The following opinion was filed at the January term, 1870.
Dixon, C. J.
The first question in this case is upon the construction of a clause in the internal revenue act of congress, approved March 3d, 1865, which reads as follows : “ That any person or persons who shall make, sign or issue, or who shall cause to be made, signed or issued, any instrument, document or paper of any kind or description whatsoever, or shall accept, negotiate or buy, or cause to he accepted, negotiated or paid, any bill of exchange, draft or order, or promissory note, for the payment of money, without the same being duly stamped, or having thereon an adhesive stamp for denoting the duty chargeable thereon, with intent to evade the provisions of this act, shall for every such offense forfeit the sum of fifty dollars ; and such instrument, document or paper, hill, draft, order or note shall be deemed invalid and of no effect.” 13 Statutes at Large, p. 481. The language of this clause, or that *166part of it material to be considered in this case, is the same as that of the 158th section of the internal re venue act, approved June 30, 1864, of which this was an amendment. 13 Statutes at Large, p. 293. The question is, whether the words, “ with intent to evade the provisions of this act,” are connected with and qualify the words declaring the instrument invalid and of no effect, or whether they only qualify those imposing the penalty of fifty dollars. The former is, no doubt, the fair and ordinary grammatical construction ; and so we find the courts very generally to have decided, wherever the question has arisen. Harper v. Clark, 17 Ohio St. 190; Hitchcock v. Sawyer, 39 Vt. 412; Beebe v. Hutton, 47 Barb. 187; Dorris v. Grace, 24 Ark. 326; Desmond v. Norris, 10 Allen, 250; Trull v. Moulton, 12 Allen, 396; Toby v. Chipman, 13 Allen, 123; Govern v. Littlefield, and Willey v. Robinson, id. 127 and 128; Holyoke Machine Co. v. Franklin Paper Co., 97 Mass. 150; Green v. Holway, 101 Mass. 243; McGovern v. Hoesback, 53 Pa. St. 176; Dudley v. Wells, 55 Maine, 145; Whitehill v. Shickle, 43 Mo. 537; Hallock v. Jaudin, 34 Cal. 167; New Haven & Northampton Co. v. Quintard, 37 How. Pr. R. 28; Vorebeck v. Roe, 50 Barb. 302; Howe v. Carpenter, 53 id. 382. It is true, there are some decisions to be found in which a different view has been taken, but the decided weight of authority is as above stated; and that, we think, must govern until a contrary rule has been established by the supreme court of the United States. We hold, therefore, that the note in suit was not invalid unless the requisite stamp was omitted with intent to evade the provisions of the revenue act.
And the question as to who has the burden of proving such intent, or whether the production of the unstamped instrument is itself prima facie evidence of it, does not arise in this case. Here the note produced had a stamp upon it, but not a sufficient one. Perhaps that ought to be considered as a circumstance *167going to rebut the presumption of an intention to evade the provisions of the act, if such presumption arises where the instrument is wholly unstamped. Yet, as the unstamped instrument is not void, except the omission be with intent to evade the law, and as the provision declaring it void in that case is in the nature of a penalty, often most severe, it might be that no presumption of fraudulent intent would arise from the mere omission to affix the stamp. The omission might have been caused by mistake, oversight, or some misunderstanding, in itself innocent and excusable. Penal statutes are strictly construed, and presumptions of guilt not indulged upon facts consistent with the opposite hypothesis or that of innocence. These are general rules, and it might be, notwithstanding the omission to stamp, that the presumption of innocence would prevail until the contrary, or the existence of the fraudulent intent, was clearly established in evidence. See Green v. Holway, supra, and Clemens v. Conrad, 19 Mich. 178. But be these things as they may, the plaintiff here voluntarily assumed the burden of showing that the omission to stamp was not with intent to evade the requirements of the law, which the court below refused to allow him to do. This, we think, was error.
Another question arises as to the construction of that provision in the act approved July 13th, 1866, and found in 14th Statutes at Large, p. 143, which reads as follows: “ That hereafter no deed, instrument, document, writing or paper, required by law to be stamped, which has been signed or issued without being duly stamped, or with a deficient stamp, nor any copy thereof, shall be recorded or admitted, or used as evidence in any court, until a legal stamp or stamps, denoting the amount of tax, shall have been affixed thereto as prescribed by law.” It is argued that under this provision the note in question was not admissible in evidence. The *168provision is prospective, and not retrospective. The rule with regard to holding statutes prospective, and not retrospective in their operation, unless the latter intent is plainly made to appear, is well known. The language here is entirely consistent with the former construction. The words, “ which has been signed or issued without being duly stamped,” were undoubtedly used prospectively; for, if we give them the contrary effect, we exclude from the operation of the statute every deed, instrument, etc., signed and issued after the passage of it without being duly stamped, which would be obviously against the intention of congress.
It follows from these'views, that the judgment of circuit court must be reversed, and a venire de novo awarded.
By the Court. — So ordered.
A motion for a rehearing was denied at the June term, 1870.