Under the second section of the Act of Congress approved July
17, 1862, 12 Stat. 592, which declares that
"No private corporation, banking association, firm, or
individual shall make, issue, circulate, or pay out any note,
check, memorandum, token, or other obligation for a less sum than
one dollar intended to circulate as money, or to be received or
used in lieu of lawful money of the United States,"
A. was indicted for circulating obligations in the following
form:
"BANGOR, MICH., Aug. 15, 1874"
"The Bangor Furnace Company will pay the bearer, on demand,
fifty cents in goods, at their store, in Bangor, Mich."
"[Signed]"
"A. B. HOUGH,
Pres."
"CHAS. D. RHODER,
Treas."
The indictment charged that he intended them to circulate as
money, and to be received and used in lieu of lawful money of the
United States.
Held that, as the obligations were payable
in goods and not in money, and the sum of fifty cents was named
merely as the limit of the value of the goods demandable, the
indictment was bad on demurrer.
The facts are stated in the opinion of the Court.
Page 96 U. S. 367
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The Act of Congress of July 17, 1862, sec. 2, 12 Stat. 592;
Rev.Stat. 711, sec. 3583, declares that
"No private corporation, banking association, firm, or
individual shall make, issue, circulate, or pay out any note,
check, memorandum, token, or other obligation for a less sum than
one dollar intended to circulate as money, or to be received or
used in lieu of lawful money of the United States,"
and denounces as a penalty for the offense fine or imprisonment
or both.
Van Auken was indicted under this act for circulating the
"obligations" of the Bangor Furnace Company, a corporation created
by and under the laws of the State of Michigan, which obligations
are alleged to be
in haec verba:
"BANGOR, MICH., Aug. 15, 1874"
"The Bangor Furnace Company will pay the bearer, on demand,
fifty cents, in goods, at their store, in Bangor, Mich."
"[Signed]"
"A. B. HOUGH,
Pres."
"CHAS. D. RHODER,
Treas."
"Each of which said obligations was for a less sum than one
dollar, and was intended by the said Aaron Van Auken to circulate
as money, and to be received in lieu of lawful money of the United
States, contrary,"
&c.
Van Auken demurred to the indictment. The opinions of the judges
of the circuit court were divided and opposed upon two questions,
which were thereupon certified to this court for final
determination:
1. Whether the obligation set forth in the indictment is within
any valid statute of the United States.
2. Whether the statute under which the indictment was found is
constitutional.
The solution of the first question depends upon the construction
to be given to the words "for a less sum than one dollar." The
object of the provision was obviously to secure, as far as
possible, the field for the circulation of stamps, as provided in
the preceding section, without competition from any quarter. This
currency was superseded by the fractional notes authorized to be
issued by the Act of March 3, 1863, sec. 4, 12 Stat. 711. Small
notes payable in any specific articles, if issued, could
Page 96 U. S. 368
have only a neighborhood circulation, and but a limited one
there. It could be but little in the way of the stamps or small
notes issued for the purposes of circulating change by the United
States. Congress could therefore have had little or no motive to
interfere with respect to the former. This must be borne in mind in
the examination of the question in hand.
A dollar is the unit of our currency. It always means money, or
what is regarded as money. In this case, the statute makes it the
standard of measure with reference to the forbidden notes and
obligations. If one of them be for a larger "sum than one dollar,"
it is not within the prohibition, and is not affected by the law.
It is a fair, if not a necessary, inference that the standard of
measurement named was intended to be applied only to things
ejusdem generis -- in other words, to notes for money and
to nothing else.
It is certainly inapplicable to anything not measurable by the
pecuniary standard. It could not be applied where the measurement
was to be,
ex gratia, by the pound, the gallon, the yard,
or any other standard that money. This view is supported by the
statutory requirement that the forbidden thing must be "intended to
circulate as money or to be received or used in lieu of the lawful
money of the United States." One of the lexical definitions of the
word "sum," and the sense in which it is most commonly used, is
"money." "Sum. (2) A quantity of money or currency; any amount
indefinitely, as a sum of money, a small sum, or a large sum."
Webster's Dic. "For a less sum than one dollar" means exactly the
same thing as for a less sum of money than one dollar. In the
former case, there is an ellipsis. In the latter, it is supplied.
The implication where the omission occurs is as clear and effectual
as the expression where the latter is added. The grammatical
construction and the obvious meaning are the same. The statute
makes the offense to consist of two ingredients: 1. The token or
obligation must be for a less sum than a dollar. 2. It must be
intended to circulate as money, or in lieu of the money of the
United States. Here the note is for "goods," to be paid at the
store of the Furnace Company. It is not payable in money, but in
goods, and in goods only. No money could be demanded upon it. It is
not solvable in that medium.
Watson
Page 96 U. S. 369
v. McNairy, 1 Bibb, 356. The sum of "fifty cents" is
named, but merely as the limit of the value in goods demandable and
to be paid upon the presentment of the note. Its mention was for no
other purpose, and has no other effect. In the view of the law, the
note is as if it called for so many pounds, yards, or quarts of a
specific article. The limit of value, there being none other, gave
the holder a range of choice as to the articles to be received in
payment, limited only by the contents of the store.
But it is said the indictment avers that the note was intended
to circulate as money, and that the demurrer admits the truth of
the averment.
To this there are two answers:
1. The demurrer admits only what is well pleaded.
2. The offense, as we have shown, consists of two elements: the
thing circulated, and the intent of the party circulating it.
The demurrer, at most, admits only the latter. As to the former,
the judgment of the court is left unfettered, just as if the
question before us had been raised by a motion to quash, instead of
a demurrer.
The first question certified must be answered in the negative.
The second one it is, therefore, unnecessary to consider.
MR. JUSTICE MILLER dissented.