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less be had in a suit properly brought for that purpose, making all persons interested parties, by proving the fraud in a trial on issues correctly framed; but a mere motion to vacate and set aside a sale by a person not a party to the record is an improper and inadequate mode of trying such important matters as are involved in these proceedings: Ward v. Clark, 6 Wis. 509.

We are of the opinion that the order of the district court in overruling the motion to vacate and set aside the sale, and in sustaining the motion to confirm the sale, should be and is affirmed.

HUNTER, C. J., and EMERSON, J., concurred.

ZION'S CO-OPERATIVE MERCANTILE INSTITUTION v. HOLLISTER.

A STATUTE IMPOSING A TAX SHOULD BE CLEAR AND UNAMBiguous, and when by its terms it clearly and without doubt imposes a tax on a particular class of property, it should not, by a forced construction, be held to include other property which is not with reasonable certainty included within its language.

MERCHANDISE ORDERS, TAXATION OF, BY THE UNITED STATES.-Merchandise orders issued by a mercantile association calling for merchandise only, though paid out and used as a circulating medium, do not perform the office of money, and are not "notes" within the meaning of the act of congress which provides that "every association shall pay

a tax of ten per centum on the amount of their own notes used for circulation and paid out by them," and are not subject to the tax provided for therein.

APPEAL from the third district court. The opinion states the facts.

Phillip T. Van Zile, U. S. attorney, for the appellant.
No printed brief on file.

Sheeks & Rawlins, for the respondent.

The substantial question in this case is, whether the instruments on account of their terms, form, and nature are embraced within the statute under the alleged authority of which the

tax in question was assessed. This statute is section 19 of the act of congress of February 8, 1875, and reads as follows: "That every person, firm, association other than national bank 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:" 18 Stat. 311.

The notes mentioned in this section are subsequently referred to in the same act as "such circulating notes:" Sec. 21.

Instruments to be taxable, however used, under this statute must be such that by their terms and face properly come within the designation of notes, and be legally capable of becoming "circulating notes," in the sense in which these words are employed in this act of congress.

The instruments in question are not notes; but come precisely within the legal definition of "order," which is given by Bouvier in this language: "An informal bill of exchange on paper, which requires one person to pay or deliver to another goods on account of the maker to a third party, is called an order:" 2 Bouv. Law Dict., tit. Order; Hinnerman v. Rosenback, 39 N. Y. 100.

These instruments may, therefore, be appropriately designated by the term "order."

It is a well-recognized rule of interpretation that when a term (here note) is employed in a statute which has a clear, defined, and well-ascertained legal signification, it will be presumed that it is employed in such legal sense, unless it is otherwise expressly defined in the particular statute in which it is found. And words in common use are to be given their plain, ordinary, and usual signification. These rules are well established and illustrated by the following authorities: Sedgwick on Stat. & Const. Law, 221; Smith's Com., sec. 535; Clark v. Utica, 18 Barb. 451; United States v. Jones, 3 Wash. 209; Merchants' Bank v. Cook, 4 Pick. 405; S. C., 3 Am. Dec. 267.

The words "note" and "promissory note" are equivalent, and are used indiscriminately; and the legal or technical meaning of the word "note" is the same as that which it has in its ordinary and usual acceptation. The orders taxed in this case do not come within any definition of the term “note”

as given by any author, judicial or otherwise: 1. They embrace no promise by the party who signs them. 2. They are not payable or redeemable in money, but simply call for the delivery of "merchandise at retail."

In order to come within the statute in question, the instruments must be adapted by their terms and nature to represent and circulate as money-to take its place and usurp its functions. It would be legally and intrinsically impossible for the instruments in question to represent money or usurp its functions, because not payable in money or measurable by a money standard. For this reason, it is an essential quality of those instruments, such as notes and bills designed in the commercial law to circulate as money, and represent it, that they be payable in money: 1 Parsons on Notes and Bills, 30.

A careful examination of the legislation of congress in relation to the currency and revenue, in pari materia with the act in question, will show that whenever it has been the intention to designate any instrument, or class of instruments, the appropriate and distinctive name by which it is known in the commercial law has been employed for that purpose. The words "notes" and "circulating notes "-of very frequent occurrence-are throughout this legislation employed in the sense of a negotiable promise for the payment of money, the legal title to which may pass from hand to hand by delivery. The words "note," "bill," "check," "certified check," "order," draft," and the like, are everywhere used distinguishably and according to their respective and peculiar significations.

It is a rule of law that when a word has been employed in legislation upon a certain subject in a given sense, and is again used, it is to be taken in its previous sense unless otherwise expressly defined: Pitte v. Shipley, 46 Cal. 160; McNichol v. U. S. Mer. Agency, 14 Cent. L. J. 52.

There are a number of other considerations all leading to the same conclusion, that the instruments or orders taxed in this case are not within the statute in question.

The first provision for a ten-per-cent tax on "circulation" is contained in section 6 of the act of March 3, 1865, and was in these terms: "That every national banking association, state bank, or banking association shall pay a tax of

ten per centum on the amount of the notes of every state bank or state banking association paid out by them after the first day of July, 1866:" 13 Stat. 484.

The next act on this subject was that of July 13, 1866, in these terms: "Every national banking association, state bank, or state banking association shall pay a tax of ten per cent on the amount of notes of any person, state bank, or state banking association used for circulation and paid out by them after the first day of August, 1866:" 14 Stat. 146. In this form this legislation remained until the statute in question (February 8, 1875).

During this period the liability to the tax extended only to banks and banking associations, and the subject of the tax was only bank notes, or notes in which banks were accustomed to deal. Speaking with reference to this tax, the United States supreme court say: "The tax under consideration is a tax on bank circulation:" 8 Wall. 546, 547.

The object of congress in this legislation, according to the same court, was "to restrain, by suitable enactments, the circulation as money of any notes not issued under its own authority:" 8 Wall. 549. The mischief aimed at is pointed out in these terms: "At the beginning of the rebellion the circulating medium consisted almost entirely of bank notes issued by numerous independent corporations, variously organized under state legislation, of various degrees of credit and very unequal resources, administered often with great, and not unfrequently with little, skill, prudence, and integrity:" Id.

536.

At least, then, the great part of the mischief at which all this legislation, including the statute in question, was aimed was the circulation of bank notes.

While the statute in question imposes the tax upon other notes as well as bank notes-in other words, upon bank and other notes the latter must be held to mean notes ejusdum generis, of the same kind with bank notes according to the wellknown rule of interpretation designated by that Latin phrase: 1 Bouv. Law Dict. 619, tit. Ejusdum Generis; 1 Abbott's Law Dict. 418; 96 U. S. 368; 94 Id. 421; Sedgwick on Stat. & Const. Law, 360, note.

The measure of the tax under the statute in question is

"ten per centum upon the amount of notes," etc. The orders taxed in this case represent only a heterogeneous variety of specific articles of merchandise. The words "two dollars," and the like, standing simply as so many pounds, yards, or gallons, as the case may be.

They represent nothing that is capable of being combined into an "amount," in the sense of the statute, on which a percentage can be computed.

Under the statute in question, the liability of an instrument to taxation depends-1. Upon its terms and face; and 2. If of the requisite form, then also upon the use of it for circulation as money.

If by their terms and face the instruments are not within the class made taxable, extrinsic evidence is not admissible to affect their liability to such taxation: United States v. Isham, 17 Wall. 504; United States v. Van Auken, 96 U. S. 366; Bull v. Sullivan, L. R., 6 Q. B., 209; Rice v. Ragland, 10 Humph. 545.

The following principle is declared by the United States supreme court to be founded in justice, and sustained by the authorities: "If there is any doubt as to the liability of these instruments to be taxed, the construction of the statute is in favor of their exemption, because a tax can not be imposed without clear and express words for that purpose." See United States v. Isham, 17 Wall. 504; also United States v. v. Walls, 1 Bond, 583, 584; Adams v. Bancroft, 3 Sumn. 384; Barnes v. Barney, 3 Blatchf. 202; Girr v. Sudds, 11 Exch. 191; Conroy v. Warren, 3 Johns. Cas. 259; S. C., 2 Am. Dec. 156; Cooley on Taxation, 199, 202.

TWISS, J.:

The plaintiff in its complaint alleges that it is and was at the times therein mentioned a corporation organized and existing under the laws of this territory solely for the purpose of carrying on mercantile business; that the defendant at and during the same times was and is the acting collector of internal revenue for the United States.

That in 1876 the plaintiff made certain mercantile orders of the denominations of one dollar, two dollars, and five dollars, which were used in paying its employees who were willing to take their pay in merchandise, and also as a means of con

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