HKB
THE BORROWING POWER VERSUS THE FISCAL POWER
Usually the aggregate of the fiscal and monetary powers of the National Government--to lay and collect taxes, to borrow money and to coin money and regulate the value thereof--have reinforced each other, and, cemented by the necessary and proper clause, have provided a secure foundation for acts of Congress chartering banks and other financial institutions,[1128] or making its treasury notes legal tender in the payment of antecedent debts.[1129] But in 1935 the opposite situation arose--one in which the power to regulate the value of money collided with the obligation incurred in the exercise of the power to borrow money. By a vote of eight-to-one the Supreme Court held that the obligation assumed by the exercise of the latter was paramount, and could not be repudiated to effectuate the monetary policies of Congress.[1130] In a concurring opinion Justice Stone declined to join with the majority in suggesting that "the exercise of the sovereign power to borrow money on credit, which does not override the sovereign immunity from suit, may nevertheless preclude or impede the exercise of another sovereign power, to regulate the value of money; or to suggest that although there is and can be no present cause of action upon the repudiated gold clause, its obligation is nevertheless, in some manner and to some extent, not stated, superior to the power to regulate the currency which we now hold to be superior to the obligation of the bonds."[1131]
Clause 7. The Congress shall have Power * * * To establish Post Offices and post Roads.
The Postal Power
"ESTABLISH"
The great question raised in the early days with reference to the postal clause concerned the meaning to be given to the word "establish"--did it confer upon Congress the power to construct post offices and post roads, or only the power to designate from existing places and routes those that should serve as post offices and post roads? As late as 1855 Justice McLean stated that this power "has generally been considered as exhausted in the designation of roads on which the mails are to be transported," and concluded that neither under the commerce power nor the power to establish post roads could Congress construct a bridge over a navigable water.[1132] A decade earlier, however, the Court, without passing upon the validity of the original construction of the Cumberland Road, held that being "charged, * * *, with the transportation of the mails," Congress could enter a valid compact with the State of Pennsylvania regarding the use and upkeep of the portion of the road lying in that State.[1133] The debate on the question was terminated in 1876 by the decision in Kohl v. United States[1134] sustaining a proceeding by the United States to appropriate a parcel of land in Cincinnati as a site for a post office and courthouse.
POWER TO PROTECT THE MAILS
The postal powers of Congress embrace all measures necessary to insure the safe and speedy transit and prompt delivery of the mails.[1135] And not only are the mails under the protection of the National Government, they are in contemplation of law its property. This principle was recognized by the Supreme Court in 1845 in holding that wagons carrying United States mail were not subject to a State toll tax imposed for use of the Cumberland Road pursuant to a compact with the United States.[1136] Half a century later it was availed of as one of the grounds on which the national executive was conceded the right to enter the national courts and demand an injunction against the authors of any wide-spread disorder interfering with interstate commerce and the transmission of the mails.[1137]
ANTI-SLAVERY AND THE MAILS