164 U.S. 319
CITIZENS' BANK OF LOUISIANA
CANNON, Sheriff, et al.
November 30, 1896
In March, 1893, the Citizens' Bank of Louisiana, a banking corporation created by the legislature of Louisiana, filed a bill of complaint in the circuit court of the United States for the Western district of Louisiana, against several defendants, who were sheriffs, respectively, of a number of parishes in that district, seeking to enjoin the defendants from enforcing the payment of taxes alleged to be due from the bank on lands owned by it in the several parishes.
The main allegation of the bill was that the bank was, by the terms of its charter, exempt from taxation of every kind on its capital and property, and that certain specific and subsequent statutes of the state of Louisiana, by virtue of whose provisions the defendants were proposing to enforce the payment of taxes, would, if carried into effect, operate to impair the contract between the bank and the state, contrary to the tenth section of the first article of the constitution of the [164 U.S. 319, 320] United States. The taxes which it was alleged it was the purpose of the defendants to assess and collect were for state and parish taxation for the years 1889, 1890, 1891, and 1892.
Restraining orders were issued against the several defendants. Afterwards, in May, 1893, an amended bill of complaint was filed by the bank against the same defendants, alleging that since the granting of the restraining orders, and pending the disposition of the case, certain named assessors of the said several parishes were proceeding to list for assessment and taxation for the year 1893 the property of the bank situated in the said parishes, and praying that the said assessors might be subpoenaed to appear and answer said original and amended bill, and to abide the decrees of the court. Restraining orders were likewise issued under this amended bill.
On July 17, 1893, the defendants filed a general demurrer to both bills, and on the same day filed a plea to said bills, alleging that the taxes levied on the property of the complainant did not, in any one of the parishes named in the bill, amount to the sum of $2,000, and because such taxes so levied were payable to and levied for the state, the respective parish, and the levee board of the levee district in which such parish was situated, and alleging that the assessors and tax collectors of each of said parishes could not be joined for the purpose of giving the circuit court jurisdiction. The defendants also filed an answer, setting up various matters on which they contended that the bank's exemption from taxation was no longer operative. [164 U.S. 319, 321] The demurrer was, after argument, overruled. Replications to the plea and answer were filed. The complainant put in evidence the original charter of the bank, and several acts of the legislature amendatory thereof; the revenue act of the legislature for the year 1890; and extracts from the assessment rolls of the several parishes named in the original and amended bill, showing the property owned by the bank, and the amount of taxes assessed thereon. The defendants put in evidence certificates from the respective parishes, showing the property owned by the bank, and the amount of taxes assessed thereon.
On November 22, 1893, after argument, the court entered a decree sustaining the plea to the jurisdiction, and dismissing the bill at complainant's costs. The decree further ordered that a fee should be allowed the solicitor of the defendants, amounting to 10 per cent. of the taxes sought to be enjoined in the bill, viz. the sum of $317.44, to be paid by complainant as part of the costs in the case. From this decree an appeal was prayed and allowed to this court. A certificate was duly signed by the judge of the circuit court, setting forth that the question decided was solely that raised by the plea to the jurisdiction of the court, and directing that copies of the bill, the exhibits showing the taxes involved, and the property on which the taxes were levied, and the valuation of said property, and of the plea and decree, should be attached to the certificate.
Wm. A. Maury, for appellant.
M. J. Cunningham, A. H. Leonard, and Alex. Porter Morse, for appellees.
Mr. Justice SHIRAS, after stating the facts as above, delivered the opinion of the court.
The first assignment of error questions the correctness of the decree of the court in sustaining the plea to the jurisdiction and dismissing the bill.
The bill alleged that the defendants were about to assess and collect state and parish taxes for the years 1889, 1890, 1891, and 1892, and the amended bill alleged a similar purpose as to taxes for 1893. Neither bill contained a specific allegation as to the amount of the assessment or taxes for any one parish, but averred that the taxes so assessed exceeded, exclusive of interest and costs, the sum of $2,000.
This must be understood to mean that the aggregate amount of the taxes for the several parishes exceeded $2,000, [164 U.S. 319, 322] and the theory of that part of the bill evidently was that the amount involved, in order to confer jurisdiction on the circuit court, could be reached by adding together the taxes for the several parishes. But for reasons given in the recent cases of Walter v. Railroad Co., 147 U.S. 370 , 13 Sup. Ct. 348, and Railroad Co. v. Walker, 148 U.S. 391 , 13 Sup. Ct. 650, jurisdiction cannot be conferred on the circuit court by joining in one bill against distinct defendants claims no one of which reached the jurisdictional amount. It is now contended that as it appears in the extract from the assessment roll for the year 1892 that the tax for that year assessed, and in the hands of John S. Young, sheriff for the parish of Caddo, for collection, amounted to upwards of $900, it can be assumed that the taxes for the years 1889, 1890, and 1891 were for similar amounts, and thus, in the case of that parish, at least, that jurisdiction was shown. But as the facts showing jurisdiction do not affirmatively appear in the bill, and as, for some reason that does not appear, the proof was restricted to the year 1892, we do not think the defect is supplied by such a conjecture.
It is further agreed that jurisdiction may be seen in the averment of the bill that the value of the exemption of the bank's property during the continuance of its charter exceeds $2,000 for each parish. But the answer to this is that this is not a suit to exempt property from taxation permanently. The purpose of the bill is to restrain certain tax assessors and tax collectors from collecting taxes for specific years, and, if the amount of such taxes does not confer jurisdiction, it is, from the nature of things, impossible for a court to foresee what, if any, taxes may be assessed in the future.
It is, however, suggested that as the allegations of the bill and the evidence adduced to sustain the plea leave it uncertain whether, if the facts were made fully to appear, jurisdiction might not be maintainable, this court should reverse the decree in order to afford an opportunity to the complainant to make it appear, by competent evidence, what where the amounts of the taxes assessed and levied for the whole four [164 U.S. 319, 323] years, and also for the year 1893 covered by the amended bill; and reference is made to Railroad Co. v. Walker, 148 U.S. 392 , 13 Sup. Ct. 650, a case somewhat similar to the present, where such a course, it is said, was followed. We do not feel warranted to reverse the decree of the court below on such a view, but as we are constrained to reverse the decree, for reasons presently to be stated, we shall leave it to the court below to exercise its own discretion in the matter of further proceedings of the kind suggested.
Error is assigned to the action of the court decreeing that the complainant should pay the costs, including a fee of upwards of $300 to the defendants' counsel.
As a general rule, an appeal will not lie in a matter of costs alone. But such appeals have been sustained in particular circumstances, as, for instance, where the costs have been directed to be paid out of a trust fund. In Trustees v. Greenough, 105 U.S. 528 , this court said, through Mr. Justice Bradley, that the objection to an appeal on the ground of its being from a decree for costs only is untenable. However, in the present case the appeal was not taken from the decree on the sole ground that costs were wrongfully awarded, and, as the entire decree is before us, it is competent for us to consider whether, when a circuit court dismisses a suit for want of jurisdiction, it can give a decree for costs, including a fee in the nature of a penalty, to the defendants' counsel.
The revenue law of Louisiana (Act 1890, No. 106, 56) provides that the attorney at law who represents the tax collector in injunction proceedings shall, in case of a successful defense, receive a compensation of 10 per cent. on the amount of taxes and penalties collected as the result of the proceedings, which shall be paid to the said attorney by the party against whom the judgment is rendered, and shall be collected by the tax collector as costs at the same time that the taxes and other penalties are collected. It would seem that the court below applied that provisions of that statute in the present instance.
Without considering or deciding whether it would be the duty of a federal court to follow the state statute in assessing costs, and particularly in making a payment to an attorney at [164 U.S. 319, 324] law of a fee proportionate to the amount recovered a part of the decree, we are of opinion that this decree was erroneous in the particular complained of. Having dismissed the bill for want of jurisdiction, the court was without power to decree the payment of costs and penalties.
Mayor v. Cooper, 6 Wall. 250, was a case where the circuit court of the United States had held that it had no jurisdiction of case, removed to it from a state court, and had sustained a motion to remand for that reason, yet proceeded to give a judgment for the costs of the motion, and ordered that an execution should issue to collect them. This court said: 'The court held that it had no jurisdiction whatever of the case, and yet gave a judgment for the costs of the motion, and ordered that an execution should issue to collect them. This was clearly erroneous. If there were no jurisdiction, there was no power to do anything but to strike the case from the docket. In that view of the subject, the matter was as much coram non judice as anything else could be, and the award of costs and execution were consequently void. Such was the necessary result of the conclusions of the court.'
In Ingle v. Coolidge, 2 Wheat. 363, it was said by the chief justice that this court does not give costs where a cause is dismissed for want of jurisdiction.
In Hornthall v. Collector, 9 Wall. 566, where the circuit court of the United States for the district of Mississippi had dismissed a bill for want of jurisdiction, and had awarded costs to the respondents, this court reversed the decree for that reason, and remanded the cause, with directions to dismiss the bill of complaint, but without costs. Blacklock v. Small, 96 U.S. 105 .
The decree of the court below is reversed, and the cause remanded, with directions to proceed in conformity with this opinion.