STATE OF 'rENNESSEE V. BAriK OF COMMERCE.
735
rality. The city might have compelled the restoration of the bonds, or had a suit for damages, or the like; but it could not emorce ,fall' dealing in thi)3 behalf by a penalty of abandonmeJ;lt of aU occupation of West Court street. To say the very least, the act appears equivocal and indecisive in this view. Again, the contract gave two years for its completion, and did not contain any limitation that the time should be shortened by the occurrence of any demand for the collateral bonds. I,t 'was the business of the city to keep the bonds for two years, until the contract was fully performed; and the act of the city in their surrender cannot be made to operate evidence of abandonment by the' company. The cO:lIlpany's acceptance of the bonds, which all men do readily, could not be converted into an act ofabandoll:lIlent of the streets not completed in their occupation. It is not a fitting deduction from the act, unaccompanied by any express purpose of that kind, or inquiry as to West Court street by the city. The city should, in fairness, have asked the question if West Court street had been before surrendering the bonds, and not taken it for granted upon an implication based upon a demand for them by the company. Not doing this, it cannot predicate of the act a clear, unequivocal, and decisive abandonment by the company, understandingly made, of the right to use that street under its charter, for that is the source of the right, and not the grace or favor of the city; and this question isnot to be determined as if it were by such grace or favor that the streets are used by this company, however it may be as to others. ! Altogether, I think there is no evidence of abandonment, and the .injunction will be granted, but upon a bond of $25,000, with the usual to pay such damages as the city may sustain by the wrongful suing out of this injunction, and an additional condition that it will surrender the if this suit be finally decided against the 'plaintiff, and the injunction dissolved, in the same condition as it IWas at the beginning of the occupation, free of all cost or expense to the city. Injunction granted.
STATE OF TENNESSEE et aI. v. BANK OF COMMERCE et aL (Circuit Court, W. D. 1.
March, 1892.)
TAXATION-ExEMPTION IN CHARTER OF BANK-TAX ON BANK SUARl>:A.
The charter granted in 1856 by the state of Tennessee to the Bank of Commerce, wWch provides that the bank "shall have a lien on the stod{ for debts due it by the stockholders, · · · and shall pay to the state an annual tax of one half of one per cent. on each shal'e of capital stock, wWch shall be in lieu of all other taxes,"exempts from taxation the property of the bank as well as the individual property of the share· holders in the corporate stock and its shares. Such constrllction of the charter is not affected by the fact that decisions of the supreme court of the state, holding the charter tax to be a tax on the corporate property, and only an exemption of the corporation itself, were overruled by the United States supreme court, wWch decided that the charter tax was a tax on the shareholder only, and an exemption, therefore,of the shareholder, since such decision does not exclude from the exemption the corporation and its property.
2.
SAME.
736 8,
FEDERAL RlJPORTER,
vol. 53.
of, the, stocle, subsequent to the, original charter, by law, al1d ,not restricted by the notwithstanding !mch special privileges wefe forbidden by the state, OOD,,$1; tn,,ti,on 'Of 1870, since'a, limitation of the ',U to the previously stock wow,d,pe invalid, as ImpaJ,ring a, contract obligation; the right to increase the Iiltock being a charter privilege.
In EquitY. Bill by the ,state of Tennessee and others against the Bank of Commerce and others, filed' in the chapcevy court of the state, to collect taxes assessed on the capital stock of the bank. The cause was to the United States circuit' 'court as involving a federal question. ,Heard on bill and demurrer. Demurrer sustained, and bill dismisSed. Metcalf and F',T. Edmondson, for plaintiffs. Taylor & Carroll, for defendants. HAMMOND. J. The charter of the defendant bank contains this clause: "Said institution shall have a lien on the stock for debts due it by the stockholders before and In preference to other creditors, except the state for taxes, and shall pay to the state an annual tax of one half of one per cent. on each share of capital stock, which shall be In lieu of all other taxes."
This bill is filed to collect taxes for the years 1887 to 1891, inclusive, in the aggregate to $46,068.75. The taxes are assessed under ,acts of the legislature, which provide, among other things, as, follows: ' . "And in; cases In which, by the terms or legal efl'ect.of the charter, the shares of stock in:any:corporation are wholly or partiallyexenipt from taxation, or iD which a taxation on the shares of stock is lixed and prescribed and declared to be mlieu of all other taxes,taxes for county, and municipal purposes shall be assessed and levied at a rate uniform with the rate levied upon other taxable property upon the capital stock of said corporation, the value of which capital stock shall be fixed and retul'll.ed by the assessor as being equal to the aggregate market value of all tlie shares of stock in said corporation, including the net surplus."
The bill sets out historically the legislation concerning the taxation of the bank,previous attempts to collect taxes thereunder, certain litigation arising concerning those attempts, all-d generally so states the facts that by the demurrer which the defendant has filed the question is presented whether or not the assessment S9ught to be enforced is valid in rell:J.tion to the claim made by the bank that the legislation violates the of the charter contract., and is void under the constitution of the United States. A federal question being thus at issue, the case was removed to this court from the state chancery court, wherein the bill was originally filed. . Apart from any embarrassments arising out of the adjudications that have concerned this charter, and others precisely like it, in respect of the subject of taxation, I conceive that the ordinary use of the phrase, "'in lieu of all other taxes," as distinguished from any technicalit.ies Whatsoever, always imports that none other than the tax specified, however described, can be demanded. Nor, so apart, should I conceive that it was at all material by what designation
STATE OF TENNESSEE V. BANK
737
the sum to be paid "in lieu" of other sums might be called, whether tax., a bonus, a price paid for the privilege or a debtor. obligatio;n. of any designation whats()ever; nor whether the sum, called, should be absolutely fixed, should be ascertainable by ;some self-adjusting standard. or some scheme or method so devised that the amount could be readily known; nor whether the second parties to the contract should have the sum to pay individually, or in some aggregate capacity, or that it should be paid. by some one else, or in the contract. If this were an orin any way dinary contract between individuals, all these varying conditions would be absolut.ely open to any arrangements the parties might choose to make. So they were to the state of Tennessee and Samuel R. McCamy, James Whitesides, John L. M. French, Edwin Marsh, and James C. Warner, "their associates and successors," when they. set about the business of const.ructing "an institution," which has developed into the Bank of Commerce. It is altogether true that in and about that business, and in drawing up the "contract" in the form of a "charter" to manifest the agreement of the parties, the state will not be presumed to have curtailed its powers of taxation further than the words of the instrument shall plainly express, or by necessary implication shall be plainly indicated, but otherwise all the conditions above suggested were open to those parties absoLutely. The same rule of plain expression or necessary implication applies in the construction of all contracts, not more to charters thall to others, except that the courts, perhaps, are more careful in dealing with such cases than others for obvious reasons of public benefit, though in strictness the courts should not less carefully deal with any contract whatever. It is an exaggeration of this carefulness, however, to suppose that the words of a contract about the taxation of a bank are to be differently construed than the same words about any other subject t9 which they would fitly apply, merely because they are applied to a matter of taxation of a corporation with an irrepealable contract o,f exemption. The same carefulness of construction about any other subject would produce the same result. If, for example, these citizens had made a contract with the state to build the capitol, and it had been provided that they should pay to the state from time to time a tax of one half of 1 per cent. on each installment of the money paid out by them for the work, "which shall be in lieu of all other taxes," could it be said that these words would receive any other cOnstruction than they do when they are applied to the taxation of a corporation or its stock? Or that, because the power of the state was supreme in the premises, and it might, in addition to this tax, have levied a tax upon these citizens individually, each for himself,. or upon the whole in the aggregate, a further sum for the privilege of having had the contract awarded to them, or a further tax upon the property used in the construction of the capitol,-so much for the stone, so much for the. iron, and so on, if you please,-can it be that these circumstances would change, in any respect, the meaning of the words? A habit of doing business in this regard by the and of levying the tax in a particular manner, would aid a court in v.53F.no.8-47 II.
FEDERAL 'REPORTER,
aftIifmg at the meaning Of the contra.ct undoubtedly; but, after all, tb:e: words would stand out as expressing that intention', to have Men'jilstwhat they ilIlpt)rt'to a fair intelligence, unobscured by any ,of meaning to, Mcomplish a, particUlar· purpose their force and mitigating the unpleasant or undesirable 'their use. It were' better that the coUl'tg should boldly ovl=lWUltfthe decisions which have shackled the sovereign power of the state over than to resort to: mere subtleties of construedoh tli,anshitll 'break' of plain words to the PI n'J>,eec(jp.',I.e. Whh,1,·nvest. 'their money; upon the un.derstanding that . . . have of such words. , fact to bereDiembered while reading this statutory contracp'iStl\at it is not a revenue law;it is not a 'statute concerned with of a taxing power, exceptincidentaUy, ,as it were. The poWer ldf' the state in the of selecting the subjects of taxation, . attl,4, : lp,'. vid,ing an, .... . those subjects at is whether ill l'elat1<Jn to banks or other corporatIOns and theIr i or to :the property of citiz-ens. NaturallYl corporate property, bY1ts very character,; suggests a somewhat umform or stibdivisionfor taxing purposes, but, as will be presently shown,' there is no fiXed or always .uniform classification from ,can be implied as has been urged in argument here. Or,di.riai11;t' we say that second, the capital. 'stqck; th,ird,theshlU'es of stock; which, in the strictest sense, howi#eT, "Qre' not corporate property at,all, but the property of the ,indiVidual unless, there be confusion in the use of the term; and, fourth, the other property, not included in any of the other three. But this natural and convenient subdivision is not aJways adhered to, a1,lJl' is ottienstill further subdivided,and might be subject to almol3t iIqluniera:ble subdivisions, just as other property may be. Even the f'lIanchise$. may be separated into different subjects of taJration by taxing each that is' granted separately. The capital stock, in the very beginning, might be subdilided into gold and silver money and legal tender paper money, if there be such paid in; afterwards into bonds, bills receivable, mortgages, exchange, etc.; then profits or income or surplus might be separately taxed,-and often is; and the ordinary sUbdivisions. of real and personaJ prop,erty might be carried on, M they often are,:llirevenue laws, almost ad infinitum. But, as remarked, this is not It revenue law engaged with such subdivisions,. and, it to me, rather too much stress has beenlaiduppnthe separable sJIbjects of taxation in relation to coras an element in the construction of this charter. It 1S true. tliatthe cases look to it very· closely, and it has been seized upon as avery convenient pathway out of the difficulty of maintaining 'restrictiotls, upon the sovereign' power of taxation, which seem dISastrous to that power. Yet I do not think the cases have broken down. the ordinary rules of statutory' construction, and established a special role; oa,sed upon these arbitrary subdivisions, to be applied to corporate chatters for the purpose of saving the state from the impl'ovidencepf th9Se who ha've fettered this power. The rule of strict constructibli has been established beyond question, but the cardinal
STATE OF 'tENNESSEE
v.
BANIt OF COMM.ERCE.
rule remains that the intention' of the 'parties fairly be tained; and it has not been established that an unfair advantage shall be given one of them because it is It state, which has '!lot· made It wise bargain, and has granted that which should have been, withheld. The strictest adherence to the cases does :n<lt' reqnireof the' eourtanything more than a rigid observance of the rule that the state shall not, by short of express words or necessary implication, be held to have surrendered one iota of its taxing power. But it isa perversion of this principle to hold that if, by any possible narrowness of const,ruction, ahy subtlety of reasoning, or any nicety of verbal interpretation, the taxing power may be saved, the courts shall save it at the sacrifice of the other parties to the contract, who have put their money on the faith of the state to stand by that which it has fairly granted in the way of exemption from taxation. Another consideration, before we take up the language of the act, is pertinent here. Next to this rule of strict construction the state most insists upon treating this charter tax as one strictly levied upon thE" shares of stock in the hands of the individual shareholders, and consequently claim,s that the exemption is one belonging to the shareholder alone, applicable only to him and his prope.rty interest, and not at all to the bank. But, if it be granted that the tax is of that precise nature, does the conclusion follow, necessarily, in .logical sequence? Concede that a tax upon the shareholder is nota tax upon the bank directly or indirectly, and grant the other premiseaJso that the surrender of the taxing power shall never be presumed, and does the conclusion follow inevitably that an exemption of their bank and its may not be to these shareholders in consideration of a charter tax upon them individually or their individual property? Why may not the legislature, with all conditions open to it, as they were, exempt the bank from all taxation in consideration that the shareholders shall pay a tax, fixed, no matter how, by agreement between them, either upon their shares in that bank or any other property the shareholder might own? Why could not they agree that such an exemption should be granted to the bank if each stockholder shoiUld pay his share of the tax, and secure it by a lien, say upon his land, for an example? Or why might the tax not be fixed at so much per acre of the land held by each shareholder, or in any other way that may be suggested, and, when fixed, however agreed upon, form. the basis of an exemption of the bank and all its property? These circumstances would require close scrutiny, to be sure, and would shed their own light upon the question of the intention of the legislature; but if, in any the intention was plain, the exemption would stand. The basis for the logical conclusion under consideration would be an affirmance that no exemption of a bank and its property can inure to its benefit unless it be predicated of a tax on the bank iffielf or its property, which is obviously unsound. In thus presenting what seems to me a fallacy of that contention which would limit this exemption to one of any further tax upon the shareholder in respect of his property in the share, because, forsooth, the tax levied and demanded by the charter in consideration of the exemption is upon his property, and not that of the corporation, I do not overlook the
740
FEDEnAL REPORTER,
vol 53.
force"of that;Jt U! a specific, tax, and that the surrender of the general :po;weJ,' is never to be presumed, but only call attention to .the ea$e with ,which such an argument may be made to go beyond any real force that belongs to it. Thereat is, to what exemption, and not to what tax, do the w0rdsof the statl1W aptly apply? And it is a begging of this question to' assume that. the exemption shall be confined to a bare relea.se from fur:ther taxation of the thing taxed, and that only. If they: aptly ,present more than one construction, so that there be more than one ,that may have been described by the words, which of them lies within the purport or design of the statute? Or may more than one exemption be included? Again, I say that the leg· islature was not. constructing a revenue law carefully subdividing and classifying the subjects of taxation, and legislating as to each of these in suohmanner as to regulate. the tax on each with precision, but was ce:nstructing.a bank charter, and regulating the franchises, rights, priVileges, imI1lUnities, duties,. and obligations of the bank. Presumably every provision in the charter pertains to the bank. In the absence of all other guidance, it is the franchises, the privileges, rights, du,ties,andimmunities of the bank, or of the citizens authorized to ,beooinEla corporation in their corporate, and not their individual, capaoity,. with. whieh the legislature is dealing. The citizens in their individual.capacity, and in relation to .their individual property, moreespeciall:v in relation to that distinctively individual prop6rty· whichea:ch .has" as a chose in action, called a "share of the stock".in 1!hat particular. corporation which is being constructed, may come'with5.ml the sCope bf:the' statute, and receive regulation by it, possibly;',butcleavly .such: provisions are secondary. and subordinate, not primrurytand paramount,: and, if thete be clearly a doubt in the stlitute'$· ,betwee.n these, that which is primary and paramount in oonsi'derati0n or Phportance, would be benefited in the resolution of the doubt., rather than that which is secondary, subordinate, or incidental. When the subject of taxation is presented in the process of constructihg" abank,charterit is'the taxation of the bank itself, no matter what desigh! of taxation is conceived, which is first in order of importltDce, rather than of the individuals in their individual capacity, who 3l'eauthorized to be a bank corporation; and any words about taxation, .if there· be .no ulterior purpose to accomplish by construction, will be construed with reference to that fact. The taxation of the given citizens.above named as incorporators in their individual capacity belongs more directly to the general revenue ad, which is passed from time to tinie la,s the needs of the state require, and it is there we would look usually for provisions taxing their property, as well incorporation stocks as in other things. It is not suggested that they may not, in relation to their property interest in the stock of the corporation undergoing construction, be taxed by the charter, for they may, and conclusively have been, so far as this charter is concerned,asruled by the supreme court of the United States in a ease inv'olvinga charter just like this, but only because the wordd used'in the tax havebeen ruled to fairly and reasonablv deBctibe that, kind of a tax; but non constat that any exemption
STA.TE OF TENl'ESSEE V. BANK OF COMMERCE.
741
granted in consideration of this taxation shall be, because it. is that kind of tax and not some other, taken out of this rule of construing all provisions as applying to the bank rather than to the individuals composing it, and attached inseparably to the tax itself and the owner of the thing taxed. The exemption is one thing, the tax· another; and it is a mistake to suppose that they go indissolubly together, and break down the rule of construction we are now applying just here. Granted that the legislature in its wisdom chose not to tax the franchises, nor the capital stock, nor lhe other property of the bank, but to tax the shares in the hands of the shareholders, to be paid, for convenience and certainty by the bank, vicariously, and not directly by the shareholder, and it does not follow at all that any provision foundin relation to any exemption from further taxation is to be taken out of the general purport of the statute as one providing rights, privileges, immunities, and duties for the corporation, and limited and restricted to this secondary purpose of taxing the individuals, to give them the benefit of the exemption, rather than the bank. The charter was not concerning itself with these individuals, qua individuals, but as incorporators; and the tax and its accompanying exemption might have been each designed as a benefit to the corpOlI'ation, and consequently to its individuals also, albeit the tax was levied on the individuals only, and not the corporation,-out of the natural order of things, to be sure, considered with reference to the purpose in hand while making a charter. But because there was an aberration from the natural order in affixing the tax upon some one or some thing other than the bank, it is not certain that the aberration from the natural order of legislation was continued in providing the exemption from further taxation. Again, if the exemption be considered as one granted solely for the benefit of the shareholders in their individual capacity, or each in his individual capacity, why should the benefit of the exemption to them, or to each of them, be limited to a bare release from a further tax on each individual in respect only of his share of stock, and not reach further, and include in its benefits that concomitant interest which each has in the property of the bank,-the interest of having the bank itself taxed as lightly as possible? If the shareholder has given a consideration for the exemption in a permanent tax upon any property that he has, why should not the benefit of the release extend to all his corporate rights or interests, represented in some sense at least by the shares,-if the words and the scope of the legislation may include such extended benefits? .There is no reason except that the state wishes now to restrict that which was granted to the narrowest possible limits by the strictest possible construction, and with the danger of unfairly applying that strictness we have already dealt in this opinion. Let us now take the language of this act of the legislature, and, reading it with a purpose not to abate or restrict the state's powers of taxation one jot beyond what the words fairly import, on the one hand, and a like purpose not to deprive the stockholders of any benefit to themselves or their bank fairly granted to them as a basis for the investment of their money in this insti-
742
I'EDERAL REPORTER,
vol. 53. -
tution, on the other it mean? Both sides contend that the sentence .containing the exemption is elliptical. Each side supplies'the ellipsis iIi its own way. The state would read the extended phraSe: ''Which shall be in lieu of all other taxes npon said shares of the bank would read it: "Whieh shall,be in lieu of all other taxes upon said institution." Either readingwould make the case. clear for the party proposing it, but is only another mode of presenting the contention between them. Taking the sentence as it is, and the first criticism I should make would be the somewhat obscute,if not inaccurate, use 'of the final words, "other taxes," without a 'repetition -also, in some form, of the word "pay," which is just as important hi relation to the antecedent, or as a part or the antecedent to which the relative pronoun "which" refers, as the word "taxes." Remembering that this is not a revenue law, but a charter,-an act designed to define all that needs defining concerning "an institution." as it is called,-and it seems to me a very nnnecessarily narrow limitation, and one that is not fairly permissible, to refer "which" only to the preceding word, "tax," as its antecedent. The full sentence comprises two independent subjects,each a privilege, or else one a privilege and the other an hnmunity, perhaps. One provides a lien upon the shares of stock as against the stockholder for his debts, and the other this hnmunity, whatever its extent, from further taxation. Now, why should the same breath, so to speak, create for the ba.nka lien, and for some one else than the bank an immunity? '.fne restriction of the relative pronoun "which" to the bare word "tax" is necessary to accomplish this, and ignores wholly the leading words "said institution shall pay" as a part of the antecedent, which, it seems to me, is exactly the words, "said institution 'shall pay to the state an annual tax."no matter what or how described, so far as it relates to the mere analysis of this sentence. Now, if we are permitted to supply any ellipsis instead of adding to the end of the sentence words selected to express a given meaning, I should in· sert words expanding the relative pronoun into its proper antecedent, and defining the word "other" in relation thereto, or in its relation to the subject of regulating by its charter the payment by the bank of taxes, whether its own taxes or those -of some one else, not hnpossibly -an entire stranger, if the parties were so minded. Thus reconstructed, the sentence would take the form of full direction, and read thus: "And said institution shall pay to the state an annual tax of one half of 1 per cent. on each share of capital stock, whieh payment of this annual tax to the state shall be in lieu of all other payments of taxes for that year." This would be fairly within the scope of the whole act, which, while constructing a charter for a bank, is regulating the bank in the matter of its payment of taxes, the amount to be paid, the person to be paid, the frequency with which the payments must be made, and the force and effect of the payment when made. The final word "taxes" loses none of its force, but gathers perspicuity by continued association in this construction with the word "pay" and the word "institution," for the benefit of which this whole act was constructed and passed. It is not even suggested in argument, much less claimed, that the very strictest constrnction of the words "to the state" would
STATE OF TENNESSEE V. BANK OF COMMERCE.
743
limit the exemption to one from further state taxes only, and would not include any exemption from county or municipal taxes, but it is conceded that these are included, so far as the shareholders' property is involved. Yet the rule of strict construction in favor of the taxing power of the state would be no more misapplied to such a limitation than the other. Clearly the awkwardness of the sentence arises out of the compression of the idea into words and phrases that shall be brief and comprehensive. rather than explicit. Grammatically the analysis of its parts should be considered in relation to all that goes before, not only in the sentence. but likewise in the whole document or instrument. The "pregnant brevity" of the style should not be overlooked, as it affects the syntactical arrangement of the sentence. The phrase, "in lieu of all other taxes,"-which is the subject of the great contention between these parties,-is, naturally, either an adverbial phrase, modifying the verb "pay," or an adjective phrase, qualifying the noun "tax," or rather the subject "annual taL" Strictly it should have been more closely placed to either the verb or the noun, to display with precision the intention of the writer in that behalf; but unfortunately he has chosen to convert it into a clause introduced by a relative, and as a co-ordinate and somewhat independent affirmation, rather than as a modifier in the shape of either phrase or clause, adverbial or adjective, which arrangement intensifies that obscurity of meaning giving rise to this lawsuit. If he had modified the verb by placing the words adverbially near it, the meaning would be quite plain in favor of the contention of the bank in this case, though it would still not be entirely free of doubt whether the bank was to be exempt, 01' only the stockholder, or both, as anyone may see who will so reconstruct the sentence. So, if he had modified the noun or subject "annual tax" by placing the phrase adjectively in immediate contact therewith, the arrangement would have been somewhat more favorable to the state than now it is, but scarcely less doubtful than by the present arrangement. Perspicuity required that there should have been an entirely new sentence or independent· clause, at least, with more amplitude of expression to convey either of the meanings now contended for by these parties. The structural form adopted forces us to determine whether the relative "which"-relative in form -is really intended to be a relative or something else, and, if used as a relative, whether it bears only the simple subject, "annual tax," or teems with the complex subject, "said institution shall pay to the state an annual tax." I have already indicated my preference for this latter construction, simply because the act is dealing with the rights, duties, conduct, privileges, and immunities of the "said institution" primarily, and not with a tax upon the citizen or his property, individually. The word "which" gives writers a great deal of trouble, and its usage is varying, as the consultation of any standard work on grammar will show. It is often equivalent to "and it," or "that," used restrictively. If either of these be substituted for it here, the sentence reads more favorably for the contention of the state in this case, though it does not settle the doubt by any means. But this usage is
744
'FEDERAL REPORTER,
said to be not generally observed by modern writers in this century, and the rule is given that "which" is to be used ·in preference to or "and it"whenever its clause intr'oduces It . new fact about the" antecedent; "that" is to be preferred when the clause is dependent,and limits or the antecedent Maxwell's Adv. Gram. §§ 266, 282. The use of the word in this sentence seems to accord with this rule, and the clause is independently introducing a new fact about the antecedent, and not limiting or defining it. But what is an antecedent? "The a.ntecedent may be a noun, a pronOl,Ill, a phrase, or a clause." 'Maxwell's Ad,-. Gram. §§ 280,' 570--572. See, also, Higher Eng. pp. 109, 111, 113, 121, 122. It seems to me that to supply the simple word "tax" as the only antecedent here, and to read ''which tax shall be in lieu of all other taxes," is to adopt the restrictive and limited use of the equivalent "and it;!' or "that," and not to regard the obvious introduction of a new fact about the antecedent, which tli.is clause is clearly intended to accomplish. But if we take the whole preceding clause, viz.: "Said institution shall pay to the state an annual tax of one half of 1 per cent. on each share of capital stock," as our antecedent, about which the new idea is now introduced by this clause,-itself introduced by the relative "which," -and the meaning becomes quite clear that this annual tax, whatever its character or nature, and upon whatever it may be levied, whether on property of the bank itself or somebody else's property, is a pay'ment to the state by the bank-and, by the way, the security andcel'taintyof this payment by the bank in a lump sum, rather than collecting the same in driblets of more or less widely scattered stockholders, is not to be overlooked as a part of the consideration given for this exemption-"which" shall be in lieu of all other payments by it of any taxes other than this, whether this be a tax upon its own, its stockholders', or any one else's property. It is a universal exemption for each recurring year from all other tax burdens than this, and this construction accords with the design or scheme to create an institution which shall be attractive to invest<lrs. If this were not the i.ntention, if this were not the design or scheme, this provision, limited as the state would now limit it after so many years of acquiescence, has no appropriate place in the charter of a bank, but belongs more properly to a revenue law, and may quite as well have been left out, for it is almost demonstrable that the bare exemption from a higher rate of taxation upon the chose in action of the shareholder, directly levied upon him individually qua shareholder, and yet subject to a larger tax upon him, by the indirect process of a tax upon the bank or its property, belonging to him, qua shareholder, would be a mere shadow of the substance he desired and fairly might think he was obtaining. Indeed, it operates as a burden upon him over and above the ordinary shareholder not having this exemption, or may so operate, confessedly, under certain conditions. I cannot, upon this analysis of the language of the charter, apart from the adjudications, think that the legislature intended by those words anything less than a complete and universal exemption of both the bank and the shareholder from any tax other than the charter tax, however improvident it may have been.
m' COMMERCE.
745
Historically this construction is supported by the surrounding circumstances at the date of this charter,-in 1856. I have taken some pains to examine the legislation of this state and Nocth Carolina, so far as I could find it, both in the grants of charters and the taxation of corporations by general revenue laws, and I find that this method of taxing corporatioillS by a levy of 25 cents, or in one case not more than 50 cents, upon each share of stock, or by the levy of a fixed per centum upon each share, was the method in general use. There is not the least doubt that the legislature and the people understoOd this to be, practically, however it might be in strict technical analysis of the nature of corporate property .and its classifications for taxation, as well understood then as now, among lawyers, a tax upon the corporate property, or a tax upon the corporation, to speak more broadly. The· supreme court of the state had so decided as early as 1836, and it does not matter, in the mere history of the subject, that the· supreme court of the United States, forty years later, and twenty years after the date of this charter, did not think this understanding correct, and ruled that it was a tax on the chose in action of the shareholder, which in the nicest technical classification is in no sense corporate property at all. The supreme court of Tennessee understood that a share of stock was not corporate property, and in 1836 called attention to it; and yet it was well known historically that such was the Tennessee method of taxing corporat,ions. This charter must be read by the light of that fact in resolving any doubts about a limitation upon the exemption. It was not considered by the legal tribunals of the state or by the legislature that this charter tax was a tax upon the shareholder's chose in action, and, if it be technically so, this charter, historically considered. was not constructed or acted upon by anyone until now, in view of that fact, or of any technical niceties arising out of it; and it seems to me plain enough to be unfair in construing the exemption to limit it by a resort to those niceties of classification as against the general understanding of the time of the grant, however unfair, also, it may have been to exempt the shareholder by a resort to such niceties to include him against that general understanding also. The courts do not arrive at the intention of the parties to a contract, or reverse that intention, by such exactness of classification, or rather by changes of opinion concerning it. As I have said before, it is my judgment that too much stress has been laid upon this arbitrary, and by no means uniform, and altogether artificial, subdivision of corporate property into subjects of taxation. Taxing laws and fiscal systems may be wisely adapted to these classifications, and there they may be highly useful, but in constructing the franchises of a charter they have no such dominant place as the argument here, and the theory of this claim· for further taxation assigns to them, and must assign to them, in order to escape the plain significance of this grant of exemption from taxation. It is not more competent to impair the obligation of the contract by assigning to the legislature a notion about the technical classification of the specific thing taxed, which it is plain from surrounding circulllstances the legislature did not regard as
746
FEDERAL REPORTER,
materiaJto,the work fuh.and, if they were aware of the technicality, as no doubt they were, it may be assumed, than to unreasonably assign meanings to words which were not intended to be used iIi that meaning: In other words, I do not believe that the legislature intended to limit this exemption from taxation by any notion that it had, or might have had, concerning the precise technical character of the property upon which it levied the tax as being corporate property or individual property. Whichever it was, it had the right to tax it, and, in consideration of that tax and other considerations, to make the exemption as broad as it chose. The whole subject was open to it, and there is not the least indication in the act itself or the environment at its creation that this technical classification was deemed to be of the vast importance now attached to it. Hel'e I will note that even a slight examination of the reve· nue laws of thilil and other states, of text writers and of cases shows that there is no such fixity ·of subdivision and classification of cor' porate property, any more than other property, aa would enable a court to affirm .that this act was constructed in relation thereto, or as would .justify a resort to any classification that might be imagined aa a conclusive evidence of intention in respect of this exemption.· Exemption fromltaxation generally is pertinent to the owner, and not to the· thing, and we look rather to the person to be benefited than to the thing affected by it, while, when we turn to the tax, the thing becomes· puamount, rather than ita owner. Hence the propriety which I have insisted upon. of looking at the act as a charter, and not as a Uuing act, or a. revenue law, carefully affixing the burdens to. each article of property; and, if· so considered, this classification Ofsllbjects of taxation becomes of far less importance in the charter than it would be in the other. Besides, shares of stock, although only ,individual chosesin action of the owner, and not corporate property, are often, for obvious reasons of association of ideas, confused with corporate property. Our . legislature haa, confessedly, so confused it, and our state judicial decisions have treated this M a tax on. corporate property, and this is a practical application breaking down the distinction to that extent at least. In Farrington v.,Tennessee, 95 U. S. 679, Mr. Justice Swayne enumerates as subdivisions the franchise, the accumulated earnings, profits and dividends, and real estate, but they are only "some of the objects, in this connection, liable to taxation;" and the division used by the United States legislation referred to by him is quite different, thus: Deposits, capital employed in their business, circulation, and notes of state banks used as money. And it is noticeable that, while enforcing the technical distinction between a tax on shares of capital stock and a tax on capital· stock itself. as subjects of taxation in order to extend the exemption of the charter to the protection of the shareholders individually, he says also that "each share represents an aliquot part of the. capital stock," thus indicating the same confusion by association that the Tennessee authorities proceeded upon. The truth 'is that "a share of stock" is. a bare chose in action in its relation to the shareholder as property, but in its relation to the property; of the corporation is a mere structural sub-
STATE
TENNESSEE V. BANK OF COMMERCE.
747
division of all the property used as a. convenient standard of measurement for parceling it out, very' much as a bushel is used to describe quantities or to parcel out the wheat in a bin; and the term "shares of capital stock" may be used appropriately, in either of these senses, descriptively. Until there has been a dividend of profits set aside, to each shareholder his share, or a winding up, and are, siduum divided and set aside, to each shareholder his share, this chose in action or "share of stock" is very much like an empty bushel of "dry measure" which the owner of the wheat holds in hand ready to measure up and carry away his "share" when the division, either partial or complete, shall be made. This right of taking away, which is the only property interest of the individual, may be made a separate subject of taxation, it is true; but so may the owner's horses, or mules, or cattle, swine, and sheep, and all very arbitrarily; double taxation being easily avoided, and not neoo;;sarily an incident of any given subdivision of either the corpo1"ette or the other property for the purposes of taxation. But does this fact necessarily imply, against words of universal signification, that the exemption they grant shall be limited to the particular subject taxed? It does not seem to me a necessary implication, however useful and desirable it may be, or however well it may serve the state in escaping from its grant. If a farmer should contract with the state to take a fixed per centum upon the fixed value of his "horned cattle" every year as long as he should live, "in lieu of all other taxes," and the business in which he was engaged were such that, presumably, a release from all ta.. 'l:ation upon his farm' and his farming operations was the benefit he and the state contemplated by the very making of the contract, could it be at all implied from the fact that "horned cattle" was naturally or otherwise a separate subject of tion that the exemption should be confined to a release only from the further taxation of ''horned cattle?" No matter how strictly the presumption the surrender of the taxing power should be held, this implication would not be more reasonable because of that strictness. ' Chief Justice Waite, in Tennessee v. Whitworth, 117 U. 8. 129, 13li, 6 Sup. Ct. Rep. 645,647, makes a largely different enumeration of the elements of taxable value "sometimes found in corporations." He divides these elements thus: "(1) FraBchises; (2) capital stock in the hands of the corporation; (3) corporate property; and (4) shares of the capital stock in the hands of individual stockholders." In Texas, bankers were required to list for taxation money on hand, in transit, and in the hands of others subject to draft, except legal tender notes, and their bills receivable, and other credits. If anyone of these had been taxed in a charter "in lieu of all other taxes," I do not think the mere fact that money could be so divided, or that money and bills receivable were each a separate subject of taxation, would. have necessarily limited the force of the words of exemption. Griffin v. Heard, (Tex. Sup.) 14 S. W. Rep. 892. Nor if "deposits" in the savings banks, belonging in fact to other people, were taxed by their charters, as they were in the tax laws of Massachusetts, one half of 1 per cent., and the charters had made a contract that this should
7.48
be in lieu. of all other taxes, as practically the non taxation of anything else concerning the banks, except deposits, by the tax laws, did, temporarily at lenst,exempt everything el.;le, could it be claimed that the exemption of the charter would be necessarily limited to further taxation on deposits, becawre, forsooth, "deposits" were a separate subject of taxation, not even belonging to· the bank, and less to its shareholders, or were, to use the language of Chief .Justice Waite, found as an element of taxable value in corporations'? Bank v. Boston, 125 U. S. 60, ·67, 8 Sup. Ct. Rep. 772. I have noted other examples of these elements of taxable value found in corporations, and it is, I think, an a8SU1nption not justified by the facts to affirm that there is anything like such a fixity of this divisibility of the subjects 'Of taxation, either in the theory or practice of taxation, as the argument here presupposes. I may add, in the language of another,that "we agree with counsel for the town that statutes exempting property from taxa,tion should be construed with reasonable strictness, but they should not be so strictly construed as to defeat the obvious intention of the legislature." Town of New Haven v. Sheffield Scientific School, 59 Conn. 163,166, 22 At!. Rep. 156. I have given so much attention to the subject of this elemental divisibility of the subjects of taxation in its relation to corporations because 1; believe that upon it is based. the fundamental fallacy of this attempt. by the staM to SOCOllstruct a taxing act that it may evade ilie force of this exemption. It is predicated of a misconstruction of what has boon said by the supreme court of the United States upon that subject, or rather upon a misapplication of it, un· are to resort to these distinctions for the purpose of mitigating the decisions which have permitted the states to make bargain and sale of their taxing power, without the possibility of any restoration of it, except in this mode of unreasonable strictness of refinements in the interpretations of statutory contracts. _ Another view of the force of events connected with our legislative history upon the subject of the taxation of corporations reo lates to the practical construction of these acts by the legislature itself. Until this most recent taxing legislation involved in this suit, the revenue laws practically extended the exemption with the fullest. scope to all corporartions,whether they had this charter exemption or not. I do not mean to say that the rate of taxation was always as favorable as is found in the charters. Counsel say that when this clulrrter 'rate was first establiRhed it was largely in excess of the preVailing rate on other property, and has become to be less only because of the enormous increase of the rate of taxation. Possibly,they say, it may at some time again become less. However this may· be, it is certain that fora very .long time the legislature taxed only "each share of capital stock;' supposing, as we haye seen, that this was a tax on the corporation, and not the shareholders, which error the supreme court of the·'United States has corrected; but the corporations were not otherwise taxed, nor were the shareholders for a long time, whiCh was a practical con· struction of the meaning of these exemption chaJ'ters; and, justly,
749
other corporations not so favored were put on the same footing, not always precisely as to rate, sometimes less, sometimes more, but always as to the manner of taxation. It must be conceded to the state, as counsel ar{,,'1le, that it cannot be bound to any permanency of methods in taxation, and may at will change its policy and methods, and nothing should be implied against this power. Neither do we imply anything against it. But, like all other parties to a eontract, the state, when the qUE\'3tion of its intention in the use of words arises, may be held to have intended by those words that which, by its own acts, has been placed upon them as a practical eonstl'uction of their meaning. There is no injustice in this, nor yet any limitation upon its power to change its acts, and reverse, if it chooses, its operations in that regard. Nevertheless, legislators, like other men, interpret their words by their actions, and to this extent may those actions be examined, without the least restriction upon the power to change them at will. Both the individual interest or property of the shareholders and the property interest of the corporation in its aggregate capacity were exempt by thiti mode of taxation in the practical operations of government a.t the time these charters were gra.nted,· a.nd for a very long time afterwards, until this struggle to get ill another ta.x on one or the other .commenced, because, technically, it was not double taxation to tax both, however burdensome it might be; and becauSE'" technically, it is a rule to favor the reservation·of the taxing power, rather than its grant, in the interpretation of all charters. But just as technically it is the duty of the eourt to follow the meaning of the words, and hold the parties to the fair a.nd reasonable intention they have manifested, most of all to each other, by those words. Each side claims with great earnestness and force of argument tha,t this question between them has been settled by the adjudica,. tions. The bank claims-a.t least in one of the several cases we are tl-ying-that the decisions ha.ve technically all the force of the principle of res judicata, and the adjudications have been relied on. the facts being apparent from the bill, to that extent. All tha.t has been said heretofore would have been uselessly, it not impertinently, said, if I were of that opinion. Not one of the decisions has, iil my judgment, stripped to its bare technica.l proportions as an adjudication, decided this question. Counsel for the state very properly says that the bank cannot rely first on the overruled decisions of the supreme com't of the state that this was a. tax upon the corporate property, and only an exemption of the corpora.tion itself, and never an exemption of the shareholder, to protect it against further taxation of the corporation; and,secondly, upon the decision of the snpreme court of the United States, overruling the others, tha.t this is a charter tax upon the shareholder, a.nd not a tax upon the cor· poration, and an exemption, therefore, of the shareholder also; and thus tack the two sets of cases together as a. common adjudica· tion that both corporation and shareholder are exempt. The bank could do this if the supreme court of the United States had ever' decided that a tax upOn the shareholder and an exemption of his in· ,dividual property in the shares held by him from any further tax
'750
:FEDERAL REPORTER t
vol. ,53:
upon shares as to lJim. ·exmmied the· benefit· of; the exemption toI tlm'eorporaite; pt.'opevty and to the corporati<mm its corporate ,The supreme COO1rt of the· United States has never decided "this,t'and'fpr the VOOJl':;pIain reason ,that such a question was never i"before dun and, under, the conditioiBS :of the cases, could not have ;been. / It. could have ihaano ,;jurisdictioIl. of such a question through Jthe· a,ye:tJ.ne of, a'wJJit ofierror from the supreme court of the state, becaulm ,that court wdnever decided against any claim of the coi'poiationfrom fUrther taxation upon its capital shares, but 311that claim. Counsel for the bank concetles very franJdy,rthat since the snpreme court of the United States decided the charter tMl: to be llpon,the 'shareholder, and not. the corporation, the 5lupreme,:oo'urt: of· the state has continued to recognize the exemption" as.:,;elrtending to the corporation and its property, notwithstanding illiat decisioll;hnt he argues that this is in violation of its ow:nrtUe of judgment. that the tax and the exemption go ha,nd in hand,'andthe)atter is no broader than the former,-which undoubtedl.Y',wasthe rule of the supreme 9OU1't .of the state until the decisionlof.rthe·supremeCQurtof the United States, above refelTed to as overru:1i.ug the others. And, furthermore; he argues that it is in :violation of, the; authority <t.ftb.e supreme CQurt of the United 8tates to sodisregal'd.its decision. ' I do lll>t:cal'e to :d.eaJ with thiscontlictof authority, if it be for it is not necessa.ry.' But I may say that thesliprettte cOlmt· of:, tlle United States .has never sanctioned the pOl'lition.r las· tG. these.· charters we h8Jve here, that the tax and the exemption;goMnd in lland, and that one is not broader than the other. My ,tiewl is ,that,. .whether this be. a. tax upon the corporation only or the!l1hareholder only, the exemption is broader than the thing taxed1 and' covers:both the corporation and the shareholder. I take. it we,must·a,ll :accel}t the view of the suprem.e court of the United that this isa tax upon the. shareholder only. Farringtonv.:TenIl6ilsee. 95 U. S. 679·. But nOll constat that the exem:ption., i the &1iipulation of the charter that this tax upon the shareholder only. be in lien. of all <\the1' ta.xes, does not extend to the corporatiQn:and; its property as well as to the shareholder. I have writtentbis opinion to,justify my own judgment that it does. The says it covers any further tax .against the sbare supreme i holder. !t"does not slty:tbat it excludes from the exemption the corporatioJli .and its property, nor does it, that it includes it. Until one or the other, we must be contented to get along without.its'pal'alllount authority. If it should follow the example court of the state, which. held that, this being a tax of the upon the :cor)JQrate property: only, the exemption does not include a tax on the! shareholder's pl'Operty, it will undonbtedly overrule this :judgment .and /decision we, are now making, if it adheres to its own rulizlg already./made that it is a tax on the shareholder only. If, however, the Jater example of thesUpl'eme court of the state, andin'lierpret.$ the EaITington Case, supra, as that court inter.prets it,':"'-to C00VeJi aJtJo in the exemption the corporation and its ,a.t'6rm the .judgment we make, and for the
flTATE OF TENNESSEE V. BANK OF COMMERCE.
751
reason that we give, namely, that, although the tax is on one, the words of the exemption cover both. So, although I do .not think with the supreme court of Tennessee that the supreme court of ,the United States has already decided the exemption to cover both, Ido think it does cover both, and that the court of last resort will so determine. I need not, therefore, further consider the cases in relation to the plea (or demurrer equivalent to such a plea) of res judicata. I should say, however, that in strict technical consideration the supreme court of the state has only inferentially decided that the exemption extends to both the capital stock of the corporation and the shares of the shareholders, the tax assessed and rejected by its decisions being a tax under a general law assessing the real property of all persons, which was ,assumed by the assessor to extend to the property of the bank, notwithBtanding the exemption; and the point was not presented, as it now is, by a specWc tax by the legislature upon the capital stock as the property of the corporation. Inasmuch as the real estate assessed by the assessor under the general law could only be exempt under the charter, and because there is no distinction, possibly, between real estate in which the capital stock is invested and the capital stock itself, the decision is in favor of the exemption of the capital stock inferentia.lly, but not directly. Bank v. McGowan, 6 Lea, 703; State Butler, 13 Lea, 400, 406; State v. Butler, 15 Lea, 104; State v. Butler, 86 Tenn. 614,8 S. W. Rep. 586. . The foregoing are the cases of the state supreme court since the Farrington Case in the supreme court of the United States, which was decided there in 1877, and in the supreme court of the state in 1876. Memphis v. Farrington, 8 Baxt. 539; Farrington v. Tennessee, 95 U. S. 679. The first was an assessment of this very defendant bank upon its real estate under the general law, and it was held that the decision of the supreme court of the United States had extended the exemption of the charter to shareholders, contrary to the opinion of that court, and "therefore'" the exemption would "protect the capital stock and the shares of the stockholders from any taxation beyond that prescribed in the charter." May not this be a non sequitur? The next case involved the Union and Planters' Bank, having a like exemption, and the same view taken of assessments under the general law of its real estate, and of the effect of the Farrington decision by the supreme court of the United States; but; as before remarked, whatever may be inferred as to the ruling it may make on the questions we have here, or the potency of these decisions, they did not involve the levy by the lebrislature of a specific tax upon the capital stock, such as has been made under recent legi.slation, and I am uncertain whether to take them as condusive adjudications that stock and shareholder are both exempt, although I think they are both so.exempt. The other cases were a direct attack by bill upon the organization of the banks, and a denial of their right to any exemption be.cause of want of title to their corporate franchise, and did not involve this question. On the whole, I think these cases support the I'uling we are making; though I do, think, with counsel for the state,
752
"FEDERAL REPOR'fER,
vol. ,153,
I have 'examined it in that view. The cases prior to the Farrington' Case treat the charter tax and the exemption as limited to the corporate property, and as excluding the shareholder and his PIOPerty. Their importance here rests in the fact that they hold that, being a tax only on the corporate property, the exemption does not extend further than the tax; that is;. does not exempt anything except,·the property taxed by the charter from further taxation. If that was then· true as to corporate .property, it is now true as to the stockholder's property" and, the supreme court of the United States having ruled the charter tax to be a tax on the shareholder's property, under 'the same rule established then by ,those cases, and nev-eroYel'l'Uledby either supreme court, I think the corporate prop'erty,would not be, now exempt. And herein lies the force of tht3 sfAfu'scase ·here;but for the reason stated I do not assent to this 'narrow, view .of ,the' exemption, and, not being guided by any authoritative adj'udication to that effect, feel at liberty to enforce my own: view as to. the law of this ease, particularly since these have been reversed on the main point as to the nature of the tax, :whetberthey .have been affected as to the other point concerning ther_lction of the exemption because of the specific tax or not. v,'State,9 Yerg. 489; Bank v. Memphis, 6 Baxt. 415; Memphis v. Hernando Ins. Co., Id. 527; Memphis v. Farrinl,rton, 8 Baxt.540, ,Tl!le decisions :of the supreme court of the United States before the :FalrFingtonCase have, been sufficiently noticed by that case itself'and the deci.sionsof the supreme court of Tennessee, and do not require any notice at my hands. I have already stated that, in my view," that case only decides that this charter tax is a tax upon the property of the stockholder, and not upon the corporate property, R·nd that the exemption protects at least the property of the stockholder; but whether it protects also the property of the corporationhas not been decided. The eases since that time am quite i and all are instructive' l1f1on the general subject, but none of! them is decisive of this case. The case of New Orleans Y. Houston,1l9U. S. 265, 7 Sup. Ct. Rep. 198, it seems to me, qnite nearly decides that a tax like this is a tax on the capital stock. and 'lloton the shares of the stockholders; but there the taxing act was thus· arL'anged to .defeat the exemption given to the corporation in of the payment of a gross sum. If the langnage of that act, so clearly indicating a tax on the shareholder, was in fact a tax on the corporation, this might be so held also, as it was in the Tenlle£lSee courts; but the Farrington Case is directly conclusive of, this ,iew, and we are not at liberty to follow the later case, even 'if it could be so taken. If the snpreme court itself will not acknowledge any overruling of a former. case of its own, we bestititte .to hold it· overruled by implication. , In 'conClusion, I repeat that the language of this charter "an'l:tlih'11altax of one half of 1 per cent. on each share of capital 'sttiek"ls so ambiguous that it may descriptively designate a tax on
Of the United States as an adjudication of the question, and hence
that they 'give t'Oo much force to the ruling of the supreme court
HAMILTON V. BROWN.
753
either the corporate property in the capital stock, or the individual property in the shares, and that the supreme court of the state and the United States have disagreed on this point; but, in my judg· ment, whether it be one or the other, the exemption which is given by the words, "which shall be in lieu of all other taxes," is a protection of both the corporate property and the individual property in the capital stock and its shares, but that neither court has de dded this point explicitly since the supreme court of the United States determined it to be a tax on the individual property of the shareholder, although the supreme court of the state has recognhed this full scope of the exemption since that time. The same ruling we have just now made a,pplies to the privilege tax as well as to that upon the capital stock, and for the same reason. The bank has largely increased, by authority of law, its capital stock since the original charter, and there is another contention 1hat, since the cons.titution of 1870 forbids these special privileges, the exemption must be limited to the amount of the old stock, and cannot include the new. It is manifest, in the view we have taken, that unless the charter restricts the power to increase either by fixing it definitely or by words that forbid any further additions to the capital stock, the charter itself would confer the right of increase. This charter has no limitation as to that right, and the privilege is undeniable, perhaps, under the charter. But the words of the exemption are broad, and what we have said of its universalitr includes any authorized increase of capital stock as well as the rest. The charter has not a word to indicate any such restriction of the exemption, nor anything from which it may be implied, and it seems to me that the constitution cannot affect its force any than the statute could. If the constitution had expressly ordained that the exemption of the bank should be limited to the amount of the orif:,rinal sublmription, or to that which existed when the constitution was passed, unless the charter itself had contained some restriction of the amount of capital stock authorized, it would have been invalid as impairing the ol"ation of the contract if the right of increase be a charter privilege, u" we hold it to be. Demurrer sustained, and bill dismissed. So ordered.
HAMILTON et aI. v. BROWN et at (Circuit COl1rt of AplJcals, Fifth Cireuit. Ko.73. January 9, 1893.)
1.
WRIT OF ERROR FROM CIRCUIT COURT OF ApPEALs-TIME OF TAKING.
A writ of error from the circuit court of appeals to a circuit court must be dismissed, unless sued out within six months from the entry of the judgment sought to be reviewed, as required by section 11 of the judiciary act of March 3, 1891.
CIRCUIT OOURT OF ApPEALS-JURISDICTION-CONSTITUTIONAL QUESTION.
Under sections 5 and 6 of the judiciary. act of March 3, 1891, the circuit court of appeals has no jurisdiction to review a decision which involves
v.53F.no.8-48