United States v. Fairchilds.

defining the offense charged in this case? The words of the Constitution are: "Congress shall have power to raise and support armies," and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States." Art. I. § 8.

The supreme court of the United States, in McCulloch v. State of Maryland, 4 Wheat. 316, hold that "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 ;" and that "a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depend, must also be intrusted with ample means for their execution." That the Constitution of the United States "does not profess to enumerate the means by which the powers it confers may be executed;" that "the government which has a right to do an act, and has imposed upon it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means."

By the aid of the profound views thus expressed by Chief Justice MARSHALL, let us examine the question before us. Congress is expressly empowered to "raise and support armies," and we shall do well to remember that Congress is to be allowed, according to the ruling I have read, to select the means by which armies are to be raised and supported. In selecting the means to accomplish these things, we find pay, bounties, and pensions are stipulated and promised to the soldier. Through these means, thousands who could not otherwise afford to leave all and enter the military service, come forward, enlist, and do battle to protect and defend

United States v. Fairchilds.

the rights, interests, and honor of the nation. By the use of these means the government is enabled readily to raise an army and fill its ranks from time to time.

Pensions and bounties are not given for the support of the army, but promised by way of inducement and reward for the citizen becoming a soldier and faithfully serving his country. There is no express power given in the constitution to Congress to give pensions or bounties to the soldier. The right is claimed, however, and has never been doubted as being within those incidental or implied powers flowing from the expressly granted or enumerated power, to "raise and support armies." They are among the means which it selects in the exercise of a granted power, and I apprehend Congress is the sole judge as to what means are appropriate and to be selected in the exercise of any of its enumerated powers. Most of the penal laws of the government of the United States rest upon the incidental or implied powers of Congress to punish violation of its laws. It was well argued by the district-attorney, that under the power to regulate commerce, Congress has passed laws regulating vessels engaged in carrying passengers, in prescribing the size of staterooms and otherwise, as well as in requiring vessels to convey disabled American seamen found in a foreign port to this country. And, again, laws forbidding the sale of bounty certificates, as well as many other statutes of a like character, none of which have been held unconstitutional, or judicially questioned, so far as I know; and yet these statutes find no sanction in the Constitution of the United States other than in the implied powers, and the general provision "to make all laws which shall be necessary and proper for carrying into execution" the powers vested in the government.

If, then, Congress may promise bounties and pensions to the nation's soldiers, may it not, by appropriate penalties, guard those rewards against him who

United States v. Fairchilds.

would divert them in any manner away from the beneficiary? If the soldier may lawfully be promised bounties and pensions, and if, from his occupation of arms and want of the requisite knowledge, he must employ another to prepare the requisite evidence to the pension office to bring him within the law and secure the promised bounty and pension, may not the government say to such employee: This money we pay to you for one of our soldiers, and you must pay it over to him intact; failing in which you make yourself liable to fine and imprisonment? True, the employee is the agent of the soldier in all that he does for him, but he must deal with the government in the exercise of that agency; and in taking such employment to secure for the discharged soldier his bounty or pension, he knows the restrictions placed by Congress upon the compensation he can receive, and the prohibition against his retaining any portion of the funds from the soldier. These provisions may be regarded as the terms and conditions upon which the government consents to recognize the agency of the person employed by the soldier, and pays the money over to such agent. Congress must alone be the sole judge of what is both necessary and expedient on any subject within the range of its powers to act.

"To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end." Congress has employed a means in raising and supporting armies, in addition to pay, clothing, &c.,-bounties and pensions; and has sought by appropriate penalties to guard these moneys through all channels from the nation's treasury into the hands of the pensioner.

Said the supreme court, in the case already referred to: "Let the end be legitimate; let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end,

United States v. Fairchilds.

which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."

I have endeavored to show not only that the end which the statute under consideration seeks is legitimate and within the scope of the Constitution, but that the means employed by Congress are appropriate and adapted to the end of raising and supporting armies, and therefore within the powers of Congress under the Constitution. Without entering upon a discussion whether the State may, in view of the legislation of Congress, impose a penalty upon the citizen for withholding the money in question, and alone regulate and control contracts between citizens of the State in reference to compensation for such services as those by Fairchilds for Penrose, it will be recollected that a law of Congress, if constitutional, prohibits and supersedes all State legislation on the same subject (1 Park. Cr. 67); that while the State law might control in reference to these questions, in the absence of any exercise by Congress of its constitutional powers on the subject, yet so far as Congress does constitutionally act, the State laws are so far superseded, and the citizen cannot be punished by both sovereignties for the same offense.

Sections 12 and 13 of the act of Congress are held to be constitutional. The demurrer is overruled, with leave to the defendant to plead to the indictment.

Demurrer overruled.

Haight v. Pittsburgh, Fort Wayne, & Chicago R. R. Co.

HAIGHT v. PITTSBURGH, FORT WAYNE, & CHICAGO RAILROAD COMPANY.

District Court; Western District of Pennsylvania, 1867.

INCOME TAX.-CORPORATE BONDS.

A stipulation in a mortgage by a corporation, requiring payment "without any deduction, &c., for or in respect of any taxes, charges, or assessments whatsoever," does not prevent the corporation from paying the income tax chargeable against the holder of the mortgage in respect to the interest accruing to him from time to time upon the mortgage, and deducting the amount paid from such interest.

Trial by the court.

This action was brought to recover arrears of interest upon bonds given by the defendants to the plaintiff, secured by a mortgage upon land. The defendants claimed to deduct from the interest due by the tenor of the bond, the amount of the income tax imposed by the internal revenue law upon the plaintiff, in respect of such interest, and which had been paid in behalf of plaintiff by defendants.

E. Knox, for the plaintiff.

E. Lawrie, for the defendants.

MCCANDLESS, J.-On April 10, 1857, Samuel Haight and wife conveyed to the Pittsburgh, Fort Wayne, &. Chicago Railroad Company a lot of ground in the city of Pittsburgh, for the sum of one hundred and five