term, 1865, of this court, and the cases of Blackwell v. The State, 26 id. 204; Webb v. Baird, 27 id. 368, and The State ex rel. McCarty v. Pepper, 31 id. 76, have required this court to consider fully the question involved, we will not again enter upon its discussion. The demurrer should have been sustained. No acknowledgment of the execution of the bond was required by any law of this state then in force.

The third paragraph of the answer alleged that a revenue stamp had never been affixed to the bond.

Under the act of June 30, 1864, "to provide internal revenue to support the government," etc. (chap. 173, sess. 1st of 38th cong.), it was provided by section 158, "that any person or persons who shall make, sign or issue any instrument," etc., "without the same being duly stamped," etc., "with intent to evade the provisions of this act, shall, for every such offense, forfeit," etc., " and such instrument * * * shall be deemed invalid and of no effect." Under this section it was held, that unless there was an averment that the omission was from an intent to evade the act, the plea was not good.

By the act of July 13, 1866, this section was amended so as to read, "and such instrument, not being stamped according to law, shall be deemed invalid and of no effect."

The plain intent of this amendment was to avoid the effect of the rulir gs which held the instrument valid unless the intent existed to violate the act; and under this amendment the person who omits the stamp may not be liable, and yet the paper itself will be void, because "not stamped according to law." This change in the language of the act seems to have been overlooked in the recent case of Vorebeck v. Roe, 50 Barb. 302.

The ninety-fifth section of the act of July 1st, 1862, which was in force when this bond was executed, with a change of schedule by the act of March 3, 1863, declared the instrument unstamped to be "invalid and of no effect." Under such a provision, it cannot be held that the question may not be presented by plea, or that the plea must aver an intent to evade the act of congress. If the instrument be absolutely "invalid and of no effect," no suit can be maintained upon it; and certainly an answer which avers facts which prove this invalidity would constitute a good defense to an action upon it.

Under these considerations, counsel have pressed a question of such gravity that we would willingly avoid its discussion, were we

State v. Garton.

not required by official duty to meet it and dispose of it upon as full an examination as our time, limited by the pressure of an overburdened docket, will permit-a question that involves the lining of the limit, under the constitution of the United States, to the power of congress to influence by its legislation the harmonious working of the machinery of a state government.

If a state is to exist as a sovereign, it must of necessity have the power to select its agents to execute its laws, and must be empow ered to exact from them such pledge for the faithful discharge of their duties as may seem best calculated to secure their performance. In exacting such security, it must be as independent of all control as in enforcing the condition of the bond when forfeited.

The supreme court of the United States has declared the limit to state taxation, so far as the interests of the general government are involved. A state may not tax a bank of the United States, because the bank is to be considered an agency of the national government in the accomplishment of its constitutional purposes. "That the power to tax," says Chief Justice MARSHALL, "involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance, in conferring on one government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied." M'Culloch v. Maryland, 4 Wheat. 316.

The power to tax involves the power to destroy, because, in the language of this eminent jurist, it is "unfit for the judicial department to inquire what degree of taxation is the legitimate use, and what degree may amount to the abuse, of the power." The rule has received almost universal recognition. Kirby v. Shaw, 19 Penn. St. 258; Sharpless v. Mayor, 21 id. 147; Weister v. Hade, 52 id. 474; Wingate v. Sluder, 6 Jorres (N. C.), 552; Herrick v. Randolph, 13 Vt. 525; Armington v. Barnet, 15 id. 745; Thomas v. Leland, 24 Wend. 65; People v. Mayor, 4 N. Y. 419; Portland Bank v. Apthorp, 12 Mass. 252.

Again, the states may not tax the obligations or evidences of debt issued by the general government upon the loans made to it, because such tax would trammel the operations of the government in negotiating loans. Weston v. Charleston, 2 Pet. 449; Bank of Commerce . New York City, 2 Black, 620; Bank Tax Case, 2 Wall. 200; Van

State v. Garton.

Allon v. Assessors, 3 id. 573; People v. Commissioners, 4 id. 244; Bradley v. People, 4 id. 459.

Nor may a state tax an officer of the general government for his office or its emoluments, since such a tax, having the effect to reduce the compensation for the services provided by the act of congress, would, to that extent, require from the national treasury an increased expenditure to secure the execution of its laws. Dobbins v. Commissioners of Erie Co., 16 Pet. 435.

And has this principle, vital indeed to protect the national life, no other application? The benefit of its application has been boldly claimed by the men who have honored the highest judicial positions the nation could bestow on intellect, learning, and virtue. It has protected the one from the hostile action of the many. May not its protection also be invoked to secure the many from an unauthorized exercise of power by the one? Is not the existence of the state governments as fully recognized in the constitution of the United States as that of the national government? If the states may not exercise a power which might menace the general government, should not that hand also be held back from the throat of the former, though the pressure be at present ever so slight?

True, the national government is our government, and we will not anticipate an attempt by it at our destruction as a state, but, as the chief justice remarked in discussing this very question in M'Culloch v. Maryland, this "is not a case of confidence."

"If," continues the chief justice, "we apply the principle for which the state of Maryland contends, to the constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the states. * * *If the states may tax one instrument, employed by the government in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house; they may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government."

And may we not respond, that if the national government may tax-nay more—may declare "invalid and of no effect," the official bond executed to the state from its own citizen selected by it to execute its own laws, may the national government not also tax the

State v. Garton.

issue of a warrant from the state auditor upon the state treasurer, the signing of a pardon by the governor, his approval of a bill, the passage of the very bill itself by the legislature, the decisions of our judges, the process of our courts? Nay, it did tax that process. This, then, "is not a case of confidence," but of construction of a constitution which is over and above both national and state gov ernments.

The first clause of the eighth section of the first article of the constitution of the United States declares, that "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States."

The word "tax," as here used, includes all contributions imposed by the government upon individuals for the service of the state. Story Const. § 950.

This power to tax is not exclusive in the national government. A concurrent and co-extensive power remains in the states, as a part of their "original and unsurrendered sovereignty," except as to duties on imports and exports. "The authority is coequal." Federalist.

"It will at once be seen," says Judge STORY, " that the state gov. ernments have complete means of self-protection; as, with the sole exception of duties on imports and exports (which the constitution has taken from the states, unless it is exercised by the consent of congress), the power of taxation remains in the states, concurrent and co-extensive with that of congress. The slightest attention to the subject will demonstrate this beyond all controversy. The language of the constitution does not, in terms, make it an exclusive power in congress; the existence of a concurrent power is not incompatible with the exercise of it by congress; and the states are not expressly prohibited from using it by the constitution. Under such circumstances the argument is irresistible, that a concurrent power remains in the states, as a part of their original and unsurrendered sovereignty." 1 Story Const. §§ 940, 941, 942; Federalist, No. 32; Gibbons v. Ogden, 9 Wheat. 191 to 202; 1 Kent Com. lec. 18; 4 Wheat. 193; 5 id. 22; 12 id. 448.

"Any separation of the subjects of revenue which could have been fallen upon would have amounted to a sacrifice of the interests of the Union to the power of the individual states; or to a surrender of important functions by the latter, which would have removed

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them to a mean, provincial servitude and dependence." Story Const. 943.

The jurisdiction of the state on the subject of taxation for state purposes is supreme, over which the government of the United States can have no power or control. The People v. Bradley, 39 Ill. 130.

This power of taxation, existing alike in the general government and in the states, co-extensive and concurrent, by virtue of the sovereignty of each, has, then, for each this limit: neither may tax, because neither may take away, the legitimate machinery or agencies employed by the other in the exercise of its governmental powers and functions.

The principle which operates as a limitation upon the power of the state to tax the agencies and minute machinery employed by the general government to carry out its constitutional functions, must in turn equally restrain the power of congress to tax, to trammel or destroy the means used by the state to perpetuate an existence as sacred under the constitution as the national life, because a constituent of that life.

Nor is this conclusion the result of admitted premises alone. A writer on constitutional limitations whose official position, as well as the evident candor and ability manifest in his work, entitles his comments to consideration, reaches a conclusion thus expressed. "If the states cannot tax the means by which the national government performs its functions, neither, on the other hand, and for the same reasons, can the latter tax the agencies of the state governments." Cooley Const. Lim. 483.

In the case of Fifield v. Close, 15 Mich. 505, this language occurs: "The same supreme power which established the departments of the general government determined that the local governments should also exist for their own purposes, and made it impossible to protect the people in their common interests without them. Each of these several agencies is confined to its own sphere, and all are strictly subordinate to the constitution, which limits them, and independent of other agencies, except as thereby made dependent. There is nothing in the constitution which can be made to admit of any interference by congress with the secure existence of any state authority within its lawful bounds. And any such interference by the indirect means of taxation is quite as much beyond the power of the national legislature as if the interference were direct and