If the States cannot tax the means by which the national government performs its functions, neither, on the other hand, and for the same reasons, can the latter tax the agencies of the State governments. "The same supreme power which established the departments of the general government determined that the local governments should also exist for their own purposes, and made it impossible to protect the people in their common interests without them. Each of these several agencies is confined to its own sphere, and all are strictly subordinate to the Constitution which limits them, and independent of other agencies, except as thereby made dependent. There is nothing in the Constitution [of the Unit ed States] which can be made to admit of any interference by Congress with the secure existence of any State authority within its lawful bounds. And any such interference by the indirect means of taxation, is quite as much beyond the power of the national legislature, as if the interference were direct and extreme." 1 It has therefore been held that the law of Congress requiring judicial process to be stamped could not constitutionally be applied to the process of the State courts; since otherwise Congress might impose such restrictions upon the State courts as would put an end to their effective action, and be equivalent practically to abolishing them altogether.2

to State taxation, but at the same time to guard those institutions against unjust discriminations, by providing that their shares shall only be taxed at the place where the bank is located, and in the same manner as shares in the State banks are taxed. The difficulty is in harmonizing the State and national laws on the subject, and it will be illustrated in a measure by some of the cases above cited; though the full extent of the difficulty is only perceived in other cases where the taxation of State banks is fixed by constitutional provisions, which provide modes that cannot be harmonized at all with the law of Congress.

1 Fifield v. Close, 15 Mich. 509.

2 Warren v. Paul, 22 Ind. 279; Jones v. Estate of Keep, 19 Wis. 369; Fifield v. Close, 15 Mich. 505; Union Bank v. Hill, 3 Cold. (Tenn.) 325. "State governments," it is said in the Indiana case, "are to exist with judicial tribunals of their own. This is manifest all the way through the Constitution. This being so, these tribunals must not be subject to be encroached upon or controlled by Congress. This would be incompatible with their free existence. It was held, when Congress created a United States Bank, and is now decided, when the United States has given bonds for borrowed money, that as Congress had rights to create such fiscal agents, and issue such bonds, it would be incompatible with the full and free enjoyment of those rights to allow that the States might tax the bank or bonds; because, if the right to so tax them was conceded, the States might exercise the right to the destruction of Congressional power. The argu

Strong as is the language employed to characterize the taxing power in some of the cases which have considered this subject, subsequent events have demonstrated that it was by no means extravagant. An enormous national debt has not only made

ment applies with full force to the exemption of State governments from Federal legislative interference.

"There must be some limit to the power of Congress to lay stamp taxes. Suppose a State to form a new, or to amend her existing constitution; could Congress declare that it should be void, unless stamped with a Federal stamp? Can Congress require State legislatures to stamp their bills, journals, laws, &c. in order that they shall be valid? Can it require the executive to stamp all commissions? If so, where is he to get the money? Can Congress compel the State legislatures to appropriate it? Can Congress thus subjugate a State by legislation? We think this will scarcely be pretended. Where, then, is the line of dividing power in this particular? Could Congress require voters in State and corporation elections to stamp their tickets to render them valid? Under the old Confederation, Congress legislated upon States, not upon the citizens of the State. The most important change wrought in the government by the Constitution was that legislation operated upon the citizens directly, enforced by Federal tribunals and agencies, not upon the States. Another established constitutional principle is, that the government of the United States, while sovereign within its sphere, is still limited in jurisdiction and power to certain specified subjects. Taking these three propositions then as true,- 1. States are to exist with independent powers and institutions within their spheres; 2. The Federal government is to exist with independent powers and institutions within its sphere; 3. The Federal government operates within its sphere upon the people in their individual capacities, as citizens and subjects of that government, within its sphere of power, and upon its own officers and institutions as a part of itself, — taking these propositions as true, we say, it seems to result as necessary to harmony of operation between the Federal and State governments, that the Federal government must be limited, in its right to lay and collect stamp taxes, to the citizens and their transactions as such, or as acting in the Federal government, officially or otherwise; and cannot be laid upon and collected from individuals or their proceedings when acting, not as citizens transacting business with each other as such, but officially or in the pursuit of rights and duties in and through State official agencies and institutions. When thus acting, they are not acting under the jurisdiction nor within the power of the United States; not acting as subjects of that government, not within its sphere of power over them; and neither they nor their proceedings are subject to interference from the United States. Can Congress regulate or prescribe the taxation of costs in a State court? The Federal government may tax the Governor of a State, or the clerk of a State court, and his transactions as an individual, but not as a State officer. This must be so, or the State may be annihilated at the pleasure of the Federal government. The Federal government may perhaps take by taxation most of the property in a State, if exigencies require; but it has not a right, by direct or indirect means, to annihilate the functions of the State government."

imposts necessary which in some cases reach several hundred per cent of the original cost of the articles upon which they are imposed, but the systems of State banking which were in force when the necessity for contracting that debt first arose have been literally taxed out of existence by burdens avowedly imposed for that very purpose. If taxation is thus unlimited in extent upon the objects within its reach, it cannot be extravagant to say that the agencies of government are excepted from it, or otherwise its exercise might altogether destroy the government through the destruction of its agencies. That which was predicted as a possible event has been demonstrated by actual facts to be within the compass of the power; and if considerations of policy were important, it might be added that, if the States possessed the authority to tax the agencies of the national government, they would hold within their hands a constitutional weapon which factions and disappointed parties would be able to wield with terrible effect when the policy of the national government did not accord with their views; while, on the other hand, if the national government possessed a corresponding power over the agencies of the State governments, there would not be wanting men who, in times of strong party excitement, would be willing and eager to resort to this power as a means of coercing the States in their legislation upon the subjects remaining under their control.

There are other subjects which are or may be removed from the sphere of State taxation by force of the Constitution of the United States, or of the legislation of Congress under it. That instrument declares that "no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws." Under this prohibition some difficulty has been experienced in indicating with sufficient accuracy for practical purposes the point of time at which articles brought into the country from abroad cease to be regarded as imports in the sense of constitutional protection, and become liable to State taxation; but it has been said generally, that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has perhaps lost its distinctive character as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was

imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the Constitution. And it was also declared in the same case, that a State law which, for revenue purposes, required an importer to take a license and pay fifty dollars before he should be permitted to sell a package of imported goods, was equivalent to laying a duty upon imports. And it has been held in another case, that a stamp duty imposed by the legislature of California upon bills of lading for gold or silver, transported from that State to any port or place out of the State, was in effect a tax upon exports, and the law was consequently void.2

Congress also is vested with power to regulate commerce; but this power is not so far exclusive as to prevent regulations by the States also, when they do not conflict with those established by Congress.3 The States may unquestionably tax the subjects of commerce; and no necessary conflict with that complete control which is vested in Congress appears until the power is so exercised as to defeat or embarrass the congressional legislation. Where Congress has not acted at all upon the subject, the State taxation cannot be invalid on this ground; but when national regulations exist, under which rights are established or privileges given, the State can impose no burdens which shall in effect make the enjoyment of those rights and privileges contingent upon the payment of tribute to the State.4

It is also believed that that provision in the Constitution of the

1 Brown v. Maryland, 12 Wheat. 441, per Marshall, Ch. J.

Almy v. People, 24 How. 169. See also Brumagim v. Tillinghast, 18 Cal. 265; Garrison v. Tillinghast, Ibid. 404.

Cooley v. Board of Wardens, 12 How. 299. See also Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245.

* In Brown v. Maryland, it was held that a license fee of fifty dollars, required by the State of an importer before he should be permitted to sell imported goods, was unconstitutional, as coming directly in conflict with the regulations of Congress over commerce. For further discussion of this subject in the United States courts, see New York v. Miln, 11 Pet. 102; License Cases, 5 How. 504. See also Lin Sing v. Washburn, 20 Cal. 534; Erie Railway Co. v. New Jersey, 4 Am. Law Reg. N. S. 238, reversing same case in 1 Vroom; Pennsylvania R. R. Co. v. Commonwealth, 3 Grant, 128; and the full discussion of the subject in the two opinions in Wolcott v. People, 17 Mich. In the recent case of Crandall v. Nevada, to appear in 6 Wallace, and which is reported in 2 Western Jurist, 89, it was held that a State law imposing a tax of one dollar on each person leaving the State by public conveyance was not void as coming in conflict with the control of Congress over commerce.

United States, which declares that "the citizens of each State shall be entitled to all the privileges and immunities of the citizens of the several States," will preclude any State from imposing upon the property within its limits belonging to citizens of other States any higher burdens by way of taxation than are imposed upon the like property of its own citizens. This is the express decision of the Supreme Court of Alabama,2 following in this particular the dictum of an eminent Federal judge at an early day.3

Having thus indicated the extent of the taxing power, it is necessary to add that certain elements are essential in all taxation, and that it will not necessarily follow because the power is so vast, that everything which may be done under pretence of its exercise will leave the citizen without redress, notwithstanding there be no conflict with constitutional provisions. Everything that may be done under the name of taxation is not necessarily a tax; and it may happen that an oppressive burden imposed by the government, when it comes to be carefully scrutinized, will prove, instead of a tax, to be an unlawful confiscation of property, unwarranted by any principle of constitutional government.

In the first place, taxation having for its only legitimate object the raising of money for public purposes and the proper needs of government, the exaction of moneys from the citizens for other purposes is not a proper exercise of this power, and must therefore be unauthorized. In this, however, we do not use the word public in any narrow and restricted sense, nor do we mean to be understood that whenever the legislature shall overstep the legitimate bounds of their authority, the courts can interfere to arrest their action. There are many cases of unconstitutional action by the representatives of the people which can be reached only through the ballot-box; and there are other cases where the line of distinction between that which is allowable and that which is not is so faint and shadowy that the decision of the legislature must be accepted as final, even though the judicial opinion might be different. But there are still other cases where

Washington J. in Corfield v. Coryell, 4 Wash. C. C. 380. And see Camp bell v. Morris, 3 H. & McH. 554; Ward v. Morris, 4 H. & McH. 340; and other cases cited, ante, p. 16, note. See also Oliver v. Washington Mills, 11 Allen, 268.