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§ 180. “Other than State Banking.”

These words exclude from the jurisdiction of the Federal Parliament all laws relating to State banking. In the Sydney Convention (Debates, p. 1075) attention was called by Mr. Glynn to the vagueness of the phrase “State banking.” It was said that there are no real “State Banks” in any country in the world. There are great financial organizations such as the Bank of England, the Bank of France, the German Bank, and the Bank of the United States of America, over which the Government exercises certain control: which have certain exclusive privileges, including the conduct of government business, but which are not strictly speaking State Banks. A State Bank, properly so called, is an institution which is solely managed by the Government and the capital of


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which has been solely provided by the Government. The nearest known approach to a State Bank, within the above definition, is the Post Office Savings Bank, which is purely a State Institution. Such banks, and similar ones, which might be founded by the States, would under the above words be excepted from Federal control.

EXCEPTIONS TO GRANTS OF POWER.—The words, “other than State banking,” are equivalent to “except State banking;” they are words marking an exception to the general grant of power to legislate concerning banking. The Supreme Court of the United States, in construing the Constitution as to grants of powers to the United States, and the restrictions upon the States, has ever held that an exception of any particular case presupposes that those which are not excepted are embraced within the grant of power, and have laid it down as a general rule that, where no exception is made in terms, none will be made by mere implication or construction. (Rhode Island v. Massachusetts, 12 Pet. 657.) It is a rule of construction that the exception from a power marks its extent. (Gibbons v. Ogden, 9 Wheat. 191.) The fact that some powers are specified has been therefore held to import that those not specified were withheld, according to the old maxim, expressio unius exclusio alterius, which Lord Bacon concisely explains by saying, “as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.”

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