Mr. Montgomery Blair, for plaintiff in | any duty of tonnage under any circumstances, without the consent of Congress. error: In Cooley v. Portwardens of Phila., 12 How., 313, the court held in effect, that any tax which operates as a charge on such vessels, even though indirectly imposed, would be a tonnage duty; and says that a tonnage duty might be levied under the name of pilot dues or penalties, and "that it is the thing, and not the name, which is to be considered. And to the same effect is the case of the Steamship Co. v. The Portwardens, 6 Wall., 31 (73 U. Š., XVIII., 749). Pending the controversy in the subordinate state court, the parties, by consent, filed in the case an agreed statement of facts, from which and the pleadings it appears that the plaintiffs commenced an action of assumpsit against the defendants to recover back certain sums of money which the latter involuntarily paid to the former as taxes wrongfully assessed, as they allege, upon four certain steamboats which they owned, and which for four years or more they employed in carrying passengers and freight between the Port of Wheeling and other ports on the Ohio River. The points decided bearing on the question before the court, are, first: that the residence of the owners is immaterial, 12 Wall.,204 (79 U.S. XX., 370); second: that it is not necessary that the duty It appears that the plaintiffs are an incorposhould be according to the capacity of the ves-rated Company organized under the law of the sel; any tax upon a ship, however inconsiderable is a tonnage duty, and is prohibited (6 Wall., 31. supra); and third: it is not the name but the thing that is prohibited. (12 How., 299, supra). Now, the vessels in question are just as much within the description of things taxed by the West Virginia statute as if the statute had specifically taxed vessels by name; for it is as ships that they are assessed, and not as so much timber and iron; hence it is the thing which is prohibited and not the name. The prohibition certainly applies here. In support of the decision of the state court, there is cited the language of Mr. Justice McLean, in the Passenger Cases, 7 How., 287, and of Mr. Justice Clifford in the case of Cox v. Lott, Coll., 12 Wall., p. 204 (79 U. S., XX.,370); also certain expressions in Hayes v. The P. M. S. S. Co., 17 How., 596 (58 U. S., XV., 254); State Tonnage Tax Cases, 12 Wall., pp. 212, 213 (79 U. S., XX.,373); and in Morgan v. Parham, 16 Wall., 473 (83 U. S., XXI., 303). It is undeniable that the language cited tends to sustain the views of the state court; but the questions before this court in those cases did not involve the question now here presented for the first time, and, as we contend, is in conflict with the principles actually decided by the court. (No counsel appeared for defendant in error.) Mr. Justice Clifford delivered the opinion of the court: Power to impose taxes for legitimate purposes resides in the States as well as in the United States; but the States cannot, without the consent of Congress, lay any duty of tonnage, nor can they levy any imposts or duties on imports or exports except what may be absolutely necessary for executing their inspection laws, as without the consent of Congress they are prohibited from exercising any such power. Outside of those prohibitions the power of the States extends to all objects within their sovereign power, except the means and instruments of the Federal Government. State Tonnage Tax Cases, 12 Wall., 204 [79 U. S., XX., 370]. State, and that the defendants are a municipal Corporation chartered as a City under the law of the same State. Authority is vested in the City to assess, levy and collect an annual tax, under such regulations as they may prescribe by ordinance, for the use of the City, on personal property in the City, not to exceed in any one year fifty cents on every $100 of the assessed valuation thereof. By the same law it is provided that personal property shall be deemed to include all subjects of taxation which the assessors, acting under the laws of the State, are or shall be by law required to enter on their books as such property for the purpose of state taxation. Pursuant to that law, taxes were assessed for the several years mentioned, against the plaintiffs for the appraised value of the four steamboats and the furniture of the same, which they owned and used as aforesaid, it appearing that the plaintiff's principal place of business was Wheeling, and that three of the steamboats were usually lying at the wharf or at the bank of the river within the corporate limits of the City. Throughout the whole period each of the steamboats was duly enrolled and licensed as coasting vessels under the laws of the United States, and the agreed statement shows that the plaintiffs paid for each all dues, fees and charges which were properly demandable under those laws. Payment of the taxes was made under protest and in order to escape the seizure and sale of the steamboats. Service was made and the parties having waived a jury and filed an agreed statement of facts as before stated, submitted the case to the court of original jurisdiction. Hearing was had, and the court rendered judgment in favor of the defendants. Exceptions were filed by the plaintiffs, and they removed the case into the Supreme Court of the State, called the Court of Appeals, where the judgment of the subordinate court was affirmed. Though defeated in both of the state courts, the plaintiffs sued out the present writ of error and removed the cause into this court. Since the transcript was entered here, the plaintiffs have assigned for error that the State Court of Appeals erred in holding that the taxes levied are not within the constitutional prohibition that no State, without the consent of Congress, shall lay any duty of tonnage. Taxes levied by a State upon ships or vessels as instruments of commerce and navigation are within the clause of the Constitution which prohibits the States from levying any duty of tonnage without the consent of Congress; and it makes no difference whether the ships or vessels taxed belong to the citizens of the State Ships or vessels of ten or more tons burden, which levies the tax or to the citizens of another duly enrolled and licensed, if engaged in comState, as the prohibition is general, withdraw-merce on waters which are navigable by such ing altogether from the States the power to lay vessels from the sea, are ships and vessels of the United States, entitled to the privileges se- | cured to such vessels by the Act for enrolling and licensing ships or vessels to be employed in the coasting trade. 1 Stat. at L., 287. Authorities to show that the States are prohibited from subjecting any such ship or vessel to any duty of tonnage is scarcely necessary, as that proposition is universally admitted; the only question which can properly arise in the case presented for decision being whether the tax as imposed by state authority is or is not a tonnage duty, within the meaning of the Constitution. Tonnage duties cannot be levied; but it is too well settled to admit of question that taxes levied by a State, upon ships or vessels owned by the citizens of the State, as property, based on a valuation of the same as property, to the extent of such ownership, are not within the prohibition of the Constitution. Power to tax for the support of the State Governments exists in the States independently of the National Government; and it may well be assumed that where there is no cession of contradictory or inconsistent jurisdiction in the United States, nor any restraining compact in the Constitution, the power in the States to tax for the support of the state authority reaches all the property within the State which is not properly regarded as the instruments or means of the Federal Government. Nathan v. La., 8 How., 73; Brown v. Md., 12 Wheat., 419; Weston v. Charleston, 2 Pet., 449. gress to tax ships is derived from the express grant of power in the eighth section of the first article, to lay and collect taxes, duties, imports and excises; and that the inability of the States to tax the ship as an instrument of commerce arises from the express prohibition contained in the 10th section of the same article. Passenger Cases, 7 How., 283, 479. Support to that view is also derived from one of the numbers of the Federalist, which has ever been regarded as entitled to weight in any discussion as to the true intent and meaning of the provisions of our fundamental law. By that number it is maintained that no right of taxation which the States had previously enjoyed was surrendered, unless expressly prohibited; and that the right of the States to tax was not impaired by any affirmative grant of power to the General Government; that duties on imports were a part of the taxing power; and that the States would have had a right, after the adoption of the Constitution, to lay duties on imports and exports if they had not been expressly prohibited from doing so by that instrument. Federalist, No. 32. From which it follows, if the writer of that publication is correct, that the power granted to regulate commerce did not prohibit the States from laying import duties upon merchandise imported from foreign countries; that the commercial clause does not apply to the right of taxation in either sovereignty, the taxing power being a distinct and separate Beyond question these authorities show that power from the power to regulate commerce; all subjects over which the sovereign power and that the right of taxation in the States reof a State extends are objects of taxation, the mains over every subject where it before exrule being that the sovereignty of a State existed, with the exception only of those expressly tends to everything which exists by its own authority or is introduced by its permission, except those means which are employed by Congress to carry into execution the powers given by the People to the Federal Government, whose laws, made in pursuance of the Constitution, are supreme. McCulloch v. Md., 4 Wheat., 429; Savings Soc. v. Coite, 6.Wall., 604 [73 U. S., XVIII., 901]. Annual taxes upon ships and vessels for the support of the State Governments as property, upon a valuation as other personal property, are everywhere laid; nor is it believed that it requires much argument to prove that the opposite theory is unsound and indefensible in principle, as it is contrary to the generally received opinion, and wholly unsupported by any judicial determination. Instead of that, there are many cases in which the courts, in refuting the authority of the States to lay duties of tonnage, have admitted that the owners of ships may be taxed to the extent of their interest in the same, for the value of the property. As sessments of the kind, when levied for munici pal purposes, must be made against the owner of the property, and can only be made in the municipality where the owner resides. Though a ship, when engaged in the transportation of passengers, said Taney, Ch. J., is a vehicle of commerce, and within the power of regulation granted to Congress, yet it has always been held that the power to regulate commerce, as conferred, does not give to Congress the power to tax the ship, nor prohibit the State from taxing it as the property of the owner, when he resides within their own jurisdiction; and he adds, that the authority of Con or impliedly prohibited. Neither imposts nor duties on imports or exports can be levied by a State, except what may be absolutely necessary for executing its inspection laws, nor can a State levy any duty of tonnage without the consent of Congress. State power of taxation is, doubtless, very comprehensive; but it is not without limits, as appears from what has already been remarked, to which it may be added, that state tax laws cannot restrain the action of the national authority, nor can they abridge the operation of any law which Congress may constitutionally pass. They may extend to every object of value not excepted as aforesaid, within the sovereignty of the State; but they cannot reach the means and instru ments of the Federal Government, nor the administration of justice in the Federal Courts, nor the collection of the public revenue, nor interfere with any constitutional regulation of Congress. Power to tax its citizens or subjects in some form is an attribute of every government, residing in it as part of itself and hence it follows that the power to tax may be exercised at the same time upon the same objects of private property by the State and by the United States, without inconsistency or repugnancy. McCul loch v. Md. [supra]; Bk. v. Billings, 4 Pet., 514. Such power exists in the State as one conferred or not prohibited by the State Constitution, and in the Congress by express grant. Hence the existence of such powers is perfectly consistent, though the two governments in exercising the same act entirely independent of each other as applied to the property of the cit izens. Such instruments or means are not given by the People of a particular State, but by the People of all the States, and upon principle as well as authority should be subjected to that government only which belongs to all. Legislative power to tax, as a general proposition, extends to all proper objects of taxation within the sovereign jurisdiction of a State; but the power of a State of the Union to lay taxes does not extend to the instruments of the National Government, nor to the constitutional Taxation, beyond all doubt, is the exercise means to carry into execution the powers con of a sovereign power, and it must be admitted ferred by the Federal Constitution. Tax laws that all subjects over which the sovereign power of the State cannot restrain the action of the of a State extends are objects of taxation; but National Government, nor can they circum- it is equally clear that those objects over which scribe the operation of any constitutional Act it does not extend are exempt from state taxaof Congress. They may extend to every object tion, from which it follows that the means and of value belonging to the citizen within the sov-instruments of the general government are ereignty of the State, not within the express ex-exempt from taxation. McCulloch v. Md. [suemptions of the Constitution, or those which are necessarily implied as falling within the category of means or instruments to carry into execution the powers granted by the fundamental law. Day v. Buffinton, 3 Cliff., 387. Power to levy taxes, said Marshall, Ch. J., could not be considered as abridging the right of the States on that subject, it being clear that the States might have exercised the power to levy duties on imports or exports had the Constitution contained no prohibition upon the subject; from which he deduces the proposition that the prohibition is an exception from the acknowledged power of the States to levy taxes, and that the prohibition is not derived from the power of Congress to regulate commerce. Gib bons v. Ogden, 9 Wheat., 201. States, said Mr. Justice McLean, cannot regulate foreign commerce; but he held in the same case that they may tax a ship or other vessel used in commerce the same as other property owned by its citizens, or they may tax the stages in which the mail is transported, as that does not regulate the conveyance of the mail any more than the taxing the ship regulates commerce, though he admitted that the tax in both instances affected in some degree the use of the property, which undoubtedly is correct. Pas senger Cases [supra]. pra]. Tonnage duties on ships by the States are expressly prohibited, but taxes levied by a State upon ships or vessels owned by the citizens of the State as property, based on a valuation of the same as property, are not within the prohibition, for the reason that the prohibition, when properly construed, does not extend to the investments of the citizens in such structures. Duties of tonnage, says Cooley, the States are forbidden to lay; but he adds that the meaning of the prohibition seems to be that vessels must not be taxed as vehicles of commerce, according to capacity, it being admitted that they may be taxed like other property. Cooley, Const. Lim. 4th ed., 606. "Vessels are taxable as property," says the same author; and he adds that " possibly the tax may be measured by the capacity, when they are taxed only as property and not as vehicles of commerce:" which may be true, if it clearly appears that the tax is to the owner in the locality of his residence, and is not a tax upon the ship as an instrument of commerce. Cooley, Taxation, 61. the prohibition. Cannon v. New Orleans, 20 WalÎ., 577 [87 U. S., XXII., 417]; Peete v. Morgan, 19 Wall., 581 [86 U. S., XXII., 201]; State Tonnage Tax Cases [supra]. Whatever more general or more limited view may be entertained of the true meaning of this clause, says Mr. Justice Miller, it is perfectly clear that a duty, tax or burden imposed under Enrolled vessels engaged in conveying pas- the authority of the State, which is by the law sengers and freight, which were owned by imposing it to be measured by the capacity of citizens of the State of New York, entered the the vessel, and is in its essence a contribution Port of San Francisco, and while there were claimed for the privilege of arriving and departcompelled to pay certain taxes. Payment having from a port in the United States, is within ing been made under protest, the owners of the vessels brought suit to recover back the amount, | and Mr. Justice Nelson, in disposing of the case here, in behalf of the court, held That the vessels were not in any proper sense abiding Decided cases of the kind everywhere deny within the limits of California so as to become to the States the power to tax ships as the inincorporated with the other personal property struments of commerce, but they all admit, exof the State; that they were there but temporarily pressly or impliedly, that the State may tax the engaged in lawful trade and commerce, with owners of such personal property for their intheir situs at the home port, where the vessels terest in the same. Corresponding views are belonged and where the owners were liable to expressed by Mr. Burroughs in his valuable be taxed for the capital invested, and where treatise upon Taxation. He says that vessels the taxes had been paid," which shows to a of all kinds are liable to taxation as property demonstration that the owners of ships and ves-in the same manner as other personal property sels are liable to taxation for their interest in the same upon a valuation as for other personal property. Hays v. Steamship Co., 17 How., 596 [58 U. S., XV., 254]. Ships, when duly registered or enrolled, are instruments of commerce, and are to be regarded as means employed by the United States in execution of the powers of the Constitution and, therefore, they are not subject to state regulations. Sinnot v. Davenport, 22 How., 227 [63 U. S., XVI., 243]. owned by citizens of the State; that the prohibition only comes into play where they are not taxed in the same manner as the other property of the citizens, or where the tax is imposed upon the vessel as an instrument of commerce, without reference to the value as property. Burroughs, Tax., 91; Johnson v. Drummond, 20 Gratt., 419. Property in ships and vessels, say the Court of Appeals of Maryland, before the Federal Constitution was adopted, was within the taxing power of the State; and they held that such property since that time, when belonging to a citizen of the State living within her territory and subject to her jurisdiction, and protected by her laws, is a part of his capital in trade, and like other property, is the subject of state taxation. Howell v. State, 3 Gill, 14; Perry v. Torrence, 8 Ohio, 522. 3. Where a suit was commenced in the state court 1. A town in Ullinois, which has subscribed to the cannot, as against a bona fide purchaser, claim exstock of a railroad and issued its bonds therefor emption from their payment upon the ground that the railroad company disregarded its promise to construct the road, or that its own officers delivered the bonds in violation of special conditions, of which the purchaser had no knowledge or notice, either from the statute or otherwise. 2. Where the bonds were signed, by the officers Beyond all doubt, the taxes in this case were their issue, after the vote and subscription, it was designated for that purpose by the law authorizing levied against the owners as property, upon a not necessary that the Board of Auditors, or other valuation as in respect to all other personal corporate authorities of the town should have participated in their issue and delivery. property, nor is it pretended that the taxes were levied as duties of tonnage. Congress has pre- against the holders and owners of bonds and couscribed the rates of measurement and computa-pons which had been issued in the name of the tion in ascertaining the tonnage of American town and delivered to the railroad company, the decree therein could not bind anyone not perships and vessels, and in the light of those regu-sonally served with process, or who did not appear, lations Burroughs says that the word "tonnage" means the contents of the vessel expressed in tons, each of one hundred cubical feet. P. 89. Homans says that the word has long been an official term, intended originally to express the burden that a ship would carry, in order that the various dues and customs levied upon shipping might be imposed according to the size of the vessel, or rather in proportion to her capability of carrying burden. Homan, Dic. Com. and Nav., Ton. Tested by these definitions and the authorities structive service. nor affect the rights of non-resident holders of Argued Mar. 11, 1879. Decided Apr. 14, 1879. nois. Statement of the case by Mr.Justice Harlan: This action is upon certain interest coupons issued in the name of the Town of Brooklyn, Illinois. Besides the general issue, the Town filed four special pleas. already cited, it is as clear as anything in legaled States for the Northern District of Illidecision can be, that the taxes levied in this case are not duties of tonnage, within the meaning of the Federal Constitution. Taken as a whole, the contention of the plaintiffs is not that the taxes in question are duties of tonnage, but their proposition is that ships and vessels, when duly enrolled and licensed for the coasting trade, are not subject to state taxation in any form, and that the owners of the vessels cannot be taxed for the same as property, even when valued as other personal property, as the basis of state or municipal taxation. Opposed as that theory is to the settled rule of construction, that the commercial clause of the Constitution neither confers, regulates nor prohibits taxation, it is not deemed necessary to give the theory much further consideration. Gibbons v. Ogden [supra]. By that authority it is settled that the power to tax, and the power to regulate and prohibit taxation, are given in the Constitution by separate clauses, and that those powers are altogether separate and distinct from the power to regulate commerce; from which it follows, as a necessary consequence, that the enrollment of a ship or vessel does not exempt the owner of the same from taxation for his interest in the ship or vessel as property, upon a valuation of the same, as in the case of other personal property. Judgment affirmed. The second plea, in substance, avers that the coupons in suit, and the bonds to which they were attached, were issued and delivered by the supervisor and town clerk of the Town, for stock claimed to have been subscribed to the Chicago and Rock River Railroad Company, an Illinois corporation, organized under an Act approved March 24, 1869, and thereby authorized and empowered to locate, construct and complete a railroad from a point on the south side of Rock River, near Stirling, via Amboy, crossing the Chicago and Burlington Railroad, thence to intersect the Chicago branch of the Illinois Central Railroad, outside of the corporation at Chicago; that the railroad company, in order to induce the Town to subscribe to its capital stock, by its officers and agents, pretended to lay out the line of railroad through the Town and near the Village of Maluguis Grove, thence to its terminus on the Chicago branch of the Illinois Central Railroad, and gave out that it was about to construct and complete its road, and thereby establish a through line to Chicago, wholly independent of and a Cited 107 U. S., 374; 112 U. S., 74; 93 Ill., 36; 34 competing line with the Chicago, Burlington Am. Rep., 158; 33 Lea., 649; 39 Am. Rep., 281. TOWN OF BROOKLYN, Plff. in Err., v. and Quincy Railroad, which passes a few miles south of Brooklyn; that on 20th September, 1869, an election was held to determine whether the Town should subscribe $50,000 to the stock of the company; that the notices for the election expressly stated that no bonds in payment THE ETNA LIFE INSURANCE COM- of any subscription should be issued, or draw PANY. (See S. C., 9 Otto, 362–371.) Town bonds, defenses to-issue and delivery effect of former suit—immaterial objection. interest, or be delivered to the company, until the railroad was completed and cars running through Brooklyn; that a majority of the voters at such election voted to make the subscription; that on 23d May, 1870, William Holdren, the The fifth plea avers that, by a decree of the Circuit Court of Lee County, Illinois, rendered November 14, 1873, in the action of the Town of Brooklyn and others against the Chicago and Rock River Railroad Company and others, "It was ordered, ad judged and decreed that the said pretended bonds and coupons of the said Town of Brooklyn, so issued to the said Chicago and Rock River Railroad Company, and registered as aforesaid in the office of the Auditor of Public Accounts of Illinois, are void and in nowise obligatory on the said Town of Brooklyn, and that the same be surrendered up by the parties holding the same to be canceled," which decree it is averred is in full force and effect; that the said Insurance Company was made defendant in such suit with the other holders and owners of the bonds and coupons issued by the Town, by the name and description of "The unknown owners of certain bonds and coupons issued by Washington J. Griffin, the Supervisor of the Town of Brooklyn, Lee County, Illinois, to the Chicago and Rock River Railroad Company, purporting to be the bonds and coupons of said Town of Brooklyn; " that said Circuit Court of Lee County had then and there jurisdiction of the subject matter and the persons or parties defendant therein, by the issuing and return of process, and by proof of publication made as required by the Statute of the State of Illinois in the case of non-resident defendants. acting supervisor of the Town, as such super- | whom the same were delivered; the said supervisor signed and executed a certain paper, pur- visor, knowing at the time he had no such auporting to subscribe $50,000 in the name of the thority, and he having been elected supervisor Town to the capital stock of the company, on the express pledge on his part, and with the which subscription provided that it was made understanding between him and those who voted upon the express understanding set forth in the for and supported him that he would not issue notices of election, and that no payment was to and deliver said bonds and coupons until said be made until the road was completed and the Chicago and Rock River Railroad was comcars running through the Town; that the super-pleted its entire length to the Chicago branch visor of the Town had no authority or power of the Illinois Central Railroad." to issue any bonds or coupons to said company until the road should be completed, which has never been done; that just before the issuing of the bonds and coupons it was rumored in the Town that the railroad was about to be transferred to the Chicago, Burlington and Quincy Railroad Company, and was not to be built and completed as required by the notices of election and the terms of subscription; that thereupon the agents and representatives of the Chicago and Rock River Railroad Company were notified that if the road was not to be built and completed as promised, the bonds and coupons would not be issued and delivered; whereupon said agents and representatives informed the Town and the citizens thereof that the company intended to complete the railroad as promised, and as fast as men and money could do so; that thereupon the supervisor and town clerk, relying upon such representations, but having no power or authority so to do, did, on or about November 7, 1872, sign, issue and deliver, in the name of the Town, to the agents and representatives of the company, bonds to the aggregate amount of $50,000, with coupons attached, part of which are those sued on; that as soon as the bonds and coupons were received by the company it utterly ceased and refused to prosecute the construction of the road, and abandoned the entire work, whereby the Town failed to obtain any railroad to Chicago, or a competing road with that of the Chicago, Burlington and Quincy Railroad; that the representations aforesaid of the company's agents were knowingly false and fraudulent, but their falsity was unknown to the Town, its supervisor, and clerk when the bonds were issued and delivered, and the issuing and delivery were procured by such false and fraudulent representations; that the bonds and coupons are wholly void and in nowise obligatory upon the Town, because the company had not at the time they were issued complied with the conditions prescribed by the election notices and the subscription; that the Town claims no interest in the stock of the company, which is worthless and has been ever since the work was abandoned, and has received no value whatever for the bonds and coupons. The third plea avers that the insurance company "Is not a bona fide assignee of the interest coupons declared upon in said declaration be. fore maturity and without notice of the defenses set up in the second plea.' The fourth plea avers that the bonds and coupons "Were issued by the supervisor and town clerk of said Town of Brooklyn, and de livered without the authority of the Board of Auditors or the corporate authorities of said Town; and the supervisor of said Town, who issued and delivered the same, acted therein fraudulently and in collusion with the parties to To the plea of the general issue a joinder was filed, and to the third plea a replication was filed, averring that the Insurance Company became a bona fide assignee of the coupons declared upon, before maturity and for value, without notice of the defenses set forth. To the second, fourth and fifth pleas there was a general demurrer. * * * * Upon the calling of the case for trial, the plaintiff moved the court (quoting from the order) "That a jury come to try the issue joined upon the plea herein. It is thereupon considered by the court that a jury came to try said issue, and thereupon came a jury, etc., * * who were * * * sworn, well and truly to try said issue, and after, etc., returned into court the following verdict, to wit: 'We, the jury, find the issue for the plaintiff, and assess its damages to the sum of $5,511.' It is therefore considered, etc." Upon a subsequent day of the term, the Town, by its attorney, moved the court to set aside the judgment and grant a new trial, but filed no grounds therefor in writing. Subsequently the Town failing thereafter to appear and sustain its motion for a new trial, the same was overruled. The errors assigned are: 1, that the court sustained demurrers to the 2d, 4th and 5th pleas; 2, that the court erred, in rendering judgment on the verdict of the jury, |