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CRAIG AND OTHERS v. THE STATE OF MISSOURI.

JANUARY TERM, 1830.

[4 Peters's Reports, 411-465.]

In 1821 the state of Missouri established loan offices, from which certificates issued bearing two per cent. interest, and receivable for debts due the state. Craig and others borrowed some of these certificates, and gave their note therefor. The note was not paid, and the state sued them. The state courts having decided against Craig, he sued out his writ of error to the United States supreme court, the opinion of which was given by the chief justice as follows:

This is a writ of error to a judgment rendered in the court of last resort, in the state of Missouri, aflirming a judgment obtained by the state in one of its inferior courts against Hiram Craig and others, on a promissory note.

The judgment is in these words: "And afterwards, at a court," &c., "the parties came into court by their attorneys, and, neither party desiring a jury, the cause is submitted to the court; therefore, all and singular the matters and things being seen and heard by the court, it is found by them that the said defendants did assume upon themselves, in manner and form as the plaintiff by her counsel alleged. And the court also find that the consideration, for which the writing declared upon and the assumpsit was made, was for the loan of loan-office certifi cates, loaned by the state at her loan office at Chariton; which certificates were issued, and the loan made, in the manner pointed out by an act of the legislature of the said state of Missouri, approved the twenty-seventh day of June, 1821, entitled "An Act for the Establishment of Loan Offices," and the acts amendatory and supplementary thereto; and the court do

further find that the plaintiff has sustained damages by reason of the non-performance of the assumptions and undertakings of them, the said defendants, to the sum of two hundred and thirty-seven dollars and seventy-nine cents, and do assess her damages to that sum. Therefore, it is considered," &c.

The first inquiry is into the jurisdiction of the court.

The twenty-fifth section of the judicial act declares "that a final judgment or decree, in any suit in the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question ""the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision in favor of such, their validity" "may be re-examined, and reversed or affirmed in the supreme court of the United States."

To give jurisdiction to this court, it must appear in the record, 1. That the validity of a statute of the state of Missouri was drawn in question, on the ground of its being repugnant to the constitution of the United States; 2. That the decision was in favor of its validity.

1. To determine whether the validity of a statute of the state was drawn in question, it will be proper to inspect the pleadings in the cause, as well as the judgment of the court.

The declaration is on a promissory note, dated on the first day of August, 1822, promising to pay to the state of Missouri, on the first day of November, 1822, at the loan office in Chariton, the sum of one hundred and ninety-nine dollars, ninety-nine cents, and the two per cent. per annum, the interest accruing on the certificates borrowed, from the first of October, 1821. This note is obviously given for certificates loaned under the "Act for the Establishment of Loan Offices." That act directs that loans on personal securities shall be made of sums less than two hundred dollars. This note is for one hundred and ninety-nine dollars, ninety-nine cents. The act directs that the certificates issued by the state shall carry two per cent. interest from the date, which interest shall be calculated

on the amount of the loan. The note promises to repay the sum, with the two per cent. interest, accruing on the certificates borrowed, from the first day of October, 1821. It cannot be doubted that the declaration is on a note given in pursuance of the act which has been mentioned.

Neither can it be doubted. that the plea of non-assumpsit allowed the defendants to draw into question, at the trial, the validity of the consideration on which the note was given. Everything which disaffirms the contract, everything which shows it to be void, may be given in evidence on the general issue in an action of assumpsit. The defendants, therefore, were at liberty to question the validity of the consideration which was the foundation of the contract, and the constitutionality of the law in which it originated.

Have they done so ?

Had the cause been tried before a jury, the regular course would have been to move the court to instruct the jury that the act of assembly, in pursuance of which the note was given, was repugnant to the constitution of the United States, and to except to the charge of the judges, if in favor of its validity; or a special verdict might have been found by the jury, stating the act of assembly, the execution of the note in payment of certificates loaned in pursuance of that act, and referring its validity to the court. The one course or the other would have shown that the validity of the act of assembly was drawn into question, on the ground of its repugnancy to the constitution; and that the decision of the court was in favor of its validity. But the one course or the other would have required both a court and jury. Neither could be pursued where the office of the jury was performed by the court. In such a case, the obvious substitute for an instruction to the jury, or a special verdict, is a statement by the court of the points in controversy on which its judgment is founded. This may not be the usual mode of proceeding, but it is an obvious mode; and if the court of the state has adopted it, this court cannot give up substance for form.

The arguments of counsel cannot be spread on the record. The points urged in argument cannot appear. But the motives stated by the court on the record for its judgment, and which form a part of the judgment itself, must be considered as exhibiting the points to which those arguments were directed, and the judgment as showing the decision of the court upon those points. There was no jury to find the facts and refer the law to the court; but if the court which was substituted for the jury has found the facts on which its judgment was rendered, its finding must be equivalent to the finding of a jury. Has the court, then, substituting itself for a jury, placed facts upon the record, which, connected with the pleadings, show that the act in pursuance of which this note was executed was drawn into question, on the ground of its repugnancy to the constitution?

After finding that the defendants did assume upon themselves, &c., the court proceeds to find "that the consideration, for which the writing declared upon and the assumpsit was made, was the loan of loan-office certificates loaned by the state at her loan office at Chariton; which certificates were issued, and the loan made, in the manner pointed out by an act of the legislature of the said state of Missouri, approved the 27th of June, 1821, entitled," &c.

Why did not the court stop immediately after the usual finding that the defendants assumed upon themselves? Why proceed to find that the note was given for loan-office certificates issued under the act contended to be unconstitutional, and loaned in pursuance of that act, if the matter thus found was irrelevant to the question they were to decide?

Suppose the statement made by the court to be contained in the verdict of a jury which concludes with referring to the court the validity of the note thus taken in pursuance of the act; would not such a verdict bring the constitutionality of the act, as well as its construction, directly before the court? We think it would; such a verdict would find that the consideration of the note was loan-office certificates, issued and loaned in the

manner prescribed by the act. What could be referred to the court by such a verdict, but the obligation of the law? It finds that the certificates for which the note was given were issued in pursuance of the act, and that the contract was made in conformity with it. Admit the obligation of the act, and the verdict is for the plaintiff; deny its obligation, and the verdict is for the defendant. On what ground can its obligation be contested, but its repugnancy to the constitution of the United States? No other is suggested. At any rate it is open to that objection. If it be, in truth, repugnant to the constitution of the United States, that repugnancy might have been urged in the state, and may, consequently, be urged in this court; since it is presented by the facts in the record, which were found by the court that tried the cause.

It is impossible to doubt, that, in point of fact, the constitutionality of the act, under which the certificates were issued that formed the consideration of this note, constituted the only real question made by the parties, and the only real question decided by the court. But the record is to be inspected with judicial eyes; and as it does not state in express terms that this point was made, it has been contended that this court cannot assume the fact that it was made or determined in the tribunal of the state.

The record shows distinctly that this point existed, and that no other did exist; the special statement of facts made by the court, as exhibiting the foundation of its judgment, contains this point and no other. The record shows clearly that the cause did depend, and must depend, on this point alone. If in such a case the mere omission of the court of Missouri to say, in terms, that the act of the legislature was constitutional, withdraws that point from the cause, or must close the judicial eyes of the appellate tribunal upon it; nothing can be more obvious than that the provisions of the constitution, and of an act of congress, may be always evaded; and may be often, as we think they would be in this case, unintentionally defeated.

But this question has frequently occurred; and has, we think,

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