Evening star., 1899-03-24
They Need Not Be Affixed to Tax
Certificates.
DECISION BY TIE COURT OF APPEALS
Case Of Hufty Against Assessor of
District of Columbia.
TEXT OF THE OPINION

assessor of the District of Columbia liz
volving the affixing of war revenue stamps
to tax certificates. The ruling is of
decided interest and Importance. The con-
clusion of the Court of Appeals is that no
stamp is required to be affixed to tax GER
tificates. The Judgment of the lower court
is, therefore, reversed, and the cause re-
manded, with directions to issue the writ of
mandamus as prayed for in the relator' $
petition. The opinion was written by Mr.
Justice Shepard.
Mr.. Hufty, the 10th of last November
having sold lot 120 in square 100, paid to
the assessor the fee required by law and
demanded certified statement of the taxes
Que thereon, in accordance with the pro-
visions of the act of Congress approved
May 13, 1892 The assessor accepted the
fee and made out the statement, but re-
fused to deliver 1t for other reason than
that Mr. Hufty refused to furnish the as
SCISSOR with L ten-cent revenue stamp to
be afhXed and Cancelled by him before de-
livery.
After discussing the law in the case at
some length the Court of Appeals says:
We do not accede to the proposition that
1t Is clear that these certificates of unpaid
taxes issue solely for the benefit of those
who apply for them. They possibly facili-
tate the collection of back taxes and they
do furnish some revenue, for the report of
the auditor for the year ending June so
1898, shows credit of s2456.5O to their
account. 1t may be added that the re-
spondent is salaried officer and has no
interest in these fees. When collected they
are paid into the treasury of the United
States, in common with other revenues of
the District, where they remain subject to
appropriation by Congress.
The Contention.
Upon this assumption in respect of the
imposition of the tax upon the use of bene-
ficiary of the certificate, which may be
granted for the purpose of the argument
and the further necessary one that it can
not lawfully be issued without the stamp
the contention is that the relator must fur
nish it to the respondent to be affixed be-
fore the accrual of his right to compel its
delivery
1T would be unreasonable they say, to
suppose that Congress could have con-
templated the payment of the tax by the
District of Columbia, because in that
event, under existing law, one-half of the
charge would have to be borne by the
United States themselves, and the result
would be the same if the cost of the stamp
could be retained by the District from the
charge for issuing the certificate. But this
could not be done: nor is there any author
ity by which the District could purchase
or create debt for the purchase of
stamps"
The Court of Appeals then goes on to say
that in its view it Is unimportant whether
the certificate issues for the sole use and
benefit of Mr.. Hufty or not. When one is
under legal duty by contract, or is re-
quired by law to execute and deliver a tax
able instrument to another, who, alone,
may be interested in the use to be made of
it when delivered, the instrument must be
stamped at or before delivery. 1t is not a
complete, legal instrument until the stamp
shall have been affixed and Cancelled by the
maker And the one who issued it, or
causes it to be issued, without the neces-
sary stamp is, alone, guilty of the offense
declared in section of the law. The fact
that that section, which is the sanction of
the law, fails to include within its penalty
those for whose use or benefit, in the sense
under consideration. the certificate issues
furnishes a strong foundation for the con-
clusion that it was not the intention in the
preceding section of the law to impose the
tax upon them at all.
Occasion for Contention.
IF section were construed to mean that
the usees and beneticiaries of taxable in
strum2nts are, under any circumstances,
ckargeable with the tax thereon next
says the Court of Appeals. occasion would
be given for constant contention between
them and the makers in respect OF the
obligation to furnish the stamp, and in
many instances they would be unjustly
compelled to pay the tax, because unable
TO stand delay, or unwilling to he har-
assed by litigation over small or trfiing
sum. And If section followed the same
terms, or otherwise expressed the same
meaning, prosecutions under it would be
attended with the same difficulty and risk
of ascertaining, in each case, for whose
use or benefit the instrument had been
made, signed or issued: for il is plain that
both maker and receiver cannot he sep
arately guilty of the one offease any more
than they can both be made to pay the
&C aT11a tn no half fft ha
respondent does not meet all Of the diff
culties of the situation. In the first place,
we have seen, it comedies that the
maker of the unstamped instrument is sub
ject to the penalty In any event. In the
second it assumes that the certificate must
be stamped before delivery to enable the
respondent to escape the penalty. Then,
because Congress has made no provision for
the purchase of the stamp by the District
and cannot otherwise be presumed guilty
of the absurdity of making the United
States themselves pay the tax, in part, by
virtue of the existing arrangement respect
ing the revenues and expenses of the Dis
trict, the burden must have been intended
to be imposed upon the relator and others
similarly situated.
This conclusion cannot be reached with
out reading a proViso into the law, or, at
least without strained construction that
is clearly not admissible under any cir
cumstances in the case of laws imposing
duties and affixing penalties"
Whether Taxable or Not
Several laws are quoted by the Court of
Appeals, which then says:
Some of the conditions mentioned in the
argument of counsel are entitled TO consid-
cradle weight in determining whether the
certificate in this case is taxable at ALL
For the reason that Congress did not in
tend as we have concluded, to make any
one but the maker of the instrument re-
ferred to in section liable for the tax, and
because of the special considerations re-
ferred to as applying in this particular case.
We think 1t would be reasonable to presume
that it was not intended to require a stamp
to be affixed to an instrument where as
here. the officer of the District is compelled
to issue upon demand. and the fee for the
service is not his perquisfte."
The Court of Appeals concludes the opin-
ion follows:
THE fact that the issuance of the certifi-
cate in this case is commanded by law upon
the payment of the required fee, and is in
some measure productive of revenue to the
corporation, is enough, We think to bring
il under the exemption.
We think it unnecessary for the purposes
of this case to attempt to draw the line of
distinction between the different acts of a
municipal corporation that may and NAV