that situation might be, the question may well be supposed not to have been investigated at that time, and the expressions of the section were probably not considered with a view to any influence they might have on those rights.

* 395

* After maturely considering this doubtful statute, and comparing it with other acts in pari materia, it is the opinion of the majority of the court, that the preference given to the United States by the 5th section is not confined to revenue officers and persons accountable for public money, but extends to debtors generally.

Supposing this distinction not to exist, it is contended that this priority of the United States cannot take effect in any case where suit has not been instituted; and in support of this opinion several decisions of the English judges with respect to the prerogative of the crown have been quoted.

To this argument the express words of the act of Congress seem to be opposed. The legislature has declared the time when this priority shall have its commencement; and the court think those words conclusive on the point. The cases certainly show that a bona fide alienation of property before the right of priority attaches will be good, but that does not affect the present case. From the decisions on this subject a very ingenious argument was drawn by the counsel who made this point. The bankrupt law, he says, does not bind the king because he is not named in it; yet it has been adjudged that the effects of a bankrupt are placed beyond the reach of the

king by the assignment made under that law, unless they shall have been previously bound. He argues, that according to the understanding of the legislature, as proved by their acts relative to insolvent debtors, and according to the decisions in some of the inferior courts, the bankrupt law would not bind the United States although the 62d section had not been inserted. That section, therefore, is only an expression of what would be law without it, and, consequently, is an immaterial section; as the king, though not bound by the bankrupt law, is bound by the assignment made under it; so, he contended, that the United States, though not bound by the law, are bound by the assignment.

But the assignment is made under and by the direction of the law; and a proviso that nothing contained in the law shall affect the right of preference claimed by the United States, is equivalent to a proviso that the assignment shall not affect the right of preference claimed by the United States.

* 396

*If the act has attempted to give the United States a preference in the case before the court, it remains to inquire whether the constitution obstructs its operation.

To the general observations made on this subject, it will only be observed, that as the court can never be unmindful of the solemn duty imposed on the judicial department when a claim is supported by an act which conflicts with the constitution, so the court can never be unmindful of its duty to obey laws which are authorized by that instrument.

In the case at bar, the preference claimed by the United States is not prohibited; but it has been truly said that under a constitution conferring specific powers, the power contended for must be granted, or it cannot be exercised.

It is claimed under the authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the government of the United States, or in any department or officer thereof.

In construing this clause it would be incorrect, and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power.

Where various systems might be adopted for that purpose, it might be said with respect to each, that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution.

The government is to pay the debt of the union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe.

This claim of priority on the part of the United States will, it has been said, interfere with the right of the state sovereignties respect

397

ing the dignity of debts, and will defeat the measures they have a right to adopt to secure themselves against delinquencies on the part of their own revenue officers.

But this is an objection to the constitution itself. The mischief suggested, so far as it can really happen, is the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of Congress extends.

As the opinion given in the court below was, that the plaintiffs did not maintain their action on the whole testimony exhibited, it is necessary to examine that testimony.

It appears that the plaintiffs have proceeded on the transcripts from the books of the treasury, under the idea that this suit is maintainable under the act of 1797. The Court does not mean to sanction that opinion; but, as no objection was taken to the testimony, it is understood to have been admitted. also understood that there is no question to be made respecting notice; but that the existence of the debt is admitted, and the right of the United States to priority of payment is the only real point in the cause.

It is

The majority of this court is of opinion that the United States are entitled to that priority, and, therefore, the judgment of the circuit court is to be reversed, and the cause to be remanded for further proceedings.

Fudgment reversed.

Hepburn and Dundas v. Ellzey.

66

NOTE.

THIS case decided that under the Judiciary Act a citizen of the District of Columbia had no right to bring an action in the federal courts against a citizen of a state. The decision, very briefly, is that the word "state" in the Constitution and the Judiciary Act means a member of the union only. The case is clear law and has been generally followed; with New Orleans v. Winter, Wheat., 94, which declares that a territory is not a state " for the purpose of suing in the United States Courts; it created the law on the subject. The doctrine was lately affirmed in Hooe v. Jamieson, 166 W. S., 395, and again recognized in the recent insular cases, where in the opinion of the court in Downes v. Bidwell, 182 W. S., 244, 259, it is cited as an authority for the broader proposition that the Constitution does not extend ex proprio vigore to the territorial possessions of the United States. Grouping the case with other cognate decisions by Marshall, New Orleans v. Winter supra, Loughborough v. Blake, 5 Wheat., 317, and American Ins. Co. v. Canter, 1 Pet., 511 (all reprinted in these volumes), the case surely has a bearing on that point, but the weight and authority given to these opinions of Marshall in the recent cases before the Supreme Court, notwithstanding their remoteness from the actual question at issue, is a notable example of the magical power of Marshall's name in the courts to-day.