It was alleged that the bank was chartered on February 2, 1833, to endure until January 1, 1853; that pursuant to an act approved February 16, 1838, the provisions of which had been complied with, the charter existence was extended for nine years; that by an act of February 15, 1858, duly accepted by the bank, its charter privileges were continued in full force for 20 years from the 1st of January, 1863; and finally that by an act of May 1, 1880, which the bank had duly accepted, its charter was extended for 20 years from January 1, 1883. It was alleged that by the sixth section of the original chart r it was provided, among other things, that the cashier of the bank 'shall on the first day of July, 1834, and on the same day annually thereafter, pay unto the treasurer of the state twenty-five cents on each share held by the stockholders in said bank, which shall be in full of all tax or bonus on said bank; provided, that the legislature may increase or reduce the same; but at no time shall the tax imposed on said stock exceed fifty cents on each share held in said bank.' The tax, the bills admitted, by an act approved February 12, 1836, and been increased to 50 cents a share. [174 U.S. 439, 441] In general language, it was averred that by certain decisions rendered by the courts of Kentucky in the years 1838, 1869, and 1888, it was held that similar language to that contained in the charter of complainant constituted a contract preventing a higher rate of taxation than that provided for in the charter, and that from all or some of these decisions it resulted that the extension of an original charter, under the law of Kentucky, carried with it all the rights and privileges, including the limit of taxation, contained in the original charter. No decision, however, prior to 1880, by the Kentucky court of appeals, was referred to, holding that the mere grant of a charter, or an extension thereof, was not subject to repeal, alteration, or amendment, if such power was reserved, by a general law in force when the charter was enacted or the extension was granted. There was no averment that the complainant was either a party or a privy to the suits in which the decisions referred to had been rendered.
In both bills it was averred at length that the general assembly of the state of Kentucky had enacted the statute known as the 'Hewitt Act,' and that the bank had accepted its provisions. This act and its acceptance, it was asserted, constituted an irrevocable contract, protected from impairment by the constitution of the United States, thus securing the bank against any form of taxation other than that provided in the Hewitt act. It was in both bills then declared that in 1894, the city of Louisville asserting a right to collect taxes from the bank in violation of the contract embodied in the Hewitt act, for the purpose of testing the right of the city to do so an agreement was entered into between the commissioners of the sinking fund, the city of Louisville, through the city attorney, and the attorneys of the complainant and of other banks and trust companies, by which representative suits were to be brought, and it was agreed that the liability of the complainant to any other taxation than that imposed by the Hewitt act should abide the result of the test suits in question; that in compliance with this agreement a suit was brought by the Bank of Kentucky, which, like the complainant, had been originally chartered before 1856, in which last- [174 U.S. 439, 442] named year an act had been passed in Kentucky reserving the right to repeal, alter, or amend all charters subsequently granted, subject to certain exceptions provided expressly in the act of 1856, and that this suit had culminated in a final decree by the court of appeals of Kentucky holding that the Hewitt act was an irrevocable contract, and that the banks which had accepted it were not liable to any other taxation than that therein specified. Averring that the suit brought by the Bank of Kentucky was the test suit contemplated by the agreement, as determining the liability of the complainant to other taxation than that imposed by the Hewitt act, the decree in the suit of the Bank of Kentucky was pleaded as res judicata. In addition, the bills asserted that, if the Hewitt act was held by this court not to constitute an irrevocable contract, then the complainant was entitled to be restored to its rights under its charter as extended, and was consequently not subject to the particular taxes, the assessing and collection of which it was the object of the bills to prevent.
The court below held that the complainant, by virtue of the a reement referred to, was a privy to the decree rendered by the court of appeals of the state of Kentucky in favor of the Bank of Kentucky in the test case in question (31 S. W. 1013), and hence decided that the plea of res judicata was well taken. From its decrees enforcing these conclusions the appeals in both these cases were taken.
H. L. Stone, for City of Louisville.
W. S. Taylor, for Stone, auditor, and others.
Alexander Pope Humphrey and Geo. M. Davie, for Bank of Louisville.
Mr. Justice WHITE, after making the foregoing statement, delivered the opinion of the court.
The unsoundness of the plea of the thing adjudged, upon which the lower court rested its decision, results from the opinion announced in Stone v. Bank, 174 U.S. 412 , 19 Sup. Ct. 747, and City of Louisville v. Citizens' Nat. Bank, 174 U.S. 428 , 19 Sup. Ct. 874. It was there held that the [174 U.S. 439, 443] agreement of the commissioners of the sinking fund of the city of Louisville and the attorney of the city with certain banks, trust companies, etc., including the complainant bank, that the rights of those institutions should abide the result of test suits to be brought, was dehors the power of the commissioners of the sinking fund and the city attorney, and, therefore, that the decree in the test suit in question did not constitute res judicata as to those not actually parties to the record.
The want of foundation for the assertion that the Hewitt act created an irrevocable contract between the complainants and the city is also disposed of by the decision in Citizens' Sav. Bank of Owensboro v. City of Owensboro, 173 U.S. 636 , 19 Sup. Ct. 530, 571. There is no ground for distinguishing this case from the one last referred to. True it is that the original charter of the complainant differs somewhat from the charter of the Citizens' Savings Bank of Owensboro, inasmuch as the charter of the Citizens' Savings Bank contained simply a limitation of taxation to a fixed rate, while the charter now in question, although establishing a stated rate, provided that the named rate might be reduced or increased, but should not be increased beyond a maximum sum. This limit as to the power to increase, it has been argued, took the case out of the reach of the act of 1856, since it was a plain expression of the legislative intent that there should be no increase beyond the maximum stated.
At the time the charter was extended, in 1880, the act of 1836 had increased the limit of taxation fixed by the original charter to the maximum therein allowed, of 50 cents on each share. Conceding, arguendo, that the charter, as thus extended, carried with it, into the new period, the limitation of taxation fixed by virtue of the original charter, and by the act of 1836 increasing the sum to 50 cents on each share, nevertheless the case is covered by the decision in the Citizens' Sav. Bank of Owensboro Case, supra. There is nothing in the extending act expressing the plain intent of the legislature that the charter as extended should be not subject to the repealing power reserved by the act of 1856. The act of [174 U.S. 439, 444] extension, therefore, was not taken out of the general rule arising from the act of 1856; that is to say, it was not embraced in the exception mentioned in that act, saving from the power to repeal, alter, or amend 'all charters and grants of or to corporations or amendments thereof' when 'the contrary intent be therein plainly expressed.' No such intent being plainly expressed in the extending act, it follows that the charter as extended was subject to repeal. It is impossible, in consonance with reason, to conceive of an unlimited, irrepealable contract right, when there is no unlimited, irrepealable contract from which the right can be derived; and yet to such conclusion does the reasoning necessarily conduce which asserts that a repealable charter gave rise to an irrepealable contract right. Granting that the extending act in substance amounted to a re-enactment in so many words of the provision fou d in the original charter, such provision as re-enacted became but a part of a whole contract which was subject to repeal. The right to repeal, embracing the whole, covered also, necessarily, the provisions found in the whole. The limitation of taxation in the original charter was during the life of the corporation. If carried forward by the amendment, it was only for the new period; that is, during the extended charter. But for all this extended period the charter was subject to repeal, at the will of the legislature, and the power to terminate the charter involved the correlative right of ending those stipulations which were only to last during the charter. The argument that, although the power to repeal the charter was reserved, the power to alter the taxation without repealing the charter did not arise, is but a form of stating the proposition which we have already noticed, and which amounts to the assertion that the lesser is not contained in the greater power. We must construe the extending act as a whole, especially in view of the origin and implied import of acts reserving the power to repeal, alter, or amend, as fully stated in Citizens' Sav. Bank of Owensboro v. City of Owensboro, ubi supra. We think that the extending act was subject to the reserved power of repeal, free from limitations inconsistent with the exercise of the right. The elementary general rule is that on [174 U.S. 439, 445] questions of exemption from taxation or limitations on the taxing power, asserted to arise from statutory contracts, doubts arising must be resolved against the claim of exemption. We cannot imply from the mere presence in the extended charter of the limitation of taxation found in the original charter a restraint on the power to repeal, alter, or amend, when such restraint does not flow from the provisions of the extending act taken as a whole. It results, from the fact that the extended charter was subject to repeal, that the complainant had no irrevocable contract limiting the power of the state to tax. Having no such right, it, of course, cannot assert that it must, if the Hewitt act was not an irrepealable contract, be restored to the contract rights existing at the date of the enactment of the Hewitt act. The nonexistence of the prior right precludes the thought that a restoration could be possible.
From the foregoing reasons it follows that the decrees below rendered were erroneous, and they must be, and are, reversed, and the cases remanded, with directions to dismiss the bills; and it is so ordered.
Mr. Justice HARLAN dissents on the ground that there was privity, and therefore res judicata.