personal property of an individual or corporation, property which if nominally taxed as stock of the United States could not be taxed, may be included in the general aggregate of property liable to taxation, and the tax thus be imposed.

It is conceded that property exempt from taxation by law must be deducted from the aggregate valuation of personal property thus subject to assessment, and this principle was afterwards settled by the unanimous decision of the Court of Appeals in the People ex rel. Hoyt vs. The Commissioners of Taxes, 23 N. Y. Rep. 224, in which it was held that the personal property of an individual residing in this State, actually situated in another State or county, is not to be included in the assessment against him. And in the case first cited, DENIO, J., says: "It follows, therefore, from the very language of the statutes, that if the Bank of the Commonwealth has invested a part of its capital paid in, in a stock which is exempt from taxation, such portion is to be excepted from the assessment."

While, therefore, this decision is to be considered as controlling upon the question whether in assessing the aggregate value of the personal estate of an individual or corporation, stock of the United States should be included, still the question which has now been submitted to us formed no part of the matters upon which that Court passed when the subject was before them. A distinction was then taken between the exemption from taxation of these stocks under the provisions of the Constitution, which gave Congress power to borrow money on the credit of the United States, and such exemption if specially enacted by an Act of Congress. The learned Judge says, "It is the Constitution alone which is to be looked to, for Congress has never passed any law on the subject," and the Court expressed no opinion on the question whether Congress could enact a law by which the lenders of money to the government should enjoy the advantages of exemption from State taxation in respect to such loans; but say, "In the absence of any such statute, and resting upon the general grant of power contained in the Constitution, we are of opinion that the claim to be exempt from taxation cannot be allowed to prevail."

VOL. XI.-3

Whatever, therefore, may be the individual opinions of the members of this Court on these questions decided by the Court of Appeals, we do not feel at liberty to re-examine them in this case, and the only difference which exists between that case and the present is as to the effect of the provision of the Act of Congress of the 25th February, 1862, which says: "All stocks, bonds, and other securities of the United States, held by individuals, corporations, or associations within the United States, shall be exempt from taxation by or under State authority."

Two questions arise in regard to this enactment

I. Whether if constitutional such a provision would exempt them under our laws.

And II. Whether Congress can pass such a law limiting and restricting the powers of the State in regard to taxation.

Upon the first point I think there can be little difficulty.

The Act of 1857 expressly excepts from the personal property to be valued and assessed all such part of it as shall have been exempted by law; and DENIO, J., says: "It would be the duty of the assessors to inquire whether any of this property into which the capital had been converted was exempted by law from taxation. The bank is, as a general rule, assessed and taxed for all its property of every kind, but there is an exception as to such part of it as the Constitution and laws of the Union and of the State have, upon special reasons of policy, declared shall be exempted."

There can be no difficulty under this decision, as well as under the statute, of coming to the conclusion that such deduction must be made if the Act of Congress directing the exemption of the United States stocks and bonds from taxation is valid.

The cases which at various times have been decided in the United States Court, H. McCullough vs. State of Maryland, 4 Wheaton 316; Weston vs. City of Charleston, 2 Peters 449; Osborn vs. The United States Bank, 9 Wheat. 738, and others which might be cited—all hold that special taxation against the stock, bonds, o incorporations under the United States laws, was forbidden by th power given to the general government under the constitutional pow ers conferred upon Congress in connection therewith. To this exten

I consider the decision of the Court of Appeals, before referred to, as going. DENIO, J., takes the distinction between assessing the United States stocks and bonds specifically, and including the value thereof in the valuation of a man's personal estate. He says, "An unfriendly act of legislation which should exclude the federal government from reverting to the money markets of a particular State for loans, though it might not seriously affect the exercise of the borrowing power elsewhere, would be so obviously hostile to the operations of the government that I am confident it could not be sustained." And again (p. 207), "If the federal stock can be taxed separately and specifically at any amount which a State Legislature or a municipality to which its power has been delegated shall see fit, the government, in seeking to obtain money on loan, may be effectually driven out of the markets of such State."

If it be conceded that the right to borrow money by the Congress of the United States, granted by the Constitution, prevents the States from laying a specific tax on such bonds and stocks to an extent that would interfere with the government in borrowing money in such State, it seems to follow that the government must have the right to make such loans on such terms and limitations as they shall deem necessary to make such loans available; and that Congress, in authorizing such loans, is the person that must decide as to the conditions on which the loans may be taken. If the power to borrow involves the power to prevent the States from interfering with such loans by specific taxation, can there be any doubt that Congress may, for the sake of securing such loans, say to what extent, if any, the States may tax the same, and add to the terms on which the stock shall be issued, immunity from taxation throughout the country? If the States cannot impose a specific tax because it would impair the value, and thereby interfere with the power of borrowing, may not Congress say, that neither a specific or general tax shall be imposed by the States, in order to secure the success of the loan?

The power to borrow money and to issue stock is undoubtedly a sovereign power, and embraces within it all necessary powers to carry it effectively into exercise. It cannot be restrained as to

the place throughout the States in which it is to be exercised, nor the terms on which loans are to be made, nor the mode of transfers it may adopt, or the place where they are to be made, nor the If exemptions which such stocks shall have from public burdens. Congress had said no specific tax shall be laid on such stock and bonds in any of the States, the power to do so would be conceded under the decisions of the United States Courts, as well as the Courts of this State. If they can prevent specific taxation, I see no reason why the same power will not enable them to forbid any taxation, if in their judgment such restriction is necessary to carry out the original powers to borrow money. Whether they exercise that power wisely or not, is not for the Courts to inquire. The discretion is with them, the power is with them, and when exercised by them, that exercise of power is within the Constitutional authority "to make all laws which might be necessary or proper to carry into execution such power."

In

In The United States vs. Fisher et al., 2 Cranch 258, the right of Congress to give priority to debts due the United States is claimed under the general powers to make all necessary laws. that case it was said, "Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution."

The same was said by MARSHALL, C. J., in McCullough vs. State of Maryland: "If the end be legitimate and within the scope of the Constitution, all the means which are appropriate, which are adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect," and "The degree of its necessity is a question of legislative discretion, not of judicial cognisance;" and, in Brown vs. State of Maryland, 12 Wheat. 419, it is said, "Questions of power do not depend upon the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed."

It must be apparent, then, if Congress has any power to prohibit taxation of their stocks or bonds specifically, or to give any privileges to those who buy the same, the extent to which taxation may be prohibited at all, is an act of discretion, to be exercised by

Congress, and which cannot be the subject of judicial limitation. Legislative discretion should not be restrained by judicial decisions. It is the want of power, and not of discretion in the Legislature, which can be reviewed by the Courts.

If it were necessary to refer to the condition of public matters, as rendering it necessary that the general government should possess every power, to enable them advantageously to borrow money, very urgent reasons could be advanced, to show how necessary is the right to exercise such powers at the present time, to enable them to provide the means for the preservation of the government, but it is not necessary under the views above expressed on these questions.

It is argued, on behalf of the respondents, that even if the Act of February, 1862, is valid, it cannot be made applicable to stocks issued previous to its passage. The ground upon which the exercise of that power by Congress is sustained is, that by such provisions the power of Congress to borrow money is aided, and that to deprive that body of the power to prescribe the terms on which the loan could be made, and the privileges be conferred, therefore, would be to impair the power thus conferred by the Constitution. I am at a loss to see how that necessity exists as to stocks which had been issued and paid for long before its passage. We are controlled by the decision of the Court of Appeals, that, as to all stock issued before the passage of that act, it was subject to taxation with the other property of individuals and corporations. It is, then, presented as a simple statute, in regard to this stock, to exempt it from taxation by the States, passed long after the government had any interest in its value.

Without such interest, I should doubt the power to exempt such stocks, any more than any other property, from taxation. As a declaratory act of the views of Congress, as to their right to exempt stock from taxation, it would be of value, but it would confer no power which Congress did not otherwise possess. If the right to exempt from taxation rests solely on the necessity of the power in order to enable the United States rightly and advantageously to carry out the provision of the Constitution as to borrowing money, such right could not, with propriety, be claimed in regard to stocks