*435OPINION OF
GALBRAITH, J.I concur in the conclusion announced by the majority that Chapter 64, C. L. is not unconstitutional and void but respectfully dissent from the holding that the grantor must pay the stamp duties required.
It does seem anomalous, at first view, to find “stamp duties” collected under the law of an American Territory, when the Federal Constitution reserves to Congress the power to levy and collect such taxes. However, upon consideration, it is clear that the objection to the legality of these taxes is more to the form than substance. The revenue collected under Chapter 64, is a tax and the several objects on which it is levied are each proper subjects of taxation by the Territorial Legislature. The legislature of a Territory has the undoubted power to require the payment of a fee, or tax, — the amount of the stamp duty prescribed by the statute, — as a condition precedent, to the right of any citizen or subject to invoice the process of its courts,, and likewise to demand the amount of the stamp- duty for the privilege of having muniments of title placed of record by its Registrar of Conveyances and to prescribe as a penalty for failure to pay that the- title papers shall not be- used in its courts until such tax or duty is paid.
The fact that these taxes are denominated in the statute, “stamp duties,” does not bring' them within the inhibition of' the provisions of the Federal Constitution so long as the- objects on which the taxes are levied are proper subjects of taxation by the Territorial Legislature. The stamps required to- be attached to the several documents are really only receipts for the taxes levied and evidence qf the payment thereof.
The decree in the suit for specific performance directed the defendant to execute to the- plaintiff “a good and sufficient deed”' (ante p. 116). The- defendant in pursuance of that decree tendered a deed presumably “good and sufficient” in form but the stamp duties prescribed by the statute had not been paid. The motion and application to the court was to require- the defend*436ant to pay the “stamp duties.” The motion was denied and the plaintiff appealed.
It seems to me that the ruling of the court below ought to be sustained on the ground that neither the law nor’the decree require; the grantor to- pay the stamp- duties and that if the deed tendered was “good and sufficient”-in form, as we are bound to presume it was in the absence of any objection, it was a compliance with the decree and all that the plaintiff had a right to demand. The decree only -required that he should execute a conveyance-'that would pass all of his title to- the plaintiff.
It is scarcely necessary to- cite authorities to sustain the proposition that a deed good and sufficient in form is as effectual to pass title- from the grantor to the grantee without stamps as with them. A deed properly stamped neither conveys more nor less than the same deed would without the stamps, This being true it was not necessary for the grantor to pay the stamp duties in order to- comply with the decree of the co-urt unless it was his duty to- do so oy the- terms of the statute.
It will be observed that the statute (Section 918 O. L.) prescribes that “there shall be due- and payable to the government” * * * “the- several sums for stamp duty” but is silent as to who shall pay this duty. To require the grantor to- p-ay the stamp duty is to read into- this statute words omitted by the legislature-.
Section 925 sets out a penalty for failure to- record a deed or other instrument within three months (from the date of its- execution) and section 929 prescribes a further penalty and reads in part “no instrument requiring to- be stamped shall be recorded by the registrar of conveyances, or be of any validity in any court -of this Republic, unless the same shall be properly stamped.”
There is nothing in any of these- statutes providing that an unstamped deed is void or ineffectual to convey the grantor’s title.
Section 1835 provides that the- Registrar o-f Conveyances shall be entitled “to- demand and receive^’ certain fees: Section 1852, prescribes that “all deeds * * * shall be recorded in the *437office of the Registrar of Conveyances,” etc. These statutes are likewise silent on the subject as to who shall pay the registration fees. There is the same authority, no more and no less, for the contention that the grantor shall pay the registration fee for recording this deed as there is for that he shall pay the stamp duty. The argument to sustain the one contention will with equal force uphold the other.
The statute declares that the stamp duty shall he paid also that the deed shall be recorded, but does not'state who shall pay either the stamp duty or the recording fee. The stamp duty need not be paid at the time of the execution of the deed. It may be paid, without penalty, at any time within three months from that date, (Sec. 925 O. L.). This section seems to be a complete answer to the contention that the grantor should pay this duty. The penalty for failure to pay the stamp duty is a denial of registration for the deed and its use in the courts and the penalty for failure to record is that the deed shall be void as to all subsequent purchasers for value without actual notice of the deed. The grantor has no* particular interest in avoiding these several penalties while the grantee has and he also has it in his power to avoid each and all of them if he desires to do so.
The deed tendered, it seems to me, being “good and sufficient” in form and properly executed, was a full compliance with the terms of the decree and the motion should have been denied and this appeal should be dismissed.