The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-07-16

Yesterday by Attorney General Dole, in
which he holds that neither the Federal
government nor the Bishop Estate Is
RESPONSIBLE for the Territorial stamp
tax, amounting to over $780,
The following is the opinion given TO
Treasurer Wright yesterday:
Territory of Hawaii,
| Office of the Attorney General.
| Honolulu, H. l., July Is, 1902.
| Honorable VIM H. Wright, Treasurer
of the Territory of Hawaii:
| Dear Sir:-I beg to acknowledge your
request dated July II for my opinion
! relative to the liability of the deed OF
the trustees of the Bishop Estate to
the United States government to pay
Territorial stamp duties.
| Section 927 of the Civil Laws of 1897
provides that: mo instrument requir-
ing to be stamped shall be recorded by
the Registrar of Conveyances, or be of
any validity in any court of this Re-
public CTerritory), unless the same
shall be properly stamped"
! The stamp duties on this deed amount
| to 1865, if any such duties are legally
| collectable.
The deed has been offered for registry
| by the United States government. 1t
is settled law that such provisions do
not apply to governments unless they
! are expressly lnCluueu
The Territory of Hawaii, under our
| law, is not liable for stamp duties upon
| its deeds. (Macfarlane VS.. Republic of
Hawaii, IL Haw., 3S7.)
Even if the Territorial stamp, act in
| express terms included the government
| of the United States for the purposes
| of this form of taxation. the act would
be to that extent null and void. The
| stamp duty is in the nature of tax
/ to raise revenue for the expenses of the
| Territorial government; and it is not
/ within the power of a Territory, or of
State to tax the United States or any
department thereof. (Van Brocklin VS..
State of Tenn, III L. s., 1911 This
principle OF law has been settled by
| line of cases extending back nearly
| hundred years.
| In McCuIloch VS.. Maryland, Wheat.
| 432, Chief Justice Marshall, in deliver
ing the opinion of the court, said: IF
the States may tax one instrument en-
ployed by the government in the eXecu-
ton of its powers, they may tax any
and every other instrument; they may
tax the mail; they may tax the mint;
they may tax patent rights; they may
tax the papers of the custom house;
they may tax judicial processes: they
may tax all the means employed by the
government to- an excess which would
defeat all the ends, Of government. This
was not intended by the American peO-
PIE They did not design to make their
government dependent on the States.
Nothing can be clearer or better set
tied than that these stamp duties can
not lawfully be collected from the Uni
ted States government. / think it is
nearly or quite as clear that they can
not lawfully be collected from the Bish-
op Estate
I quote the following from Chief JUS
tice MarshalIs great opinion in Brown
VS.. State of Maryland, IL Wheat. 419,
which was rendered in 1927, and has
since been accepted as settled law by
all American courts: But II 1t Should
be proved that duty on the article
itself would be repugnant to the con-
stitution, it is still argued, that this Is
not a tax upon the article. but on the
person. The State, it is Said may tax
occupations, and this is nothing more.
1t is impossible to conceal from our
selves that this is varying the form
without varying the substance 1t is
treating prohibition which is general,
as If it were confined to "a particular
mode of doing the forbidden thing. All
must perceive that a tax on the sale
of an article, imported only for sale,
is tax on the article itself. 1t is true
the State may tax occupations general
ly. but this tav must be paid by those
who employ the individual or is a tax
on his business. The lawyer, the ply
stefan or the mechanic must either
charge more on the article in which he
deals, or the thing Itself is taxed
through his person. This the State has
right to do, because no constitutional
prohibition extends to it. So. a tax on
the occupation of an importer is, in like
manner, a tax on Importation. 1t must
add to the price of the article, and be
paid by the consumer, or by the i'm
porter himself, in like manner as di-
rect duty on the article itself would be
made. This the State has not right
to do because it is prohibited by the
constitution
Adopting Chief Justice MarShalps
| reasoning-the analogy is plain-a tax
on the transfer of land is a tax on the
purchaser. To use his language, this
is varying the form without varying
the substance" The stamp duty is
factor in the consideration paid for the
property If the grantor, a private corr
poration, can be required to furnish
these stamps, at its own expense, the
presumption is that they are included
IN the price which the purchaser pays.
This would be an indirect tax of the
United States, which it is beyond the
power of the Territory to levy.
In the present case, as understand,
the title passed by judicial process.
which is not taxable against the Uni
ted States. If my impression in this
respect is correct, the deed offered for
registry is a mere form, given as a
matter of courtesy by the Bishop ES-
tate to place the muniments of title be-
yond question and in the simplest form.
However this may be, 1 think it is clear
that the deed it not, to quote the Ian
guage of our statute, IAN instrument
requiring to be stamped"