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concedes the existence of implied powers; because it interdicts acts of congressional legislation for which there was no express grant of power, and which, therefore, must have been considered as having been authorized by incidental or resulting powers.

sense, the question is one of expediency only, and not of power. This is illustrated by practical proofs abundantly furnished in the history of national legislation, every year since the commencement of the federal government. Then, as a road can neither be made nor preBut, without either of these concessions of served fit for use, without labor or money, and implied powers, such powers would have ex- generally both-can it be doubted that, in isted to as great an extent precisely as they do fully and effectually executing the express now exist; for it is a self-evident truth, that trust of establishing post roads, Congress may an express and unqualified power to do a thing, have the implied power to appropriate money necessarily implies the power to use all the ne- to construct, or help to construct, and to repair, cessary and proper means for doing it effectu- or aid in repairing, a post road? or to pay a ally; that is, such means as will effect the end of just compensation for using and impairing a the express grant, and are neither inconsistent road made and repaired by State authority and with the object of the grant, nor have been pro- State means alone? This should certainly hibited. The constitution only designates cer- not be doubted by any, except such persons as tain general ends, and expressly confers only could deny that the power "to establish post certain comprehensive powers. Subsidiary pow- offices and post roads" embraces the power to ers are implied and could not have been enume- superintend and regulate the mail, and to do, rated. All powers necessary and proper for also, whatever may be "necessary and proper executing the enumerated powers, or for fulfil- for securing the transportation of it, as`disling the duties imposed by the constitution, tributively, cheaply, speedily, and safely, as are implied, and exist as certainly as if they the public interest may require. It cannot, had been expressly given-excepting so far only as they shall have been prohibited. Between the strict constructionist and the latitudinarian, there is no dispute as to the general fact that implied powers exist. The only difference of opinion among rational men, is that which exists respecting the true test for ascertaining when a power is implied, and that also, which must ever exist concerning the extent of implied powers. All admit that there is implied power to adopt any mean that is "necessary and proper" for effecting the 'end of any express power. But enlightened men disagree as to what is "necessary and proper," and also as to the kind or degree of necessity which must exist before power will be implied.

surely, be seriously doubted by any person who admits that, under the power "to establish post offices and post roads," the general government may appoint postmasters, make contracts for carrying the mail, on horses, or in coaches, or in steamboats, require the citizen to pay postage, and punish him, "even unto death," for obstructing or robbing the mail.

By the comprehensive power "to establish post offices and post roads," the people who adopted the federal constitution intended to give to the national Congress all the power necessary for controlling the entire mail establishment of the Union, in such a manner as most certainly to effectuate the end for which the general power was delegated; and that was, the prompt, punctual, and certain distriBut if power to adopt a particular mean for bution of intelligence, without any of the inattaining the end of some express power, conveniences, obstructions or delays, that might should not be implied unless that mean be in-be apprehended from discordant and inefficient dispensable-that is, unless the express power State regulations, or from any dependence on cannot otherwise be executed-then it is de- State authority or State will. And therefore, monstrable that there can be no implied power; as the general, and not any State government, is for it is evident that suitable or effectual responsible for the faithful and satisfactory means for executing every express grant of execution of this important trust, and must, of power, are various, and of almost infinite mod-course, possess, not only the exclusive right ifications; and, therefore, no single mean can to decide as to the best modes of fulfilling it, be deemed indispensable, because the power but supreme power to provide and enforce the may be executed by some other mean. But, requisite means for attaining the general end, although no one mean alone can be deemed it must have the authority to judge whether indispensable, yet, as no end can be accom- the roads in any State are suitable or sufficient plished without some means, all the means for proper post roads; and if, in its judgment, which are adapted to an end, and will effec- there be, anywhere, any deficiency of road faciltuate it, are necessary, and each is equally, ity, it must have the implied power to supply and in the same sense, necessary. And there- the deficiency, either by construction, re-confore, if any one of them be constitutional, any struction, or reparation, as it shall consider other of them must be equally so, unless it be most expedient. prohibited by the constitution, or be subversive A State cannot claim the right to decide of some fundamental principle, and therefore whether she has all the roads which the genwould not be "proper" as well as necessary. eral government needs for transporting the And, of course, in choosing between "proper" mails; nor whether all her roads are in a suitmeans, thus equally necessary in the political able condition for post roads; nor can the

general government be required to depend We cannot, therefore, resist the conclusion altogether on any State for the reparation or that the power to establish post roads is some-t preservation of post roads; for, in those re-thing more than the power "to establish pos spects, the States, having retained no power, offices;" that the former is, as to post roads, can claim the right to exercise none. as plenary and supreme as the latter can be as The prevailing practice of the general gov-stood and intended to embrace everything neto post offices; that both together were underernment has been to adopt State roads as it finds them; to use them as the people of the cessary and proper for regulating and transState use them; and to leave to them, not only porting the mails of the United States in such the whole burthen of making and repairing all a manner as the national Congress should roads, but the discretion to decide how and when deem best, and choose to provide for and presuch as have been established as post roads scribe; that consequently, Congress must have shall be repaired, improved, altered, and at least implied power to make, improve, and changed. This may he expedient in many, shall consider such a course necessary and repair post roads, whenever and wherever it perhaps most, instances. But it is often unjust to the several States, and may be essen- proper; and, a fortiori, the implied or rather tially prejudicial to the interests of the United the resulting power to appropriate money to States. When a road is dilapidated by the any of those national purposes. use made of it by the general government, tablished the habit of either making or repairCongress has not, for obvious reasons, esit would be right for that government to repair the injury it had done; power to do suching, or of appropriating money to make or rejustice cannot surely be denied; and when a habit of even designating the roads on which pair, post roads; neither has it established the post road is not kept, by State authority and the mail shall be carried. But the general State means, in such a condition as the interest of the United States requires that it should practice is no proof as to the constitutional be kept, for the most effectual transportation of the mail, the general government should, with its own means, improve and preserve it as it should be improved and preserved.

Every post road is a national road. So far as it is a post road, it is as national as the Chesapeake Bay, or the Mississippi river; because, so far as it is such a road, the people of all the States have an interest in it; and therefore, to that extent, it is undoubtedly a United States road, and may, of course, be repaired and improved by the United States.

in the other. Notwithstanding the habitual power of Congress in the one case more than failure to designate post roads, the power to do so is unquestioned; and notwithstanding the habitual forbearance to make or repair, or appropriate money to make or repair, post roads, the power to do each and all of these things is, as we with equal confidence believe, clearly implied, if not expressed. And we have no doubt that many losses, disappointments and vexations have occurred in the mail department and to the people in consequence of the failure by congress to provide such post By the articles of confederation, as before roads, and improve and repair them in such a suggested, the confederate Congress had ex- manner as the nature and object of the trust press and exclusive power "to establish post confided to it by the constitution authorized offices;" but, as it possessed no implied power, and required; and we have as little doubt that it had no authority to "establish post roads.' the making of a good post road in a State, or Nevertheless the confederation appointed post-appropriation of money to make or improve, or masters, established post offices, superintended aid in making or improving, a post road, by and directed the entire mail of all the States, the general government could never be injuand used, without queston or complaint, the rious to the State. State roads, just as they have been generally Congress has not adopted the practice of used since the adoption of the federal consti- building and keeping federal prisons and tution. But, notwithstanding this practical court houses in the several States, because the interpretation of the power "to establish post liberal comity of the States has sufficiently offices," the Federal Convention, and the supplied the general goverment with the use people who ratified the constitution proposed of those necessary appendages to the national by it, felt that the power "to establish post judiciary. But who can doubt the power of offices" was not sufficiently ample; and there- Congress to build and to keep a federal court fore, they added the auxiliary power, also, house and jail in every State in the Union? "to establish post roads." This historic fact The power to appropriate the money of the alone tends directly and persuasively to show United States to the purpose of meeting any that the power "to establish post roads" was of the demands of the general government, intended to include more than an authority or of executing fully and most effectually, any merely to designate post routes; for otherwise trust confided to it, cannot be doubted. In-as that authority had been possessed and deed, it might be admitted that every governexercised under the isolated power "to estab-ment, as an artificial person, may, like a natulish post offices"-there was no motive for ral person, have an inherent or resulting power superadding the express power to establish to dispose of its own money in any way not "post roads." prohibited by the organic law of its being, nor

inconsistent with the end of its creation. necessary and proper for securing such a road And surely there is no such limitation, ex- as the public interest demands. But if it will press or implied, upon the power to appropri- not do so, or when it chooses to repose on ate the money of the United States, as could State authority, and rely on State expenditure, prevent the application of it judiciously to the it must use roads as it finds them, and cannot purpose of facilitating the proper and expe- claim privileges to which the people of the ditious transporsations of the national mails. States are not themselves entitled; and if a uniform and general toll be exacted, Congress cannot complain that its authority had been resisted, or in any degree, impaired.

Can any rational and consistent man, who claims for the general government the harsh and ultra power to use ad libitum the roads of & State, without either compensation to, or consent by, the State, deny or doubt that Congress has power to appropriate money to make, or to repair, or to pay for the use of, public roads in a State, used or to be used as post roads? We cannot believe that any such suicidal inconsistency will ever be exhibited by many national statesmen or jurists.

We therefore conclude, first—that the power to establish post roads was given for the purpose of enabling the general government to make, and repair, and keep open, and improve, Post roads, whenever the exercise of any such independent, national power shall be deemed proper for effectuating the satisfactory transBut the power to pay for the use of a State portations of the mails; second-that it was not given for the purpose of authorizing Conroad necessarily implies power to appropriate gress to adopt and use State roads as post money to repair, or even make, post roads. Had either of the States been alone interest-be just, and should be demanded; third-that, roads, without any compensation, if any should ed in the mails within their respective borders, so far as the designation and use of any State the power to establish post offices and post road as a post route, may be concerned, the roads would never have been given to the Congress of the United States. But, the mail power to establish post roads cannot import more than the precedent power to establish being international, all power over it and over post offices, and transport the mails-exceptall means necessary and proper for making it ing only, that the one implies only a right of most effectual, was therefore transferred to the use, upon just and common terms, as long councils of all the States united into one comonly as a State shall choose to continne a road mon government for purposes common to all. as a State road, and the other may imply a And, all power over the mail, and over post right in Congress, not only to enjoy a like use, roads, has been thus surrendered to the gene- but to continue, as a post route, a road once ral government, and as all the people of all adopted or designated or established as a post the States have an interest in the execution of road, even after it shall have been discontinthat power in each State, there can, in our ued as a State road; fourth-that, unless opinion, be no semblance of eitheir justice or Congress shall elect to exert its right of emiauthority for a pretension by the national gov-nent domain, and buy a State road, or make ernment to a constitutional right, either to re-one, or help to make or repair it, the constituquire a State to make or repair post roads tion gives no authority to use it as a post road, with its own labor or money, without any as-without the consent of the State or owner, or sistance or retribution from the other States; without making a just compensation for the or, in every instance, to defer to the several States the discretion of having good or bad Lexington and Maysville turnpike should be use; and, fifth-that therefore, even if the post roads, as their parsimony or liberality; deemed a public State road in all respects, poverty or caprice, may happen to prevail, and and if Dickey, as mail contractor, has a right thus virtually to surrender to them individually to transport the mail on any public road he this important national trust.

may prefer or choose to adopt between Lexington and Maysville, he cannot do so, nor had Congress power to authorize him to do so, without paying for the use, if demanded, a least-what other persons are required to pay just compensation, and that is—prima facie at for a similar use of it.

It may be generally best for the general government to avail itself of the use of State roads in such condition as the State may be pleased to keep them, and upon such terms as they shall choose to prescribe. So, too, and more obviously and generally, it may be best for the general government to use, in the like manner, the jails and court houses of the sev- After refusing, as it did, by the President's eral States. But the power, in each class of reto, to contribute any thing to the construccases, to execute the national trusts, independ- tion of the Maysville and Lexington turnpike, ently of State provision or State consent, is the general government could not, with any equally unquestionable; and, in case of post semblance of consistency, justice, or grace, roads, the occasional exercise of that power claim the right to use and impair it, by carrywould doubtless be, not only just, but greatly ing the mail upon it, in coaches, without paying advantageous. Where there shall not be, in every respect, a suitable post road, it is, in our opinion, the duty of the general government to employ all the means which shall be

to those who did make it with thier own private means, as much for the use and dilapidation of it as they have a legal right to exact and do receive, without objection, from

all others who enjoy the use of it, by travel ling upon it in carriages.

Wherefore, as, in every view we have taken of this case, no power of the general government has been either exercised, or resisted, or defied-it is clearly our opinion that Dickey, as mail contractor, can, as a matter of right, use the Lexington and Maysville turnpike

road only as others have a right to use it; and that, therefore, he may be, justly and consti tutionally, compelled to pay the prescribed toll for such use as he shall elect to make of it for his own advantage and convenience.

It is therefore considered, that the judgment of the Circuit Court against the appellant be affirmed.

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Gilbert C. Russell, once a Colonel in the| army of the United States, bought from Dr. John Floyd, of Virginia, a tract of land near the city of Louisville, Kentucky for the consideration of $12,960; and on the 22nd of May, 1826, Floyd and his wife conveyed to Russell the legal title to the land described as containing 216 acres-See bill, p. 5, of printed Record; Floyd's deed, p. 12, and deposition of R. Smith, p. 248.

On a subsequent visit to Louisville, in Oct., 1830, Russell having discovered that the ag gregate sum, to-wit: $4,829 82%, acknowl edged to have been received from Southard, was $100 more than the amount actually or or nominally advanced; and, finding himself disabled by misfortune from then repaying the money he had received, demanded of Southard $100 so as to make the sum nominally received equal to that for which he conveyed the land. Southard, after much diplomacy, finally paid him $100, and took from him on the 6th of October, 1830, a writing acknowledging the payment, for the purpose avowed by Russell, and, "in full for all demands.”

Daniel R. Southard, who was present at the execution of the conveyance by Russell to his testator, had owned one of the claims assigned to Russell, and drew the defeasance, as he avers in his answer; Wordan Pope, a lawyer, having, at the instance of James Southard, drawn the absolute deed, and probably the defeasance also, which was copied by D. R. Southard.

As it was not then convenient for Russell to reside on the land thus bought, he placed on it J. W. Wing, as his agent and manager. On revisiting Louisville in September, 1827, from his residence in Alabama, Russell ascertained that Wing had incurred debts which could James Southard took possession of the land not then be paid otherwise than by borrowing immediately after the date of the written memoney or selling the farm :--and his desire to morials of the contract, and retained the posraise, in one mode or the other, a fund suffi-session until his death in the year 1840, when, cient for paying those debts, being made known by his will, his interest passed to his brother, he was offered $10,000 for his land in real esstate in Huntsville, Alabama--See the deposition of C. Talbot, p. 186. But, unwilling to accede to that offer for a purchase, Russell, thus unexpectly pressed for money far from home, made an arrangement with James Southard, of Louisville, whereby he obtained from Southard an advance of $2,000, (the sum he needed,) and also took an equitable assignment of two claims of doubtful value then in On the 23d of September, 1847, Russell, as litigation-one on Dr. Johnson for $1,270 94, a citizen of the State of Alabama, filed a bill and the other on S. M. Brown for $1,558 87%; in chancery against D. R. Southard and others, each of which Southard carefully assigned to as citizens of Kentucky, in the circuit court of him without recourse, and exacted from him the United States for Kentucky, alledging, an acknowledgment of the receipt of $4,929 among other things, that the contract between 81, in "coin" of the United States. Russell's J. Southard and himself was not a sale, but interpretation of this arrangement was, that only a mortgage for securing the repayment it was a loan to be secured by a mortgage on of a loan; that the advance of the considerathe land he had purchased from Floyd; which tion recited in the written memorials was a he considered as effectuated by a conveyance signed by him on the 24th of September, 1827, purporting to be absolute on its face--See p. 14-15, and by a separate defeasance signed both by Russell and Southard, of the same date-See p. 179.

By a writing simultaneously executed by Russell, he covenanted to procure his wife's relinquishment of dower within four months from that date; and covenanted that, in the event of a failure to do so, he would pay to Southard $,3,000, "as liquidated damages for that failure"-See p. 14.

loan; that the defeasance showed by its terms, that the absolute conveyance was intended to operate only as a mortgage; that D. R. Southard had fraudulently procured and still with. held from him the document of defeasance; that his (Russell's) embarrassments had prevented a redemption; that both J. & D. R. Southard had, ever since they had fraudu lently obtained the receipt and the possession of the defeasance, persisted in the false and fraudulent pretence that the contract was a conditional sale and not a mortgage, &c. &c., and, after propounding to the defendant, Southard, various interrogatories, concluding

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