
    J. Bulow and J. Potter v. The City Council of Charleston.
    The City Council of Charleston passed an ordinance laying a tax on all bank stock within the city, except that which was exempted from taxation by the Acts of the Legislature, which exception did not include United States Bank stock. Held, that the ordinance was within the powers of the Council, granted by the Act of Incorporation, and that it was neither repugnant to, nor inconsistent with, the law of the land.
    United States Bank Stock, in the hands of an individual, is a legitimate subject of taxation.
    The City Council have not the power of taxing the United States Branch Bank, 
    
    Tried before Mr. Justice Grimke, at Charleston, January Term, 1818.
    By an ordinance of the City Council, an assessment of one half per cent, was directed to be made on all bank stock owned within the city, to be valued at one half, except that which is exempted from taxation by the Acts^of the Legislature, which exception does not include United Stales Bank stock.
    *Under the authority of this ordinance, an assessment was made on the plaintiffs, who were citizens of and resident within the city of Charleston, on account of United States Bank stock, to a considerable amount, owned by them ; and on an application to the Circuit Court, an order was obtained that a writ of prohibition issue to restrain the City Council from the collection of the assessment.
    A motion was now made to reverse that order, on the ground that the ordinance was within the powers of the Council granted by the Act of Incorporation ; and that it was neither repugnant to, nor inconsistent with, the laws of the land.
    
      
      
         McCulloch v. State of Maryland, 4 Wheat. 316. R.
      Ante, 480; 2 N. & MoC. 229 ; Harp. 340, reversed, 2 Pet. 449, or 8 Curt. 171; 10 Rich. 104, 240, 474, 495 ; 4 Rich. 286 ; 4 Strob. 217; 3 Rich. 342; 2 Sp. 719 ; 1 McM. 410; MoM. Bq. 144.
    
   The opinion of the Court was delivered by

Johnson, J.

It has been conceded, in the argument of the case, that the 4th section of the Act of Incorporation, giving to the City Council, full power and authority to make such assessment on the inhabitants of Charleston, or those who hold taxable property within the same, for the safety, convenience, benefit and advantage of the City, as shall appear to them, expedient,” invests them with the same powers to impose taxes on legitimate subjects of taxation, as the State itself possesses, under the Constitution of the State, and the United States; and it only remains to be inquired, whether United States Bank stock, in the hands of an individual, is a legitimate subject of taxation.

I take it to be generally true, that whatever appertains to the persons of the citizens, over whom, or over whose property, the supreme authority has a control, is a legitimate subject of taxation, unless it be exempted by a superior authority. Thus we see houses, lands, slaves, cattle, stock in trade, money at interest, professional income, and all the long list of property and interest, are so considered ; and it cannot be doubted that United States Bank stock falls within the class of legitimate objects of taxation ; and it was incumbent on the plaintiffs to show that it was exempted* by an authority superior to that of the City Council. It has been attempted to be demonstrated by the following view of the subject.

1. It was contended, that Congress had authority under the Constitution of the United States, to establish a bank, and, necessarily all the powers requisite to carry it into effect; and that the exercise of the right of taxation, by any other power, is incompatible with that authority, as it might be carried to an extent which would defeat the object of its establishment.

2. That the United States Bank stock held by the plaintiffs, must be regarded as being located at the mother bank, although there be a branch here, and although the plaintiffs may receive their dividends here ; and therefore not within the power of the City Council.

1. It is not proposed, nor is it necessary, to enter into the question formerly much contested, whether under the Constitution of the United States, Congress had or had not the power to establish a National Bank ; nor will it be denied, that the exercise of the right of taxation over it, as a bank, would be incompatible with that power ; or that the stock held by the United States is for that reason exempted. But with all these admissions, it appears true, that the conclusion drawn from the first view of the subject does not necessarily follow; and to demonstrate that it does not, it will only be necessary to examine into the nature of the property which the stockholder has in the stock. Though bound together by a union of funds and a community of interests, the stock of each member, of whom the United States constitutes one only, the property which each possesses, in it, is wholly distinct, and independent of the others, and in no manner dependent on, or connected with, them, further than the losses or profits of the one is measured by those of the others, in consequence of the community of their interest. It does not therefore follow, that if the interest of the United States in the bank, or the bank itself, in respect thereof, is exempted from taxation, that the interest of an individual, in no wise connected* with, or under its control, shall be also exempted.

But it is said the right of taxation might have the effect of driving the stock without the city, if exercised to an extent beyond the profits arising therefrom, and upon the same principle, without the State, and even without the United States. Be it so. If policy or necessity require that it should be driven out of the city, it may find a market beyond Boundary street; and if without the State, it may find a market in the neighboring States ; and if without the United States, it may find it abroad. The answer to it is, that if Congress thinks proper to establish a bank, on other funds than its own, it does not possess the power of compelling any individual to purchase the stock, but must send it into the market, and where individuals find it to their interest to participate. So that, in truth, the case does not present a question as to the exercise of inconsistent powers between the State authority' and the United States, but between the State and its citizens, or, in other words, whether the State authority has a right to draw on the sources of the wealth of its citizens to support and defray the expenses of the government ? And if the position, that all of them are legitimate subjects of taxation, unless expressly exempted, there can be no question that United States Bank stock is included.

Connected with this subject, an argument was founded on the position that the bank constituted one of the component parts of the fiscal departments of the United States, and was therefore exempted from taxation. I think it has been before shown, that the interest of the United States and the individual stockholders are distinct and independent. Admitting therefore, that it might be so considered, in relation to the United States, the reasons before given demonstrate that the same protection is not intended to the individual.

2. Having before, as I think, clearly established the position, that all sources °f wealth and income are the legitimate subjects of taxation, when either the person of the possessor, or the thing itself, is within the power of the authority imposing it, it is sufficient to remark on this branch of the subject, that when the person, and not the thing, is within the reach of the authority imposing it, it must be considered as a tax imposed on the person in respect of the thing ; and I am not sure that every tax ought not be so considered, so that from whatever source the thing arises, it is a fit object of taxation.

The policy of this ordinance does not fall within the judicial sphere of a court of justice; it belongs to them only to expound the law. But if I were allowed an opinion on the subject, I think it very questionable whether the unlimited exercise of the power might not have the effect of driving from the city a great proportion of its mercantile capital, and necessarily all the advantages arising from the dividends. This, however, is a matter for the consideration of the Council, and they will no doubt act upon it as policy and convenience may dictate.

I am of opinion that the motion ought to be granted.

Oolcock, and Gantt, JJ., concurred.

Nott, J.,

dissenting, delivered his opinion as follows :

Having taken a different view of this question from a majority of the Court, perhaps it may have been thought my duty to have given the subject a more ample investigation than I am prepared to do on this occasion. But the novelty and importance of the question has induced me to reserve my opinion, except so far as is necessary to state the most prominent grounds of my dissent, until time shall furnish more ample means of viewing it in its more extensive relations, than I at present possess. I consider it the most important question that has occupied the attention of this Court since I have had the honor of a seat on the bench ; and I therefore approach it with more than ordinary diffidence and solicitude: and I think it would *have comported better with that spirit of harmony and concord which every branch of our complicated government ought to be emulous to promote, if the City Council had forborne to exercise such power, until the State had made this property a subject of taxation. It is not merely a question, whether the City Council has the power to impose a tax on bank stock. Neither is it a question between the United States and an individual State. But the real question which we are called upon to decide is, whether, when Congress has adopted a measure confessedly within its jurisdiction, any corporate body, existing under the authority of a State, and having the power to pass by-laws, may, by one of its ordinances, directly defeat such act of the general government ?

The great objects of the federal compact are declared to be “to form a more perfect union, to establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare and secure the blessings of liberty.” Preamble to the Constitution, Grimke, P. L. App. 29. To effect those great and important objects, certain powers are delegated to the general government. And it seems now to be admitted, by all the commentators on the federal constitution, that where the exercise of any power by a State is inconsistent or incompatible with such delegation, it must be considered as exclusively granted to the general government.

It is also further declared, that Congress shall have power to pass all laws necessary to carry into effect all the powers so delegated by the Constitution. Art. 1, sec. 8. P. L. App. 82. For what purpose, let it be asked, does the Constitution contain such a provision, if the operation of any Act of Congress may be defeated by an Act emanating from the authority of a State ? If such is the situation of our government, it does appear to me the people of the United States have failed in the attempt to effect, at least, one of the great and avowed objects of the confederation : that of securing to themselves and their posterity, “ domestic tranquillity.” *1 cannot conceive a more effectual source of domestic discord, than a power in the States to resist or defeat the operation of a constitutional Act of the general government.

It is said, we have nothing to do with the policy of the measure. It is true, we are not authorized, with a view to answer any political object, to give a construction to the constitution inconsistent with the letter and spirit of that instrument. But it is a rule, universally admitted in the construction of statutes, to consider the old law, the mischief existing under it, and the remedy intended to be applied. In searching for the true meaning of the constitution, we must frequently look to iha preexisting state of things, and inquire, what purpose was intended to be effected by the change P I have already noticed the objects which led to the adoption of the constitution of the United States : and it is our duty to give it"the construction best calculated to promote those objects. Many of the questions arising between the general and State governments must necessarily be great political questions, which caii only be determined by a view to their effects and consequences. An exclusive grant of power to Congress over certain subjects is inferred only from the impracticability of exercising the same power by a State, at the same time. In such case the constitutionality of a State law must be tested by its compatibility with the powers of Congress on that subject. And it will be by the political consequences that we must determine whether they are compatible or not. The case now under consideration necessarily involves the inquiry, whether the ordinance of the City Council be compatible with the Act of Congress, establishing a bank ? If the power exercised by the City Council have a direct tendency to defeat the object intended to be effected by Congress, then it is incompatible. ■ Two conflicting powers, tending to neutralize each other, cannot exist together ■in any government. And although the tax now imposed on the bank may not produce any sensible effect on its operations, yet, if the power be recognized, it will establish a principle which *may work its destruction whenever it shall be exerted for that purpose. It ■appears to me that the difference of opinion in this case has arisen from •an abstract view of this institution as a bank, without considering the relation between the government of the United States and the individual "States. The United States, in their federal capacity, possess all the attributes of sovereignty, over the subjects delegated to them, in as ample •a manner as the individual States do over those which are reserved. A.nd I take it to be an undeniable axiom in politics, that every government should possess the power to carry its own laws into execution. To 'that end was the clause, which I before noticed, introduced into the constitution, “that Congress shall have power to pass all laws necessary to carry into effect all the powers therein granted.” Whether the power exercised by Congress on this occasion, be expressly delegated, or arise from necessary implication, is not material. It is equally beyond the control of the City Council. If Congress has the power, it can be limited in the exercise of it only by its .own discretion. And having the power to establish a bank, all incidental powers must necessarily be implied. It is in vain, that Congress has power to erect public institutions, if they must be subject to the capricious will of every corporate town in the United States for their existence. It is in vain, that Congress has the power to pass laws, if any subordinate authority may defeat their operation. I suppose, it will not be denied, that this is an institution of the United States. It is entitled “ The Bank of the United States.” The United States are one of its constituent members. Many of the functions of the government are carried on by it. Its charter may be revoked, and it is subject' to the visitorial power of Congress. Indeed we cannot shut our eyes against the fact, that it is one of the principal engipes, without which the fiscal operations of the government could with difficulty be carried on, and to that necessity alone perhaps does it owe its existence.

The strong ground on which the motion is attempted to be supported, appears to meto be, that this is a great ^moneyed monopoly, which, in the hands of the general government, will become a gulf, in the vortex of .which, every minor institution will be swallowed up. It has been compared to the lever of Archimedes, by which the constitutions of the States may be overturned. But here the maxim well applies,, that, with the policy of the measure, we have nothing to do. Having ascertained the true construction of the constitution, whether its provisions are wise or not, does not belong to us to decide. But why this alarm at the exercise of the legitimate powers of the general government ? The jealousy of the States is ample security against an invasion of their rights, and they have ample means to prevent or resist it. If the powers of Congress are too great, they may be abridged by an amendment of the constitution. If they are abused, they may be corrected by a change of representation. If they are exceeded, they may be controlled by the judiciary. But to give to one government the power of passing laws, and to another the right to resist them, or to defeat their operations, or rather to give to a government a power to legislate, and to a single member or branch of it to defeat its acts, would be like harnessing horses to the hindmost part of the carriage to' check the impetuosity ’of those in front. It would necessarily lead to a contest for power : and whether the machine would move forward or go backward, or be torn asunder in the' struggle, would depend on the relative force of the conflicting powers.

There is another view of the subject which, perhaps, deserves consideration. The sixth article of the federal constitution declares,’that this constitution, and the laws of the United States, made in pursuance thereof, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution, or laws of any State, to the contrary notwithstanding. If the laws of the United States are to be supreme, any law of a State impeding their operation must be unconstitutional. Otherwise a State might indirectly defeat the most important ^measures of the general government.- If-the government does not deserve our confidence, let it be abolished, or so modified as to remove the danger. But let it not be so maimed and crippled as not to.be able to do either good or harm, except by accident.

That our liberties may be destroyed by an abuse of the powers vested in Congress, I admit. Too liberal a use of the single power to raise armies might prostrate the liberties of the American people. There is no good government which has not the power to destroy the. liberties of the people. No government can be good, which has not such power. Without the power to destroy, the government could not possess the means to protect, our liberties.

But I forbear to dwell op a subject on which I have already said more than I intended or expected to say. Even if I had entertained a different opinion from that which I have expressed, I should think this measure of the City Council very unpropitious to that amity and confidence which ought to pervade every fibre of our government. I hope I may be mistaken in the view which I have taken of the subject. And if I am, I shall rejoice that the better opinion of my brethren will prevent the evil to which such an opinion might tend. But on the contrary, if it goes to establish the principle, that any body emanating from the authority of a State, may undertake to judge of the policy of an Act of Congress, which is admitted to be constitutional, and may adopt such countervailing measures as. have a direct tendency to defeat its operation, or to prevent it from being carried into-effect, these United States may bid “farewell, a long farewell, to all their greatness.”

Drayton, and Hayne, Attorney-General, for the motion. K. L. Simons and Holmes, contra. 
      
       7 Stat. 98.
     
      
       1 Stat.
     