M'Culloch v. The State of Maryland, 4 Wheat. 428; Providence Bank v. Billings and Pittman, 4 Peters, 563; Biddle v. The Commonwealth, 13 Serg. & Rawle, 409; Brown v. The State of Maryland, 12 Wheat. 419.

What are the limitations on this great, prerogative power which it is admitted resides in the States, and does this case fall within any such limitation? These limitations are either express or implied.

Analogous to it is the principle on which the case of The Commissioners v. Chapman, 3 Rawle, 73, was ruled. In that case the office of president judge of a judicial district was decided to be within the act, notwithstanding the constitutional provision in regard to the salary of such officers. The opinion of the court in that case is respectively referred to. 2. The implied limitations on the power of taxation.

1. The express limitation is found in the It is admitted that it was urged that, as the Constitution of the United States. Sec. 10, art. convention which formed the Constitution had 1, of that instrument. "No State shall, with-imposed an express limitation, no other limitaout the consent of Congress, lay any imposts tion could be established by inference. or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws." And there is a like prohibition to laying a duty on tonnage.

It was wisely judged, that no other limitation than this was necessary to secure the objects of government and guard the citizen from oppression. He is the common constituent of the representative in the State, as well as the national government. Besides, by reserving to the general government the exclusive right of laying imposts or duties, Congress had an ample source of revenue, obviously the least oppressive to the people. For these imposts, though they be called in strictness an indirect tax, are rather a voluntary retribution by such as chose to purchase the imported article on which it is levied.

And although the power of direct taxation is not taken from, or rather is given to the general government to be used in those cases of national emergency, when a patriotic people 440*] will bear almost any burden without a murmer, yet it is obvious, from the fact that the States are excluded from laying imposts, that this is the great source from which it was intended, except under extraordinary circumstances, that the general government should derive its revenue. And that the power of direct taxation, without any other limitation, should be left to the States. It is their natural, their only resort.

The limited purposes and objects of the State governments, immediately affecting the interests of the people, will of course make them submit with cheerfulness to a direct tax for the support of such government; which they would not so readily endure, except in emergencies referred to, for the more onerous support of the national government.

And this view was strongly fortified by the contemporaneous exposition of "The Federalist, [*441 the eminent authors of which asserted “that the right of taxation in the States is sacred and inviolable," "with the sole exception of duties on imports and exports;" that "they retain the authority in the most absolute sense; and that an attempt on the part of the national govern ment to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of the Constitution."

It may be conceded that it was pressing too far the argument from this source, to contend for "that construction of the Constitution that would place within the reach of the States those measures which the government might adopt for the execution of its powers." But it is a strong argument to show the high character and wide extent of this power of taxation, and excludes the inference of any limitation upon it, which does not clearly fall within the essential principle of preventing a control by the States of such measures.

It was very apparent, that a like power of taxation in the general government created no such inference. The authority is co-equal. (Federalist.) A power conferred upon Congress does not, per se, exclude the States from the same power, unless it be in its nature exclusive. 5. Wheat. 48. So the power of Congress to levy taxes does not exclude the States from a similar power. Gibbons v. Ogden, 9 Wheat. 201.

The great principle of these implied limitations is, that the States, in the exercise of the high prerogative power of taxation, should not be permitted to reach and control those measures necessary and proper for the execution of the powers vested by the Constitution in the government of the United States.

The law of the State of Maryland, requiring This is the an importer of foreign goods by bale or pack-ruling principle of all the cases. age, to take out and pay fifty dollars for a It being judicially ascertained that Congress license to sell his goods, fell within this pro- possessed the power to incorporate a bank of hibition, and was decided to be repugnant and the United States, it was constitutional because unconstitutional. Brown v. The State of Mary-it was an instrument, and the means employed land, 12 Wheat. 419.

by the government of the Union for the execu But even there it was held that the words of tion of its powers. The power to tax such inthis prohibition "ought not to be pressed to strument, and these means, is the power to their utmost extent." And when the importer destroy; and therefore the one is repugnant to has so acted on the thing imported that it has the other. M'Culloch v. State of Maryland, 4 become mixed up with the mass of property in Wheat. 448; Osburn v. Bank of United States, 9 the country, it has lost its distinctive character Wheat. 867. It was on this principle that it as an import, and is subject to taxation. And was ruled, that "a tax imposed by a law of any it is upon this principle that the law of the State of the United States, or under [*4429 State of Pennsylvania imposing a duty on retail the authority of such a law on stock issued for dealers was ruled to be in accordance with the loans made to the United States, is unconstituConstitution. Biddle v. The Commonwealth, 13tional." The creation of the stock was Serg. & Rawle, 409. measure necessary and proper for the execution

"The people of a State therefore give to their government a right of taxing themselves and their property. And as the exigencies of gov ernment cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative to guard them against its abuse.

of the power "to borrow money on the credit | M'Culloch v. The State of Maryland, 4 Wheat. of the United States." It was an instrument 428. for the execution of that power. Weston et al. v. The City Council of Charleston, 2 Peters, 449, 465. So neither can a State tax any other instrument employed by the government for the execution of its powers. It cannot tax the mail. It cannot tax the mint. It cannot tax patent rights. It cannot tax the judicial process. But this implied limitation on this high prerogative power of taxation is not pressed to extreme consequences, which would in fact destroy it; but stops with resistance of a direct repugnant enactment of the State; it is not carried one inch beyond this. Hence, a State may not tax a bank of the United States, but it may impose a tax on the citizens of such State holding stock in such bank, and fix the amount of the tax by express reference to the value of such stock.

So it may tax the real estate held by the bank within the State.

But the means employed by the government of the Union have no such security, nor is the right of a State to tax them sustained by the same theory."

The safeguard of the influence of the constituent over the representative is as perfect a protection to the citizen who holds office under the government of the Union as to any other citizen. The court will remark, that all offices or posts of profit are required to be rated. There is no discrimination as to the nature of the office or post.

Mr. Justice Wayne delivered the opinion of the court:

It cannot tax the mint which is the instrument, but it may tax the income of the superintendent, although that income may be made up in whole or in part by the salary of his of- This cause has been brought to this court by fice. Indeed, unless this be permitted, he a writ of error to the Supreme Court of Pennmight escape taxation; as any tax, if the argu-sylvania.

ment be carried to an extreme, may affect that That court reversed the judgment of the Court income. It may not tax the mail, but it may of Common Pleas of Erie County, [*444 the postmaster. It may not tax the patent which it had given in favor of the plaintiff rights, but it may the income of the patentee (now in error), upon an agreed statement of derived from the sale of patented articles. | facts, in the nature of a special verdict. Such is the peddler's tax or license. It may not tax judicial process, but it may the clerk who issues it. The former is an instrument for the public good, the income of the officer is his private emolument, with which the public has nothing to do.

A contractor, says Chief Justice Marshall, for supplying a military post with provisions, cannot be restrained from making purchases within any 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. Osborn v. United States Bank, 9 Wheat. 867. That property may be the profits of his contracts.

443*] *It might be contended that the tax diminished his ability to execute such contract. The limitation is not carried to such consequences.

A tax on government stock was decided, as we have seen, to be unconstitutional. Weston v. City of Charleston, 2 Peters, 449. But it seems to have been admitted in that case that f the tax had been an income tax, although the lucome was in part or in the whole made up of Literest on this stock, such tax would have been Constitutional. Such appears from the opinion of Justice Johnson, who dissented from the majority of the court.

So here, a tax upon the hull and apparel of the revenue cutter, commanded by Captain Dobbins, would have been unconstitutional. She was "the means" or "instrument" of the government. But this tax by the State is not of such instrument, but of one of her citizens, whose income is rated to fix the amount of his contribution to the public burden. The distinction is obvious: the reason for the difference is well taken by Chief Justice Marshall in

"It was agreed and admitted, that the plaintiff has his residence and domicile at Erie, Erie County, Pennsylvania, and votes in said place; that he has been for the last eight years an officer of the United States, a captain in the United States revenue cutter service, and ever since his appointment has been in service, in command of the revenue cutter Erie, on the Erie Station. That he has been rated and assessed with county taxes for the last three years, 1835, 1836, 1837, as such officer of the United States, for his office, as such, valued at five hundred dollars; which taxes paid by the plaintiff, amount to the sum of ten dollars and seventyfive cents. The question submitted to the court is, whether the plaintiff is liable to be rated and assessed for his office under the United States for county rates and levies? If he is, then judgment shall be entered for the defendants; if not, then judgment shall be entered for the plaintiff, for the sum of ten dollars and seventy-five cents."

This is the only question submitted upon the record. We think it sufficiently appears to give the court jurisdiction that the Supreme Court, in reversing the judgment of the Court of Common Pleas and in giving judgment against the plaintiffs, decided in favor of the validity of a law of Pennsylvania subjecting the plaintiff to be rated and assessed for his office under the United States, for county rates and levies; the validity of which law was in question, on the ground of its being repugnant to the Constitution and laws of the United States.

It was urged in argument by the counsel for the defendants in error, if the court has jurisdiction of the cause, that the judgment of the Supreme Court should be affirmed, because the plaintiff when assessed did not apply to the the commissioners for relief, as the statute pro

vides. And, that having paid the tax to an officer who had a color of right to receive it, it cannot be recovered back by the plaintiff. Neither of these questions can be considered by this court. They are not in the special verdict upon which the judgment was rendered. By referring to the case, as reported in 7 Watts, 513, it will be seen that the Supreme Court put 445] the case exclusively upon the power and right of the commissioners to enforce the tax upon the plaintiff for his office under the United States.

to pay such taxes as may be imposed by lawful authority. And the only sense in which a tax is a personal charge, is that it is assessed upon personal estate and the profits of labor and industry. It is called a personal charge to distinguish such a tax from the tax upon the lands and tenements which are enforced without any regard to the persons who are the owners. Taxes are never assesssed, unless it be a capitation tax, upon persons as persons, but upon them on account of their goods, and the profits made upon professions, trades, and occupations. They are so imposed, because public revenue can only be supplied by assessments upon the goods of individuals "comprehending under the word 'goods' all the estate and effects which every one hath of whatsoever sort they be. Taxes regard the persons of men only because of their goods." The goods, then, are taxed, and not the person. But those who are to pay the tax are taxable persons, because they are under an obligation to contribute from their means to the necessities of the State. The obligation, however, only becomes a charge upon the person in consequence of the power in the State to enforce the payment of taxes by coercion. This power extends to the sequestration of the goods, and the imprisonment of the delinquent. A tax, according to the object upon which it is laid, may be a personal charge; but that is a very different thing from its becoming a charge upon the person, in consequence of the coercion which may be provided by law to enforce the payment.

The assessment was made by the commissioners of Erie County under the Act of Pennsylvania of the 15th April, 1834. It is believed to be the only instance of a tax being rated in that State upon the office of an officer of the United States. It has, however, received the sanction of the Supreme Court. If it can be lawfully done, it cannot be doubted that similar assessments will be made under that law, upon all other officers of the United States in Pennsylvania. The language of the court is, "the case is put on the power and right to impose the tax. In other words, is this a legitimate subject of taxation? Perhaps this may in some measure depend on whether, within the true meaning of the acts, it is the office itself, or the emoluments of the office which are made the subjects of taxation." In the preceding extract we gave the language of the court. The law is, that an account shall be taken of "all offices and posts of profit." The next section makes it the duty of the assessors "to rate all offices and posts of profit, professions, trades, We have been more particular in noticing and occupations, at their discretion, having a this argument, because it enabled us to put the due regard to the profits arising therefrom." point upon which it was intended to bear upon The emoluments of the office, then, are tax-right principles. Besides, as it was drawn from able, and not the office. But whether it be one the statutes of Pennslyvania, it implied the supor the other, we cannot perceive how a tax upon position that her Legislature, in these enacteither conduces to comprehend within the terms ments upon taxation, had disregarded those of the act the office or the compensation of an principles. But this is not so. If the occasion officer of the United States. It will not do to was a proper one for this court to do it, we might say, as it was said in argument, that though the easily show that the act throughout *was [*447 language of the act may import that offices and framed upon an enlightened recognition by the posts of profit were taxable, that it was the legislators of that State of all the principles citizen who holds the office whom the law in- upon which taxes are imposed. The only tended to tax, and that it was a burden he was difficulty in the act has arisen from the terms bound to bear in return for the privileges en-directing assessments to be made upon all offices joyed, and the protection received from govern- and posts of profit, without restricting the asment; and, then, that the liability to pay the sessments to offices and posts of profit held tax was a personal charge, because the person under the sovereignty of that State, and not upon whom it was assessed was a taxable per- excluding them from being made upon offices and posts of profit of another sovereignty-the United States.

son.

The case being now cleared of other objections, except such as relate to the unconstitutionality of the tax, we will consider the real and only question in it, that is, "whether the plaintiff is liable to be rated and assessed for his office under the United States for county rates and levies."

The first answer to be given to these suggestions, is that the tax is to be levied upon a valuation of the income of the office. But, besides, the obligation upon persons to pay taxes is mistaken, and the sense in which a tax is a personal charge is misunderstood. The foundation of the obligation to pay taxes is not the privileges enjoyed or the protection given to a citizen by government, though the payment of It is not necessary for the decision of this taxes gives a right to protection. Both are en- question that the power of taxation in the States 446*] joyed, as well by those members of and in the United States, under the Constitu State who do not, because they are not able to tion of the latter, should be minutely discussed pay taxes, as by those who are able and do pay Taxation is a sacred right, essential to the them. Married women and children have priv-existence of government; an incident of soverileges and protection, but they are not assessed, unless they have goods or property separate from the heads of families. The necessity of money for the support of States in times of peace or war, fixes the obligation upon their citizens

eignty. The right of legislation is co-extensive with the incident, to attach it upon all persons and property within the jurisdiction of a State. But in our system there are limitations upon that right. There is a concurrent right of legisla

tion in the States and the United States, except | gress. The revenue of the United States is inas both are restrained by the Constitution of the tended by the Constitution to pay the debts, United States. Both are restrained upon this and provide for the common defense and gensubject by express prohibitions in the Constitu-eral welfare of the United States, to be expendtion; and the States by such as are necessarily ed, in particulars, in carrying *into ef- [*449 implied when the exercise of the right by a State fect the laws made to execute all the express conflicts with the perfect execution of another powers, "and all other powers vested by the sovereign power delegated to the United States. Constitution in the government of the United That occurs when taxation by a State acts States." But the unconstitutionality of such upon the instruments, emoluments and persons, taxation by a State as that now before us may which the United States may use and employ be safely put (though it is not the only ground) as necessary and proper means to execute their upon its interference with the constitutional sovereign powers. The government of the means which have been legislated by the gov United States is supreme within its sphere of ernment of the United States to carry into effect action. The means necessary and proper to its powers to lay and collect taxes, duties, imcarry into effect the powers in the Constitution posts, etc., and to regulate commerce. In our are in Congress. Taxation is a sovereign power view it presents a case of as strong interference in a State; but the collection of revenue by as was presented by the tax imposed by Maryimposts upon imported goods, and the regula- land in the case of M'Culloch, 4 Wheat. 316, tion of commerce, are also sovereign powers in and the tax by the city council of Charleston, the United States. Let us apply, then, the prin- in Weston's case, 2 Peters, 449; in both of ciples just stated, and the powers mentioned to which it was decided by this court that the the case in judgment, and see what will be the State governments cannot lay a tax upon the constitutional means employed by the government of the Union to execute its constitutional powers. But we have said that the ground upon which we have just put the unconstitutionality of the tax in the case before us is not the sole ground upon which our conclusion can be maintained. We will not state another ground; and we do so because it is applicable to exempt the salaries of all officers of the United States from taxation by the States.

result.

448*] *Congress has power to lay and collect taxes, duties, imposts, etc., and to regulate commerce with foreign nations and among the several States, and with the Indian tribes. Neither can be done without legislation. A complicate machinery of forms, instruments, and persons, must be established; revenue districts were to be designated; collectors, naval officers, surveyors, inspectors, appraisers, weighers, measurers and gaugers must be employed; "the better to The powers of the national government can secure the collection of duties on goods and on only be executed by officers whose services the tonnage of vessels," revenue cutters, and must be compensated by Congress. The allowofficers to command, them are necessary. The ance is in its descretion. The presumption is latter are declared to be officers of the customs, that the compensation given by law is no more and they have large powers and authority. All than the services are worth, and only such in of this is legislation by Congress to execute sov- amount as will secure from the officer the diliereign powers. They are the means necessary to gent performances of his duties. "The officers an allowed end: the end, the great objects which execute their offices for the public good. This the Constitution was intended to secure to the implies their right of reaping from thence the States in their character of a nation. Is the recompense the services they may render may officer, as such, less a means to carry into effect deserve," without that recompense being in any these great objects than the vessel which he way lessened, except by the sovereign power commands, the instruments which are used to from whom the officer derives his appointment, navigate her, or than the guns put on board to en- or by another sovereign power to whom the force obedience to the law. These inanimate ob- first has delegated the right of taxation over jects, it is admitted, cannot be taxed by a State, all the objects of taxation, in common with because they are means. Is not the officer more itself, for the benefit of both. And no diminso who gives use and efficacy to the whole? Is ution in the recompense of an officer is just and not compensation the means by which his serv-lawful, unless it be prospective, or by way of ices are procured and retained? It is true it becomes his when he has earned it. If it can be taxed by a State as compensation, will not Congress have to graduate its amount with reference to its reduction by the tax. Could Congress use an uncontrolled discretion in fixing the amount of compensation, as it would do without the interference of such a tax? The execution of a national power by way of compensation to officers can in no way be subordinate to the action of the State Legislatures upon the same subject. It would destroy also all uniformity of compensation for the same service, as the taxes by the States would be different. To allow such a right of taxation to be in the States, would also in effect be to give the States a revenue out of the revenue of the United States, to which they are not constitutionally entitled, either directly or indirectly, neither by their own action, nor by that of Con

taxation by the sovereignty who has a power to impose it, and which is intended to bear equally upon all according to their estate.

The compensation of an officer of the United States is fixed by a law made by Con-[*450 gress. It is in its conclusive discretion to deter. mine what shall be given. It exercises the discretion and fixes the amount, and confers upon the officer the right to receive it when it has been earned. Does not a tax, then, by a State upon the office, diminishing the recompense, conflict with the law of the United States, which secures it to the officer in its entireness? It certainly has such an effect; and any law of a State imposing such a tax cannot be constitutional, because it conflicts with a law of Congress made in pursuance of the Constitution, and which makes it the supreme law of the land.

We are, therefore, of opinion that the judgment of the Supreme Court of Pennsylvania,

for the assignment of dower certainly fall as little within either of these classes of cases as "those upon a mandamus. They are [*452 common law proceedings; and the writ for the allotment of dower in this case resembles, generally, that which is used in such proceedings. Williams v. Gwyn, 2 Saunders, 44 d, note 4. This appeal, therefore, ought to be dismissed.

reversing the judgment of the Court of Com-miralty, or prize or no prize. The proceedings mon Pleas of Erie County declaring the plaintiff was not liable to be rated and assessed for county rates, and levies for his office under the United States, is erroneous; in this-that the said Supreme Court adjudged that the act of Pennsylvania embracing all offices and posts of profit, comprehending offices of the United States, was not repugnant to the Constitution and laws of the United States; whereas this court is of opinion that such repugnancy does exist. We are, therefore, of opinion that the said judgment ought to be reversed and annulled; and the cause remanded to the said Supreme court of Pennsylvania in and for the Western District, with directions to affirm the judgment of the Court of Common Pleas of Erie County.

Mr. Chief Justice Taney delivered the opinion of the court:

This case is brought here by appeal from the judgment of the Court of Appeals for the Territory of Florida. A motion has been made to dismiss the case upon the grounds that it was a proceeding at law, and not in equity, and that under the acts of Congress regulating the appellate jurisdiction of this court, the case cannot be brought here by appeal; and that we have no jurisdiction to revise the judgment of the territorial court unless it is brought up by

451*] "CHARLOTTE A. PARISH, Appellant, writ of error.

V.

HARVEY W. ELLIS et ux., Appellees. Assignment of dower-case at law cannot be

brought to this court by appeal.

The acts of Congress, relating to judicial proceedings in the territory of Florida, give the right of appeal to the Supreme Court of the United States, in cases of equity, of admiralty and marl: time jurisdiction, and prize or no prize; but cases at law are to be brought up by writ of error, as provided for by the Judiciary Act of 1789. It has always been held that a case at law cannot, under the Act of 1803, be brought to the Supreme Court by_appeal.

In many of the States and territories, the ancient common law remedy for the purpose of obtaining an allotment of dower, as well as the remedies for other legal rights, have been changed for others more convenient and suitable to our situation and habits; yet they are regarded as cases at law, although they are not carried on according to the forms of the common law.

Cited, Parsons v. Bedford et al. 8 Peters, 447.

The only question in the case on which the court gave an opinion, was upon the right of the appellant to bring the case to this court by appeal, instead of by writ of error.

Mr. Gilpin, for the appellees, contended, that an appeal does not lie in this court; this case could be brought here only by writ of error. It is not a case either of equity, admiralty, or prize or no prize. From 1789 to 1803, all cases were brought here by writ of error. Act of 24th September, 1789, sec. 22; 1 Story's Laws, 60. In 1803 appeals were allowed; but they were expressly confined to cases of equity, admiralty, and prize or no prize. Act of 3d March, 1803, sec. 2; 2 Story's Laws, 905. The courts have always strictly maintained this distinction between the two modes of proceeding. United States v. Hanson, 1 Gallison, 21; The San Pedro, 2 Wheat. 141. In the case of Ward v. Gregory, 7 Peters, 633, this court dismissed an appeal from a judgment rendered in the proceedings upon a mandamus, which were not proceedings in a case of equity, ad

The question may, perhaps, seem to be rather one of form than of substance. But, nevertheless, it is our duty to conform to the acts of Congress; and we cannot exercise the appellate jurisdiction conferred upon this court except in the form prescribed by law.

The case in the territorial court was this: James L. Parish, died in Jefferson County, in the Territory of Florida, in 1838, leaving his widow, Charlotte A. Parish, the present appellant, and no children. His sister, Catharine Ellis, one of the appellees, was his heir-at-law; and he left real estate, negroes, and personal property of considerable value.

After his death his widow petitioned the Superior Court of Middle Florida for an allotment of her dower in the real estate, and her share of the personal property; claiming to be entitled to one half of each under a law of the territory, passed in 1838. And thereupon a writ was issued by the court to the sheriff, directing him to deliver over to the petitioner her portion of the estate as prayed for. On the 18th of December, 1838, the sheriff returned the writ with an inquisition or report of certain freeholders summoned by him, allotting to the widow as her dower certain portions of the real estate, negroes, and property, being the one half of the gross amount of said estate in quantity and value.

On the 15th of April, 1839, the present appellees interposed *and objected to the [453 return and allotment, because it was made before the estate was settled by the administrator, and, as they also alleged, collusively; and because the allotment was too large, and the mode of proceeding informal. It was, however, confirmed by the Superior Court, and an appeal thereupon taken to the Court of Appeals for the Territory, where the judgment of the Superior Court was reversed. And from this judgment of reversal the case has been brought here by appeal.

If the proceedings in the territorial courts were proceedings at law and not in equity, we have no jurisdiction to hear the case, because it is not brought here by writ of error. The Act of Congress of July 14, 1832, sec. 3 (4 Story's Laws, 2330), declares that the regula