Treat v. Tolman

TOWNSEND, District Judge (after stating the facts). The legislative intent, as disclosed by the special provisions of said schedule, appears to have been to tax those instruments by which one individual authorizes another to act on his behalf, either at meetings of corporations, or in the transaction of certain classes of business relating to real estate or corporate securities, or claims against the United States not enumerated in > said proviso. The general clause, “or to perform any or all other acts not hereinabove specified,” should, therefore, be interpreted, under the doctrine of noscitur a sociis, to refer to other classes of business of the same general character as those specifically enumerated. All of the acts within the scope of this classification are such as may be performed by any layman as an attorney in fact. The acts authorized under the instrument in question are confined to the exercise by an attorney at law of a court of record of his duties as an officer of the court in the proceedings taken in such court by virtue of his retainer. Such an instrument has always been recognized as a warrant of attorney, or evidence of authority to such attorney to represent the party as such officer of court in such a proceeding. The distinction between powers of attorney and warrants of attorney is clearly set forth in text-books and the decisions of the courts. A power of attorney is an instrument by which the authority of an attorney in fact or private attorney is set forth. By attorney in fact is meant one who is given authority by his principal to do a particular act not of a legal character. A warrant of attorney is an instrument authorizing an at» [894] torney at law to appear in an action on behalf of the maker or to confess judgment against him. An attorney at law is employed to appear for.parties to actions or other judicial proceedings, and is an officer of the court. And. Law Dict. pp. 92-94; 18 Am. & Eng. Enc. Law, p. 871; 28 Am. & Eng. Enc. Law, p. 685; Hunt v. Rousmanier, 8 Wheat. 174, 5 L. Ed. 589. It would seem that congress could not have intended by such general words to impose a tax upon this class of official acts done in the course of judicial proceedings. Such a tax, for the purpose of revenue, should not be extended by general or ambiguous words to embrace transactions without its expressed scope. Boyd v. Hood, 57 Pa. 98; Smith v. Waters, 25 Ind. 397. This conclusion is strengthened by the fact that no case has been cited in which such warrants have been taxed. The provisions of the section in question accord with the provisions of preceding acts of a similar character. The original federal internal revenue act, in enumerating the instruments required to be stamped, says: “Any bonds, bills single or penal, foreign or inland bills of exchange, promissory note, or other note for the security of money, « * * any letter of attorney, except for invalid pensions, or to obtain or sell warrants, for land granted by the United States as bounty for military services performed in the late war.” 5th Cong. Sess. July 6, 1707, c. 11, § 1 (1 Stat. 527). The question .as to the scope of this act was raised in Davis v. Ostrander, 1 Johns. Cas. 106. The court there decided that an arbitration bond was not within the provisions of said act. A note to this case reads as follows: “On application of the clerk for the direction of the court, on the question whether powers of attorney in suits xiending in court ought to be received without being stamped, the court said that such powers need not be stamped, and that the above-mentioned act applied to general letters of attorney only.” The clause in question, then, embodies a warrant of attorney, or evidence to the court of a retainer whereby a party to a pending cause has substituted an officer of court as his representative before the court in said cause. Such a warrant does not constitute said officer of court an agent or attorney in fact to carry on business, and is not within the provisions • of this statute which authorizes the taxation of powers of attorney. The decision is affirmed.