West. Union Tel. Co. v. R. R., 11 Fed. Rep. 1.

build and control throughout the whole land avenues of commerce, over which not only mails, but travellers and goods can be carried. The issue thus presented has never been brought to the supreme court for determination, as there is hardly any possible way in which the question could be the object of bona fide litigation. The prevalent practice, however, has been for the government to lease for the mail such modes of conveyance as private or state enterprise has already opened for travel, and only to establish on its own account modes of conveyance when no other method of mail transport can be found. By Mr. Clay, however, and other American statesmen, it is claimed that under this clause new roads can be opened for the transmission, not merely of mails, but of passengers and goods, and for the general "internal improvement" of the United States. Bills for the erection of "national roads" for these purposes passed congress, but were on two conspicuous occasions arrested by vetoes based on the ground of their unconstitutionality. It was well for the country that such was the result, and that the progress of "internal improvement" of this class was for the time stopped: (1) because much of the money spent on turnpikes and canals would have been lost; (2) because the creation and arrangement of such "improvements" would have placed on the government a load of patronage under which it would have tottered. Yet it is hard to see, notwithstanding the force of argument by which these vetoes were sustained, why, if "to establish a post-office" involves a power to build a post-office, a power "to establish post-roads" should not involve a power to build post-roads. And in any view, the question whether "establishing a postroad" is necessary for the transportation of the mail is political rather than judicial. And it is clear that the United States government, in undertaking to use lines of travel owned by private persons or states, does so as would any other customer, and is obliged to pay proper rates.


§ 448. Whatever is used as a receptacle for mail office is any matter is a "post-office" under the clause before us.


1 See discussion in 1 Kent's Com., 268-9.

2 See Dickey v. Turnpike Co., 7 Dana, 113.

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