THE SURPLUS NOT SQUANDERED.

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scramble. In some States a pro rata division of the money per capita was made; and the distributive share of each individual, being but a few shillings, was received with contempt by some, and rejected with scorn by others. In other States it was divided among the counties, and gave rise to disjointed undertakings of no general benefit. Others, again, were stimulated, by the unexpected acquisition of a large sum, to engage in large and premature works of internal improvement, embarrassing the State with debt, and commencing works which could not be finished."

This paragraph conveys a wrong impression. It is generally believed that the moneys deposited by the Government with the different States were, for the most part, wasted or employed in works of internal improvement which were unnecessary. The data for a full investigation of this subject are not at hand, but it is known that the States of Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, Illinois, Indiana, Kentucky, Ohio, and Missouri appropriated a considerable portion of the income from this fund to the support of public schools; and that in some of these States the income from the whole fund has been from the commencement, and still is, devoted to the education of the people. In some instances the States used the funds for internal improvements, but provided by legislation for the appropriation of an amount equal to the interest for the support of public schools, which was similar to an investment in the bonds of the State.

A claim has been made within a few months (1884) upon the Secretary of the Treasury, under authority of

an act passed by the Legislature of the State of Virginia, for the deposit of the amount of the fourth instalment ($732,809.33) under the act of June 23, 1836. A similar claim has also been made by the Treasurer of the State of Arkansas, through Senator Garland, of that State, to which the Secretary replied, on October 8, 1883: "I find that the tradition of this department for over a dozen years has been to consider that act as obsolete, or at least not imperatively effective during a season of large public federal indebtedness. I can for the present follow in the path of my predecessors in the office of the Secretary of the Treasury."

A petition was subsequently made to the Supreme Court of the United States, by the State of Virginia, through its properly authorized agent, for a writ of mandamus upon the Secretary of the Treasury, to compel him to pay to that State the amount of the fourth instalment of surplus alleged to be due under the provisions of the act of June 23, 1836. The court, on March 17, 1884, held that there was no case for a mandamus, and that the Secretary of the Treasury has no authority under existing legislation, and without further direction from Congress, to use the surplus revenue in the treasury, from whatever source derived, or whenever, since January 1, 1839, it may have accrued, for the purpose of making the fourth instalment of deposit required by the act of 1836.

APPENDIX.

SUPREME COURT OF THE UNITED STATES.

No. 9.-October Term, 1883.

AUGUSTUS D. JUILLIARD, plaintiff in error, vs. THOMAS S. GREENMAN. In error to the Circuit Court of the United States for the Southern District of New York

Congress has the constitutional power to make the treasury notes of the United States a legal tender in payment of private debts in time of peace as well as in time of war.

Under the act of May 31, 1878, chapter 146, which enacts that notes of the United States issued during the war of the rebellion under acts of Congress declaring them to be a legal tender in payment of private debts, and since the close of that war redeemed and paid in gold coin at the treasury, shall be reissued and kept in circulation, notes so reissued are a legal tender.

[March 3, 1884.]

Mr. Justice GRAY delivered the opinion of the court.

Juilliard, a citizen of New York, brought an action against Greenman, a citizen of Connecticut, in the Circuit Court of the United States for the Southern District of New York, alleging that the plaintiff sold and delivered to the defendant, at his special instance and request, one hundred bales of cotton, of the value and for the agreed price of $5,122.90, and that the defendant agreed to pay that sum in cash on the delivery of the cotton, and had not paid the same, or any part thereof, except that he had paid the sum of $22.90 on account, and was now justly indebted to the plaintiff therefor in the sum of

$5,100, and demanding judgment for this sum with interest and costs.

The defendant in his answer admitted the citizenship of the parties, the purchase and delivery of the cotton, and the agreement to pay therefor, as alleged; and averred that after the delivery of the cotton he offered and tendered to the plaintiff, in full payment, $22.50 in gold coin of the United States, forty cents in silver coin of the United States, and two United States notes, one of the denomination of $5,000 and the other of the denomination of $100, of the description known as United States legal-tender notes, purporting by recital thereon to be legal tender, at their respective face values, for all debts, public and private, except duties on imports and interest on the public debt, and which, after having been presented for payment, and redeemed and paid in gold coin, since January 1, 1879, at the United States sub-Treasury in New York, had been reissued and kept in circulation under and in pursuance of the act of Congress of May 31, 1878, chapter 146; that at the time of offering and tendering these notes and coin to the plaintiff the sum of $5,122.90 was the entire amount due and owing in payment for the cotton, but the plaintiff declined to receive the notes in payment of $5,100 thereof; and that the defendant had ever since remained, and still was, ready and willing to pay to the plaintiff the sum of $5,100 in these notes, and brought these notes into court, ready to be paid to the plaintiff if he would accept them.

The plaintiff demurred to the answer upon the grounds that the defence, consisting of new matter, was insufficient in law upon its face, and that the facts stated in the answer did not constitute any defence to the cause of action alleged.

The Circuit Court overruled the demurrer and gave judgment for the defendant, and the plaintiff sued out his writ of error.

The amount which the plaintiff seeks to recover, and which, if the tender pleaded is insufficient in law, he is entitled to recover, is $5,100. There can, therefore, be no doubt of the jurisdiction of this court to revise the judgment of the Circuit Court (act of February 16, 1875, ch. 77, sec. 3; 18 Stat., 315).

The notes of the United States, tendered in payment of the defendant's debt to the plaintiff, were originally issued under the acts of Congress of February 25, 1862, ch. 33, July 11, 1862, ch. 142, and March 3, 1863, ch. 73, passed during the war of the rebellion, and enacting that these notes should "be lawful money and a legal tender in payment of all debts, public and private, within the United States," except for duties on imports and interest on the public debt (12 Stat., 345, 532, 709).

The provisions of the earlier acts of Congress, so far as it is necessary for the understanding of the recent statutes to quote them, are re-enacted in the following provisions of the Revised Statutes:

"SEC. 3579. When any United States notes are returned to the treasury, they may be reissued, from time to time, as the exigencies of the public interest may require.

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“SEC. 3580. When any United States notes returned to the treasury are so mutilated or otherwise injured as to be unfit for use, the Secretary of the Treasury is authorized to replace the same with others of the same character and amounts.

"SEC. 3581. Mutilated United States notes, when replaced according to law, and all other notes which by law are required to be taken up and not reissued, when taken up shall be destroyed in such manner and under such regulations as the Secretary of the Treasury may prescribe.

"SEC. 3582. The authority given to the Secretary of the Treasury to make any reduction of the currency, by retiring and cancelling United States notes, is suspended."

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'SEC. 3588. United States notes shall be lawful money and a legal tender in payment of all debts, public and private, within the United States, except for duties on imports and interest on the public debt."

The act of January 14, 1875, chapter 15, "To provide for the resumption of specie payments," enacted, that on and after January 1, 1879, "the Secretary of the Treasury shall redeem in coin the United States legal-tender notes then outstanding, on their presentation for redemption at the office of the Assistant Treasurer of the United States in the city of New York, in