
    The State v. Asher M. Nathan. The Same v. The Same.
    The act of 26 March, 1842, section 9, imposing an annual tax of two hundred and fifty dollars on money and exchange brokers, is not inconsistent with the constitution of the State, nor of the United States.
    Appeal from 'the District Court of the First District, Buchanan, J.
    
      Preston, Attorney General, for the State.
    Wilde, for the appellant.
    The law imposing the tax on brokers is unconstitutional.
    First: Because Congress has the exclusive power to regulate commerce. The power to regulate, implies the power to preserve. The State cannot have power to destroy or impair what Congress has the power to preserve and regulate ; therefore, the State cannot tax the instruments whereby Congress exercises its constitutional powers. 4 Wheat. 428, 432. An unlimited power to tax, is a power to destroy. Ib. 428, 432. Exchange is a necessary instrument of commerce. 4 Wheat. 147. 13 Peters, 531, 548, 563, 606. The mind cannot conceive the possibility of carrying on commerce in the present state of the world, without bills of exchange. To tax bills of exchange, therefore, is to tax commerce ; and to tax the seller of bills, is to tax the bills themselves. There is no difference between taxing the article, and taxing the faculty to sell it. 4 Wheat. 309. 12 Wheat. 444. All useful regulation does not consist in restraint or taxation. That which Congress, in the execution of their constitutional power, think proper to lea vefree, is as much regulated by them, as that which they restrain or tax. 9 Wheat. 18. Were it not so, it would not bean exercise of the power to lay duties, when certain goods are allowed to be imported duty free. Could the State tax the introduction of such goods ? Where there is a repugnancy between the State power to tax, and the federal power to preserve, regulate and leave free, the State power must give way. If the State can tax in such a case, Congress is not supreme. 4 Wheat. 429, 432, 433. What sort of concurrent powers are those which cannot exist together? 9 Wheat. 15. Congress has no power of revoking state laws as a distinct and substantive power. Over those subjects which are within its power, its legislation is supreme, and necessarily overrules all inconsistent or repugnant state legislation. 9 Wheat. 30. Its exclusive power to regulate commerce carries with it the power to regulate exchange, as an indispensible instrument of commerce, and the power being exclusive, a concurrent power in the State is a contradiction.
    
      “ Commerce in its simplest signification, means an exchange of gooods; but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce : the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation.” 9 Wheat. 229, 230.
    Congress no doubt has full power over foreign bills of exchange, even to regulate, and render uniform throughout the Union, the damages upon them when they return under protest; and it has been proposed to exercise it.
    The State, therefore, cannot tax, and by taxation exclude; that which Congress has the power to regulate and maintain, — one of the essential instruments of commerce, one just as necessary as ships or steamers.
    Secondly: The law is in conflict with the exclusive power of Congress, to regulate the value of money.
    
    
      Josephs and H. H. Strawbridge, on the same side,
   MartiN, J.

These are two consolidated cases, in which the State has recovered a tax imposed by the legislature, in the year 1842, upon money and exchange brokers. The only question submitted to our consideration, is the constitutionality of the tax. We have been favored with a very long and printed brief, in which the unconstitutionality is sought to be established, on the ground, that the power of unequal and partial taxation was never delegated to the legislature, and that this tax is contrary to the provisions of the constitution of the United States, it. being a tax on commerce, which Congress alone has the power to regulate.

It does not appear to us that the District Court erred. The general assembly of this State is vested with all the legislative powers, even including that of unequal and partial taxation, although the State constitution does not grant it in express terms. Its attributes differ in this respect from those of Congress, which are limited to those actually granted. The tax under consideration is not more a tax on commerce, than that on stores and warehouses, &c.

Judgment affirmed.  