Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States (136 U.S. 1)/Dissent Fuller

FULLER, C. J., with whom concurred FIELD and LAMAR, JJ., (dissenting.) I am constramed to dissent from the opinion and judgment just announced. Congress possesses such authority over the territories as the constitution expressly or by clear implication delegates. Doubtless territory may be acquired by the direct action of congress, as in the annexation of Texas; by treaty, as in the case of Louisiana; or, as in the case of California, by conquest, and afterwards by treaty; but the power of congress to legislate over the territories is granted in so many words by the constitution. Article 4, § 3, cl. 2. And it is further therein provided that 'congress shall have power * *  * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.' Article 1, § 8. In my opinion, congress is restrained, not merely by the limitations expressed in the constitution, but also by the absence of any grant of power, express orimplied, in that instrument. And no such power as that involved in the act of congress under consideration is conferred by the constitution, nor is any clause pointed out as its legitimate source. I regard it of vital consequence that absolute power should never be conceded as belonging under our system of government to any one of its departments. The legislative power of congress is delegated, and not inherent, and is therefore limited. I agree that the power to make needful rules and regulations for the territories necessarily comprehends the power to suppress crime; and it is immaterial, even though that crime assumes the form of a religious belief or creed. Congress has the power to extirpate polygamy in any of the territories, by the enactment of a criminal code directed to that end; but it is not authorized, under the cover of that power, to seize and confiscate the property of persons, individuals, or corporations, without office found, because they may have been guilty of criminal practices. The doctrine of cy-pres is one of construction, and not of administration. By it a fund devoted to a particular charity is applied to a cognate purpose, and if the purpose for which this property was accumulated was such as has been depicted, it cannot be brought within the rule of application to a purpose as nearly as possible resembling that denounced. Nor is there here any counterpart in congressional power to the exercise of the royal prerogative in the disposition of a charity. If this property was accumulated for purposes declared illegal, that does not justify its arbitrary disposition by judicial legislation. In my judgment, its diversion under this act of congress is in contravention of specific limitations in the constitution; unauthorized, expressly or by implication, by any of its provisions; and in disregard of the fundamental principle that the legislative power of the United States, as exercised by the agents of the people of this republic, is delegated, and not inherent.