the place throughout the States in which it is to be exercised, nor the terms on which loans are to be made, nor the mode of transfers it may adopt, or the place where they are to be made, nor the exemptions which such stocks shall have from public burdens. If Congress had said no specific tax shall be laid on such stock and bonds in any of the States, the power to do so would be conceded under the decisions of the United States Courts, as well as the Courts of this State. If they can prevent specific taxation, I see no reason why the same power will not enable them to forbid any taxation, if in their judgment such restriction is necessary to carry out the original powers to borrow money. Whether they exercise that power wisely or not, is not for the Courts to inquire. The discretion is with them, the power is with them, and when exercised by them, that exercise of power is within the Constitutional authority "to make all laws which might be necessary or proper to carry into execution such power.' In The United States vs. Fisher et al., 2 Cranch 258, the right of Congress to give priority to debts due the United States is claimed under the general powers to make all necessary laws. In that case it was said, "Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution." The same was said by MARSHALL, C. J., in McCullough vs. State of Maryland: "If the end be legitimate and within the scope of the Constitution, all the means which are appropriate, which are adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect," and "The degree of its necessity is a question of legislative discretion, not of judicial cognisance;" and, in Brown vs. State of Maryland, 12 Wheat. 419, it is said, "Questions of power do not depend upon the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed." It must be apparent, then, if Congress has any power to prohibit taxation of their stocks or bonds specifically, or to give any privileges to those who buy the same, the extent to which taxation may be prohibited at all, is an act of discretion, to be exercised by Congress, and which cannot be the subject of judicial limitation. Legislative discretion should not be restrained by judicial decisions. It is the want of power, and not of discretion in the Legislature, which can be reviewed by the Courts. If it were necessary to refer to the condition of public matters, as rendering it necessary that the general government should possess every power, to enable them advantageously to borrow money, very urgent reasons could be advanced, to show how necessary is the right to exercise such powers at the present time, to enable them to provide the means for the preservation of the government, but it is not necessary under the views above expressed on these questions. It is argued, on behalf of the respondents, that even if the Act of February, 1862, is valid, it cannot be made applicable to stocks issued previous to its passage. The ground upon which the exercise of that power by Congress is sustained is, that by such provisions the power of Congress to borrow money is aided, and that to deprive that body of the power to prescribe the terms on which the loan could be made, and the privileges be conferred, therefore, would be to impair the power thus conferred by the Constitution. I am at a loss to see how that necessity exists as to stocks which had been issued and paid for long before its passage. We are controlled by the decision of the Court of Appeals, that, as to all stock issued before the passage of that act, it was subject to taxation with the other property of individuals and corporations. It is, then, presented as a simple statute, in regard to this stock, to exempt it from taxation by the States, passed long after the government had any interest in its value. Without such interest, I should doubt the power to exempt such stocks, any more than any other property, from taxation. As a declaratory act of the views of Congress, as to their right to exempt stock from taxation, it would be of value, but it would confer no power which Congress did not otherwise possess. If the right to exempt from taxation rests solely on the necessity of the power in order to enable the United States rightly and advantageously to carry out the provision of the Constitution as to borrowing money, such right could not, with propriety, be claimed in regard to stocks which had long before been issued, and the consideration for which had long before been paid over to the government. Such property could with no more propriety be exempted from taxation by an Act of Congress, if such legislation was necessary, than any other property on which taxes might be imposed. An objection was taken to this proceeding that it was brought too soon, because no taxes had been imposed. The proceedings are against the Commissioners as assessors. Their duty is completed when the assessment is made out. The taxes are imposed by the Board of Supervisors. The proceedings are to correct the assessment, not the imposition of taxes. It was said that there was no certainty that any tax would be imposed. Independent of the law which requires such taxes to be imposed equally upon all the property returned as liable to taxation, it can hardly be supposed even within the bounds of possibility, that an individual or corporation returned as having large amounts of personal property subject to taxation would not at the present day find a sufficient amount of taxes imposed thereon. My conclusions are I. That under the decision of the Court of Appeals in the matter of The Bank of the Commonwealth (23 N. Y. Rep.), stocks and bonds of the United States by a resident of the State may be taxed with other personal estate. II. That the Act of Congress of February, 1862, exempting such stocks from taxation is valid, so far as relates to all stocks, bonds, and other securities issued by the United States after the passage of the act. III. That such securities are not subject to taxation under the State laws. The respondents should be ordered to correct the assessment rolls by striking from the amount the stock, bonds, and securities issued by the United States and held by the relator of a date subsequent to the passage of the Act of Congress. The case decided by the Court of the principal case, is reported in 1 Am. Appeals, to which reference is made in Law Register, N. S. p. 81. The ques tion discussed in these two cases has recently assumed such great importance that a review of them may not be out of place. I. It will be admitted by all that the powers granted to Congress in the United States Constitution can only be executed by means, or, as it is sometimes termed, by "instruments" or "machinery." None of the great powers conferred in that instrument execute themselves. The power to coin money confers the power to establish a mint as a proper instrument; the power to regulate commerce, the right to establish light-houses, the power to lay taxes, confers the right to provide custom-houses and to appoint collectors and tax gatherers. All these are the instruments and the machinery by which the substantial power is vivified; without them the power is inert; in fact they are a component part of the power granted. For greater caution a clause was inserted in the Constitution that Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the powers previously granted; but the better opinion is that no new authority was conferred by this provision. The power to borrow money is no exception to this principle. This can only be exercised by instruments-such as government bonds or treasury notes. government could no more borrow money without them than commerce could be carried on without bills of lading. Such bonds and notes are just as truly the instruments of borrowing or of finance as a mint is the instrument by which the power to coin money is exercised, or custom-houses are the means by which the power to collect taxes is carried into effect. It is a mistake then to regard government securities merely as evidences of debt. They are also the means by which the indebtedness is contracted. The II. It is a well settled rule that no instrument or machinery of the general government can be interfered with by the States. No one has been hardy enough to claim that the mint or customhouses could be taxed by State authorities, or that munitions of war could be taxed even though within the territorial jurisdiction of the State. The early lawyers seem to have been of the same. opinion as to evidences of debt issued by the general government. Thus Mr. Hammond of Ohio, in Osburn vs. United States Bank, 9 Wheaton 738, arguing against the claims of the general government, and insisting that the State authorities could tax the bank, pitched upon this as the best illustration of the class of cases where the States could not interfere. He says: "If the nation borrow money, it is competent for the nation to decide upon the evidence to be given of the debt. It would be absurd to subject this national measure to the municipal regulations of one of its parts, and thus permit a part to assess a tax upon the whole." P. 777. This concession, after the case of McCullough vs. Maryland, 4 Wheat. 116, is remarkable as showing that at that time any assertion on the part of the States of the power to tax United States securities was deemed to be untenable. It is believed that a critical examination of the three great cases upon this subject will lead to the same conclusion. They are McCullough vs. Maryland, supra, Osburn vs. United States Bank, and Weston vs. City of Charleston, 2 Peters 449. In the first case the facts were, that the Legislature of Maryland enacted that no bank established in that State by any authority other than the State Legislature, should issue any notes except upon stamped paper, to be furnished by the executive of the State at certain specified rates. A commutation might be made on the part of the bank by paying to the State treasurer a sum mentioned in the act. This law, which embraced the Branch of the United States Bank, situated in Maryland, was alleged by that institution to be unconstitutional. It will be noticed that the tax was laid upon the notes of the bank, which were the means by which the bank exercised its powers in behalf of the United States government. It is true that the tax was a special one-that these notes were singled out from other subjects of taxa tion-but the reasoning of the counsel and of the Court did not proceed upon that ground. It is not easy to perceive why, if the power to tax resides in a State government, it may not select the special objects for taxation at its own discretion, unless hampered by some provision in the State Constitution. The power to tax involves the power to discriminate between subjects of taxation. The principles of political economy teach that absolute equality of taxation is often the greatest injustice, and rules are laid down by means of which a proper discrimination may be made. If a discretion exists, the Courts cannot determine whether it is wisely or unwisely exercised. If the Legislature have the power to deliberate and to decide, the conclusion which it reaches is wholly beyond the scope of judicial action. The question, therefore, was discussed upon the broad principle that a State cannot tax the property of the United States, or the instruments employed in executing its powers. Thus Mr. Webster cites the clause in the Articles of Confederation which provided "that no impositions, duties, or restrictions should be laid by any State on the property of the United States." He adds: "Is it supposed that property of the United States is now subject to the power of the State governments in a greater degree than under the Confederation?" 4 Wheaton 328. Mr. Hopkinson, one of the counsel for the State, asserted the question before the Court to be whether the bank and its branches could claim to be exempt from the ordinary and equal taxation of property as assessed in the States in which they are placed. P. 337. Mr. Pinkney remarked that there must be in this case an implied exception to the general taxing power of the States, because it is a tax upon the legislative faculty of Congress, upon the national property, upon the national institutions. P. 394. And again: "the Bank of the United States is as much an instrument of the government for fiscal purposes as the Courts are its instruments for judicial purposes. Though every State may impose a stamp tax, yet no State can lay a stamp tax upon the judicial proceedings or custom-house papers of the United States. But there is no such express exception to the general taxing power of the States contained in the Constitution. It arises from the general nature of the government, and from the principle of the supremacy of the national powers and the laws made to execute them over the State authorities and State laws." p. 396. MARSHALL, C. J., in delivering the opinion of the Court, lays no stress upon the point that this tax was special in its nature, but his opinion proceeds upon the theory that the bank was an instrument by which the general government exercised its functions. He stated that the sovereignty of the State in the article of taxtation may be controlled by the Constitution of the United States, and that the question became purely one of construction as to the meaning of the Constitution. He added that the means employed by the United States government were given by the people of all the States, and that therefore the people of a single State could not confer a sove |