Covington v. First National Bank of Covington, Kentucky/Opinion of the Court

It is apparent that the bill as amended sought by injunction to prevent the collection of taxes on the shares of stock of the bank for the years 1893 to 1900, both inclusive, and indeed it is obvious from the decree that the court considered the case also involved the question whether any other than the taxes provided by the Hewitt act could be imposed upon the bank during the remainder of its corporate existence. The relief sought was based upon the following grounds: 1. There was a contract with the bank by which the taxes authorized by the act of 1900 could not be levied without impairing the obligation of such contract. 2. The existence of this contract and its binding efficacy was concluded by the thing adjudged. 3. The tax provided by the act of 1900 was discriminatory and repugnant to § 5219 of the Revised Statutes. Now, although the circuit court enjoined the assessment and collection of taxes for the years prior to March 21, 1900, it did so, not upon the consideration and determination of the questions of contract or res judicata, but solely upon the question of discrimination. So far, however, as any taxes subsequent to March 21, 1900, were concerned, they were not disposed of, for the decree expressly provided as follows:

'The defendants are at liberty to make assessments of and upon said shares for taxation for any proper time or period after March 21, 1900, but not to make any collection of taxes so assessed until the court shall have determined, upon further pleadings and evidence herein, should the defendant elect to present the same, whether the taxes so assessed are at a higher rate than is permitted by law, and to what extent.

'Fourth. And the court hereby retains control of this cause for the purpose of adjudicating and settling any question which may arise upon any assessment made upon any of the shares of the capital stock of the complainant at any time between the entry of this judgment, and the expiration of the present and existing articles of incorporation of the complainant.'

While the decree on its face thus unambiguously discloses that the court did not finally dispose of the entire controversy made by the pleadings, as inspection of the opinion of the court makes it perfectly clear that the court did not intend to and did not dispose of the entire controversy which was involved in the cause.

The only opinion pronounced was that rendered on the decision made upon the application for a preliminary injunction. Though in that opinion some reference was made by the court to the contentions of contract and res judicata, the court expressly declared that it would not make a 'final expression on the question,' but would leave that subject open for further consideration. And when the court came to render the decree which is appealed from, making the injunction permanent, although it in substance reiterated the provisions of the order allowing the preliminary injunction, it added thereto the 4th paragraph, expressly retaining the clause 'for the purpose of adjudicating and settling any question which may arise upon any assessment made upon any of the shares of the capital stock of the complainant, at any time between the entry of this judgment and the expiration of the present and existing articles of incorporation of the complainant.'

The court below, in effect, having reserved for future determination the right of the complainant below to enjoin the collection of a municipal tax for 1900, and subsequent years, this court obviously cannot decide that controversy. Matters within the pleadings having been left undetermined, and the cause having been retained for the purpose of thereafter passing on them and for the entry of a further decree, the decree entered was not final. McGourkey v. Toledo & O. C. R. Co. 146 U.S. 536, 545, 546, 36 L. ed. 1079, 1083, 13 Sup. Ct. Rep. 170, and cases cited. As a necessary result this court cannot adjudicate upon the contention respecting that portion of the issue which was actually determined by the circuit court, because a decree of a circuit court upon the merits can be reviewed here only by appeal, which cannot be taken until after a final decree has been made disposing of the whole cause. The case is not to be brought here in fragments by successive appeals. Southern R. Co. v. ''Postal Teleg. Cable Co.'' 179 U.S. 641, 644, 45 L. ed. 355, 356, 21 Sup. Ct. Rep. 249, and cases cited.

Appeal dismissed.