Gray v. Western Union Telegraph Co.

85 Mo. App. 123, 1900 Mo. App. LEXIS 401

• Court: Missouri Court of Appeals
• Decided: June 18, 1900
• Status: Published

Opinion

ELLISON, J.

— The plaintiff sent three telegraphic dispatches over defendant’s wires and was compelled by defénd- and to affix a one cent internal revenue stamp to each dispatch and pay for the same, as a condition to accepting and transmitting. This action was then instituted by plaintiff to recover of defendant the amount paid for the stamps. He obtained judgment in the trial court.

The question presented involves a construction of the war revenue law enacted by Congress in 1898. The particular statute upon which plaintiff’s claim is founded is section 18 of said law, which reads as follows:

“See. 18. That on and after the first day of July, eighteen hundred and ninety-eight, no telegraph company or its agent or employee shall transmit to any person any dispatch or message without an adhesive stamp, denoting the tax imposed by this Act, being affixed to a copy thereof, or having the same stamped thereupon, and in default thereof shall incur a penalty of ten dollars: Provided, that only one stamp shall be required on each dispatch or message, whether sent through one or more companies: Provided, that the messages or dispatches of the officers and employees of any telegraph or telephone company concerning the affairs and service of the company and like messages or dispatches of the officials and employees of railroad companies sent over the wires on their respective railroads, shall be exempt from this requirement: Provided further, that messages of officers and employees of the Government on official business shall be exempt from the taxes herein imposed upon telegraphic and telephonic messages.”

It will be noticed that this section does not in terms declare whether the telegraph company or the sender shall pay for the stamp. Since it is the duty of a telegraph company to send dispatches offered for transmission it might reasonably be contended, if we were confined alone to the section quoted, that the company should pay the tax in order to perform its fixed duty. But that section is not all which the statute embraces on this subject.- Sections 6 and 7 bear directly upon it and, in our opinion, make it clear that the Congress intended to put the tax upon the person sending and not the company receiving the message. Those sections read as follows:

“Sec. 6. That on and after the first day of July, eighteen hundred and ninety-eight, there shall be levied, collected,-and paid, for and in respect of the several bonds, debentures, or certificates of' stock and of indebtedness, and other documents, instruments, matters, and things mentioned an described in Schedule A of this act, or for or in respect of the vellum, parchment, or paper upon which such instruments, matters, or things, or any of them, shall be written or printed by any person or persons, or party who shall make, sign, or issue the same, or for whose use or benefit the same shall be made, signed, or issued, the several taxes or sums of money set down in figures against the same, respectively or, otherwise specified or set forth in the said schedule. '* * *.”

(Schedule A provides for stamp of one cent on telegraphic messages.)

“Sec. 7. That if any person or persons shall make, sign, or issue, or cause to be made, signed or issued, any instrument, document, or paper of any kind or description whatsoever, without the same being duly stamped for denoting the tax hereby imposed thereon, or without having thereupon an adhesive stamp to denote said tax, such person or persons shall be deemed guilty of a misdemeanor, and upon conviction thereof shall pay a fine of not more than one hundred dollars, at the discretion of the court, and such instrument, document, or paper, as aforesaid, shall not be competent evidence in any court.”

These sections so clearly place the burden and duty upon the sender as to leave no room for doubt that it was not intended by section 18, to put either on the receiving company. The penalty of ten dollars imposed on the company by that section was merely to aid the government in compelling the sender to stamp his message. It is a means provided to enforce the burden imposed upon him by sections 6 and 7. That is to say, no telegraph company can lawfully transmit his message until he shall have stamped it. Carriers are, in certain instances and under certain conditions, prevented by law under penalty, from transporting persons or animals suspected of disease without certain certificates, and it could as well be said that such statute imposed the duty of obtaining and paying for the certificates as to say that section 18 imposed the duty of paying for the stamp required to be affixed to a message on the company receiving it of the sender.

Since sections 6 and 1 so unmistakably make it the duty of the sender to affix the stamp, to contend that section 18 makes it also the duty of the receiver, is to be driven to the position that both parties are so required. Such construction is not justified by the language of the statute and it would furthermore be so unreasonable as to justify the conclusion ' that it was not intended by. the Congress, in the absence of a clear expression that it was so intended. That the sender is the person intended to pay the tax is further disclosed by the discrimination made in the penalty imposed. He must suffer a fine of $100 for a violation of the law while the receiving company has only to pay one-tenth that sum for its transgression. Furthermore, the message unstamped is not receivable in evidence, which is an additional burden cast upon the sender, for it is he, and not the company, who must suffer on account of such disability.

Again it is the sender who, in the language of the Act, “makes, signs, or issues” the message, and in this respect he may be likened to him who makes, signs, or issues a bill of exchange or deed. It would scarcely be contended that a banker under penalty for paying an unstamped bill, or that a grantee or a recorder, under penalty for receiving an unstamped deed, should thereby be held to be the party primarily intended to pay for the stamp, unless it was so clearly expressed by tbe statute as to avoid any other construction, and as it is so expressed in section 11 as to bills drawn without, and payable within, the United States.

The very question before us has been presented to the circuit court of the United States in California, and it was said:

“The document being subject to tax under Schedule A, the fine or penalty imposed for the omission to affix and cancel the proper stamp, is, under section 7, imposed upon the person who makes, signs or issues the document. The statute is in the disjunctive, and reaches not only the omission of the person who issues a document subject to the .tax, but the maker and signer of the instrument. The law for this purpose takes notice therefore, of the person who writes out and signs a dispatch, and makes him liable for the omission to stamp the instrument he creates. By the terms of the stamp schedule, the tax of one cent is placed upon this instrument as prepared by the sender, without reference to any act of the telegraph company in transmitting the message to its destination.” Kirk v. Western Union, 90 Fed. Rep. 809.

“There was an internal revenue war tax authorized by Congress in 1862 to meet expenses in the Civil War. Many provisions of that law are similar to those of the present law, and we may well look to the interpretation given that Act for a guide to the true meaning of this. “In the interpretation of re-enacted statutes the courts will follow the construction which they received when previously in force.” Sutherland Const. Statutes, sec. 256; McDonald v. Hovey, 110 U. S. 619; Willis v. Eastern Trust Co., 169 U. S. 295.

By the statute of 1862, deeds for real estate were required to be stamped and a question arose in Callahan v. McCredy, 48 Pa. St. 463, whether the vendor or vendee should pay for the stamp. The court, in speaking of the sections of the statutes, said: “These sections manifestly contemplate the affixing and cancelling the stamp by the party who makes and signs the instrument. And how can he affix or cancel it except he buy it? How else can he escape the penalty ? How else make a deed that shall not be invalid and of no effect ?”

Onr conclusion is that the plain terms of the statute impose the burden of the stamp tax on telegrams on the sender. The judgment must therefore be reversed.

Smith, P. J., concurs; Gill J., absent.