The San Francisco call., 1898-10-12


 that the common carrier is not exempt from paying the share of the war rev 'enue tax allotted by Congress. All over the country express companies have been trying to evade these payments, resorting to every subterfuge likely to secure delay, this being regarded as all most as good as an actual victory. The course of the Fargo Company has been remarked on here as similar to that of the American. It was the American which had sought to make its patrons shoulder it's war tax. but its contention was so identical in character with that of the Wells Fargo Company that the one opinion covers the two cases equally we'll. It Is given in full below:
 The petition in this case is filed for the purpose of procuring mandamus to com pei the American Express Company, re- spondent to accept goods offered to 1t by certain shippers for transportation, and to receive and transport the same to their destination, and it is claimed that the express company refused to so transport the same unless the shipper pay for the revenue stamp which the law requires to be affixed to the receipt, which the eX- press company is required to give 10 the shipper. The shipper having declined 10 do this this application is for the purpose Of requiring the American Express CoH- pany to so transport said packages ana to afflX the required stamp to the recelpt
 The first question raised by the respond ent is that the Circuit Court has no jurls- diction over the company, for the reason that the respondent, the American E6- press Company, is a joint stock aSsocla- ton, and the only authority the Circuit Court has to issue mandamus is under rule 46 of the Supreme Court that GIT cult Courts shall have jurisdiction within their respective counties, in all mandamus proceedings involving the action of an ottl- Cer or board of any county, township, city or school district, or ot the common ,,l Df NIr cer or board thereof"
 It is contended that under this rule no power is granted to the Circuit Court to issue writs of mandamus as against such joint stock associations.
 l am of the opinion that II was the ln- tentiOn of the Supreme Court to include all joint stock associations under the term private corporations. To hold oth- erwise would, in my opinion, be to put too narrow a construction upon the rule, for a joint stock association Is to all in tents and purposes corporation, and see no good reason why, under the term corporation, a joint stock association would not be included.
 l think that the suit is properly com menced In the name of the Attorney Gen. eral, although the remedy is sought by
 The main question to be determined is, whether the shipper or the express com pany shall pay for the revenue stamp required by the act of Congress, The re- spondent, the American Express Com pany, being a common carrier, and the
 
 which all shippers of goods are inter ested, and a common carrier being re quired to receive and transport goods, no matter by whom offered, Ii proper rules and regulations are made by the carrier are compiled with, ] see no i'm propriety in the intervention of the At Iorney General in this matter, in the application for this writ. In my opinion the Jurisdiction of this court in the premises cannot be success ! fully disputed. and the remedy sought can only be applied to the case in hand. and that Is to compel the respondent 10 receive and transport the goods and fur nish a proper receipt in the case now actually before the court. l cannot see how any decision or this court can be made to affect or control any cases that may arise in the future.
 It was claimed upon the argument that the petition did not state that the charges were paid offered to be paid upon the packages that were offered for shipment; but this question was aban- doned upon the argument, and it was left for the court to decide 1t the same If these charges had been tehderedi so the question Of the tender of these charges to the respondent, the express company, is by the agreement of counsel eliminated from the case.
 The serious question presented for the consideration Of the court ln this issue is whether under the act of Congress passed for the purpose of raising revenue it is the legal duty of the express com pany 70 attach to the receipt or bill Of lading a revenue stamp as the law 1S-
 As 1 understand, the law applying to this subject Is 1OunO III SGnSOule A OI the revenue law of 1898, and is as follows:
 Express and freight-It shall be the duty of every railroad or steamboat com pany, carrier, express company or corpor- atfon or person whose occupation Is 10 act as such, to issue to the shipper or con- sgnor, or his agent or person rom whom any goods are accepted for transportation, a bill of lading, manifest or other evidence of receipt and forwarding riage and transportation, whether in bulk or in boxes, bales, packages cluded; and there shall be duly attached and canceled, as in this act provided, to each of such bills of ladlng, manlfests, or other memoranda, and to such duplicate thereof, a stamp Of the value of one
 This is the main portion of the law ap plying to the question in hand.
 It is manifest to me that 1t Is the fn- +ention of Congress to require the ex- offering for shipment any goods or pack ages a receipt for the same, and 1t re- quires said receipt to have attached to 1t a revenue stamp of one cent This makes it clear in my mind that it is the duty of the express company to deliver to such shipper full and complete receipt; and receipt would not be full and complete or legal unless 1t had attached to it a can celed revenue stamp of the value of one
 And the same act provides that "'any failure to issue the said bill of lading, manifest or other memorandum as herein provided, shall subject such railroad or steamboat company, carrier, express com
  atty of $50, for each offense, and such bill of lading, manifest, or other memo randurn shall be used in evidence unless it shall be duly stamped aforesaid"
 From these provisions 1t Is clear to me that such a receipt would not be valid as evidence in any court of law. or good for any other purpose, were 1t issued with out the said stamp being attached; and if the law requres-as it plainly does-the express company to issue this receipt, it requires the issuing of such receipt as shall be good in law, to wit: one with the proper stamp attached
 In the brief furnished me by counsel for respondents it Is claimed that the re- spondents decided to raise and did raise their rates on the shipment of various packages one cent. for the purpose of meeting the changed conditions made, by the act of Congress referred to, and they claim that under this right to affix req sonable charges for the transportation of packages they have right to increase the amounts one cent for each package for the purpose of meeting the additional ex- pense required by this stamp duty.
 It is true, as have looked at this ques- ton, that the express company, the re- spondent had right to determine within reasonable limits what it's charges would .+ot{ ion nf dG