The Hawaiian gazette., 1902-11-04
STAMP ACT
IS VALID
Little Reversed in the
Supreme Court
Again.


versed the decision of Judge Little
declaring the Territorial stamp tax I'M
constitutional, which was severely
criticised in a recent number of the
st. Louis Law Journal.
The decision of the court is by Judge
Perry, and Judge Galbraith writes a
dissenting opinion, in which. however
he concurs with the majority in hold
ing the stamp law to be constitutional
The syllabus is as follows:
Chapter GA of the Civil Laws OF
1897, relating to stamp duties, is not
inconsistent with the provisions OF
Section of Article | of the Constitu-
ton Of the United States and was con-
tinued in force by the Enabling Act
THE item in the schedule of that
chapter relating to stamps on deeds
does not provide for unequal taxation
and is not invalid.
"A decree in equity required the re-
spondent to give to the complainant
a good and sufficient deed OF certain
land. Held, that the giving of an un-
stamped deed was not full compli-
ance with the decree"
The case in which the ruling is made
was that of Temikawa VS.. Cana. an
appeal from the Fourth district in
which the defendant. who had been
ordered to file deed in conformity
with court order, failed to afiix the
Territorial stamp. Judge Little held
that the law was contrary to the con-
stitution. which provides that all du-
ties shall "be uniform throughout the
United States" The Supreme Court
holds that the act in question was not
specifically repealed by the Organic
Act, not even by implication.
The Court adds:
"Taxation-the imposition of stamp
duties for the purpose of revenue is
but a method of taxation-is, clearly,
a rightful subject of legislation. 1t
was the intention of Congress by the
Organic Act to authorize our legisla-
ture to pass tax laws. This is further
shown by other portions of the act.
The exercise of this power by the Ter
ritory is not inconsistent with the
clause of the Constitution relating to
uniformity"
The decision in the income tax case,
and of Judge Estee in the case of Achi
VS.. kapiolani, are quoted in support
of the ruling.
In conclusion the court says:
The objection that the adhesive
stamps in use are not authorized be-
cause they are stamps 'of the defunct
Republic" and not issued in the name
of the Territory, is untenable. There
Is nothing in the words, figures or de-
vice used, which would render the
stamps invalid. The only words de-
noting the government or jurisdiction
are Hawaiian Islands," The words
Kingdom" or Republic" do not ap-
pear.
| For the respondent it is further con-
tended that, even though the statute
is valid and in force, the giving of an
unstamped deed is a sufficient compli-
ance with the decree, and that the
statute, if it requires stamps to be
affixed, does not place upon the grantor
the duty of afiiXing them. The record
before us does not disclose the precise
language OF the contract to convey, or
of the decree; still, the proceedings
had the briefs of counsel, and the
opinion of the court below show that
in substance the contract and decree
required the respondent to give good
and sufficient deed. The statute is 81
lent as TO whether the stamps shall be
affixed by the grantor or by the
grantee. The question before us is
whether the grantor has complied with
this decree by rendering an unstamped
deed. Section 927, civil laws of 1897,
! reads: mo instrument requiring to
be stamped shall be recorded by the
/ registrar of conveyances, or be of any
validity in any court of this Republic
unless the same shall be properly
stamped Provided, That instruments
improperly stamped may be received
in evidence in courts of record If the
unpaid duty and penalty be paid to the
clerk of the court, and upon such pay
ment being made the clerk of the court
shall forward the instrument to the
registrar of public accounts to be prop
erly stamped" In view of the provis-
ion that an improperly stamped in
strument may be received in evidence
and, apparently, be considered as val
, id upon payment of the duty, deed
cannot be regarded as void merely be-
| cause it lacks the necessary stamps.
A void deed could not thus be given
| force and effect. Nevertheless. 1t is
clear that an unstamped deed must be
regarded as of no validity or force to
, prove, in any court of this territory a
conveyance to the grantee. We think
! that substantial compliance with the
decree requires that the deed rendered
be such as to be valid for this, as well
as for other purposes, and therefore
hold that the duty is upon the grantor
to affix the stamps. We understand
that the practical construction OF the
statute ever since its enactment has
been in accordance with this view.
The decree appealed from is reversed
and the cause remanded 10 the circuit
! Judge of the fourth circuit for such
| further proceedings as may be proper.
| Judge Galbraith dissents, holding
that the law does not provide who
shall pay the tax, and that IL was not
incumbent upon the defendant TO do
so. In the dissenting opinion It is
said; "The stamps required to be at
tached to the several documents are
! reaIly only REGENTS for the taxes leyied