The Charleston Daily News

Legal Tenders Declared Unconstitutional in Kentucky

The Court of Appeals of the State of Kentucky has rendered a decision declaring the Legal Tender Act of Congress to be unconstitutional. Judge Robertson gave the opinion of the Court, declaring as follows:

Wherever a jurist inquires whether a statute is consistent with the State Constitution, he looks into that Constitution, not for a grant, but only for some limitation of the power inherent in the people's legislative organ so far as not forbidden by their organic law.

But, as Congress derives its power from grants by the people of pre-existing State sovereignties, an enlightened inquirer into the constitutionality of any of its acts looks only to a delegation of power by the Federal Constitution; for that Constitution expressly declares that all power not delegated by it is reserved to the States or to the people. In this class of cases, therefore, he who asserts the power holds the affirmative, and, unless he 'maintains it,' the controverted act should not be enforced as law by the judiciary. On the contrary, the party affirming that a legislative act of a State is prohibited by the State Constitution, must prove it; and unless the proof be clear, the contested act must be admitted to be law. The distinctive difference between the two classes of cases is, that in the former the power must be shown to have been delegated, but, in the latter, it must appear to have been prohibited.

And, in this case, therefore, the power to pass the Tender Act must satisfactorily appear to have been delegated before the judiciary should recognize and enforce it.