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CITY OF COVINGTON v. FIRST NAT BANK OF COVINGTON, 185 U.S. 270 (1902)

U.S. Supreme Court

CITY OF COVINGTON v. FIRST NAT BANK OF COVINGTON, 185 U.S. 270 (1902)

185 U.S. 270

CITY OF COVINGTON, KENTUCKY, and John N. Middendorf, Assessor, of the City of Covington, Appts.,
v.
FIRST NATIONAL BANK OF COVINGTON, KENTUCKY.
No. 255.

Argued March 6, 7, 1902.
Decided April 28, 1902.

Messrs. F. J. Hanlon, W. H. Julian, and Harvey Myers for appellants.

Mr. James W. Bryan for appellee.

Statement by Mr. Justice White:

On July 23, 1900, the appellee herein filed a bill seeking to enjoin the threatened assessment and collection by the defendants below ( appellants here) of municipal taxes under the assumed authority of an act of the general assembly of the state of Kentucky approved March 21, 1900, a copy of which is excerpted in the margin. 1  

___ 1 'Whereas the Supreme Court of the United States has lately decided [185 U.S. 270, 271]   In substance, it was averred in the original bill and in an amendment thereto that the complainant was chartered on

___ that article 3, chapter 103, of the acts 1891, 1892, 1893, is void and of no effect in so far as the same provides for the taxation of the franchise of national banks, in consequence of which decision there is not now and has not been since adoption of said article, in 1892, any adequate mode of taxing national banks, while state banks are now, and have been ever since 1892, taxable for all purposes, state and local; therefore

At much length facts were detailed in the bill and amendment regarding a reduction of the capital stock of the com- [185 U.S. 270, 273]   plainant made in July, 1897, as to the regular payments of dividends to stockholders during the years for which the tax was sought to be assessed and collected, and as to changes in the ownership of the stock during said period. The unconstitutionality of the statute and the illegality of the threatened proceedings thereunder were asserted upon various grounds.

The defendants filed a plea to the jurisdiction, and also demurred for want of equity. A motion for a temporary injunction was heard and granted, the court embodying its views in an elaborate opinion. 103 Fed. 523. The order for the temporary injunction concluded as follows:

The complainant thereupon moved that the injunction be made permanent, and by stipulation the cause was submitted to the court 'upon said motion, and also upon the plea of the defendants to the jurisdiction of the court, and also upon their demurrer to the bill of complaint,' it being agreed that 'if the said plea and said demurrer are both disallowed and overruled, then the cause is submitted for the judgment of the court as upon a final hearing, the bill then to be taken for confessed, and further delay thereon being waived.'

On December 17, 1900, the following decree was entered: [185 U.S. 270, 274]   'This cause came on to be further heard at this term, and was argued by counsel; and thereupon, upon consideration thereof and of the stipulation filed herein, it is ordered, adjudged, and decreed as follows, namely:

An order allowing the appeal as prayed was made. No appeal was prayed by the complainant.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

It is apparent that the bill as amended sought by injunction to prevent the collection of taxes on the shares of stock of the bank for the years 1893 to 1900, both inclusive, and indeed it is obvious from the decree that the court considered the case also involved the question whether any other than the taxes provided by the Hewitt act could be imposed upon the bank during the remainder of its corporate existence. The relief [185 U.S. 270, 276]   sought was based upon the following grounds: 1. There was a contract with the bank by which the taxes authorized by the act of 1900 could not be levied without impairing the obligation of such contract. 2. The existence of this contract and its binding efficacy was concluded by the thing adjudged. 3. The tax provided by the act of 1900 was discriminatory and repugnant to 5219 of the Revised Statutes. Now, although the circuit court enjoined the assessment and collection of taxes for the years prior to March 21, 1900, it did so, not upon the consideration and determination of the questions of contract or res judicata, but solely upon the question of discrimination. So far, however, as any taxes subsequent to March 21, 1900, were concerned, they were not disposed of, for the decree expressly provided as follows:

While the decree on its face thus unambiguously discloses that the court did not finally dispose of the entire controversy made by the pleadings, as inspection of the opinion of the court makes it perfectly clear that the court did not intend to and did not dispose of the entire controversy which was involved in the cause.

The only opinion pronounced was that rendered on the decision made upon the application for a preliminary injunction. Though in that opinion some reference was made by the court to the contentions of contract and res judicata, the court expressly declared that it would not make a 'final expression on [185 U.S. 270, 277]   the question,' but would leave that subject open for further consideration. And when the court came to render the decree which is appealed from, making the injunction permanent, although it in substance reiterated the provisions of the order allowing the preliminary injunction, it added thereto the 4th paragraph, expressly retaining the clause 'for the purpose of adjudicating and settling any question which may arise upon any assessment made upon any of the shares of the capital stock of the complainant, at any time between the entry of this judgment and the expiration of the present and existing articles of incorporation of the complainant.'

The court below, in effect, having reserved for future determination the right of the complainant below to enjoin the collection of a municipal tax for 1900, and subsequent years, this court obviously cannot decide that controversy. Matters within the pleadings having been left undetermined, and the cause having been retained for the purpose of thereafter passing on them and for the entry of a further decree, the decree entered was not final. McGourkey v. Toledo & O. C. R. Co. 146 U.S. 536, 545 , 546 S., 36 L. ed. 1079, 1083, 13 Sup. Ct. Rep. 170, and cases cited. As a necessary result this court cannot adjudicate upon the contention respecting that portion of the issue which was actually determined by the circuit court, because a decree of a circuit court upon the merits can be reviewed here only by appeal, which cannot be taken until after a final decree has been made disposing of the whole cause. The case is not to be brought here in fragments by successive appeals. Southern R. Co. v. Postal Teleg. Cable Co. 179 U.S. 641, 644 , 45 S. L. ed. 355, 356, 21 Sup. Ct. Rep. 249, and cases cited.

Appeal dismissed.

Footnotes

[ Footnote 1 ] 'Come now the defendants and each of them and file the following assignment of errors, upon which they and each of them will rely:

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