
    *Samuel Burger, Tax Collector, ads. The State, ex Relatione William Carter.
    The first clause of the Act to raise supplies for the year 1839, which directs “that a tax shall be raised and paid into the Treasury of this State, of one-eighth of one per cent, upon all purchases and sales of bullion, specie, bank-notes, bills of exchange, and stocks, which may be made by any brokers or agents in this State, for or on account of any bank, company or individual without the State; and also, upon all such purchases and sales as may be made by any such broker or agent upon his own account, or for account of others engaged in the same pursuits,” held to be constitutional, but prospective in its words.
    By the tax Act of 1788, the fiscal year is considered as beginning on the first day of October, preceding the enactment of the tax Act.
    A writ of prohibition will lie, to restrain the enforcement of a tax execution.
    Before O’Neall, J., at Chambers, Charleston, February, 1840.
    This was an application for a writ of prohibition, to restrain the defendant, the tax collector of Saint Philip’s and Saint Michael’s from collecting a tax imposed upon the relator, under the provision of the first clause of the Act to raise supplies for the year 1839, which directs “ that a tax shall be raised and paid into the Treasury of this State, of one-eighth of one per cent, upon all purchases and sales of bullion, specie, bank-notes, bills of exchange, and stocks, which may be made by any brokers or agents, in this State, for or on account of any bank, company or individual without the State ; and also, upon all such purchases and sales as may be made by any such broker or agent, upon his own account, or for account of others engaged in the same pursuits.”
    The same clause, in a previous part, imposes a tax of “ sixty cents per hundred dollars, on factorage employments, faculties and professions.”
    The relator alleges, that he is not a broker or agent within the meaning of the law ; but in making the purchases contemplated in it, he acts as a principal, and on his own account.
    It might be enough to dispose of the case, on this allegation in part, and direct the plaintiff to declare in prohibition, so that the truth of it might be ascertaind by jury. The definition of the word Brokers, given in the Commercial Dictionary, is “ persons appointed to transact business between ^merchant and merchant, or merchant and tradesmen, in matters of money or merchandise, for which they received a stipulated commission,” it may be that this definition would not embrace the relator. Still I have no doubt in construing the statute, that we may look to a popular meaning of a word not embraced in any strict definition. If the relator' is a broker or agent, acting for a bank, company, or individual without the States, in making such purchases, although he may use his own funds, and although he might consider them on his own account, still, he may be within the sense and meaning in which the legislature used the words. I will not, however, pursue this matter, for I shall not avoid giving my judgment on the graver questions made.
    I have no doubt, the tax was intended to be imposed on such brokers or agents as usually make purchases of bullion, specie, bank notes, bills of exchange, and stocks, for any bank, company, or individual without the State, whether the purchases were made for or on account of the bank company or individual without the State, or for or on account of such brokers or agents themselves. Unquestionably, the object of it was, to subject to tax transactions of this kind, which could not be embraced in the tax on factorage emplojnnents, faculties and professions ; and so far, if the law could be enforced against them alono, I should think the tax legitimate and proper. For it is not to be allowed to corporations or individuals of other States, to have, free from taxation, all the benefits of a business, in which, if our own citizens engage, they pay a tax on their income. But, so far as it would operate on the income of the brokers, derived from this business, then the effect of the Act would be, to subject it to two taxes at the same time, the tax of sixty cents on factorages, &c., and the tax of one-eighth of one per cent, on all purchases and sales of bullion, &c. This could not have been intended ; for the Legislature of South Carolina never have done, and never will do an act of wilful injustice. If this, however, is the clear effect of the law, it might constitute a reason for holding it to be unconstitutional, on the ground, that the same thing cannot be twice taxed, without violating the guaranty of property, which our constitution secures to each and every one.
    This posbi011 ⅛, however, not necessary to be assumed as *a distinct ground of decision ; it may be resorted to in aid of the conclusion to which I shall come in another part of this case.
    The first inquiry is, can the defendant be subjected to an assessment of one-eighth of one percent, on all purchases and sales of bullion, &c., made before the 1st of last October ? According to the tax Act of 1788, the fiscal year is considered as beginning on the 1st day of October of the year preceding the enactment of the tax Act. Income and property, (with the exception of stock in trade,) are returned as of that time ; and the usual taxation of the State is raised and paid accordingly. If, however, the Legislature choose to raise a new tax, and use words which show they could not have intended it to be raised as of a past time, then it would be violating every rule of construction to give it that effect. The words here used, plainly point to a future act to be done, on which the tax, (as the Legislature call it,) is to arise. — “ One-eighth of one per cent, on all purchases and sales of bullion, specie, bank notes, bills of exchange, and stocks, which may be made by any brokers or agents,” &c. If the relator had, on the passage of the Act, closed his office, and ceased to do business, it is clear that he would not be liable to the payment of any thing under this provision, That being the case, his subsequent pursuit of the same business cannot make him liable on his past transactions. Then, it is only necessary to refer to the case of the State vs. Allen, (2 McC., 55,) as a conclusive authority on this point. The Act of 1820 imposes a tax of §10,000 upon any person “ who shall, after the passing of this Act, open or keep open, any office for the sale of any lottery tickets,” &c. It was held by the whole court, that the language of the Act being prospective, the tax, as it was called, could not be referred to the commencement of the fiscal year. The words in the Act of 1839 are as plainly prospective as those used in the Act of 1820, and no room is left for a distinction ; and hence, both from their own legitimate construction, and from the authority of the State vs. Allen, I conclude that the assessment on the relator, as of the 1st of last October, is not authorized by the Act.
    The next, and most serious inquiry, is, Is the provision which we are considering, a tax or a penalty ? If it is the latter, then * it is unconstitutional, and cannot be enforced. I have endeavored, in every way which I could, to avoid the conclusion to which I have come. The duty of passing between the Legislature and the people, is not to be courted by even a full bench of Judges, much less should it be willingly assumed by a single Judge. But there is nothing more sacredly due to the people, by a Judge, than the duty of protecting each and every one of them, against plainly unconstitutional enactments.
    Generally, I would say, that taxation is of three kinds — property, income, and capitation. A liability to pay into the treasury a sum of money, which is to arise on an act to be done, is hardly to be considered, in any point of view, a tax. It is, then, in restraint of action, and is a penalty. The only apparent exception which strikes my mind, is that of duties and imposts. They are, however, levied on the property; and although the liability to pay them arises from an act done in bringing the goods into a port of the United States, still they are essentially a tax on property. This, if it could bo considered as in reality a tax on income, although it might arise from an act to be done, I should bo disposed to hold, that it was a rightful exercise of the taxing power. But it is plain that it is not a tax on income, for the income of the relator had already been taxed. It is, then, in restraint of his action in purchasing or selling bullion, specie, bank notes, bills of exchange, and stocks, both for any bank, company, or individual out of the State, or on his own account. This makes it a plain case of penalty. It is saying, if you do such an act, you must pay to the public such a sum of money. Here the constitution guarantees a trial, both by the defendant’s peers, and also according to the course of the common law, which I understand to be the meaning of “ the law of the land.” For, before the defendant is liable to pay it, an act done must be ascertained. He cannot be made to accuse himself, or forced to testify against himself, according to the course of the common law ; and yet, according to the tax Act, he must make his return, on oath. This would be in violation of his right of trial as a freeman, and cannot, therefore, be enforced. The ascertainment of the fact on which his liability to pay, arises, can only be per testes on a trial by a jury. The power of the tax collector to assess a tax on an act to be done, and issue his execution, is in violation of the protection guaranteed ky the constitution.* It cannot derive any support from the sum required to be paid for a license to keep a tavern, or retail. The party there pays, voluntarily, a sum of money, to do an act which would otherwise be unlawful. That is consentive, and not compulsory, and cannot be, therefore, objected to. If the Legislature had thought proper to require that brokers should, before engaging in the business described by this Act, take out a license, and for it should pay a sum of money, they might have done so. That this provision is a penalty, is, I think, fully made out by the reasoning which I have very imperfectly sketched.
    The case of the State vs. Allen, (2 McC. 55,) is an analogous case, and its authority makes it imperative on me to declare this provision of the Act of ’39, unconstitutional, as the Court then did that of 1820.
    It is ordered that the writ of prohibition prayed for be granted.
    From this order the respondent appeals, and moves that the same may be reversed, or rescinded, for the following reasons :
    1. 'that the Act of 1839 must be construed in connection with the Acts regulating the fiscal year ; and that by the proper construction of the Act of 1839, the tax on brokers is not prospective, but applies to the relator, and renders him liable to the payment of the sum assessed against him by the respondent.
    2. That the subjects of taxation by the Legislature, are not limited by the constitution ; and that a pecuniary imposition is a tax, or a penalty, as the Legislature may make or declare it to be the one or the other, by legislation.
    3. That there is no ground for a discrimination between a tax and a penalty, with reference to the subject matter of the imposition ; and there is, therefore, no ground to declare the tax on brokers a penalty, which will not apply equally to every tax which has been, or can be, imposed by the Legislature.
    4. That to declare a tax unconstitutional, on the ground that it is a penalty, is an invasion of the powers exclusively vested in the Legislature, by the constitution ; and involves a principle which concentrates in the Judiciary all the powers *of government, which it was the object of the constitution to lodge in separate departments.
    5. That the order directing the writ of prohibition to issue in this case, is, in other respects, illegal, and an infringement of the provisions of the constitution.
    
      Bailey, Attorney General, for the motion,
    contended, first, that the Act was not prospective. That there was nothing to distinguish this Act from any other Act passed in 1839. The various Tax Acts have no specific time when the returns or assessments shall be made. Act 1788, (Public Laws, 439.)
    2d. That it is not unconstitutional, because there is no restraint upon the taxing power. He cited Jac. L. D., as to the definition of taxes. Berney vs. Tax Collector, 2 Bail., 654; 4 McC., 206; Com. Dig., letter A., Tit. Prohib. Prohibition will not lie against a ministerial officer. Bac. Abr. Tit. Pro., letter J.; 1 Cranch, 137.
    
      Hunt, contra.
    I contend that the general power which it is admitted the Legislature possess, in selecting the subjects of taxation, must be controlled by the great fundamental principles upon which free government is based.
    Taxation includes the power to collect, in a summary mode, the amount levied, from the necessity of the case. This arbitrary, but indispensable power, must be used only to the extent indispensable for the public weal; not abused, by applying it to the purposes of penal enactments, and under the guise of taxation, to impose penalties which are to be collected by an inquisition and execution by a collector, without recourse to the ordinary tribunals of the country. The constitution protects the citizen from all judgments against his person or property, otherwise than by a judicial trial by jury, as heretofore used. Now, the true difficulty is to ascertain whether, in truth, the imposition is a tax or not. But the nature of taxation must be ascertained by the general understanding of free government, and especially that from which we derive most of our principles of jurisprudence, modified by our free institutions.
    A tax, as generally understood, is a contribution by the people, in proportion to their estates, for the public expense. And as in this State taxation and representation should concur, all who vote, should, as near as may be, pay equally; and certainly it is unprincipled to tax what a man does, and not his property. Even a tax on the income of a peculiar profession, has at least this palliation, that it is proportioned to the property acquired by that calling. But a tax, as in this case, upon the operation itself, without regard to the fact, whether much or little or nothing is acquired by it, is a tax upon what a man does, and not upon his property. Neither is it like a capitation tax, where every individual pays an equal amount. ^Neither is it like a stamp act. The law denies its aid to recover on contracts not engrossed on stamped paper, leaving it to the option of the party to buy this privilege.
    Nor is it a license, which is voluntarily sought for; and the tax collector cannot collect a penalty for retailing without a license. It is a case for the Courts. Any attempt to impose is illegal, and the very amount of the alleged tax is one means of ascertaining the nature of the imposition.
    Taxes, to be legitimate, must be moderate; and excessive.imposts, with a view to protection of one class, by exactions from others, are contrary to common right. The Legislature may prohibit, and impose penalties for the purposes of general morality ; but taxation is not the mode of enacting or enforcing penal laws.
    Now, the law in question lays a tax “upon all purchases and sales of bullion, &c.,” without regard to the income or profit arising from the purchase or sales. It is a penalty on such transactions, under the guise of a tax — it is an imposition upon a particular class of industrious dealers, not for revenue merely, but the amount is so enormous that it is calculated not to raise money, but to break up the business. The usual profits upon stock transactions and money transfers, is little, if anything, more than this tax. Fifty or eighty per cent, on the profits of a transaction is too clearly a penalty, or at least a tax, calculated and intended to be prohibitory. Is prohibitory taxation constitutional?
    Equality of rights lays at the foundation of our institutions, and the perversion of the taxing power, to foster or prohibit any honest labor, is against common right, and unconstitutional.
    Although no limitation is fixed expressly, yet the Article 1, section 15, Constitution of South Carolina, speaks of “Bills for raising Revenue,” as tax bills. But it is said, the amount is not fixed; but sec. 4, art. 0, states, that “excessive fines shall not be imposed.” This clearly shows that the people shall not be interfered with by excessive fines ; and a fortiori, taxes which are excessive are against the nature of our institutions.
    The case of Burnie vs. Tax Collector, shows, that under the pretence of taxation, you cannot enact penal laws. This Act is, therefore, unconstitutional.
    The proceedings of the tax collector are also illegal. The tax, like all others, relates to the 1st day of October. And as the transactions of the previous year were legal, and without any imposition at tho time they transpired, to collect so large a sum as one-eighth of one per cent., when one-fourth is the highest amount of commissions, equal therefore to fifty per cent., is equally unjust and illegal. It is a penalty imposed after the act done. Calling it a tax does not alter its nature. If, on the contrary, the tax is prospective, then it is not due until the year expires, and the attempt to collect it, at the time the collector made it, was premature, and the prohibition *must go. The very fact that it is a tax on actions and not on property, renders it difficult to say when and during wliat periods these actions are to transpire. Taxes arc annual — that is, property is taxed once a year. But this Act does not limit the time to the past year or the present, and there is no time within which the return must be made; and the tax collector might, every day, issue his execution as a sale was made. Is not this evidence that it is a penalty ? The power of this court to interpose, results from the fact, that there are two kinds of law which this court is called on to administer — the Constitution, and the Acts of the Legislature. An Act of the Legislature contrary to the Constitution is not obligatory ; and, therefore, whoever attempts to enforce it against the citizen, impairs his rights, and the court must protect him. The Legislature having passed a law is functus officio. They cannot, after adjournment, stay the execution of a law. It is only the judiciary who can act — without it, an unconstitutional law may be enforced. All tribunals must be subordinate to the highest. The tax collector acts judicially when ho fixes the amount; assesses, that is, adjudges, that the citizen is bound to pay the State a sum of money. If his judgment is wrong, the citizen has the right to the interference of this court. Whether prohibition be the mode, is immaterial; and in this State, the strict meaning of that writ in England, has been enlarged for the beneficial purposes of protecting the constitutional rights of the people. Thus, the Commissioners of the Tobacco Inspection, the Court of Wardens, and several other tribunals or boards, have been treated as courts, and prohibitions issued when they denied justice or exacted what was unlawful. Every board or commissioner exercising any jurisdiction over the persons or property of the citizen, is a judicial tribunal; and the writ of prohibition is the proper writ to restrain their proceeding.
    This Act is absurd, as it speaks of a broker or agent selling on his own account, when his being an agent implies that he acts for another. But it is clear, that the object of the Act was, to prevent competition between brokers and the banks, Who have abandoned their legitimate office of discounting paper coming to maturity where their capitals were located, and thus enable the banks to manage exchanges so as to suit their own purposes. It is a perversion of taxation to create monopolies and interfere with the common rights of the whole community, to pursue their avocations under the protection of equal laws.
    
      Bailey, in reply.
    All Acts from 1790, down to the passage of this Act, are retrospective, if this Act of 1839 is decided to be so. A tax is in the nature of a contribution. A tax collector is not a judicial, but a ministerial, officer.
    
      
       11 stat., 1.
    
   * Curia, per

O’Neall, J.

In this case, I have been unable to discover any error in the opinion and judgment below. But a majority of the Court of Errors are not prepared to go as far as I did, and rule the clause of the Act of ’39, under consideration, to be unconstitutional. They, however, agree with me, that it is, in its words, prospective, and did not justify the imposition of the tax assessed by the tax collector. The reasons assigned, in my opinion below, for this conclusion, are satisfactory to them, and need not be re-stated.

It has, however, been objected by the Attorney-General, in his argument here, that the writ of prohibition did not lie to prohibit the enforcement of a tax execution. I concede that if we were obliged to resort for authority, in this respect, to English precedents, wo could not sustain this proceeding. For, according to them, the writ of prohibition only lies to prohibit the enforcement of the judgment of an inferior jurisdiction, where it has proceeded without jurisdiction, or where, having jurisdiction, it has exceeded it.

But in this State it has had a wider operation. For the want of a better remedy, it has been allowed to restrain the enforcement of tax executions. How this practice began, it is difficult, as well as unimportant, to ascertain. It may be that it was allowed on the notion that a tax collector, although a ministerial officer, exercised a sort of judicial power, in deciding that a person who denied his liability to pay a tax, should, notwithstanding, pay it, and in issuing an execution to enforce that decision. This last is so much an incident of the judgment of a Court of general and limited jurisdiction, tliat when found to follow from the decision of a ministerial officer, it may well justify the application of a writ to him, which would be otherwise wholly inappropriate.

Be this, however, as it may, the practice is well established, has never been before questioned, has operated to the protection of the citizens ; and, so far as our experience or information extends, has effected no injury, and produced no inconvenience. We are, therefore of opinion, that it ought not now to be disturbed, for the sake of obtaining precise and technical conformity to the English precedents. The motion is dismissed.

*G1antt, Evans, Earle, and Butler, JJ., and D. Johnson, Ch., concurred.

Harper, Ch.

I concur that the tax was prospective only, and reserve my opinion as to the authority of the Court to grant prohibition in such case.

Dunkin, Ch.

I concur in the result, but give no opinion on the question of prohibition.

Richardson, J.,

dissenting. Two questions are before the Court:

1. Is the sixth enacting clause of the tax Act of 1839, within the authority of the State Legislature to lay taxes ?

2. Is the tax prospective or retrospective, in its operation ?

This Court docs not undertake to decide whether the proposed tax be wise, or just, or onerous, but whether it is within the constitutional delegation of the legislative power.

Were wc to trace the consequences of such a tax, we might perhaps, hud it calculated to retard the influx of capital, if not causing its efflux from the State, and, therefore unwise. It may be a high tax, and un-looked for, and, therefore, both unjust and oppressive.

But such considerations, although apt to affect the mind and bias the judgment, are for the Legislature alone.

The office of the Court is to go to the source of the Act, in order to discover whether the enactment of such a tax comes within the proper legislative authority, or does it constitute a penalty, to attach only after a verdict of guilty of selling “ bullion, specie, &c. ” against the form of the Act, &c. It is either a tax or a penalty ; and to decide which, we are to turn to the constitution of the State.

“ The legislative authority of this State shall be vested in a general Assembly.” (Art. 1.) And we need not labor to prove that laying taxes is within the legislative authority.

But, oil the other hand, among the restrictions upon so comprehensive an investment of legislative power, is the following ; “No freeman of this State shall be taken, or imprisoned,” &c., “ or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.” (Art. 9, sec. 2.) This is the article that suggests so often the ex*pressive figure, the JEgis of the constitution. Here, too, it is admitted that, under this wise, protective provision, if the alleged tax shall amount to a penalty, for some infraction of the laws, the tax collector cannot, by his authority, assess the penalty under the name of a tax; for if a penalty, a jury must decide upon the supposed infraction before the penalty can be inflicted.

Does, or does not, then, the alleged tax amount to a penalty ? What is a tax ?

It is a contribution, in money, required by law of every citizen, for his property, income, or person, or for the use of any personal or other rights, which are protected by the government of his country. — I have somewhere read that in Great Britain every thing except water is taxed, in some shape ; and the observation is characteristic of the power of taxing whatever is used or enjoyed.

For instance — in that country, the use of light and air is paid for, in the window tax — that of fire, was formerly in the hearth tax — contracts and the use of paper, in the stamp act. Talents, industry, and learning, in the tax on professions. The light of calling debtors to account, in the tax on law proceedings. The boasted “ Nulli vendemus jusiiciam” of Magna Charta, has not shielded judicial justice from taxation, and the established religion brings with it, “ great tithes to the rector, and small tithes to the vicar.” All property is taxed, down to dogs. Life is assessed in the poll tax, and the right to be buried is taxed, in the shroud required by law.

I have made this selection of taxes from high authority, in order to show how universal is the application of the taxing power, to any subject, or right, thing or action. (And if I may be indulged in the incidental reflection — may the two hundred millions of dollars now due by the individual States, and the passion for borrowing abroad, not bring them into this favorite high road of our English ancestors ; or at least, not without their secret of spending, at home, the whole proceeds of the one, and keeping there the entire interest of the other, which so lightens the burden of heavy taxes.

But to proceed — when we consider that the foundation, principle and inseparable duty of government, is to protect persons, rights and property, it is but strict reciprocity, that the commensurate right of taxing follows on the part of the ^government, for its own safety, per-menance and policy. And, that there can bo no limitation, but by some fundamental and paramount law, or the change of rulers. It is important in the consideration of the case before the Court, to call to mind the time, manner and true end of taxes.

Taxes are generally laid annually, because they are laid for the purpose of raising the supplies for and during the established fiscal year. They are usually upon things or rights, which have been already used or enjoyed ; because they have been already protected, and because the value of such things or rights can then be most safely estimated and justly rated. As to the manner — it may be tyrannical to surprise the citizen by unlocked for taxes. But the timely notice of what shall be taxed, can be seldom given, because every successive Legislature must estimate the supplies for the coming year — while they judge by the actual history of the past year, what property or revenue, right or enjoyment, can most easily and justly bear this burden of taxes.

As to the character and end of taxes. Why is it, that we cannot divest taxation of the idea of a loan, advancement, or subsidy. It is because they all depend upon the actual means. Rents, profits and wages are the sources of the supplies, under any name. And rightly considered, all such supplies are to come back to the people, in some right, profit or enjoyment. Yet still, they are no more than a choice of burdens, and admit of great abuse.

But, all that can be done, is to consult the actual means of the country, in order to indicate the justice of all taxes. And we see, at a glance, the sagacity of the Legislature which, by wise laws, draws into its own State pecuniary means, making, in this way, the wealth of foreign nations tributary to the welfare of their own. And how unwise to occasion the efflux of capital or interest — transferring to others the industry of their country. And here, at least, for the argument sake, let the brokers’ tax be considered of this character.

The principles noticed are self-evident, and exhibit their own reason. And the following rule is evidently deduced from them. It is considered (see 1 Comm. c. 8,) as a rule of construction of revenue acts, in ambiguous cases, to lean in favor of revenue. This rule, says the great commentator, will be found to be agreeable to good policy and the public interest.* But it is still more clear, as our own rule, that the Court is to hold all Act of the Legislature constitutional, unless clearly repugnant to the paramount law of the constitution.

Now, then, let us apply these well established rules, and such principles, in the construction of the tax Act of 1839. After several other taxes, the Act proceeds in these words, “thirty cents, ad valorem, on every hundred dollars, on the value of all lots, lands, and buildings, within any city, including all lots or portions of land on which buildings may be erected, in the immediate vicinity of any city, &c. Sixty cents per hundred dollars on factorage employments, &c. ; and on the amount of commissions received by vendue-masters, and commission merchants, &c., one-eighth of one percent, upon all purchases and sales of bullion, specie, bank notes, bills of exchange and stocks, which may be made by any brokers or agents in this State, for or on account of any bank, company, or individual, without the State ; and also upon all such purchases and sales as may be made by any such broker or agent, upon his own account, or for account of others engaged in the same pursuits; to bo ascertained and rated by the assessors and collectors throughout the State, according to the best of their knowledge and information,” &c.

It is supposed that the tax of one-eighth of one per cent, upon “ bullion, specie,” &c., may be unconstitutional. But such sales are the ways and means of profit and wages to the broker; and, being protected, are subjects for taxation, like the sales of auctioneers or factors. And the tax is as well rated or measured by the amount of sales, as by the commissions of the broker. They are the same measure essentially.

It is argued that it amounts to a double tax. But that would only-make it a high tax — not render it unconstitutional. All absentees pay a double tax; upon the wise rule, that we should discourage the efflux of money. And assuredly, a double or high tax may be laid for other causes. Any man may act as factor, broker and auctioneer, and render return for each employment respectively. Rich men make returns for various property. And he that carries on many professions must do the same; and ought not to complain, if all his ways and means are made to contribute. In answer to this part of the argument, it ought to be enou£h to say, that the *sales of “bullion, specie,’’ <fcc., being taxable, the salesman must pay the tax laid according to law.

But the great and true objection is, that this tax amounts to a penalty. If it be so, the relator is shielded by the ninth article of the constitution, already recited. But why is this tax more a penalty than the common tax upon auctioneers, factors or commission merchants ? This is not a pecuniary fine for doing an unlawful act, but a contribution for being protected in making profit and wages — and of selling “ bullion, specie,” &c. It is, surely, one of the lawful ways and means of profit. For my own part, I do wish that we had here, in our commercial capital, the sales of all bullion, specie, bank notes, bills of exchange, and stocks, sold in the United States. Such a mart would do more for our foreign exchanges, perhaps more for our commercial advancement, than the great Western Railroad completed to the Ohio, and the direct trade with Europe, both of which are so justly desired ; and my only objection to the tax is, that it may check the influx of such rich ways and means. What would the Lord Mayor and Common Council of London think, if the sales of American and other foreign stocks were checked by a high excise duty.

I trust that, in these incidental observations, it will be seen that the fairest play is given to the argument against the tax. I defend its constitutionality only.

Under the head of penalty, the case of the State vs. Allen, (2 McC. 55) is relied upon ; and the argument is, that courts should be uniform in their decisions upon similar cases. This is most true. Therefore, let us consider that adjudication. In the mean time, I cannot but anticipate that the argument, from uniformity will presently change sides.

The tax Act of 1820 imposed, in terms, a tax of §10,000 upon any person “ who shall, after the passing of this Act, open, or keep open, any office for the sale of any lottery tickets.” The so-called tax was not measured, or rated, by the sales, profits, or success of the lottery office. It was the plain infliction of a specific fine, for opening, in future, such a source of excitement to gambling propensities as a lottery office. Whether the office sold a single ticket or many thousand, the fine was the same- Of course, there was nothing *for the tax-collector to assess. The supposed tax bore, then, every mark of penalty or punishment for an act done, or at least, for a privilege assumed ; and it followed, that the party accused, must be first convicted by a jury, upon which the fine followed, subject to the pardoning power of the Governor.

The ninth section of our present tax Act illustrates the principles of Allen’s case. Any person may now purchase the privilege of vending lottery tickets for $2000, but on default, he is subject to the same fine of §10,000 ; so that it was, and is,- a penal enactment. But the tax before the court, has no characteristic of the kind. But suppose that doubtful, are we not, then, to apply the rules before laid down ? The construction is to be favorable for raising the supplies of the State ; and no Act is to be held unconstitutional, unless it be clearly at war with the constitution of the State.

Of this last rule, I beg to be indulged in a brief exposition, for its mportance sake, on both sides of the present case ; and especially because late I do think that motions for prohibitions are getting somewhat rife. And it may be better to resist their undue encroachments, than to have to cure their evils.

The constitution, and all statutes passed, are simply laws intended to be made, “ in pari materia” — upon the same subject. Every Act applies and illustrates some authority of the constitution, by practical example and enforcement. It follows, that the secondary law of the Act, to be good and valid, must be inseparable from the primary principles of the constitution, which is, at once, its source and its warrant. Hence, it is, that we are to apply the principles of the one, in order to test the validity of the other. And hence, too, the unavoidable judicial duty, not privilege, so to apply the constitutional test, as to declare the supposed law of the Act, valid or void, as it may be found united with, or repugnant to, the law of the constitution. It equally follows, that where there is any union between the law and the constitution, the Act is within the Legislative authority. And being truly in pari materia, it must stand.

If I may use a figure of speech — wherever the parent law of the constitution tolerates the Act as its offspring, it is legitimate, *however deformed in our eyes. And, of course, he that would repudiate an Act, takes the burden of proving its repugnancy upon his own shoulders.

To this exposition, let me add, that a revenue Act is among the last of all laws in which Courts should be placed in conflict with the Legislative department. Because the subject and extent of taxes are necessarily at the Legislative discretion, and Courts cannot interfere with the discretion, so vested in another department of government.

Having now established, that the broker’s tax is no penalty, but plainly a tax, within the legislative authority to tax ; and I would apologize for exhausting time upon so plain a proposition, did I not feel, that a thorough conviction on that head of the argument, is the proper and unerring clue to the true exposition of the second and final proposition ; I do -not speak beyond my conviction, in saying — grant the first, yon give the second ; and that the prohibition ordered, can be supported, only by upholding the entire decision of the Circuit Judge. And I now, therefore, lay down the proposition, so established, as decisive of the second question of the case.

Doubtful words are expounded by their subject matter. If, then, the new tax upon brokers be itself constitutional, it is, then, to be assessed and paid, unless otherwise plainly expressed, like other and former taxes —i. e. under the Act of 1788, for expounding all our annual tax Acts. And all that I have said, upon the union between Acts and the constitution, would apply equally to the Acts of 1839 and 1788 — we cannot uncouple them. And I might, here, well ask more than I demand— that unless the Act of 1839 be expressly future and prospective, as to the tax, it is ipso facto retroactive, and enacts a tax for the past fiscal year. And, I here admit, that if the tax on brokers were plainly prospective, it would then have one mark of a penal enactment, and militate against my first proposition.

But let us turn untrammelled to the terms of the Act — “ one eighth of one per cent, upon all purchases, sales,” &c., which may be made, by any brokers or agents.

Do these words mean “sales which may have been made,” so as to relate back to the past fiscal year, or do they mean such sales as shall be made, after passing the Act of 1839 ? and *thus give no authority for the assessment made, of the 1st of October, preceding.

First — The former is, in mv judgment, the true grammatical construction ; “ sales which may be made,” mean — which may have been made, rather than sales which shall be made. I would say this, independent of the Act of 1788. Because,

Secondly — It is the only construction that can make the words answer to the apparent, if not professed, object of the Act to raise supplies, in the usual way, by rates or taxes, upon things, rights, and profits, already protected and realized.

Thirdly- — It is the only construction that can couple the Act for raising the brokers’ tax with the Act of 1788, which has usually formed the exponent of all our tax Acts, and made the taxes laid relate back to the first of October preceding. And,

Fourthly — The words used constitute the common phraseology of our tax Acts, in similar cases, and have been before construed in practice, to make the assessment relate back to the first of October.

For instance, take the fourth tax laid by the very Act of 1839. “ Thirty cents ad valorem,” &c., “on lots,” &c., “ on which buildings may he erected.” No one has questioned the retrospective meaning of these words, and the established construction is, that the tax is laid on buildings erected before the first of October last past.” Does not the use of words make the law of their construction ? How, then, I ask, can it be, that “sales,” &c., “ which can be made,” mean sales that shall be made after passing the Act ? Will the Court, by a new construction'of such words, put it at the discretion of every householder in a town or village, to avoid the present tax upon his building, by submitting, that the tax is only on buildings that shall be erected, and thus make the exception introduced by the Act itself, in Allen’s case, the common rule for the tax collector, in all his assessments of houses, “ which may be erected ?’■’ Will the Court instruct him to read the sentence as if written — shall be erected ? What a practical illustration would we have that revenue laws are to be construed favorably for the State revenue ! And what would become of the argument for uniformity ?

But, if we want additional reason for the usual construction of the words, “maybe erected,” or “may be made” — have we not what is wanted, in the principle, that taxes are commonly* laid, and ought to be laid, upon rights that have been already enjoyed, under the protection of government ? If this be a sound principle for raising revenue by taxation, does it not lead us, as by the hand, to the retrospective operation of the words, “sales which may be made.”

Upon the whole, then, in this case, so important in its principles— disabusing my understanding of the excitement caused by a new and high, and, perhaps, unwise tax, and releasing it from authority, I can perceive no penalty, and nothing repugnant to the constitution, in the tax laid on brokers. Nor can I discover that it differs from other similar taxes, in the time of its assessment. And the conclusion follows, that the decision granting the prohibition, should be reversed; and that the relator be required to declare in prohibition, in order to try the fact whether he was a broker, within the meaning of the Act. This he denies ; and he must be heard upon the question of fact. For, in this, Mr. Carter is under the 9th article of the constitution. And the tax will attach, or not, according to the verdict that shall be rendered, upon the question, is he, or not, a broker or agent, within the meaning of the Act.

See City Council ads. Weston, Harp. 340; reversed 2 Pat. 449, or 8 Curt. 171; Birney vs. Tax Collector, 2 Bail. 654; Bulow vs. City Council, 1 N. & McC. 527; Copes vs. City Council, 10 Rich. 495, and cases there cited; State Bank vs. City Council, 3 Rich. 342; State ex. rel., Ravenal et al. vs. City Council, 4 Rich. 286; State ex rel., Sebrinq et al. vs. City Council, 5 Rich. 561; State ex rel. Adger vs. City Council, 2 Sp. 719; 4 Strob. 217; McMul. Eq. 144; 2 Sp. 491, 623; 10 Rich. 104, 240, 474. An.

Johnston, Ch., signed neither opinion.  