88 F. 413 | U.S. Circuit Court for the District of Kentucky | 1898
(after stating the facts as above). Under the decision already rendered in the case of the Bank of Kentucky against Stone and others, there can be no doubt that, oil the case made both in the bill and on the proof, the defendants the board of valuation and assessment and Bourbon county are estopped by the former-adjudication from asserting that the complainant bank is liable for any taxes to Bourbon county under the revenue act of 1892, because, as between the complainant and that county, it was adjudicated that the complainant had an irrevocable contract with the commonwealth by which all taxation against it should be limited to the tax provided in the Hewitt act, and that the tax upon the franchise under the revenue act was a violation of such contract.
It is also contended on behalf of the complainant that the other defendants, Fayette county, the city of Lexington, the city of Cov-ington, and the city of Paris, are equally bound bv the adjudication against the county of Bourbon. We do not think that this contention can be sustained. The theory seems to be that, as the county of Bourbon is a municipal corporation under (he state government, the state is bound by the adjudication against it, and therefore every other subdivision is bound. It seems to us that this would be extending the doctrine of res judicata further than any authority will justify. The argument is based upon the decision of the court of appeals of Kentucky in Franklin County Court v. Deposit Bank of Frankfort, 87 Ky. 382, 9 S. W. 212. In that case the Deposit Bank of Frankfort was seeking to enjoin the county court of Franklin county from levying a tax upon its property in addition to the tax of 50 cents a share upon its stock which its charter provided should be in full of all tax or bonus. It was held that this was a contract which prevented any additional tax in any form upon its property by the state. The court then continued:
“But It is contended that its terms do not bar the county and city from levying and collecting taxes for county and city purposes. In this position counsel clearly overlook the fact that the county and 'city are integrant parts of the state, and that they cannot levy and collect taxes without the authority of the state conferring that right upon them. So, the absurdity is presented that the state contracts with the appellee, in consideration of its paying fifty cents on each one hundred dollars of its capital stock, to release it of all*416 tax or bonus (this is tbe meaning of tlie language), and at the same time authorizes its local subdivisions to levy, and collect other taxes off of the ai> pellee; that is to say, that the state, 1& its contract with the appellee, deprives itself of the right to levy and collect other taxes off of the appellee, but may, notwithstanding, authorize all of its subdivisions, if the appellee’s property were distributed in all of them, to levy and collect other or additional taxes off of it. It seems that it would occur to one at first blush that such a procedure would be a palpable violation of the contract. Under sucli a contract between individuals, a doubt could not exist. The state, when she makes a contract based upon a valuable consideration, stands upon precisely the same footing.”
This decision adjudged two things: First, that the state had power by contract to impose a limitation upon the taxing power, whether exercised by itself or by municipalities in which it might vest the same power; and, second, that the language of the restriction in this case must be construed as intended to limit the whole power, whether exercised by state or with the state’s permission by municipalities. The argument of counsel assumes that as the county derives its power to tax from the state, which is all that was decided in the case cited, it is, in levying taxes, the mere agent of the state, and therefore a judgment against the county on a tax question is a judgment against the agent in respect of the business of the principal, and is binding upon the latter as a privy. Indeed, the argument goes further. It assumes that a county is a part of the state government, and therefore a judgment against the county is a judgment in fact against the state. This is applying the doctrines of agency and privity under circumstances to which they have but little application. The source of all political power including the power to tax is in the people of the state. By a constitution they create a state government and a legislature, and confer upon the legislature power to organize local municipal governments, and to give such governments the power to levy taxes in order to discharge their other appointed functions. The municipal govern-’ ments are entities distinct from the state government, incurring liabilities of their own in no way binding upon the state, and acquiring rights and property in which the state has no property interest. Except where the law makes the municipal government an agent for the- state in collecting the state’s taxes or in discharging some other state function, there is no relation between the one and the other of principal and agent, as that relation is usually understood in the law. The state may, through its legislative branch, confer upon, and withdraw from, the counties and cities, power of taxation. But, when the power thus conferred is for the benefit of the local community in which it is to be exercised, its exercise is not by an agent for a principal; it is by a quasi independent government, for the benefit of the people within its limits. The legislature, if not restrained by the constitution, may, by contract with individuals, limit its power either to levy taxes itself or to grant the right of taxation to municipalities; and the individual may avail himself of such restriction by resisting taxation in violation thereof either by the state or municipality. But in a controversy between the individual and the municipality as to the restriction, its existence or extent, the latter is contending for the benefit of
The only other possible relation of privity of the state to the litigation must grow out of the fact that it involves the validity of a power granted by the state to the city or county; but this does not make the state privy to the judgment. In granting1 the power, the state did not enter into an enforceable covenant of warranty with the counties and cities that the power as against every individual was valid. Certainly, it cannot be claimed that the state could be vouched in by the county or city as a warrantor of the validity of the power, or, by notice of the pendency of the suit, could be bound conclusively by the subsequent judgment. If the contention, of counsel for the complainant is sound, it must follow that the state and all its municipalities, great and small, would, by a judgment in favor of an individual or corporation against a village in a remote county adjudging a limitation upon the taxing power of the state, be estopped to deny the limitation in any future litigation with the same individual or corporation, although no appeal may have been taken to a higher court, and although neither the state nor the other municipalities may have had any notice whatever of the litigation, or any right or opportunity to be heard upon the question decided. We do not decide, because it is not necessary to do so, whether a county or city would be privy to a. judgment against the state adjudging a limitation upon the taxing power; but it suffices to say that the question is in some important respects different from the one we have been discussing.
The case of People v. Holladay, 93 Cal. 241, 29 Pac. 54, does not, it seems to us, support the contention of the complainant. In that case the question was of the title to certain property claimed to have been dedicated as a park. The lot was situated in the city of San Francisco, and the city and county of San Francisco brought a suit in ejectment to recover possession of the tract from the defendant, who had obstructed the use of the same by the public, and excluded them therefrom. In this action the city and county were defeated, and a judgment rendered finding that the defendant was the owner of the undivided 19/2o of land, and his title thereto was quieted as against the city and county. Subsequently, the attorney general, on behalf of the people of the state, on relation of one Bryant, brought another suit raising the same question, and seeking to oust the defendant from the possession of the same tract. It was held that the city and county of Ban Francisco had the authority to maintain ail action for the purpose of preserving the rights of the general public to the use of squares, or land claimed as such, within its limits, and in such action it was authorized to put in issue the alleged rights of the people to such easement; and the state was bound by the result of such litigation, if the same was not collusive. II is unnecessary for us to ex
We have not deemed it necessary'to consider another serious objection which might be urged to the use of a decree against Bourbon county to bar the state and other counties, and that is that, in the absence of power to enjoin the state in a suit, it would be difficult to justify the plea against the state of res judicata based on a decree of injunction against a municipality or state agency which does not enjoy the same immunity. To give the decree such an effect would seem to violate the state’s exemption from suit. It suffices, however, to place our decision on the ground first above stated.
The fact that the attorney general appeared on behalf of the commonwealth in this litigation when it reached the court of appeals is not a circumstance which could be held to bind the commonwealth and all of its agencies by the litigation. There were a great many tax cases pending before the court at the same time. In some of these cases the commonwealth was a party, and the attorney general was therefore present to argue the question on its behalf in those cases. Even if this had not been, the case, the case of Carr v. U. S., 98 U. S. 433, shows that the appearance of the attorney general on behalf of the counties could not bind the state. In the case referred to, the point in controversy was over the title to land of the United States to certain lots in possession of its officers in San Francisco. The United States filed a bill to quiet title to the property. The defendant set up, by way of estoppel, certain judgments in ejectment rendered by the state court at the suit of his grantor against certain officers of the government, who, as its agents, had possession of the lots. In those actions the United States district attorney and additional counsel employed by the secretary of the treasury appeared for the defendants, and the question _ of title had been the same. It was held that the former judgment was not an estoppel
“It may be contended that the United States consented to have its title determined in these cases, and that such consent was manifested by the employment of the district attorney and additional counsel to aid in the defense. But we do not think that any such inference can be legally deduced from the action of the secretary of the treasury. He may have deemed it prudent to assist the officers who were sued, without intending to waive any of the rights of the government; and, in fact, he had no authority to waive these rights.”
The attorney general of the state in these cases, in appearing in the court of appeals of Kentucky for the county of Bourbon, did not intend to waive any rights of the state, and, so far as appeared, he had no authority to do so. Our conclusion, therefore, is, that the complainant bank cannot, in its controversy with the city of Lexington, Fayette county, the city of Paris, and the city of Covington, and with the board of valuation and assessment so far as concerns the apportionment and certification of the assessment by the board to those municipalities, rely upon or derive any benefit from the decree in the complainant’s favor against Bourbon county.
We are thus brought to the question whether, as between the defendants just named and the Northern Bank of Kentucky, the latter has, by Virtue of its acceptance of the Hewitt act, an- irrevocable contract with the state of Kentucky, by which the taxes to be imposed during its corporate existence upon it shall be limited to those provided in the Hewitt act. A second and alternative question is presented by the bill of the bank and by the argument of its counsel. It is contended that, even if the state had the right at any time to withdraw from the contract with the complainant hank entered into by the latter’s acceptance of the Hewitt act, there must be restored to the complainant the tax limitation under its charter which it was enjoying when it accepted the terms of the Hewitt act.
The original charter of the bank, granted in 1835, provided that it should pay into the treasury 25 cents a share of stock, which should “be in full of all tax or bonus: provided, that the legislature may increase or diminish the same, but at no time shall the tax exceed fifty cents on each” share of stock. In 1836 the legislature increased the tax to 50 cents a share. In 1838 this was held by the court of appeals of Kentucky to he an irrevocable contract between the bank and the state, preventing the state from taxing the property of the hank pr its stock either against the bank or against its holders. Johnson v. Com., 7 Dana, 339. In 1869 it was held by the same court that the same contract in another charter prevented taxation of the hank by counties and cities. Farmers’ Bank of Kentucky v. Com., 6 Bush. 127. These decisions never have been overruled. Manifestly, if the limitation was continued in extensions of the charter, it was broad enough to prevent taxation by the-counties and cities, defendants in this case, under the revenue act of 1892. The original charter of the bank expired May 1, 1865. By an act approved February 15, 1858, the chartered privileges and rights of the president, directors, and company of the Northern Bank
“Sec. 3. The general assembly of the commonwealth of Kentucky hereby reserves to itself the right to alter, change, amend or repeal this act, and the charter and amendments thereto extending this act at its pleasure.”
This act was not accepted by the bank in accordance with its terms. Two years later .another act was passed, which read as follows:
“Section 1. That the chartered rights and privileges of the president, directors and company of the Northern Bank of Kentucky shall continue and be extended in full force for twenty years from and after the first day of May, one thousand and eight hundred and eighty-five.
“Sec. 2. That said bank, under the continuance and extension hereby granted, shall be subject to all the restrictions, limitations, penalties, conditions and duties, and be entitled to all the rights granted to and imposed upon it by the act of its incorporation, and the acts amendatory of or relating thereto.
“Sec. 3. Said bank may be known by, and sue and be sued, contract and be contracted with, by and under the name of the'Northern Bank of Kentucky, as fully as by and under its present name.
“See..4. This act shall go into effect when it shall be approved by the stockholders of said bank at their regular annual meeting, or at a called meeting ordered for that purpose by the president and directors of said board, at which called meeting a majority in interest of said stockholders shall be present. Notice of said approval shall be given by the president of the bank to the governor of this commonwealth.”
The question is whether this act is to be construed and read with the act of 1856 as a part of it. The act of 1856 read as follows:
“Section 1. That all charters and grants of or to corporations, or amendments thereof, and all other statutes, shall be subject to amendment or repeal at the will of the legislature, unless a contrary intent be therein plainly expressed: provided, that whilst privileges and franchises so granted may be changed or repealed, ■ no amendment or repeal shall impair other rights previously vested.
“Sec. 2. That when any corporation shall expire or be dissolved, or its corporate rights and privileges shall cease by reason of a repeal of its charter, or otherwise, and no different provision is made by law, all its works and property, and all debts payable to it, shall be subject to the payment of debts owing by it, and then to distribution among the members according to their respective interests; and such corporation may sue and be sued as before, for the purpose of settlement and distribution as aforesaid.
“Sec. 3. That the provisions of this act shall only apply to charters and acts of incorporations to be granted hereafter; and that this act shall take effect from its passage.”
The court of appeals of Kentucky, in the case of the Franklin County Court v. Deposit Bank of Frankfort (June, 1888) 87 Ky. 382, 9 S. W. 212, held that the act of 1856 did not apply to subsequent acts extending charters granted before its passage, and that the exemption from further taxation was as inviolable under the extended charter as it was during the life of the original charter. But in the case of Deposit Bank of Owensboro v. Daviess Co. (Ky.; March, 1897) 39 S. W. 1030, a majority of the court of appeals ex
The next question is whether there is anything in the act of extension to justify us in holding that there is an intention “plainly expressed” in it to make the rights and privileges therein extended irrevocable. The act of extension under consideration in the case of Franklin County Court v. Deposit Bank of Frankfort, supra, was the first act of extension, which was quite elaborate, and contained many new conditions; but the one we have to consider is a simple extension without new conditions, except that it shall be formally accepted by the bank. We are unable to perceive any plain expression of the intention of the legislature to make the rights and privileges granted irrevocable. They are granted for 20 years, and, without the rule of -construction enjoined in the act of 1856, this would be held to imply an intention that they should not be subject to amendment or repeal during that period. But the act of 1856 was passed for the precise purpose of avoiding the usual implication, and of requiring affirmative language to sustain the claim that rights and privileges granted for any length of time could not be revoked before its expiration. Griffin v. Insurance Co., 3 Bush, 592; Cumberland & O. R. Co. v. Barren County Court, 10 Bush, 609. We find no such affirmative language in this act. We cannot attach the significance that counsel do to the passage of two acts extending the charter of the Northern Bank, the one containing an express reservation, and the other enacted two years later omitting it. Each act must be construed as it stands, and, in the absence of something affirmative in the latter act itself to exclude the act of 1856, it is to be treated as part thereof. This conclusion makes it unnecessary for us to consider, the soundness of the proposition that, upon repeal of the Hewitt act, those who had surrendered exemptions were entitled to a restoration of them.
We come, then, to the question: Did the Hewitt act confer on the banks accepting it a contractual immunity from taxation incapable of repeal during their corporate existence? The first section of the second article of the Hewitt act provided that shares of stock in state and national banks, and other institutions of loan and discount, and in all corporations required by law to be taxed on their* capital stock, should be taxed 75 cents a share, and upon all surplus over and above 10 per cent, on their capital stock the same rate of taxation as was assessed upon real estate, which, it was declared, should be in full of all tax, state, county, and municipal. The fourth and remaining sections of the article we give below:
“Sec. 4. That each of said banks, institutions and corporations, by its proper corporate authority, with the consent of a majority in interest of a quorum of its stockholders, at a regular or called meeting- thereof, may give its consent to the levying of said tax, and agree to pay the same as herein provided, and to waive and release all right under the acts of congress or under the charters of the state banks,to a different mode or smaller rate of*423 taxation, which consent or agreement to and with the state of Kentucky shall he - evidenced, hy writing under the seal of such hank and delivered to the governor of this commonwealth; and upon such agreement and consent being delivered, and in consideration thereof, such hank and its shares of stock shall he exempt from ail other taxation whatsoever, so long as said tax shall be paid during the corporate existence of such bank.
‘"Sec. 6. The said hanks may take the proceeding authorized by section 4 of this act at any time until the meeting of the next general assembly: provided, they pay the tax provided in section 1 from the passage of this act.
“Sec. 6. This act shall be subject to the provisions of section 8, chapter 68, of the General Statutes.
“Sec. 7. If any bank, state or national, shall refuse or fail to pay the tax imposed by this act, or shall fail or refuse to make the consent and agreement as prescribed in section 4, the shares of stock of such .bank, institution or corporation, and its surplus, undivided accumulations and undivided profits, shall be assessed as directed by section 2 oí this act, and the same taxes — slate, county and municipal — shall be imposed, levied and collected upon the assessed shares, surplus, undivided profits and undivided accumulations as is imposed on the assessed taxable property in the hands of individuals: provided, that nothing herein contained shall he construed as exempting from taxation for county or municipal purposes any real estate or building owned or used by said banks or corporations for conducting their business, but the same may be taxed for county and municipal purposes as other real estate is taxed.”
Section 8, chapter 88, of the General Statutes, referred to in section 6, was the above act of 1856.
But for the respect we feel for the judgment of the majority of the court of appeals, deciding the Bank Tax Cases, 97 Ky. 591, 31 S. W. 1013, and the very able opinion of Chief Justice Pryor in support of that judgment, we should have thought that there could be no doubt of the necessary construction of (he article of the Hewitt act above quoted. The act of 1853 is incorporated in the article of the Hewitt act above quoted, not merely by a rule of construction enjoined by a preceding legislature, and presumably accepted by the legislature passing the Hewitt act, but the latter legislature has expressly and affirmatively adopted it as pare of the article.
It is said, however, that the sixth section was not intended to apply at all to the contract of limited tax exemption contained in the fourth section, but that its purpose is to be found in, and limited to. the desire of the legislature to -secure to itself the right to repeal the act before the acceptance of its terms by the banks. The suggestion seems to us utterly inadequate to explain the insertion of the section in the act. All the banks were required to accept the act before the next meeting of the legislature, so that the right to repeal must, in this view, have been limited to the short time remaining of the pending session of the legislature, and the interval when the legislature was not in session. With submission, a construction limiting the reservation clause to so inconsequential a purpose is unreasonable. Since the decision by the supreme court in Bank v. Knoop, 16 How. 369, in 1853, that a state might restrict its taxing power over a corporation by charter provisions in the nature of a contract which was irrevocable, the main object of the clause reserving power in the legislature to alter or repeal charters and acts of incorporation has been to render tax exemption revocable; and it is to miss wholly the significance of such a clause to hold that it has no applica
“There is no subject over which it is of greater moment for the state to preserve its power than that of taxation. It has, nevertheless, been held by this court, not, however, without occasional earnest dissent from a minority, that the power of taxation over particular parcels of property, or over property of particular persons or corporations, may be surrendered by one legislative body, so as to bind its successors and the state. • * * In these eases, and in others of a similar character, the exemption is upheld as being made upon considerations /moving to the state which give to the transaction the character of a contract. It is thus that it is brought within the protection of the federal constitution. In the case of a corporation, the exemption, if originally made in the act of incorporation, is supported upon the consideration of the duties and liabilities which the corporators assume by accepting the charter. When made, as in the present case, by an amendment of the charter, it is supported upon the consideration of the greater efficiency with which the corporation will thus be enabled to discharge the duties originally assumed by the corporators-to the public, or of the greater facility with which it will support, its liabilities and carry out the purposes of its creation. Immunity from taxation, constituting in these eases a part of the contract with the government, is, by the reservation of power such as is contained in the law of 1841, subject to be revoked equally with any other provision of the charter whenever the legislature may deem it expedient for the public interests that the revocation shall be made. The reservation affects the entire relation between the state and the corporation, and places under legislative control all rights, privileges, and immunities derived by its charter directly from the state. Rights acquired by third parties, and which have become vested under the charter, in the legitimate exercise of its powers, stand upon a different footing; but of such rights it is unnecessary to speak here. The state only asserts in the present case the power under the reservation to modify its own contract with the corporators. It does not contend for a power to revoke the contracts of the corporation with other parties, or to impair any vested rights thereby acquired.”
The “reservation” clause has been applied to tax exemption privileges in accordance with the doctrine above declared in Atlantic & G. R. Co. v. Georgia, 98 U. S. 359, and Hoge v. Railroad Co., 99 U. S. 348.
The court of appeals of Kentucky in the Bank Tax Cases' relied much on the case of New Jersey v. Yard, 95 U. S. 104. In that case the question was whether a tax exemption was subject to repeal under a general reservation act. The railroad company which was claiming the exemption had been organized in 1835, before the passage of the reservation act. A supplement was passed expressly reserving the power of repeal. A second supplement without any
The fourth section of the Hewitt act, construed in the light of the reserved power of repeal in the sixth section, was a proposal to the banks that they should pay a certain tax, and no more, during their corporate existence, unless the legislature should see fit sooner to withdraw from the agreement. The question is asked why the old banks should surrender their charter right to a lower tax assessment for the rate fixed under the Hewitt act if it is true that the legislature could withdraw from it at pleasure. It is a sufficient answer to say that they had in fact no irrevocable exemption to surrender; and though they claimed it, and had then the decision of a state circuit court upholding the claim, it was so doubtful Unit they preferred to accept a somewhat higher rate of taxation by the state alone than to run the risk of being subjected to the much heavier taxation, both state and local, imposed by the seventh section of the Hewitt act upon banks which should not accept the proposal of the fourth section.
Having concluded that the act of 185(5 must be applied to the fourth section, the question remained whether the tax exemption, after acceptance by the banks, was a “right previously vested”
“If the essence of the grant of the charter be to operate a railroad and to use the streets of the city for that purpose, it can no longer so use the streets of the city, and no longer exercise the franchise of running a railroad in the city. In short, whatever power is dependent solely upon the grant of the charter, and which could not be exercised by unincorporated private persons under the general laws of the state, is abrogated by the repeal of the law which granted these special rights.”
See, also, Miller v. Railroad Co., 21 Barb. 513; Zabriskie v. Railroad Co., 18 N. J. Eq. 178; Railroad Co. v. Veazie, 39 Me. 571; Hawthorne v. Calef, 2 Wall. 10-24; Com. v. Essex Co., 13 Gray, 239.
The limited tax exemption under the Hewitt act was a contract between the bank and the state. The reserved right to repeal made the contract one which the state could revoke at pleasure. The court of appeals, in the Bank Tax Cases, relied on Commissioners of Sinking Fund v. Green & B. R. Nav. Co., 79 Ky. 73. In that case it was decided that the legislature could not, under the act of 1856, take from the navigation company, without making compensation therefor, the right it had acquired under a contract with the state to take for a term of years tolls from vessels navigating the Green and Barren rivers, in consideration of its agreement, then fully performed, to put in repair, and maintain at its own expense, the line of navigation. It may be hard to reconcile this case with Greenwood v. Freight Co., but it can be distinguished from the case at bar. In the case cited, the court treated the right which the state proposed to exercise as a reserved right of rescission, and held that it could only be exercised on condition that the grantee of the state should receive compensation for the money advanced to improve the property of the state the use of which he was not permitted to enjoy. In the case at bar, the banks shrrendered nothing of value to the state for the limited tax exemption of the Hewitt act, and the power of revocation was not in any view, therefore, trammeled by conditions.
