The question must not be general nor abstract, | license granted to him by the United States, in nor a mixed one of law and fact. It it be either, conformity with the act of Congress to prothis court cannot take jurisdiction. Ogilvie v. vide internal revenue for the United States. Knox Ins. Co. 18 How. 577, 15 L. ed. 490. The license put in was in the following words: 257*] *In the case before us the questions cer- No. 346.-License granted September 1, 1862; tified are "whether, in point of law, upon the expires September 1st, 1863. facts as stated and proved, the action could be To all whom it may concern: maintained; and whether, consequently, the jury should be instructed that, under the facts as proved, the plaintiff could not recover."

Upon looking into the record, we find a body of facts stated as having been proved, and the testimony of numerous witnesses set forth at length, as respectively given. The entire case is brought before us, as if we were called upon to discharge the twofold functions of a court and jury. At the threshold arises an important question of fact, not without difficulty. It is, whether the plaintiff is to be regarded as a passenger, or a servant of the defendant, at the time he received, upon the locomotive, the injury for which he sues. Upon the determina- | tion of this question depend the legal principles to be applied. They must be very different, as the solution may be one way or the other.

The Constitution wisely places the trial of such questions within the province of a jury, and it cannot be taken from them without the consent of both parties. Here, such consent is given; but it is ineffectual to clothe us with a power not conferred by law. In the light of the authorities to which we have referred, it is sufficient to add that the questions certified are not such that we can consider them.

According to the settled practice, the case will, therefore, be dismissed for want of jurisdiction and remanded to the Circuit Court, with an order to proceed in it according to law.

JOHN MCGUIRE, Plff. in Err.,

v.

THE COMMONWEALTH OF

SETTS.

This license is granted to McGuire & Co., of the city of Salem, in the county of Essex, and state of Massachusetts, to carry on the business or occupation of wholesale dealer in liquors, at number 6 Derby Square, in the aforementioned city, county, and state, having paid the tax of $100 therefor conformably to the provisions of an act entitled "An Act to Provide Internal Revenue to Support the Government and to Pay Interest on the Public Debt," approved July 1, 1862.

Persons constituting is John McGuire alone. This license to be in force until the first day of September, 1863, provided the said McGuire shall conform to the requirements of said act, and of such other act or acts as are now, or may hereafter be, in this behalf, enacted. Given under my hand and seal at Salem, this first day of September, A. D. 1862. (Seal) J. Vincent Browne,

Collector Fifth Collection District, State of Massachusetts. Under instructions of the court this defense was overruled, and the defendant was thereupon convicted and sentenced to pay a fine to the use of the commonwealth.

Messrs. Caleb Cushing, Nathaniel Richardson, and Ransom Hooker Gillet, for plaintiff in error:

A license, as that word is used in acts of Congress, is authorization to do the thing li censed; and if the license be within the con stitutional power of the licensor, if granted by a person having power to grant, then the license transfers to the licensee or grantee the lawful right and full power to do whatever the license MASSACHU-purports to authorize; in other words, in the language of this court, the license transfers to the licensee all the right which the grantor can have to do that which is comprehended in the

(See S. C. 3 Wall. 387-396.)

U. 8. liquor license, no defense to violation of terms of the license. state law appellate jurisdiction.

A license received under an act of Congress, gives to the defendant no right to keep or sell intoxicating liquors in violation of the state law, and was no defense to an indictment under the law of the

state for such sale.

The decision was against an authority set up under an act of Congress, and the case rightfully is bere under the 25th section of the judiciary act. [No. 161.]

Argued Feb. 28, 1866. Decided Mar. 26, 1866. N ERROR to the Superior Court of the State of Massachusetts.

IN

This is a writ of error to the superior court of Massachusetts, under the 25th section of the judiciary act.

The case below was a prosecution under the provision of the General Statutes of Massachusetts, ch. 87, § 7, for a nuisance. The nuisance alleged was that of keeping and maintaining a tenement used for the sale and storage of intoxicating liquors.

The acts, imputed as unlawful, were proved and admitted by the defendant, unless he was authorized so to keep and sell in virtue of a

Where such a license is granted by the United States in the exercise of any constitutional powers of the Federal government, nothing can be added thereto or substracted therefrom by the authority of any one of states, the Federal power in such case is paramount, absolute, comprehensive, exclusive and conclusive as against

the state.

Gibbons v. Ogden, 9 Wheat. 1; Sinnot v. Dav enport, 22 How. 227, 16 L. ed. 243; Foster v.

Davenport, 22 How. 244, 16 L. ed. 248; Hays v. Steamship Co. 17 How. 599, 15 L. ed. 254; People v. Brooks, 4 Den. 479.

The license relied on in the present case is in the express terms of the act under which it was granted, viz.: the act of July 1, 1862, entitled "An Act to Provide Internal Revenue to Support the Government, and to Pay Interest on the Public Debt"-declared to be authorization.

The provision is in the following clause. § 54; 12 U. S. Stat. p. 455, viz.:

"Retail dealers in liquors, including distilled spirits, fermented liquors, and wines of every description, shall pay $20 for such a license.

State laws in derogation of the foreign com-"license," as defined in the case of Gibbons v.

Ogden, and as maintained by the plaintiff in error here, and for judicial explanations there of, see Thomas v. Sorrell, Vaugh. 351; Wood v. Leadbitter, 13 Mees. & W. 843.

When such a license is coupled with an interest by reason of the payment of price, the authority conferred is not a mere permission, but it amounts to a grant which obliges the grantor and vests legal property in the grantee.

Liggins v. Inge, 7 Bing. 682; Winter v. Brockwell, 8 East, 308; Hewlins v. Shippam, 5 Barn. & C. 221; Rerick v. Kern, 14 Serg. & R. 267; Le Fevre v. Le Fevre, 4 Serg. & R. 241; Wood v. Manley, 11 Ad. & Ell. 34; Webb v. Paternoster, Palm. 71.

In Hayburn's Case, 2 Dall. 409, and in The U. S. v. Todd, 13 How. 52, notes, the court passed upon particular sections of the invalid pension act, holding them unconstitutional. So it was recently in regard to a single section of a court of claims act.

Gordon v. U. S. 2 Wall. 561, 17 L. ed. 9–21. The duty and the power of the Supreme Court of the United States is not less clear to determine the constitutionality or the unconstitu tionality of the laws of the states, whether or ganic or municipal, whether constitutional or statute, and to declare the incompatibility of the same, either with the Constitution thereof or with any act of Congress in virtue of that Now, the clause of the statute on which the provision of the Constitution of the United state of Massachusetts relies, constitutes a sep- States which declares that "the Constitution arate provision of the class of enactments "sav- and the laws of the United States which shall ing clauses;" and if it be allowed to have any be made in pursuance thereof, and all treaties effect, and so far forth as it has any, it de- made or which shall be made under the authorstroys, nullifies, abrogates, and abolishes what-ity of the United States, shall be the supreme ever there may be of thought, virtue or use in the general purview, intendment, and scope of the act of Congress.

A saving clause in a statute where it is directly repugnant to the purview or body of the act, and cannot stand without rendering the act inconsistent and destructive of itself, is to be rejected. An illustration of this rule is to be found in Alton Wood's Case, 1 Co. 47.

We have the rule recognized in many authorities; as, for example: Sedg. Stat. 60; Walsingham's Case, 2 Plowd. 547, notes; Thorney v. Fleetwood, 10 Mod. 115, 408; Keilwey, 174, pl. 4; Mitford v. Elliott, 1 J. B. Moore, 434; Dugan v. Bridge Co. 27 Pa. 303; Case of The Proxies, 3 Keble, 236.

It is quite common in the construction of stat utes, to find a subsequent clause, although apparently general in terms, restrained by a pre ceding clause of paramount exigency and authority.

Roper v. Radcliff, 10 Mod. 242, 485.

Constitutional requirement that all duties, imposts and excises shall be uniform throughout the United States.

2 Story, Com. Const. § 954.

We suppose that never before in the history of the government did Congress undertake to enact that any one of the states might, at pleas ure, exempt itself from the purview of a general act of Congress, laying "duties, imposts, and excises" on the whole United States, and so take away from those taxes the uniformity required by the Constitution.

Hence it cannot be expected that we shall be able to cite any adjudged case to the effect that all such taxes shall be uniform. No legisla ture imagines it could be otherwise; no law was passed on which the question could be raised; no court or judge could decide or even debate the point.

Nevertheless, occasions have occurred when this court could not fail to recognize the sanc tity and inviolability of the rule of uniformity, while discussing other relations or incidents of the tax power of the United States.

Hylton v. U. S. 3 Dall. 173; Loughborough | v. Blake, 5 Wheat. 319.

It is the duty no less than the right of the Supreme Court of the United States, to deter mine the constitutionality or unconstitutionality of any or all enactments of Congress.

law of the land. And the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."

See Cohens v. Virginia, 6 Wheat. 264. The court may declare void a single provision of a state law, and leave the rest to stand. McCulloch v. Maryland, 4 Wheat. 316. The power of the United States is not the less supreme because of the tax in the present case being associated with a license.

We have already seen that in the very latest case before the court, that of Gillman v. Phila delphia, the majority of the court as well as the minority, declares that a license granted by the United States, carries with it all such right and authority as it is in the power of the United States to confer.

Or, as more specifically stated by the court in Pennsylvania v. Wheeling Bridge Co.:

"No state law can hinder or obstruct the free use of a license granted under an act of Congress."

13 How. 566.

Messrs. Chester I. Reed, Atty. Gen. of Mass., Dwight Foster and James Speed, Atty. Gen. for the commonwealth of Massachusetts.

Mr. Justice Nelson delivered the opinion of the court:

This is a writ of error to the superior court of Massachusetts.

The plaintiff in error, the defendant below, was indicted for keeping a house for illegal gaming, and for the sale and keeping of intoxicating liquors, against the statute of the state.

The defendant pleaded not guilty. On the trial it was proved that the defendant kept a house for the sale and for the keeping of intoxicating liquors; which acts were admitted to be illegal, and in violation of the law of the state, unless the defendant was authorized to keep and sell intoxicating liquors by virtue of a license granted to him in conformity with the provisions of an act of Congress. The license is in the following words: "This license is granted to McGuire & Co., of the city of Salem, in the county of Essex, and state of Massachusetts, to carry on the business or occupation of a wholesale dealer in liquors, at No. 6 Derby Square, in the afore-mentioned city, county,

and state, having paid the tax of $100 there | G. CLARENCE CHURCHILL, Impleaded with for, conformably to the provisions of the act Edward S. Brayton et al., Plffs. in Err., entitled 'An Act to Provide Internal Revenue to Support the Government and to Pay the Interest on the Public Debt,' approved July 1st,

1862."

The court below decided that this license gave to the defendant no right to keep or sell intoxicating liquors in violation of the state law.

Whatever might be the effect of this license as to the rights under it, in the absence of other provisions of the act of Congress a question not involved in the case and, therefore, not material to be noticed-it is quite clear that it conferred no right or authority on the defendant below, and hence furnished no defense to the indictment under the law of the state.

The 67th section of the act of Congress (12 U. S. Stat. 459) enacts that no license hereinbefore provided for, if granted, shall be construed to authorize the commencement of continuation of any trade, business, occupation or employment therein mentioned, within any state or territory of the United States in which it is or shall be specially prohibited by the laws thereof, or in violation of the laws of any state or territory.

In view of this provision, it is in vain to attempt to give force or effect to the license against the state law; and hence the authority derived from it, upon which the defendant relied for his defense in the court below, fails.

The decision was against an authority set up under an act of Congress, and the case is, there 396*] fore, rightfully here under *the 25th section of the judiciary act. But as we are of opinion the decision of the court below was right, the judgment must be affirmed. Judgment affirmed.

SAMUEL HAMMOND, Piff. in Err.,

บ.

THE COMMONWEALTH OF MASSACHU.

SETTS;

JAMES MCNEAL, Plff. in Err.,

v.

THE COMMONWEALTH OF MASSACHU

SETTS;
and

HENRY CLARK, Plff. in Err.,

บ.

THE COMMONWEALTH OF MASSACHU-|

SETTS.

The same judgment entered in these cases as in McGuire V. Commonwealth of Massachusetts, ante, 226.

บ.

Powers of states to tax shares of stock in national banks.

ation of the shares of national banks in the hands A state possesses the power to authorize the taxof stockholders, whose capital is wholly vested in stock and bonds of the United States, under the act of Congress of June, 3, 1864.

The question involved is altogether a different one from that decided in the previous bank cases, and stands upon different considerations.

The tax on the shares is not a tax on the capital of the bank, but upon a distinct, independent, interest or property, held by the shareholder. tions, so as to leave the shares of the stockholders Congress legislated in respect to these associa subject to state taxation.

The states possess the power to tax the whole of the interest of the shareholder in the shares held by him in these associations.

[Nos. 286, 288, 289.]

Argued Jan. 31, Feb. 1, 2, 5, 1866. Decided
Mar. 26, 1866.

IN ERROR to the
ERROR to the Court of Appeals of the

The three above cases were argued and decided at the same time. The opinion by Mr. Justice Nelson was entitled in the last one, but applies equally to all.

The question involved appears in the opinion of the court.

For report of the cases in the state court, see 33 N. Y. 161, and 43 Barb. 550.

Messrs. Wm. M. Evarts, C. B. Sedgwick, and Edmonds & Miller (286), John H. Reynolds (288) and Lyman Tremaine (289), for the plaintiffs in error:

The shares owned by the plaintiff in error and his associates in the First National Bank of Albany, were wholly exempt from taxation by state authority, because the whole capital

stock of the said bank was invested in the securities of the United States, which were exempt from such taxation.

1. By express provisions contained in acts of Congress, these bonds and securities were deMassachu-clared exempt from taxation by state or municipal authority, in the hands of corporations or individuals.

Feb. 27, 1866, by consent of counsel, ordered that these cases abide the decision in No. 161, the preceding case, decided Mar. 26, 1866.

Mr. Chief Justice Nelson:

Enter in these cases the same judgment as in McGuire v. Com. of Massachusetts.

An act approved March 3, 1865, § 2; act approved March 3, 1864, § 1; act approved Feb. 25, 1862, § 2; act approved June 30, 1864, §1: article 6. Const. U. S. 8

NOTE.-State taxation of national banks-see note, 45 L. R. A. 737.