§ 11. The American Municipality.-The early American municipalities were modeled on the English municipality as it existed in the seventeenth century. The city authority was in the town council, which was composed of the mayor, recorder, aldermen and councilmen. They were organized for the satisfaction of purely local needs, such as the management of the corporate property and finances, and the enactment of local police ordinances. The affairs of the colony within the municipality were attended to by a body of officers similar to those in the county and rural districts. But gradually the municipalities lost their local character and began to be used by the state as agencies of the state government. The corporation, which originally consisted of the members of the council, came to be regarded as consisting of the people residing within the district. The state made use of the city officials for the purposes of state administration, and used the municipality as an agency for the collection of taxes. The cities thus largely lost the power of regulating their purely local affairs; and instead of being organs for the satisfaction of local needs in accordance with the wishes of the inhabitants became the agencies of the state government, very much in the same manner as counties and other subdivisions of the state.11 The plan of organization also changed. Instead of the consolidation of the powers and functions in the council, they were separated and distributed among the council and the executive officers. The duty of deliberation is now generally left to the council, although it often exercises administrative power; while that of execution and administration is left to officers selected for that purpose. the other towns. Most of the towns anticipated the attack by voluntarily surrendering their charters, in the place of which they received new ones "after a conservative pattern." The justices of assize especially abused their official powers to this end. Jeffreys, on the northern circuit, "made all charters fall before him like the walls of Jericho, and returned to London laden with the surrenderings, the spoils of the towns." Gneist, Const. History of England, II, p. 308. 14-United States v. B. & O. Ry. Co., 17 Wall. (U. S.) 322. CHAPTER IV. THE FEDERAL GOVERNMENT AND THE STATES.1 M'CULLOCH V. STATE OF MARYLAND. Supreme Court of the United States. 1819. Error to the court of appeals of the State of Maryland. (In April, 1816, Congress incorporated the Bank of the United States. In February, 1818, the general assembly of Maryland imposed "a tax on all banks, or branches thereof, in the State of Maryland, not chartered by the legislature." McCulloch, the cashier of the branch of the Bank of the United States established in the city of Baltimore, violated the latter act by issuing notes upon unstamped paper. The question submitted to the court for their decision in this case is as to the validity of the said act of the general assembly of Maryland, on the ground of its being repugnant to the Constitution of the United States, and the act of Congress aforesaid, or one of them.) MARSHALL, C. J., delivered the opinion of the court. The first question made in the cause is, has Congress power to incorporate a bank? In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the Constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion. It would be difficult to sustain this proposition. The convention which framed the Constitution was, indeed, elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It 1 The cases collected in this chapter have, with the permission of the publishers, been taken from Boyd's Cases on American Constitutional Law. In most instances further considerable portions of the opinions have been omitted. 212 was reported to the then existing Congress of the United States, with a request that it might "be submitted to a convention of delegates, chosen in each State, by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by Congress, and by the State legislatures, the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively, and wisely on such a subject, by assembling in convention. It is true, they assembled in their several States; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. The government of the Union, then (whatever may be the influence of this fact in the case), is emphatically and truly a government of the people. In form and in substance it emanates from them, its powers are granted by them, and are to be exercised directly on them, and for their benefit. This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising and will probably continue to arise, as long as our system shall exist. Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Although, among the enumerated powers of government, we do not find the word "bank," or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct war; and to raise and support armies and navies. The sword and the purse, all the external rela tions, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may, with great reason, be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require, that the treasure raised in the North should be transported to the South, that raised in the East conveyed to the West, or that this order should be reversed. Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction (unless the words imperiously require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed. It is not denied, that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigencies of the nation may require, and of employing the usual means of conveyance. But it is denied that the government has its choice of means; or, that it may employ the most convenient means, if, to employ them, it be necessary to erect a corporation. The creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion of sovereignty does it appertain? Does it belong to one more than to another? In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. We cannot comprehend that train of reasoning which would maintain, that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some State Constitutions were formed before, some since that of the United States. We cannot believe that their relation to each other is in any degree dependent upon this circumstance. Their respective powers must, we think, be precisely the same as if they had been formed at the same time. Had they been formed at the same time, and had the people conferred on the general government the power contained in the Constitution, and on the States the whole residuum of power, would it have been asserted that the government of the Union was not sovereign with respect to those objects which were intrusted to it, in relation to which its laws were declared to be supreme? If this could not have been asserted, we cannot well comprehend the process of reasoning which maintains, that a power appertaining to sovereignty cannot be connected with that vast portion of it which is granted to the general government, so far as it is calculated to subserve the legitimate objects of that government. The power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be implied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No contributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity; no seminary of learning is instituted in order to be incorporated, but the corporate character is conferred to subserve the purposes of education. No city was ever built with the sole object of being incorporated, but is incorporated as affording the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them. But the Constitution of the United States has not left the right of Congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To |