Hollister v. Zion's Co-Operative Mercantile Institution/Opinion of the Court

For the purposes of this case we must assume that the Zion's Co-operative Mercantile Institution used for circulation and paid out their own obligations in the following form: '652.] SERIES A. [5.

'SALT LAKE CITY, October 6, 1876.

'Pay David O. Calder or bearer five dollars in merchandise at     retail.

'Five. Five.

'To H. B. Clawson, Supt. Z. C. M. I. G. H. SNELL.'

The question presented is whether these obligations are 'notes' within the meaning of the act of February 8, 1875, c. 36, § 19, (18 St. 311,) which is in these words: 'That every person, firm, association, other than national banking associations, and every corporation, state bank, or state banking association, shall pay a tax of ten per centum on the amount of their own notes used for circulation and paid out by them.' This act was passed as an amendment to the internal revenue laws, and is therefore to be construed in connection with those laws. It is also a part of the system adopted by congress to provide a currency for the country, and to restrain the circulation of any notes not issued under its own authority. Veazie Bank v. Fenno, 8 Wall. 533. The laws on that subject may consequently be resorted to in aid of interpretation.

On the seventeenth of July, 1862, congress first authorized the use of stamps as money, and by the same act-chapter 196, § 2, (12 St. 592)-provided that no private corporation, banking association, firm or individual should make, issue, circulate, or pay any note, check, memorandum, token, or other obligation, for a less sum than one dollar, intended to circulate as money, or to be received or used in lieu of lawful money. It was decided in U.S. v. Van Auken, 96 U.S. 366, that obligations payable in goods are not included in the prohibitions of this act, because, by fair implication, only obligations for money were affected. The national banking act of February 25, 1863, c. 58, (12 St. 665,) was passed at the next session of congress, which authorized the issue of 'notes for circulation.' Section 20. These notes were to be executed in such a manner as to make them 'obligatory promissory notes.' Then followed, at the same session, the act of March 3, 1863, c. 73, (12 St. 709,) 'to provide ways and means for the support of the government,' which required (section 7) all banks, associations, corporations, and individuals issuing notes or bills for circulation as currency to pay a duty of 1 per cent. each half year on the average amount of their circulation over a certain sum, and a duty of 5 per cent. on all issues of notes or bills in sums representing any fractional part of a dollar. At the next session, the act of June 30, 1864, c. 173, § 110, (13 St. 277, 278,) provided for a duty upon the average amount of circulation issued by any bank, association, corporation, company, or person, 'including as circulation all certified checks, and all notes and other obligations calculated or intended to circulate or to be used as money.' Next came the act of March 3, 1865, c. 78, § 6, (13 St. 484,) which required every national banking association, state bank, or state banking association to pay a tax of 10 per cent. on the amount of notes of any state bank or state banking association paid out by them after July 1, 1866. This act was extended on the thirteenth of July, 1866, c. 184, § 9, (bis,) (14 St. 146,) so as to include the notes of persons, as well as of state banks and state banking associations, used for circulation. The acts of 1865 and 1866 were considered and enforced in Veazie Bank v. Fenno, supra. After this came the act of March 26, 1867, c. 8, § 2, (15 St. 6,) which imposed upon every national banking association, state bank, banker, or association a tax of 10 per cent. on the amount of notes of any town, city, or municipal corporation paid out by them. All these statutes were re-enacted, without any material change of phraseology, in the Revised Statutes,-the act of July 17, 1862, being now section 3583; that of February 25, 1863, section 5182; that of June 30, 1864, section 3408; that of July 13, 1866, section 3412; and that of March 26, 1867, section 3413. The effect of the act of February 8, 1875, now under consideration, was to extend section 3412, which included only banks and banking associations, to all persons, firms, associations, and corporations. The subject-matter of the tax, to-wit, 'notes used for circulation paid out by them,' remains the same.

From this review of the legislation on the general subject, and the apparently studied use by congress of words of appropriate signification whenever it was intended to cover anything else than promissory notes in the commercial sense of that term, we are led to the conclusion that only such notes as are in law negotiable, so as to carry title in their circulation from hand to hand, are the subjects of taxation under the statute. It was, no doubt, the purpose of congress in imposing this tax, to provide against competition with the established national currency for circulation as money, but as it was not likely that obligations, payable in anything else than money, would pass beyond a limited neighborhood, no attention was given to such issues as affecting the volume of the currency or its circulating value. This was the principle on which the case of U.S. v. Van Auken was decided, from which we see no reason to depart.

The judgment of the supreme court of the territory is therefore affirmed.