City of Louisville v. Third National Bank/Opinion of the Court

The appellee, the Third National Bank, filed its bill to enjoin the collection of certain taxes, relying upon grounds in all respects like unto those alleged in case No. 404 (Bank v. Stone [just decided] 19 Sup. Ct. 759). There was, however, this difference between the facts of the latter case and those arising on this record: In this case the taxes sought to be enjoined were levied prior to the renewal of the charter of the bank. Because of this difference the court below concluded that the want of power to assess and levy was conclusively established by the presumption of the thing adjudged arising from the decree of the court of appeals of Kentucky (31 S. W. 1013), to which we have referred in case No. 404. We need not, however, consider the question of res judicata, upon which the court below based its conclusion, as we have in case No. 404, just announced, held, entirely without reference to the plea of res judicata, that taxes in form exactly like those here in question were illegal because levied upon the property and franchise of the bank, and not upon the shares of stock in the names of the shareholders. It follows, therefore, that the decree below which restrained the collection of the taxes was correct, and it is therefore affirmed.