If these positions be correct, is there not an end to this controversy? If the Bank of the Commonwealth is not the State, nor the agent of the State; if it possesses no more power than is given to it in the act of incorporation and precisely the same as if the stock were owned by private individuals, how can it be contended that the notes of the bank can be called bills of credit, in contradistinction from the notes of other banks?

If, in becoming an exclusive stockholder in this bank, the State imparts to it none of its attributes of sovereignty; if it holds the stock as any other stockholder would hold it, how can it be said to emit bills of credit? Is it not essential, to constitute a bill of credit within the Constitution, that it should be emitted by a State? Under its charter the bank has no power to emit bills which have the impress of the sovereignty, or which contain a pledge of its faith. It is a simple corporation, acting within the sphere of its corporate powers, and can no more transcend them than any other banking institution. The State, as a stockholder, bears the same relation to the bank as any other stockholder.

The funds of the bank, and its property of every description, are held responsible for the payment of its debts; and may be reached by legal or equitable process. In this respect it can claim no exemption. under the prerogatives of the State.

And if, in the course of its operations, its notes have depreciated like the notes of other banks, under the pressure of circumstances, still, it must stand or fall by its charter. In this its powers are defined, and its rights, and the rights of those who give credit to it, are guaranteed. And even an abuse of its powers, through which its credit has been impaired and the community injured, cannot be considered in this case.

We are of the opinion that the act incorporating the Bank of the Commonwealth was a constitutional exercise of power by the State of Kentucky; and, consequently, that the notes issued by the bank are not bills of credit, within the meaning of the Federal Constitution. The judgment of the court of appeals is therefore affirmed, with interest and costs.1

1 MR. JUSTICE STORY delivered a dissenting opinion.

In POINDEXTER v. GreenHow, 114 U. S. 283 (1885), the validity of certain bonds of the State of Virginia and the coupons attached thereto was called in question on the ground that they were bills of credit. On this point MR. JUSTICE MATTHEWS, in rendering the opinion of the court, uses the following language:

'The meaning of the term bills of credit,' as used in the Constitution, has been settled by decisions of this court. By a sound rule of interpretation, it has been construed in the light of the historical circumstances which are known to have led to the adoption of the clause prohibiting their emission by the States, and in view of the great public and private mischiefs experienced during and prior to the period of the War of Independence, in consequence of unrestrained issues, by the colonial and State governments, of paper money, based alone upon credit. The definition thus deduced was not founded on the abstract meaning of the words, so as to include everything in the nature of an obligation to pay money, reposing on the public faith, and subject

1

to future redemption, but was limited to those particular forms of evidences of debt, which had been so abused to the detriment of both private and public interests. Accordingly, Chief Justice Marshall, in Craig v. Missouri, 4 Pet. 410, 432, said, that 'bills of credit signify a paper medium intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society.' This definition was made more exact by merely expressing, however, its implications, in Briscoe v. The Bank of Kentucky, 11 Pet. 257, 314, where it was said: 'The definition, then, which does include all classes of bills of credit, emitted by the colonies or States, is a paper issued by the sovereign power, containing a pledge of its faith and designed to circulate as money.' And again, p. 318, To constitute a bill of credit, within the Constitution, it must be issued by a State, on the faith of the State, and be designed to circulate as money. It must be a paper which circulates on the credit of the State, and is so received and used in the ordinary business of life.' The definition was repeated in Darrington v. The Bank of Alabama, 13 How. 12.

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"It is very plain to us that the coupons in question are not embraced within these terms. They are not bills of credit in the sense of this constitutional prohibition. They are issued by the State, it is true. They are promises to pay money. Their payment and redemption are based on the credit of the State, but they were not emitted by the State in the sense in which a government emits its treasury notes, or a bank its bank notes a circulating medium or paper currency - as a substitute for money. And there is nothing on the face of the instruments, nor in their form or nature, nor in the terms of the law which authorized their issue, nor in the circumstances of their creation or use, as shown by the record, on which to found an inference that these coupons were designed to circulate, in the common transactions of business, as money, nor that in fact they were so used. The only feature relied on to show such a design or to prove such a use is, that they are made receivable in payment of taxes and other dues to the State. From this it is argued that they would obtain such a circulation from hand to hand as money, as the demand for them, based upon such a quality, would naturally give. But this falls far short of their fitness for general circulation in the community, as a representative and substitute for money, in the common transactions of business, which is necessary to bring them within the constitutional prohibition against bills of credit. The notes of the Bank of the State of Arkansas, which were the subject of controversy in Woodruff v. Trapnall, 10 How. 190, were, by law, receivable by the State in payment of all dues to it, and this circumstance was not supposed to make them bills of credit. It is true, however, that in that case it was held they were not so because they were not issued by the State and in its name, although the entire stock of the bank was owned by the State, which furnished the whole capi tal, and was entitled to all the profits. In this case the coupons were issued by the State of Virginia and in its name, and were obligations based on its credit, and which it had agreed as one mode of redemption, to receive in payment of all dues to itself in the hands of any holder; but they were not issued as and for money, nor was this quality impressed upon them to fit them for use as money, or with the design to facilitate their circulation as such. It was conferred, as is apparent from all the cir cumstances of their creation and issue, merely as an assurance, by way of contract with the holder, of the certainty of their due redemption in the ordinary transactions between the State treasury and the taxpayers. They do not become receivable in payment of taxes till they are due, and the design, we are bound to presume, was that they would be paid at maturity. This necessarily excludes the idea that they were intended for circulation at all."

ERROR to the Common Pleas of Berks County.

This was an action on the case in assumpsit, brought by Fegely & Brother against Charles B. Weaver, to recover the price of a large quantity of anthracite coal sold and delivered to the defendants by the ton. The only matter in dispute between the parties was, whether the ton consisted of 2,000 pounds, or 2,240 pounds avoirdupois. The plaintiffs contended for the former, the defendant for the latter.

The court below (JONES, P. J.) decided that 2,000 pounds constituted a ton, and directed the jury to make up their verdict accordingly.

The jury found for the plaintiff $167.95, and judgment was entered on the verdict. The defendant thereupon sued out this writ, and assigned for error:

1. The court erred in charging the jury as follows: "No act is produced by which Congress has at any time declared how many pounds shall make a ton. It is strange if there be not such an act, but we know of none such, and therefore treat the question as though there was none."

2. "The several States may legislate upon the subject as long as its ground is not covered by national legislation. Pennsylvania has so legislated with regard to the ton, and we believe her action to be constitutional and valid in the absence of national legislation."

3. "The plaintiff in this case is entitled to recover for 79 tons, 1,286 pounds of coals, sold and delivered, which is the Pennsylvania measure of the same, at 2,000 pounds to the ton, with interest from the 19th of March, 1855, to this day."

The opinion of the court was delivered by

LEWIS, C. J. The question raised in this case was decided in Evans v. Myers, 1 Casey, 114. It was not then supposed, by any one, that Congress had exercised their constitutional power to fix a standard of weights and measures. In the decision since pronounced by Judge Grier, in Holt v. The Steamer Miantonomi, it is fully conceded that they have not hitherto exercised that power. The same concession is made by Judge Story, in his Commentaries on the Constitution. The omission to exercise this power was in fact made a matter of complaint and remonstrance by the legislature of

Pennsylvania, in their resolutions of the 9th April, 1834, in which the general government was urged to perform this obligation. The act of assembly of the 15th April, 1834, is based upon the neglect of the Federal legislature in this particular, and it is, in that act, expressly provided that whenever Congress shall establish a standard of weights and measures, the standards named in the State law shall be made to conform to the act of Congress. It is an error to suppose that either the resolution of Congress of the 14th June, 1836, or the acts of 19th May, 1828, and 30th August, 1842, establish a standard of weights and measures, to regulate the business transactions of the people. The resolution of 1836 was nothing more than a preliminary step, looking to the exercise of the power at a future day. The act of 1828 had relation merely to the operations of the United States mint; and the act of 1842 was limited exclusively to the collection of the public revenue, under the tariff of that year. There is therefore no foundation whatever for the allegation that Congress has exercised this power, and that there is therefore any actual conflict between the State and National legislation on this subject.

But it seems to be thought, by the plaintiff in error, that the mere grant of the power to Congress, although not exercised by that body, extinguishes it in the States. This is contrary to the rule of construction adopted by all approved authorities. Alexander Hamilton, who was not likely to relinquish Federal authority where he could maintain it with any show of reason, states the rule thus: "This exclusive delegation, or rather this alienation of State sovereignty, exists only in three cases: 1st, Where the Constitution in express terms granted an exclusive authority to the Union; 2d, Where it granted an authority to the Union, and at the same time prohibited the States from exercising the like authority; 3d, Where it granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant." It is not pretended that the grant of the power to regulate weights and measures is exclusive in express terms, nor that the States are expressly prohibited from exercising it. The State sovereignties are therefore to be extinguished, as regards this subject, if at all, by mere implication. But that implication can only arise where the State authority is "absolutely and totally contradictory and repugnant" to the power delegated to Congress. These terms nec essarily imply the pre-existence of something to contradict or oppose. But there is nothing whatever either in the Constitution or in the acts of Congress, which the act of assembly in any respect contravenes or opposes. It is therefore perfectly constitutional. The true rule in this respect was correctly stated by Chief Justice Tilghman, in the celebrated case of Moore v. Houston, 3 S. & R. 179: "Where the authority of the States is taken away by implication, they may continue to act until the United States exercise their power, because, until such exercise, there can be no incompati

bility." The decision of the Supreme Court of Pennsylvania, in the case referred to, was affirmed in the Supreme Court of the United States. The frequent application of the principle settled in that case is familiar to all persons conversant with the operations of our government. Congress has power to provide for calling forth the militia, but the States may do the same, so that their enactments do not conflict with the acts of Congress. Moore v. Houston, 3 S. & R. 170; s. c. 5 Wheat. 1. Congress may establish uniform bankrupt laws, but the States may exercise the same power within their respective jurisdictions, so long as they do not conflict with existing regulations of Congress. Sturges v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 12 Wheat. 213; Boyle v. Zacharie, 6 Pet. 348. Congress may exercise the taxing power, and so may the States exercise general powers of the like kind. Congress have power to punish for counterfeiting the coin, and had power to punish for counterfeiting the notes of the Bank of the United States, and the States exercised the same power. Fox v. Ohio, 5 How. 432; White v. Commonwealth, 4 Binn. 418; Livingston v. Van Ingen, 9 Johns. Rep. 267. Congress may grant exclusive privileges for limited times to authors and inventors. The states did the same until Congress exercised the power. 9 Johns. 267. Congress have power to provide for the recaption of fugitive slaves. The States have the same power, so long as their enactments are not in conflict with the acts of Congress on the subject. It is true that this principle was denied by Justice Story, in Prigg v. Pennsylvania, 16 Peters, 539. But that opinion was on a question which did not arise in the case. It was one of the most mischievous heresies ever promulgated. It was never received as the true construction of the Federal Constitution, and the more recent case of Moore v. Illinois, 14 How. Rep. 13, shows that it was promulgated without the sanction of a majority of the court.

The United States courts have jurisdiction over controversies between citizens of different States, but no one has ever doubted the jurisdiction of the State courts over the same parties. To hold that the mere grant of power to the Federal government over any subject extinguishes State authority over the same subject, would invalidate thousands of judgments rendered by State courts, in controversies between citizens of different States. In every State in the Union weights and measures have been constantly governed either by a standard established by a State statute, or by the common law of the State. The power of each State to establish its own common law on this subject has never been denied. If the States have this power, they certainly have the power to enact statutes. The power being acknowledged, it is not for the Federal government to interfere with the manner of exercising it. To deny the existence of this authority now, would overturn the practice which has been uniformly acted on by all the States during the whole period of their political existence. It would throw all past transactions into confusion, and leave the