The question in this case is whether a receipt such as is usually given by express compa*519nies for goods delivered to them to be carried by express should be stamped.
By the act of 1862 express companies were prohibited from receiving any packages for transportation without delivering therefor a printed receipt having a stamp thereon, as required by that act, and such stamp duties varied from one to five cents according to the amount of freight to be received therefor.
The act of 1863 repealed all duties by way of stamps against express companies, and substituted in its place a duty of two per cent on the gross' amount of all receipts of the express business, and all acts unconnected therewith were repealed. 1
The act of 1864 repealed this last provision, and enacted a duty of three per cent on the gross amount of the receipts of the company. The same act also provided a stamp duty on “receipts for the delivery of any property.”
The act of 1865 amended the last act by adding after the words providing a stamp duty on “ receipts for. the delivery of any property,” the following, “ except receipts issued by any persons, firms or companies doing business as an express or express company, on the delivery of any property for transportation.” These alterations of the law left the express companies subject to a tax of three per cent on their gross income, and free from any stamp duty on the receipt they should issue on the delivery of property for transportation.
There is no difficulty in understanding these provisions, and unless the paper called a receipt can be treated as a contract between the parties, and not as a receipt, there could be no ground on which a stamp could be considered necessary. The plaintiffs’ counsel contended that the receipt was subject to a stamp duty of five cents under the provision requiring a stamp to an agreement or contract; and the court so ruled. The exception of this receipt from a stamp duty, in the act of 1865, excepts receipts issued by the companies on delivery of the property. There is nothing in this *520paper amounting to an agreement such as was contemplated by this statute. The company give a receipt for the goods, Stating the directions and quantity, and they annex to the ■receipt- a notice that as a part of the consideration of the contract they are forwarders only, and .that they are' not responsible. - There is nothing in the paper which binds them to do any thing beyond delivery. All 'that it contains, is a refusal to-be bound beyond a certain amount and-under certain conditions. It is-in fact'a statement of the conditions bn which they receive the goods for transportation.- '• I -'cannot adopt the conclusion that this is subject to a stamp duty of fiye cents'. That is" only applicable to an agreement other than those specified in that schedule B, and of course excepts receipts for property to be delivered. Such a receipt'would amount to nothing if it did not contain a description of the agreement for delivery- such as the person to whom it was. to be delivered, the place of delivery, the conditions'- bn which it -was to be -' carried". All- this might properly be inserted in the receipt and subject it only to a Stamp duty of two cents. The exception in regard ■ to these receipts relieved them- from that duty-of two cents. ■ I think also" the intent of congress may be inferred from -the previous legislation on this" subject. Originally- the companies were compelled to give a receipt with a stamp of one to three Cents,- and the provision as to agreements excepted all others contained in the same schedule. And then the act of 1863 relieved these' companies from all obligation to pay these duties,- and expressly declared them exempt from stamp duty.
The act of 1864 which was a new act in place of the former internal revenue act, again enacted a duty of two cents on receipts for property to be ■ delivered, which were again: exc.epted from liability to a stamp of five cents on an agreement. But this was in 1865 again believed by-an exception in favor of these companies. This whole course of legislation shows that the receipts ordinarily given by these *521companies was not intended to be charged, at any, time, beyond two cents duty, and while the duty on the gross receipts was exacted that no duty was to be charged on the receipt.
[New York General Term, April 1, 1867.The term receipts, issued by express companies, must be understood as meaning such papers as had usually been issued by them on delivery of property to them for transportation. Theywere originally required to give printed receipts. Such receipts were only subject to a specified tax. It is the same kind of receipt that the various acts refer to in the subsequent provisions I have noted.
My conclusions are:
1. That this receipt is not an agreement within the meaning of the stamp act, requiring a stamp of five cents.
2. That it is a receipt for the property, to be transported, and contains only a notice of the terms, on which the company is willing to undertake the transportation. •
3. That such receipt is not subject to any stamp duty, but is excepted in the act of 1865. .
, 4. That the court below erred in excluding the paper offered.
The conclusion to which I have arrived, renders it unnecessary for me to examine the other question argued by the counsel, that congress has not the power to declare a contract void for want of a proper stamp. The clause which vests in congress the power to make all laws necessary and proper to carry into execution the express powers granted, .has of late received, on several occasions, such an extended construction, as to cover almost every power which in the opinion of congress is deemed desirable, and may be in this way held sufficient for the present purpose. It is not necessary, however, to express any opinion on this point.
The judgment should be reversed, and a new trial ordered ; costs to- abide the event.
Leonard, Ingraham and Janes C. Smith, Justices.]