City of Louisville v. Bank of Louisville/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 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 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 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. 

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