102 F. 127 | U.S. Circuit Court for the District of Southern Ohio | 1900
This action was commenced before William F. Glass, a justice of the peace in and for Cincinnati township, Hamilton county, Ohio, and was removed to this court. The defendant demurs to the bill of particulars or petition of the plaintiff for the reason that the facts therein stated do not constitute a cause of action, and the case is now submitted to the court upon this demurrer.
In support of the demurrer it is claimed that the collection of the tax was expressly authorized by the following paragraph of the act of congress of June 13, 1898, entitled “An act to provide ways and means to meet war expenditures, and for other purposes,” to wit:
“Bond. For indemnifying any person or persons, firm, or corporation wlio shall have become bound or engaged as surety for the payment of any sum of money, or for the due execution or performance of the duties of any office or position, and to account for money received by virtue thereof, and all other bonds of any description, except such as may be required'in legal proceedings, not otherwise provided for in this schedule, fifty cents.”
In opposition to the demurrer it is claimed that bonds of this character were exempted from the tax by the following provision of section 17 of said act, to wit:
“Provided, that it is the intent hereby to exempt from the stamp taxes imposed by this act such state, county, town, or other municipal corporations in the exercise only of functions strictly belonging to them in their ordinary governmental, taxing, or municipal capacity.”
Now, what is meant by the statute when it speaks of the exercise of the functions belonging to a state in its ordinary governmental capacity? The officers and agents of the state, employed in making, interpreting, and executing its laws, exercise functions belonging to it in its ordinary governmental capacity. A state may, in its corporate, as distinguished from its sovereign, capacity, exercise functions not strictly governmental, and these would not come within the operation of the exemption clause of the war revenue act just quoted. In Ohio notaries public are appointed and commissioned by the governor for a term of three years. Before entering upon thé duties of their office, they are required to give bond