government. The same may be said of all the evidencesof the public debt, United States bonds and other securi ties, of whatever character, and however held. Neither may a state tax be laid upon the salaries of officers of the United States: such officers, of whatever character or capacity, being also necessary instruments to the due administration of the federal government, and their salaries the necessary means of securing their services." The allowance to them, rests in the discretion of congress. The presumption is that the compensation given by law is no more than the services are worth, and only such in amount as will secure from the officer the diligent performance of his duties. The officers execute their offices for the public: good. This implies their right of reaping from thence. the recompense their services deserve; without that recompense being in any way lessened, except by the sovereign power from whom the officer derives his appointment, or by another sovereign power to whom the first has delegated the right of taxation over all the objects of 1 Weston v. City Council of Charleston, 2 Pet. 449. 2 In the case of The Bank of Commerce v. The City of New York, 2 Black, 620, a distinction was taken between a tax on United States stock eo nomine, and a tax on the aggregate amount of capital owned by a bank, however invested in United States securities or otherwise. This distinction, sustained by the New York Court of Appeals,-see The People v. The Commissioners of Taxes, 9 Smith (23 N. Y.), 192, -was overruled by the Supreme Court of the United States, which held, that stock of the United States is not subject to taxation under state laws; that a state law for that purpose is unconstitutional, whether it imposes a tax on the evidences of public debt by name, or includes them in the aggregate of the tax-payer's property, to be valued like the rest, at its worth; that the portion of the capital of a state bank which it has invested in United States stocks, bonds, and other securities, is not liable to taxation by the state; that the taxing power, so far as it is reserved to the states and used by them within constitutional limits, cannot be controlled or restrained by the federal judiciary, the prudence of its exercise not being a judicial question; that a state tax on the loans of the general government, is a restriction upon the constitutional power of the United States to borrow money; and if the state had such a right, being in its nature unlimited, it might be so used as to defeat the federal power altogether. See Bank Tax Cases, 2 Wallace, 200. 3 Dobbins v. The Commissioners of Erie County, 16 Pet. 435. taxation, in common with itself, for the benefit of both. And no diminution in the recompense of an officer is just and lawful, unless it be prospective, or by way of taxation by the sovereignty who has a power to impose it, and it is intended to bear equally upon all according to their estate.1 On the other hand, a state tax on dividends arising from 8 214. stock, held in a bank of the United States by a citizen of the state, has been adjudged constitutional. The states are not deprived of their right of taxation, except so far as it concerns the means, measures and instruments, necessary and proper for the execution of the powers vested by the federal constitution in the general government. This is the ruling principle of all the cases. The restriction. upon state taxation does not extend to a tax to be paid by the real estate of a United States bank, in common with other real property of the same description within the jurisdiction of the state; nor does it extend to a tax on the interest that citizens of the state may hold in such bank, in common with other property of the same description throughout the state. A contractor, says Chief Justice Marshall, for supplying a military post with provisions, cannot be restrained from making purchases within every state, or from transporting them to any place at which the troops are stationed, nor could he be fined or taxed for doing so. But the property of the contractor may be taxed as the property of other citizens. Upon the same principle, though the salaries of United States officers may not be taxed by a state, yet their persons and property may, in common with other persons and property, within the jurisdiction of the state; and though a bank "Dobbins v. Commissioners, 16 Pet. 449. 5 2 Berney v. Tax Collector, 2 Bailey's (S. C.) Rep. 654. 3 See the case of McCulloch v. State of Maryland, 4 Wheat. 316. The decision in which it was declared by the court, must be received with these qualifications. Osborn v. U. S. Bank, 9 Wheat. 867. 5 See the case of Melcher v. The City of Boston, 9 Metcalf, 73. ? 215. Pow -commerce. of the United States may not be taxed, yet individual interests therein are not exempt.1 The principle which runs through the subject of taxation, as through every other subject of concurrent jurisdiction in the federal and state governments, is that of a harmonious co-operation of sovereign powers within their respective spheres, which denies the right of one government to interfere with the measures, means, or instruments, necessary to the constitutional administration of another, and which prohibits the one from attempting to pull down and destroy what there is an acknowledged right in the other to build up and preserve. The power of taxation is an obvious incident of sovereignty, and is co-extensive with that to which it is an incident. These principles apply no less to the state than to the federal government, and no less to the federal than to the state government. To their operation, there should be no exception, and none can arise unless from a partisan spirit. Thus much concerning the taxing power of the federal legislature. The next in the order of the enumerated powers of coner to regulate gress, is the power To borrow money on the credit of the United States.' This speaks for itself; it is necessarily vested in the discretion of congress; and therefore, without uselessly pausing to comment upon it, we pass to the next; namely, the power' To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.' 5 One of the principal objects of vesting this power in congress, was the relief of the states which should import and export through other states, from the improper con 1 A state may lay a tax on the shareholders. City of Utica v. Churchill, 6 Tiffany, (33 N. Y.) 161, same case, (by name Van Allen v. The Assessors) 3 Wallace, 573; The People v. Commissioners of Taxes, 8 Tiffany (35 N. Y.), 423, same case, 4 Wallace, 244. 2 Ante. ¿ 212. 3 Per Marshall, Ch. J., in McCulloch v. Maryland, ut sup. 4 Const. U. S. Art. 1, ¿ 8. 301 tributions that might be levied on them by the latter. 216. Ex affairs of a state But the power of Congress over this subject, is very properly restricted to that commerce which concerns more tends not to It does not embrace that commerce which internal states than one. is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to nor affect other states. Nor does it extend to inspection laws. The object of inspection laws is to improve the quality of articles, to fit them for exportation, or, it may be, for domestic use. They act upon a subject before it becomes an article of foreign commerce, or of commerce among the states, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything 1 The Federalist, No. 42, p. 196. 2 Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheat. 197. 3 Gibbons v. Ogden, 9 Wheat. 1. Id. See also 1 Kent's Com. * 438. 217. within the territory of a state not surrendered to the general government; all which can be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are component parts of this mass. No direct general power over these objects is granted to congress; and, consequently, they remain subject to state legislation. If the legislative power of the union can reach them, it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given.1 Three general propositions, which relate to this subject as well as to many others, are regarded as established by judicial decision. 1. The delegation of a power to congress, the non-exercise of which, or legislation in virtue of which, has left a particular subject or class of subjects unaffected, does not exclude the states from passing laws relating to that subject or class of subjects.2 2. General legislation by congress in pursuance of a delegated power, designed to regulate matters of equal and common importance to all the states, does not oust a state of its jurisdiction concerning matters of immediate and peculiar importance to its own internal welfare, and which are not the direct objects of such general congressional legislation; although the laws of the state abridge private rights conferred by the laws which congress has enacted. 3. Such general legislation by congress, however, excludes and annuls all state legislation concerning those general objects which the federal legislation had directly in view. Thus congress at an early day, in pursuance of the power now under consideration, enacted laws for the regulation of the coasting trade and the enrolment and licensing of vessels engaged therein, and thereby conferred, 1 Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheat. 203. 2 Wilson v. Blackbird Creek Co., 2 Pet. 245. 3 Id. * Gibbons v. Ogden, 9 Wheat. 1. These propositions I take to be fully sustained by the subsequent decisions hereinafter referred to. |