Dissenting Opinion: Brown, J.

"Before a statute," said the court,

act of 1856 to that extent. particularly one relating to taxation, should be held to be irrepealable, or not subject to amendment, an intent not to repeal or amend must be so directly and unmistakably expressed as to leave no room for doubt; otherwise the intent is not plainly expressed. It is not so expressed when the existence of the intent arises only from inference or conjecture." Such intent was found by this court in New Jersey v. Yard, 95 U. S. 104, in the fact that there was in the supplemental charter of the corporation, precisely as in the Hewitt Act, (1) a subject of dispute and fair adjustment of it for a valuable consideration on both sides; (2) the contract assumed, by legislative requirement, the shape of a formal written contract; (3) the terms of the contract, that "this tax shall be in lieu and satisfaction of all other taxation or imposition whatsoever by or under the authority of this State or any law thereof," excluded in view of the whole transaction, the right of the State to revoke it at pleasure. There was the same provision as in the Hewitt Act, that the section providing for a commutation of taxes should not go into effect, or be binding upon the company, until it had signified its assent under its corporate seal and filed it in the office of the secretary of State. The language of Mr. Justice Miller is so pertinent that I cannot forbear quoting the following paragraph: "Can it be believed that it was intended by either party to this contract that, after it was signed by both parties, one was bound forever, and the other only for a day? That it was intended to be a part of the contract that the State of New Jersey was, at her option, to be bound or not? That there was implied in it, when it was offered to the acceptance of the company, the right on the part of the legislature to alter or amend it at pleasure? If the State intended to reserve this right, what necessity for asking the company to accept in such formal manner the terms of a contract which the State could at any time make to suit itself?" I find it difficult to see how that case and the one under consideration can stand together.

So far as the Court of Appeals of Kentucky had spoken

Dissenting Opinion: Brown, J.

upon this question, prior to the decision which is here affirmed, it was uniformly in favor of the position taken in this dissent. In Franklin County Court v. Deposit Bank of Frankfort, 87 Kentucky, 370, it was held that an act which continued the life of a charter to a period beyond the time fixed for its expiration, and reserved the corporate organization, privileges, powers, duties and rights, was an extension of an old charter, and not the grant of a new one; that an act passed in 1858, plainly expressed" an intention that the act of 1856 should not apply to it, and that such intent was evinced by the provision that the appellee bank should establish a branch at Columbus; "that the amount of its circulation should not be greater than the amount of its capital stock actually paid in; that it should, in addition to the fifty cents per share of its capital stock, pay annually fifty cents upon each one hundred dollars of its contingent fund; that it should be subject to all the limitations, conditions and duties imposed upon it by the act of incorporation; that it should formally accept the terms of extension."

I desire only to add that in Commonwealth v. Farmers' Bank of Kentucky, 97 Kentucky, 590, it was held, by the same majority of the court which subsequently overruled it, that there existed in the Hewitt Act "every element of a contract between the State and the banks and, with such a consideration as will uphold it, no reasonable doubt can be entertained that such was the purpose of the parties to it." "We are satisfied," said the court, "after a careful consideration of this question, that the parties making the contract never contemplated or intended that the act of 1856 should apply to this contract after its acceptance by the banks, and that such an acceptance was necessary to make the contract complete between the parties." The argument is a powerful demonstration of the existence of an irrevocable contract; but the Court of Appeals subsequently overruled this decision, and this court has affirmed its action, and in addition thereto has pronounced an opinion seemingly so inconsistent with New Jersey v. Yard, as to practically amount to an overruling of that case. These cases, however, are but a reaffirmance of a

Opinion of the Court.

principle which the same court had previously laid down in Commissioners of Sinking Fund v. Green & Barren River Navigation Co., 79 Kentucky, 73, and Commonwealth v. Owensboro &c. Railroad, 95 Kentucky, 60, that a distinct contract contained in a charter was not subject to the act of 1856. Indeed, I do not understand upon what other theory a positive acceptance of the taxation imposed by the Hewitt Act was required of these banks.

DEPOSIT BANK OF OWENSBORO v. OWENSBORO.

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.

No. 149. Argued February 27, 28, 1899. —Decided April 8, 1899.

Citizens' Savings Bank of Owensboro v. Owensboro, ante, 636, followed. THIS case was argued with the Citizens' Savings Bank case. Mr. W. T. Ellis for plaintiff in error.

Mr. Chapèze Wathen and Mr. J. D. Atchison for defendants in error.

MR. JUSTICE WHITE delivered the opinion of the court.

The relief sought by the plaintiff in error was the nullity of certain taxes levied by the city of Owensboro for the years 1893 and 1894. The grounds upon which this relief was prayed are in all material respects like unto those relied on in the two cases against the city of Owensboro, just decided. The charter and an amendment extending the same were both enacted after the act of 1856.

Indeed, this case along with the other two were disposed of by the Kentucky Court of Appeals in the same cpinion, because of the identity of the questions presented.

For reasons given in the opinion in Citizens' Savings

Opinion of the Court.

Bank of Owensboro v. Owensboro, ante, 636, this term, the decree is Affirmed.

DEPOSIT BANK OF OWENSBORO v. DavIESS COUNTY. No. 150. Argued with No. 669, ante, 636, and by the same counsel. Decided April 3, 1899. MR. JUSTICE WHITE: By a written stipulation it is agreed that this cause abide the result of No. 149, Deposit Bank of Owensboro v. Owensboro. The decree in that case having been affirmed, the same result is therefore necessary in this, and accordingly the decree of the Court of Appeals of Kentucky in this case is also

Affirmed.

FARMERS' AND TRADERS' BANK OF OWENSBORO v. OWENSBORO.

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.

No. 151. Argued February 27, 28, 1899. - Decided April 8, 1899.

Citizens' Savings Bank v. Owensboro, ante, 636, followed.

THIS case was argued with the Citizens' Savings Bank case.

Mr. W. T. Ellis for plaintiff in error.

Mr. Chapeze Wathen and Mr. J. D. Atchisor for defendants in error.

MR. JUSTICE WHITE delivered the opinion of the court.

The plaintiff in error was chartered by the legislature of Kentucky in 1876. The charter limited the taxing power to fifty cents on each one hundred dollars of capital stock, during the life of the corporation, which was fixed at twenty-five years. This suit was commenced by petition asserting the nullity of certain taxes levied by the city of Owensboro for the years 1893 and 1894. The petition was twice amended. The cause of action alleged was, in every material respect,

173 664) L-ed 850 174 434

f174 439

Statement of the Case.

the same as that relied on in the case of Citizens' Savings Bank of Owensboro v. Owensboro, No. 669, ante, 636. For this reason the opinion in that case disposes of all the issues arising in this, and for the reasons therein given the decree of the Court of Appeals of Kentucky in this case rendered is Affirmed.

OWENSBORO NATIONAL BANK v. OWENSBORO.

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.

No. 148. Argued February 27, 28, 1899. -Decided April 8, 1899.

A State is wholly without power to levy any tax, either direct or indirect,
upon national banks, their property, assets or franchises, except when
permitted so to do by the legislation of Congress.

Section 5219 of the Revised Statutes is the measure of the power of States
to tax national banks, their property or their franchises, that power
being confined to a taxation of the shares of stock in the names of the
shareholders, and to an assessment of the real estate of the bank.
The taxing law of the State of Kentucky, under the provisions of which
the tax in controversy in this case was imposed, is beyond the authority
conferred by Congress on the States, and is void for repugnancy to that
act.

The tax here complained of having been assessed on the franchise or in-
tangible property of the corporation, was not within the purview of the
authority conferred by the act of Congress, and was therefore illegal.

THIS suit was originally instituted in a court of the State of Kentucky by the plaintiff in error, the Owensboro National Bank. The relief prayed was that the city of Owensboro and its tax collector Simmons be perpetually restrained from enforcing the collection of alleged "franchise" taxes for the years 1893 and 1894, claimed by the defendants to have been assessed under authority of a revenue act of the State of Kentucky enacted November 11, 1892, as amended. The taxes in question were laid upon the amount fixed by the state board of valuation and assessment provided for in the act, which valuation equalled the combined sum of the par of the capital stock of the bank, its surplus and undivided