At the trial the plaintiff offered in evidence two depositions taken under a commission issued to a notary public of the city of San Francisco, State of California, with his certificate thereunto attached. One of these was objected to upon the ground that the stamps required by the act of congress approved June 13, 1898, entitled "An act to provide ways and means to meet war expenditures and for other purposes," were not canceled upon the day the certificate bears date. The other was objected to upon the ground that the certificate was not stamped as required by the provisions of the before-mentioned law. Each objection was sustained, and the evidence excluded.
We have not been referred to any adjudication of the provisions concerning stamped instruments offered in evidence under the act of congress cited, but substantially the same provisions, contained in the internal revenue law of 1862, have frequently been the subject of judicial construction.
One of the early cases under this law wasCarpenter v. Snelling, 97 Mass. 452. After stating that the law did not, in terms, extend to state courts — and the law of 1898 in this respect is the same — the decision proceeds: "The language of the enactment is only that no instruments or documents not duly stamped shall `be admitted or used as evidence in any court' until the requisite stamps shall be affixed. This provision can have full operation and effect if construed as intended to apply to those courts only which have been established under the constitution of the United States and by acts of congress, over which the federal legislature can legitimately exercise control, and to which they can properly prescribe rules regulating the course of justice and the mode of administering justice. We are not disposed to give a broader interpretation to the statute. We entertain grave doubts whether it is within the constitutional authority of congress to enact rules regulating the competency of evidence on the trial of cases in the courts of the several states, which shall be obligatory upon them. We are not aware that the existence of such a power has ever been judicially sanctioned. There are numerous and weighty arguments against its existence. We cannot hold that there was an intention to exercise it, where, as in the provision now under consideration, the language is fairly susceptible of a meaning which will give it full operation and effect within the recognized scope of the constitutional authority of congress."
In Green v. Holway, 101 Mass. 243, the same court said: "The decision in Carpenter v.Snelling, 97 Mass. 452, that this enactment must be limited to the courts of the United States, and not be construed to extend to, if, indeed, it could constitutionally bind, the state courts, was made after full consideration, is in accordance with the judgments rendered without a doubt being raised upon this point, by the supreme courts of Vermont, Maine, and Pennsylvania in the cases above cited, and with the later adjudications of the very question in Griffin v. Ranney,35 Conn. 239; Craig v. Dimock,47 Ill. 308; Bunker v. Green,48 Ill. 243; and U. S. Express Co. v. Haines,48 Ill. 248, and is in harmony with, if it does not fall within, the principle of construction upon which the amendments of the constitution of the United States securing fundamental rights in the modes of judicial proceedings have
been held to apply to such proceedings in the courts of the United States only, and not to those in the courts of the several states. (Twitchell v. Com.,
7 Wall. 321, and cases cited: Livingston v.Moore, 7 Pet. 482, 551; Com. v.Hitchings, 5 Gray, 482.)"
Decisions contrary to the views here stated were made in the cases of Maynard v. Johnson,2 Nev. 25, and Wayman v. Torreyson,4 Nev. 124, but when these cases were decided the effect of congressional legislation upon the jurisdiction and practice of the state courts had not received the careful judicial consideration afterwards given it, and no suggestion was then made that the act of congress prescribed a rule of evidence for federal courts only.
Judgment reversed and cause remanded for a new trial.