
    The City of Muscatine v. Sterneman et al.
    
    1. Stamps: application of congressional act. The penalties of section 158 of the act of congress of June 30, 1864, apply as well . to instruments issued without intent to evade the provisions of that act, as to those issued with such intent. The question of intent is immaterial.
    2. -evidence: state courts. Said act is applicable to, and governs the State courts, in respect to the inadmissibility in evidence of unstamped instruments.
    3. -ORDER OE DEPUTY COLLECTOR. A deputy collector has no power to remit penalties, and stamp instruments that have been left unstamped by inadvertence or mistake, except when, in the sickness or inability of the collector, he acts by special authority in his place.
    
      
      4. -And such special authority •will not be presumed from the mere stamping of the instrument, where the certificate of the deputy thereto is not authenticated by the seal of the collector.
    5. -bonds of public offioeb?. The provisions of the act of congress requiring stamps to written instruments extend to bonds of public officers.
    
      Appeal from General Term,, Seventh District (Muscatine County).
    
    Friday, January 27.
    Daniel Sterneman, one of the defendants, was duly elected to the office of wharfmaster for one year, at the charter election in the city of Muscatine, in March, 1865. He executed to the city his official bond, with Wilson and Hoehl as his sureties. The bond was approved and Sterneman entered upon the duties of his office. At the time of the execution of the bond — March 18, 1865 — no revenue stamp was affixed thereto, nor was there any stamp thereon when it was approved by the city.
    On the 22d of February, 1866, nearly a year after the execution of the bond, but before the end of Sterneman’s term of office, a stamp of the proper amount was placed oh the bond, and canceled by L. H. Washburn, as the deputy collector in Muscatine county for the second district of Iowa. This was supposed by the appellant to be a compliance with the law at the time.
    At the close of the term of office of Sterneman, it was discovered that he had not accounted for all the moneys received by him in his official capacity, and this action was brought on his bond against him and his sureties to recover the amount alleged to be in his hands unaccounted for. Wilson and Hoehl, the sureties, alone defended. Issue being joined, the cause was tried to a jury. On the trial the plaintiff offered to introduce the original bond in evidence, to which the defendants “ objected, on the ground that said bond was not stamped, as prescribed by the laws of the United States,” which objection was sustained by the court, and the plaintiff excepted. The bond being excluded from the jury, a verdict was rendered for the defendants. Judgment thereon, and plaintiff appeals.
    
      WilUam F. Bra/rma/n, for the appellant.
    
      Thomas JTa/rma and Bem/ry O' dormer for the appellees.
   Miller, J.

Appellant insists that the court erred in basing to admit the bond sued on in evi<jerLCe to the jury, because:

First. The penalties of section 158 of the act of June 30, 1864, apply only to instruments issued with intent to emade the provisions of that act.

This precise question was before this court in Hugus v. Strickler, 19 Iowa, 413, and it was there held adversely to the position of appellant. That ruling has been followed and- approved in O'Hare v. Leonard, id. 515; Miller v. Bone, id. 571; Botkins v. Spurgeon, 20 id. 598, and other cases.

Whatever doubts might exist as to the correctness of these rulings, were the question an open one, we must regard it as settled in this State. We are aware that a contrary rule has been laid down by the courts of several other States.

II. The second point made by appellant is, that section 163 of the act of congress does not apply to and cannot govern State courts, with respect to the admissibility or inadmissibility of testimony presented to them.”

That the act referred to does apply to and govern the State courts, with respect to the admissibility and inadmissibility of documentary evidence, has been so frequently recognized by this court that it cannot be regarded as an open question. See the following cases: Musselman v. Mauk, 18 Iowa, 239; Grinnel v. The M. & M. R. Co., id. 570 ; Hugus v. Strickler, 19 id. 413; O'Hare v. Leonard, id. 515; Miller v. Bone, id. 571; Botkins v. Spurgeon, 20 id. 598; Deskin v. Graham, id. 553; Doud v. Wright, 22 id. 337; Barney v. Ivens, id. 163; Brown v. Crandall, 23 id. 112; McBride v. Doty, id. 122; McAfferty v. Hale, 24 id. 355; Cedar Rapids & St. Paul R. R. Co. v. Stewart, 25 id. 117; Thompson v. Wilson, 26 id. 120.

It is also settled by tbe decisions of this court, tbat a deputy collector has no power to remit penalties, and stamp instruments tbat have been left ungtampe¿ ^y inadvertence or mistake, except when, in case of tbe sickness or inability of tbe collector, be acts by special authority in bis place, and such special authority will not be presumed from tbe stamping of tbe instrument, where tbe certificate of tbe deputy is not authenticated by tbe seal of tbe collector. Tbe act of tbe deputy in stamping tbe instrument is a nullity, except where be acts by special authority, and his act is thus authenticated. Brown v. Crandall, 23 Iowa, 112.

Tbe stamp, in tbe case before us, was affixed by L. H. "Washburn, who signs tbe certificate as follows: Geo. W. Ells, collector 2d district, Iowa. By L. H. Washburn, deputy 1st division, 2d district, Iowa.

Tbe seal of the collector is not affixed, nor is there any thing to show tbat tbe deputy was authorized to affix the stamp. His act, therefore, was null and void, and. tbe instrument was to be treated as unstamped.

III. Tbe appellant insists, thirdly,'“that tbe provisions of tbe stamp act do not extend to bonds executed by pub-officers appointed by State authority for the faithful performance of their public duties,

which bonds are given for tbe protection and safety of tbe public.” Tbe great case of McCullough v. The State of Maryland, 4 Wheat. 316, is cited in support of tbis point. Tbe opinion in tbat case was delivered by Chief Justice Marshall, and it was held that an act of the legislature of Maryland, which sought to impose certain stamp duties on the bank bills issued by a branch of any bank established within the State, without first obtaining authority from the State, did not extend, and could not properly apply, to a branch of the bank of the United States doing business in that State. The ground of the decision is, that no “State has the power to tax any-of the constitutional means employed by congress, wherewith to execute its constitutional powers,” etc.

The appellant argues, therefore, that congress, on the other handj cannot taje the constitutional means employed by the legislature of the State, wherewith to execute its constitutional powers. This may be readily admitted, and yet it is difficult to perceive how a law of congress, requiring every man elected or appointed to any office where he is required to give a bond for the faithful discharge of his duties, that he should stamp such bond, is “taxing the constitutional means employed by a State to execute and carry out its constitutional powers.”

* If an act of congress required the warrants issued by the State auditor, or bonds issued by authority of the State, to be stamped, then we could readily see that such an act would fall within the principle of the case of McCullough v. The State of Maryland, supra. But the requirement of the act in the case before us is, that the person taking upon himself the office to which he is appointed shall affix a stamp to his bond. Affixing the stamp is not an official act. He is required to do that as an individual, and befoi-e he is an officer. The duty is imposed on him individually, not officially, nor upon the corporation whose officer he becomes. '

The appellant asks that, if we should feel ourselves compelled to affirm the judgment of the district court, the cause be remanded to that court with leave to the plaintiff to have the proper stamp affixed to the bond by the collector of the district.

This is asking us to grant a new trial, that the plaintiff may create evidence which did not exist at the time of the trial below, and this without a motion for a new trial in the court below. We think this would be an exercise of a power without precedent, and in this case unwarrantable.

The judgment of the court below is

Affirmed.  