[Nos. 635, 634.] pairing the obligations of such contract. It party, was a privy because of certain agree. ments alleged to have been made between the city of Louisville and the bank at the time the suit was brought by the Third National Bank. In consequence of this fact it was alleged that the existence of the contract between the Citizens' National Bank and the [437]state had been *judicially determined, and the decree to that effect was pleaded as res judicata. In addition the taxes in question were alleged to be illegal because imposed upon the franchise and property of the bank, and because they were discriminatory, and they were averred besides to be illegal under the state Constitution and laws. The lower court held that the plea of res judicata established an irrevocable contract as to the taxes for years prior to the date of the extended charter, but that the thing adjudged did not conclude that there was an irrevocable contract as to taxes imposed after the date of the extension of the charter, because such taxes were not and could not have been in controversy in the cause in which the prior judgment had been rendered. Upon these grounds, in the second case, that is, No. 405, it decided that the complainant was without right to relief, and in the first case, No. 365, that it was entitled to the relief sought. Decided May 15, 1899. APPEALS from decrees of the Circuit Court of the United States for the District of Kentucky in two suits in equity brought by the First National Bank of Louisville to enjoin the assessment and collection of certain taxes, deciding that the taxes, although imposed on the franchise or intangible property of the bank, were the equivalent of a tax on the shares of stock in the names of the shareholders, and hence did not violate the act of Congress. Decrees reversed, and the cases remanded with directions for further proceedings. for S. for See same case below, 88 Fed. Rep. 409. Messrs. Henry Lane Stone and William *Mr. Justice White delivered the opinion[438] of the court: In these two cases the appellant filed its bills to enjoin the assessment and collection of certain taxes. The grounds upon which the prayer for relief in each case was rested were substantially as follows: These two cases are in all material respects First, that the taxes in question were identical with the cases of The Third Nation- levied upon the franchise and property of al Bank of Louisville v. Samuel H. Stone, the bank, and not upon the shares of stock Auditor of Public Accounts, et al. [174 U. S. in the names of the shareholders, and were 432, ante, 1035], and City of Louisville v. therefore illegal; second, that the taxes The Third National Bank [174 U. S. 435, were discriminatory, because, as a conseante, 1037], which have just been decided. For quence of the exemption of certain state the reasons given in the decisions rendered banks from taxation by special contract, the in those cases it is ordered that the decree property of the bank was taxed at a higher below rendered in No. 365 be, and the same is rate than other moneyed capital, in violahereby, affirmed, and that rendered in No. 405 tion of the act of Congress; and, third, that be, and the same is hereby, reversed, and that the taxes were illegal because not in conthe last mentioned case (viz., No. 405) be re-formity to the state Constitution and certain manded to the court below with directions provisions of the state laws. to take such further proceedings as may be in conformity to this opinion, and it is so or dered. The court below decided that, although the taxes were imposed or contemplated to be 439] assessed on the franchise or intangible property of the bank, nevertheless they were the [438]FIRST NATIONAL BANK OF LOUIS- equivalent of a tax on the shares of stock in VILLE, Appt., V. CITY OF LOUISVILLE. FIRST NATIONAL BANK OF LOUIS- บ. SAMUEL H. STONE, et al. (See S. C. Reporter's ed. 438, 439.) Tax on franchise or intangible property of national bank. the names of the shareholders, and hence did not violate the act of Congress. It moreover held that the remaining grounds were without merit. 88 Fed. Rep. 409. The law under which the taxes in question were levied is the same one which was considered in Owensboro National Bank, Plaintiff in Error, v. The City of Owensboro and A. M. C. Simmons, 173 U. S. 664 [ante, 850]. The theory of equivalency upon which the court below decreed the taxes to be legal was in that case fully examined, and held to be unsound. It follows that the decrees bein-low rendered in these cases were erroneous. 1-It is therefore ordered that said decrees be reversed, and the cases be remanded to the lower court with directions for such further proceedings as may be in conformity with this opinion. And it is so ordered. State taxes imposed on the franchises or had been complied with, the charter existence was extended for nine years; that by an act of February 15, 1858, duly accepted by the bank, its charter privileges were continued in full force for twenty years from the 1st of January, 1863; and finally that by an act of May 1, 1880, which the bank had duly accepted, its charter was extended for twenty years from January 1, 1883. It was alleged that by the sixth section of the original charter it was provided, among other things, that the cashier of the bank "shall, on the first day of July, 1834, and on the same day annually thereafter, pay unto the treasurer of the state twenty-five cents on each share held by the stockholders in said bank, which shall be in full of all tax or bonus on said bank; provided, that the legislature may increase or reduce the same; but at no time shall the tax imposed on said stock exceed fifty cents on each share held in said bank." The tax, the bills admitted, by an act approved February 12, 1836, had been increased to fifty cents a share. Argued February 28, March 2, 3, 1899. De- 1888, it was held that similar language to A cided May 15, 1899. PPEALS from decrees of the Circuit Court of the United States for the district of Kentucky in an action brought by the Bank of Louisville against the city of Louisville, and in another action brought by the Bank of Louisville against Samuel H. Stone, auditor, to enjoin the collection of certain taxes, deciding that the plaintiff, by virtue of an agreement referred to in the opinion, was a privy to a decree rendered by the Court of Appeals of Kentucky in a test case, and that a plea of res judicata was well takReversed, and cases remanded, with di en. rections to dismiss the suits. *In general language, it was averred that[441} charter was enacted or the extension was Statement by Mr. Justice White: [440] *The Bank of Louisville in these two cases filed its bills to enjoin the collection of certain taxes. The matters to which the bill In both bills it was averred at length that in the first case (No. 359) related were cer- the general assembly of the state of Kentain franchise taxes for the years 1893 and tucky had enacted the statute known as the 1894, the assessment and certification of val- Hewitt act, and that the bank had accepted uation whereof had been made prior to the its provisions. This act and its acceptance, filing of the bill. Those covered by the bill it was asserted, constituted an irrevocable in the second case (No. 358) were, general-contract, protected from impairment by the ly speaking, like those embraced in the preceding suit, but were for different years that is, for 1895, 1896, and 1897, and by an amendment the taxes of 1898 were also included. These taxes, however, had not been certified at the time the bill was filed, and the relief contemplated was the enjoining of the valuation of the franchise and the certification of the same for the purposes of taxation, as well as the subsequent collection of the taxes to be levied thereon. Omitting reference to the averments distinctly relating to the jurisdiction in equity, the case made by the bills was this: It was alleged that the bank was chartered on February 2, 1833, to endure until January 1, 1853; that pursuant to an act approved February 16, 1838, the provisions of which Constitution of the United States, thus se- question; that in compliance with this agreement a suit was brought by the Bank of Kentucky, which like the complainant had been originally chartered before 1856, in which (442]last-named "year an act had been passed in Kentucky reserving the right to repeal, alter, or amend all charters subsequently granted, subject to certain exceptions provided expressly in the act of 1856, and that this suit had culminated in a final decree by the court of appeals of Kentucky holding that the Hewitt act was an irrevocable contract, and that the banks which had accepted it were not liable to any other taxation than that therein specified. Averring that the suit brought by the Bank of Kentucky was the test suit contemplated by the agreement, as determining the liability of the complainant to other taxation than that imposed by the Hewitt act, the decree in the suit of the Bank of Kentucky was pleaded as res judicata. In addition, the bills asserted that if the Hewitt act was held by this court not to constitute an irrevocable contract, then the complainant was entitled to be restored to its rights under its charter as extended, and was consequently not subject to the particular taxes, the assessing and collection of which it was the object of the bills to pre vent. The court below held that the complainant, by virtue of the agreement referred to, was a privy to the decree rendered by the court of appeals of the state of Kentucky in favor of the Bank of Kentucky in the test case in question, and hence decided that the plea of res judicata was well taken. From its decrees enforcing these conclusions the appeals in both these cases were taken. Messrs. Henry Lane Stone and William 8. Taylor, Attorney General of Kentucky, for appellants in both cases. tiff in Error, v. The City of Owensboro and A. M. C. Simmons [173 U. S. 636, ante, 840]. 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, whilst 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 legis lative 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 fifty 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 fifty cents on each share, nevertheless the case is covered by the decision in the Citizens' Savings Bank of Owensboro, 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, there-[444] fore, 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 The unsoundness of the plea of the thing which the right can be derived. And yet to adjudged, upon which the lower court rested such conclusion does the reasoning necessariits decision, results from the opinion an- ly conduce which asserts that a repealable nounced in Stone v. The Bank of Commerce charter gave rise to an irrepealable contract [174 U. S. 112, ante, 1028], and City of Louis- right. Granting that the extending act in ville v. The Same [174 U. S. 428, ante, substance amounted to a re-enactment in so 1443]1034]. It was there held that the agreement many words of the provision found in the of the commissioners of the sinking fund of original charter, such provision as re-enacted the city of Louisville and the attorney of the became but a part of a whole contract which city with certain banks, trust companies, was subject to repeal. The right to repeal, etc., including the complainant bank, that embracing the whole, covered also necessarily the rights of those institutions should abide the provisions found in the whole. The lim the result of test suits to be brought, was de-itation of taxation in the original charter hors 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. Msssrs. Alexander Pope Humphrey and George M. Davie for appellee in both cases. 442] *Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: 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 want of foundation for the assertion the will of the legislature, and the power to that the Hewitt act created an irrevocable terminate the charter involved the correlacontract between the complainants and the tive right of ending those stipulations which city is also disposed of by the decision in The were only to last during the charter. The Citizens' Savings Bank of Owensboro, Plain-‘argument that, although the power to repeal 3. 4. the charter was reserved, the power to alter | 2. 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' Savings Bank 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 [445] 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 be 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. WILLIAM STEPHENS, Mattie J. Ayers, v. CHEROKEE NATION. CHOCTAW NATION, Appt., บ. F. R. ROBINSON. JENNIE JOHNSON et al., Appts.. บ. CREEK NATION. CHICKASAW NATION, Appt., v. RICHARD C. WIGGS et al. (See S. C. Reporter's ed. 445-492.) 1. Congress may provide for the review of the action of commissions and boards created by it exercising only quasi judicial powers, and can do so in respect to tribal authorities. 174 U. S. U. S., Book 43. 66 5. The act of July 1, 1898, in extending the remedy of appeal to this court from the United States court in the Indian Territory, is not invalid because retrospective, nor an inva sion of the judicial domain, nor destructive of vested rights, although the decrees of the latter court were made final by statute, the expectation of a share in the public lands and money of the tribe not being such an absolute right of property as to prevent their review by a higher court under subsequent legislation. The appeal thus granted to this court extends only to the constitutionality or validity of the legislation affecting citizenship or the allotment of lands in the Indian Territory. An act of Congress is not unconstitutional because it supersedes a prior treaty. The acts of Congress in respect to the determination of citizenship in Indian tribes are not unconstitutional as impairing or destroying vested rights, as the lands and Loneys of these tribes are public, and are not held in individual ownership. [Nos. 423, 453, 461, 496.] Argued and Submitted February 23, 24, 27, March 6, 7, 8, 1899. Decided May 15, 1899. APPEALS from judgments of the United States court in the Indian territory adjudicating the rights of the several applicants named in the proceedings in the aboveentitled actions to become and to be enrolled as citizens of the several tribes of Indians therein named. Affirmed. Statement by Mr. Chief Justice Fuller: *By the sixteenth section of the Indian ap-[446] propriation act of March 30, 1893 (27 Stat. at L. 612, 645, chap. 209), the President was authorized to appoint, by and with the advice and consent of the Senate, three commissioners "to enter into negotiations with the Cherokee Nation, Choctaw Nation, Chickasaw Nation, the Muscogee (or Creek) Nation, the Seminole Nation, for the purpose of the extinguishment of the national or tribal title to any lands within that territory now held by any and all of such nations or tribes, either by cession of the same or some part thereof to the United States, or by the allotment and division of the same in severalty among the Indians of such nations or tribes, respectively, as may be entitled to the same, or by such other method as may be agreed upon between the several nations and tribes aforesaid, or each of them, with the United States, with a view to such an adjustment, upon the basis of justice and equity, as may, with the consent of such nations or tribes of Indians, so far as may be necessary, be requisite and suitable to enable the ultimate creation of a state or states of the Union which shall embrace the lands within said Indian territory." The commission was appointed and entered on the discharge of its duties, and under the 1895 (28 Stat. at L. 939, chap. 189). two adsundry civil appropriation act of March 2, ditional members *were appointed. It is com-[447] monly styled the "Dawes Commission." 1041 The Senate on March 29, 1894, adopted the following resolution: stricted self-government and full jurisdic tion over persons and property within their "Resolved, That the committee on the respective limits, and that we would protect Five Civilized Tribes of Indians, or any sub- them against intrusion of white people, and committee thereof appointed by its chair- that we would not incorporate them in a poman, is hereby instructed to inquire into the litical organization without their consent. present condition of the Five Civilized Tribes Every treaty, from 1828 to and including the of Indians, and of the white citizens dwell- treaty of 1866, was based on this idea of exing among them, and the legislation required clusion of the Indians from the whites and and appropriate to meet the needs and wel- nonparticipation by the whites in their pofare of such Indians; and for that purpose litical and industrial affairs. We made it to visit Indian territory, to take testimony, possible for the Indians of that section of have power to send for persons and papers, country to maintain their tribal relations to administer oaths, and examine witnesses and their Indian polity, laws, and civilizaunder oaths; and shall report the result of tion if they wished so to do. And, if now, such inquiry, with recommendations for leg- the isolation and exclusiveness sought to be islation; the actual expenses of such inquiry given to them by our solemn treaties is deto be paid on approval of the chairman out stroyed, and they are overrun by a popula of the contingent fund of the Senate." tion of strangers five times in number to The committee visited the Indian territory their own, it is not the fault of the governaccordingly, and made a report May 7, 1894. ment of the United States, but comes from Sen. Rep. No. 377, 53d Cong. 2d Sess. In their own acts in admitting whites to citithis report it was stated: "The Indian ter- zenship under their laws and by inviting ritory contains an area of 19,785,781 acres, white people to come within their jurisdicand is occupied by the Five Civilized Tribes of tion, to become traders, farmers, and to folIndians, consisting of the Cherokees, Creeks, low professional pursuits. Choctaws, Chickasaws, and Seminoles. Each tribe occupies a separate and distinct part, except that the Choctaws and Chickasaws, though occupying separately, have a common ownership of that part known as the Choctaw and Chickasaw territory, with rights and interests as recognized in their treaties as follows: The Choctaws, three fourths, and the Chickasaws, one fourth. The character of their title, the area of each tribe, together with the population and an epitome of the legislation concerning these Indians during the last sixtyfive years, is shown by the report of the committee on Indian affairs, submitted to the Senate on the 26th day of July, 1892" (Sen. Rep. No. 1079, 52d Cong. 1st Sess.), and so much of that report as touched on those points was set forth. The committee then gave the population from the census of 1890 as follows: Indi[448]ans, 50,055; colored Indians, colored claimants to Indian citizenship, freedmen, and colored, wholly or in part, 18,636; Chinese, 13; whites, 109,393; whites and colored on military reservation, 804; population of Quapaw Agency, 1,281: or a total of 180,182; and said: "Since the taking of the census of 1890 there has been a large accession to the population of whites who make no claim to Indian citizenship, and who are residing in the Indian territory with the approval of the Indian authorities. It is difficult to say what the number of this class is, but it can not be less than 250,000, and it is estimated by many well-informed men as much larger than that number and as high as 300,000." After describing the towns and settlements peopled by whites, and the character of the Indian territory, its climate, soil, and natural wealth, the report continued: "It must be assumed in considering this question that the Indians themselves have determined to abandon the policy of exclu-[449] siveness, and to freely admit white people within the Indian territory, for it cannot be possible that they can intend to demand the removal of the white people either by the government of the United States or their own. They must have realized that when their policy of maintaining an Indian community isolated from the whites was abandoned for a time, it was abandoned forever." The committee next referred to the class of white people denominated by the Indians as intruders, in respect of whom there had been but little complaint in other sections of the Indian territory than that of the Cherokee Nation; and went on to say: "The Indians of the Indian territory maintain an Indian government, have legislative bodies and executive and judicial officers. All controversies between Indian citizens are disposed of in these local courts; controversies between white people and Indians cannot be settled in these courts, but must be taken into the court of the territory established by the United States. This court was established in accordance with the provision of the treaties with the Choctaws, Chickasaws, Creeks, and Seminoles, but no such provision seems to have been made in the treaty with the Cherokees. We think it must be admitted that there is just cause of complaint among the Indians as to the character of their own courts, and a good deal of dissatisfaction has been expressed as to the course of procedure and final determination of matters submitted to these courts. The determinations of these courts are final, and, so far, the government of the United States has not directly interfered with their determinations. Perhaps we should except the "This section of country was set apart to recent case where the Secretary of the Inthe Indian with the avowed purpose of main-terior thought it his duty to intervene to taining an Indian community beyond and prevent the execution of a number of Chocaway from the influence of white people. We taw citizens." stipulated that they should have unre The report then recapitulated the legisla |