Supervisors of Albany v. Stanley the company and which was only a mortgage by operation of the same statute, was valid. The language of this court in the two cases cited in the brief of United States v. Reese, 92 U. S. 214, and Trade Mark Cases, 100 id. 82, concedes the general principle that the whole of a statute is not necessarily void because a part of it may be so. Said the court in the latter case: "While it may be true that when one part of the statute is valid and constitutional and another part is unconstitutional and void, the court may enforce the valid part where they are distinctly separable, so that each may stand alone; it is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear. The case of United States v. Reese, also implies that there may be unconstitutional provisions which do not vitiate the whole statute or even a single section, because the argument is to show that in that case there could be no separation of the good from the bad. It is also to be observed that in both these cases it was a statute creating and punishing offenses criminally which was to be construed in regard to the limited constitutional power of Congress in criminal matters. * * * "" The case of State Freight Tax, 15 Wall. 432, arose out of a statute of Pennsylvania which attempted to impose a tax on commerce forbidden by the Constitution of the United States. The act imposed a tax upon every ton of freight carried by every railroad company, steamboat company and canal company doing business within the State. The railroad company, who contested the tax, presented a statement which separated the freight transported by them between points solely within the State and limited to such destination, and that which was received from or carried beyond those limits. This court held the latter to be void as a tax on interState commerce, and did not declare the whole tax or the whole statute void. It said: "It is not the purpose of the law but its effect which we are now considering. Nor is it at all material that the tax is levied upon all freight, as well that which is wholly internal as that embarked in inter-State commerce. * * * The conclusion of the whole matter is that in our opinion, the act of the Legislature of Pennsylvania of August 25, 1864, so far as it applies to articles carried through the State or articles taken up Supervisors of Albany v. Stanley. in the State and carried out of it, or articles taken up without the State and brought into it, is unconstitutional and void." The same language is repeated in Erie R. Co. v. Pennsylvania, decided at the same time, and both cases were remanded to the State court for further proceedings in conformity with the opinion, which could only mean to enforce the tax on transportation limited to the State and not on inter-State commerce. This is a clear case of distinguishing between the articles protected by the Constitution of the United States and those which were not, though nothing in the language of the statute authorized any such distinction. But in a review of the cases in this court on this subject, that of Austin v. Aldermen of Boston will be found most nearly to resemble the one before us. It related to the same matter of the invalidity of a statute of a State taxing shares' of the National banks as being in conflict with the act of Congress. That act said that such taxes might be assessed at the place where said bank was located and not elsewhere. The act of the Massachusetts Legislature directed the assessment and taxation of the shares at the place where the owner resided. The plaintiff in error, Austin, having contested the tax on his shares in the courts of the State unsuccessfully, brought the case here by writ of error. This court declined to enter upon the question of the validity of the Massachusetts statute, because the case did not show that Mr. Austin was taxed on his shares in any other place than Boston, the place where the bank was located. The argument of counsel in the case before us is that any tax or a tax on any person on account of his bank shares is void because the whole of the New York statute is void. If the argument is sound it was equally applicable to Austin's case. The statute of Massachusetts, which made no limitation of taxation to the place where the bank was located, must be held void under any principle which would wholly invalidate the statute of New York, because it did not allow the deduction of the owner's indebtedness from his shares. And if the Massachusetts statute was utterly void as to National bank shares, then the tax on Mr. Austin's shares in Boston was void and he had a right to be protected against the unconstitutional statute. The court evidently VOL. III-6. Supervisors of Albany v. Stanley. went upon the principle that the statute was only void as against the act of Congress, in cases where some one was injured by the particular matter in which there was such conflict. The case seems to us directly in point. To the same effect are the cases of People v. Bull, 46 N. Y. 46; Gordon v. Carnes, 47 id. 608; Village of Middleton, Ex parte, 81 id. 196. If we examine the statute before us on principle we shall find but little reason to hold it to be wholly void as regards bank shares. If the statute stood alone there is nothing in it in conflict with the act of Congress. It is only when we look to the other statute, which prevents the deduction of debts from the entire value of personal property, that we discern the discrimination against bank shares. The act declares that bank shares shall be taxed according to their value, after deducting the real estate and other property on which the bank itself pays tax. This is eminently just. It provides for a mode of ascertaining their value, the officers who shall do it, and how the tax shall be collected. In all this the law is valid except that it does not authorize a deduction for debts of the shareholder. This is a distinct and separable principle. When the shareholder has no debts to deduct the law provides a mode of assessment for him which is not in conflict with the act of Congress, and the law in that case can be held valid. Under the decision in Austin v. Aldermen of Boston, it is valid as to him. If he has debts to be deducted the case of Williams v. Weaver shows that in taking the steps which this court has held he may take, he can secure that deduction, and when secured the remainder of the law remains valid. In other words, in such a case so much of the law as conflicts with the act of Congress in the given case is held invalid, and that part of the State law which is in accord with the act of Congress is held to be the measure of his liability. There is no difficulty here in drawing the line between those cases to which the statute does not apply and those to which it does, between the cases in which it violates the act of Congress and those in which it does not. There is therefore no necessity of holding the statute void as to all taxation of National bank shares, when the cases in which it is invalid can be readily ascertained on presentation of the facts. Supervisors of Albany v. Stanley. It follows that the assessors were not without authority to assess National bank shares; that where no debts of the owners existed to be deducted the assessment was valid, and the tax paid under it a valid tax. That in cases where there did exist such indebtedness, which ought to be deducted, the assessment was voidable but not void. The assessing officers acted within their authority in such cases until they were notified in some proper manner that the shareholder owed just debts which he was entitled to have deducted. If they then proceeded in disregard of the act of Congress the assessment was erroneous, and the case of Williams v. Weaver shows how that error could be corrected. The case before us shows no error in any case but that of Mr. Williams, and in that case he has obtained the judicial decision of this court that the tax he paid was illegally exacted from him. Nor do the facts of his case raise the question whether in a case where the debts of the shareholder do not equal the assessors' value of his shares the tax is wholly erroneous, or only so much as represent the assessment of his indebtedness that should have been deducted, for his affidavit was that his debts equalled the value of his bank shares. Nor do the findings of fact raise the question whether, without making affidavit and demand on the assessors, a suit can be maintained to recover when such indebtedness actually existed; for he did make affidavit and demand, and no other tax payer has shown any such notice or demand, or that he had any indebtedness to be deducted. There is neither finding of fact nor averment in the pleadings on either point as to any other assignors of plaintiff than Mr. Williams. It results from these considerations that the judgment of the Circuit Court is reversed, and that on the finding of facts judgment should be rendered for plaintiff on the fourth count for the amount of the tax paid by Williams with interest, and on all the other counts for defendants. It is so ordered.* BRADLEY, J., dissenting. I dissent from the judgment of the court in all these cases for the reason, that in my opinion, the State *On the 24th of April a decision was made in which the judgment was modified so as to permit the court below to hear evidence in respect to another issue raised by the pleadings but not passed upon, namely: Whether the assessment of shares in the National bank was at a greater rate than that upon other moneyed capital. Supervisors of Albany v. Stanley. laws authorizing the capital stock of National banks to be taxed without allowing any deduction for the debts of the stockholders where such deduction is allowed in relation to other moneyed capital, are void in toto so far as relates to National banks. To hold the law valid except as to those who are actually indebted and actually claim the benefit of the deduction, and actually set it up in a suit brought by the bank for relief, is practically to render the condition of the act of Congress nugatory, and to deprive the National banks and their stockholders of its protection. The tax though laid on the stockholders is required to be paid by the bank itself, which must pay without deduction unless the shareholders give the bank notice of the amount of their debts. This is a most ingenious expedient to avoid such deductions altogether. The probability that not one in ten of the shareholders will ever have notice of the assessment in time to make the claim, and the natural reluctance they would have (if they had notice) to lay the amount of their debts before a board of bank officers will effectually secure a State from claims for deduction. And that was no doubt the object of the law. But this unequal operation of it, in its practical effect, might not be sufficient to render it void. It is void, in my judgment, because it makes no exception, but is general in its terms, subjecting to taxation the capital stock of National banks without the privilege of deducting debts. Denying to it operation and effect as to those who desire to claim the benefit of the deduction, and giving it effect as to all others, is to tear a portion of the law out by the roots. It is not like the case where a portion of a law which may be separated from the rest can be declared invalid without affecting the remainder of the law; nor like the case of a general law which the Legislature has power to make, but from the operation of which some individuals may have a legal or constitutional exemption which they can plead in their defense; but it is wrong in form, wrong in toto. The Legislature had no authority or power to make the capital of National banks taxable except in the same manner as other moneyed capital of the State. The practical iniquity of the law is seen in this, that it affects the value of all the stock, whoever holds it. As the law stands it acts as a prohibition against the purchase of the stock by those who owe debts, and they constitute a considerable portion of |