| Haw. | Apr 14, 1902
Lead Opinion
OPINION OF THE COURT BY
The appellant, a shareholder in a Hawaiian corporation, appointed a third party his agent, or proxy, to act and vote1 for him at a designated meeting of the stockholders of the corporation. The appointment was in writing and in form bore some resemblance to a power of attorney but was not under seal or acknowledged. It was headed “Stockholder’s proxy.” The Treasurer of the Territory, ruled, that this writing was a power of attorney and subject to a stamp- duty of $1.00 under Section 941, O. L. The appellant being dissatisfied with this ruling paid the duty and perfected an appeal to- this court as provided in Sec. 931, O. L.
This appeal presents for construction one of the provisions of the statute providing for stamp duties on certain written instruments (Chapter 64,- O. L.). The'first section of this statute reads: “.From and after the coming into operation of this Act, there shall be due and payable'to the Government in respect of the several deeds, documents, and instruments mentioned and spec
One item of the schedule-, and the one under which the written instrument given by the appellant was taxed, is as follows:
“Power of attorney..............................$1.00”
(Sec. 941, O. L.)
“It is a general-rule,” says Hr. Justice Story, “in the interpretation of all statutes levying taxes or duties upon subjects or citizens not to extend their provisions by implication beyond the clear import of the language used or to enlarge their operation so as to embrace matters not specifically pointed out, although standing upon a close analogy. In every case, therefore, of doubt, such statutes levying taxes or duties are construed most strongly against the Government and in favor of the subject or citizen, because burdens are not to be imposed or-presumed to be imposed beyond what the statutes expressly and clearly import.” United States v. Wigglesworth, 2 Story (U. S.) 369, 373 and 374.
Mr. Justice Agnew speaking for the Supreme Court of Pennsylvania, said: “A tax law (and a stamp act for the purpose, of revenue is such) cannot be extended by construction to- things not named or described as the subject of taxation.” Boyd v. Hood, 57 Penn. St. p. 98-101.
Each of the above cases are referred to with approval in Sutherland on Statutory Construction, p-. 458.
The same principles have been announced by this court, in construing the statute under consideration as follows. “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. Eor instance, a statute levying a tax on horses would not include mules, and one levying a tax on mules would not include asses.” The Minister v. Bishop & Co., 3 Haw. 793" court="Haw." date_filed="1877-01-15" href="https://app.midpage.ai/document/kapena-v-bishop--co-6482308?utm_source=webapp" opinion_id="6482308">3 Haw. 793, 794.
There is some resemblance between a power of attorney and a pro-xy. (possibly as much as between a horse and a mule). Each, when in writing, is the evidence of thei authority of the
We conclude that the proxy or instrument submitted was not subject to the stamp duty collected by the Treasurer.
Let judgment be entered accordingly.
Concurrence Opinion
CONCURRING OPINION OF
There is no doubt that, technically speaking, a proxy is a-power of attorney, as it is a written authority to one to. act in the place of another; and for this reason my first impression was that it would have to be stamped under the statute. But upon reflection I have come to a different conclusion.
“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 true that a check has been asserted to be a bill of exchange. * * * But checks are a species of paper of such common use that if the. legislature had intended to include them they would have mentioned them by their name. In common language, no one, speaking of a bill of exchange would be understood as meaning a check. * * *
“The Act is to be taken styictly; none of the expressions of this Act are strictly and technically applicable to certificates of deposit. In this country certificates of deposit are too frequent and notorious a species of paper to have been omitted by mistake, and it is a rule of construction that when a statute, and more especially a statute with penalties for neglect, specifies particulars, all other particulars not enumerated are excluded.
“Although certificates of deposit possess all the requisites of*186 promissory notes, and tlie endorsers are to be held in like manner as in ordinary promissory notes and all the rules applicable-to promissory notes are to bo applied, when such certificates are sued upon, yet we cannot but think that if the legislature had intended to tax them by this law, they would have mentioned them specifically, more especially, considering the manner in which they had been used as currency in this kingdom.”
The fact that, notwithstanding tlie frequent use of proxies in these islands with their great number of corporations with widely scattered stock, no one, so> far as we are' aware, has ever thought of stamping proxies during the quarter of a century during which the stamp act has been in force, until the separate provision for stamps on proxies in the federal stamp act recently suggested the question, not only shows the common understanding that proxies stand in a class by themselves but also supports-the view that the legislature did not intend that they should be taxed.
We cannot get much assistance from authorities elsewhere on this point. In England the statute was much more explicit:: “Letter or power of attorney made by any petty officer, seaman,, marine, or soldier serving as a marine, or by executors or administrators of any such person for receiving prize money, Is.” “And for receiving wages, 11.” “Letter of attorney for the sale, transfer, acceptance or receipt of dividends of any government or parliamentary stocks or funds, 31. 10s.” “Letter or power of attorney of any other kind, or commission or factory in the nature thereof, and every deed or other instrument of procuration, 11, 10s.” In Monmouthshire Canal Co. v. Kendall, 4 Barn. & Ald. 453, the question arose whether under this statute a proxy had to be stamped, but the court found it unnecessary to pass upon it. Counsel argued that “at all events it is an instrument of procuration,” if not a letter of attorney, for “the very word proxy, which is an abbreviation of the word procuracy, shews this.” But in The Queen v. Kelk, 12 Ad. & Ell. 559, the question w:as passed upon. The proxy was held to- be “either a letter of attorney or an instrument of procuration.” When we consider the particularity of the first two clauses of the statute
Dissenting Opinion
DISSENTING OPINION OP
This is an appeal from a ruling of the Treasurer to the effect that a certain instrument is subject to stamp duty under Section 918 and that portion of the schedule in Section 941, Chapter 64, of the Civil Laws, which reads, “Power of Attorney, $1.00.” The instrument referred to is in the following language:
“Stockholders’ Proxy.
“Know all men by these presents, that I, A. W. Van Valkenberg, do hereby constitute and appoint E-. E. Paxton for me and in my name, place and stead, to vote as my proxy at any ordinary, extraordinary or general meeting of the stockholders of The B.. F. Dillingham Company, Ltd., an Hawaiian corporation, held subsequent to this date or at any adjournment thereof (until this proxy has been revoked), and upon any question which may be brought-before such meetings, including the election of directors, according to the number of votes I should be entitled to vote if then personally present.
“In Witness Whereof, I have hereunto set my hand this 8th day of March, A. D. 1902.
(Signed) “A. W. Van Valkenberg.”
A power of attorney is “an instrument authorizing a person to act as the agent or attorney of the person granting it.” — 2 Bouvier 714. — “A letter or power of attorney is constantly spoken of as the formal instrument by which an agency is created.” — lb. 116. “The right on the part of the1 agent to- act in the name or on behalf of another is termed his authority or 'power to act, and this, if conferred formally by an instrument in writing and under seal, is said to be conferred by a letter of attorney or power of attorney.” — 1 Am. & Eng. Encycl. Law, 2nd ed., 938. In this Territory, a power of attorney need not be under seal. Even in the- case of a deed of land, 'a seal is not essential to validity. Wood v. Ladd, 1 Haw. 23; Campbell v.
It is contended, however, that, in the popular mind, proxies stand in a class by themsielves and are never known as powers of attorney and that therefore the legislature, having failed to include proxies by name, must be presumed to- have intended other powers of attorney only, or, at least, that the matter is one involved in some doubt and that consequently the- statute must be construed in favor of the taxpayer.
The general principles applicable in the construction of doubtful tax statutes are undoubtedly stated correctly in the prevailing opinions. Nevertheless, it seems to me that under the facts of this case the taxpayer should not prevail. The general question of the taxability of any or all proxies is not now before us; the only question presented by the appeal is -whether the particular instrument above set forth is subject to- the tax. I take it that it is recognized by the business community and by laymen in general as well as by lawyers that the authority to vote stock at all future meetings of a designated corporation may be deletgated or conferred by a formal power of attorney as well as by the informal instrument known as a proxy. The distinction here sought to be drawn is recognized in the H. S. war tax Act of June, 1898, in its provision imposing a tax on, “Power of attorney or proxy for voting” at corporation elections. Yol. 30, Statutes at Large, p. 462. The instrument under consideration is a formal power of attorney, using that term even in the sense in which, as I believe, it is understood by laymen. That it may also be called a proxy cannot, under the circumstances, affect the result. Assuming, then, for the purposes of this case, that under the title, “power of attorney,” the legislature intended to tax only those instruments which are understood by laymen to be po-wers of attorney, the instrument in question is a power of attorney within the meaning of the statute.
In The Queen v. Kelk, 12 Ad. & El. 559, a proxy was held