Kapena v. Bishop & Co.

• Decision Date: 09 March 1877
• Citation: 3 Haw. 793
• Parties: HIS EX. J. M. KAPENA, MINISTER OF FINANCE, v. BISHOP & CO., -SUBMISSION OF CONTROVERSY WITHOUT ACTION.
• Court: Hawaii Supreme Court

3 Haw. 793

HIS EX. J. M. KAPENA, MINISTER OF FINANCE, v. BISHOP & CO., -SUBMISSION OF CONTROVERSY WITHOUT ACTION.

Supreme Court of Kingdom of Hawai'i.

March 9, 1877

January Term, 1877.

Syllabus by the Court

CONSTRUCTION of the Stamp Act of 1876:-

A Bank Check, whether payable to bearer or order, is not liable to a stamp duty.

A Promissory Note for less than five hundred dollars is not liable to duty.

A Certificate of Deposit, payable on demand, and not being an evasive form of a promissory note, is not liable to duty.

Attorney General Hartwell for the plaintiff.

S. B Dole for defendants.

Harris Ch. J., Judd and McCully, J. J.

OPINION

HARRIS C. J.

The parties to this submission ask the judgment of the Court whether, by reason of the Act " relating to Stamp Duties, " passed at the last session of the Legislature and cited as Chapter 40 of the Session Laws of 1876 documents in the following form are required by law to have stamps affixed to them:

[First.]

Honolulu, H. I., Jan. 17, 1877.

Bishop & Co., Bankers, pay to D. Pass de Leon or order five hundred and sixty-nine dollars.

$569.00 (Signed) A.B.

[Second.]

$100.00 Honolulu, H. I., Jan. 17, 1877.

Two months after date for value received, I promise to pay to the order of G. L., one hundred dollars at the banking house of Bishop & Co., payable in U.S. gold coin or its equivalent. (Signed) Y. L.

[Third.]

Certificate of Deposit. $2000.00

Honolulu, H. I., Jan. 17, 1877.

Bishop & Co., Bankers. Received of J. R., on deposit, two thousand dollars payable to the order of C. B., in silver, on the return of this certificate properly endorsed.

(Signed) ppro. Bishop & Co.,

No. 4153 S. M. DAMON.

In passing tax bills legislatures are presumed to be careful to include in the schedules all the items upon which they intend a tax to be levied, and to express themselves so clearly that there can be no reasonable doubt as to the articles intended to be taxed. Statutes imposing taxes ought not to be construed so as to include articles or (in this case) instruments not clearly coming within them. For instance, a statute levying a tax on horses would not include mules, and one levying a tax on mules would not include asses.

" In construing a statute, the same rule of construction which is applicable in construing all documents or instrutruments between private parties has force. A person who makes an instrument and profers it to another makes it what he chooses and must cause it to express distinctly all that he means it to do." See Parsons on Notes and Bills, appendix to the second volume of the Stamp Act of the United States, page 8.

Lord Tenterden says, " Acts of Parliament imposing duties are so to be construed as not to make any instruments liable to them unless manifestly within the intention of the legislature." See Tomkins vs. Ashby, 6 Barn. and Cres. 542.

So likewise, Justice Bailey says, " It is a well settled rule of law that every charge upon the subject must be imposed by clear and unambiguous language." See Denn dem. vs. Diamond, IV. Barn. and Cres. 245.

And again, Lord Ellenborough says, " And I think that where the subject is to be charged with a duty, the cases in which it is to attach ought to be fairly marked out, and we should give a liberal construction to words of exception, confirming the operation of the duty." See Warrington vs. Furber, 8 East 244.

The statute under which it is claimed that the instruments recited above are liable to stamp duty reads as follows:

" Bill of exchange or promissory note for payment of any sum of money otherwise than when payable to bearer at sight or on demand, for the first $500, twenty-five cents; and for every $500 or part of $500 after the first, twenty-five cents."

And it is likewise claimed on the part of the government that if the instruments come under no more special class of papers, they are dutiable as agreements under the item " agreement $1 when divers letters are offered in evidence to prove agreement between the writers, it shall be sufficient to stamp one of such letters."

Upon the last point, the words of any statute are to be taken in their ordinary and usual signification, and although a promissory note is an agreement to pay money, yet, no one in reading this statute, would consider the word " agreement" as used therein to have such a signification as would include either of the instruments which are the subjects of our consideration.

It is further said that a check is a bill of exchange, and that " an instrument not coming up to the full requirement of a bill of exchange may be dutiable as a draft or order."

But there are no " drafts or orders" particularized in the statute other than those to which neither of the instruments in question belong, viz: " those drawn in but payable out of this kingdom, " nor those " drawn payable out of this kingdom, but endorsed and negotiated within the kingdom, " those " drawn out of and payable within this kingdom."

It is true that a check has been asserted to be a bill of...