Baird v. Pridmore

By the court, E. Darwin Smith, J. It was the intent, I think, of the 151st section, act of congress of 1864, entitled “ an act to provide internal revenue for the support of the government,” to impose a stamp duty of 50 cents upon all writs, summons and other original process by which a suit was commenced in any court of record, and also of the same amount upon any writ, process or summons in a justices’ court, or other court not of record, for the recovery of any sum exceeding $100. Construing together' all the provisions in the schedule B annexed to said act and referred to in said section relating to the same subject, the imposition of stamp duties upon legal documents, I think such the fair meaning and intent of those provisions. But, however this may be, I do not think it necessary to decide this question in this case. If the summons by which this action was commenced should have had affixed to it a revenue stamp of 50 cents, I think it too late to raise that question in a court of appeal. Section 158 of said act as amended in chapter 78 of an act passed March 3,1865, declares what shall be the penalty for the omission to put the proper stamp upon the legal document as required in section 151, and it is, that [368] whoever shall make, sign or issue such instrument, document or paper, “with intent to evade the provisions of the said act, shall for said offense forfeit the sum of $50; and such instrument, document or paper shall be deemed invalid and of no effect.” The omission to put the proper stamp upon any legal document, should perhaps be deemed presumptive evidence of an intent to evade the statute, but nothing more. The paper is not void, but voidable for such omission, and I think the party who has omitted to put the proper stamp upon the document, may and must have an opportunity to repel such presumption before he is subject to the penalty of the act, and before the instrument or document shall be held invalid. The objection to the summons in this case, if valid, should have been made before the justice on the return day of the summons. The plaintiff might then have obviated the objection and satisfied the justice that the omission to put a stamp upon the summons proceeded from mistake or ignorance of the fact that one was required, and not from intent to evade the statute. Upon such proof I think the justice might have allowed the proper stamp to be then affixed to the summons. If the same question had arisen in this court, I think it would or should have allowed the proper stamp to be affixed to the summons in such case nunc pro tunc. By omitting to make this objection before the justice, and before judgment, the plaintiff has lost the opportunity to rectify the mistake, and for this reason I think the defendant should be deemed to have waived the objection. After judgment I think such an objection to the summons should not be listened to in any court. The constitutionality of the internal revenue act it seems to me is too clear for discussion. The power of congress to impose taxes for the support of government is undoubted; and while taxes are imposed for revenue purposes only, the discretion of the national legislature on the subject of taxation, cannot be reviewed in the courts of justice. The judgment should be affirmed.