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holding the taxes to be valid because the property or franchise of the bank, on which the tax was levied, was assessed at its full value, whilst other taxpayers in the state were assessed at not more than seventy per cent of the value of their property, thus creating an inequality of taxation, equivalent [643]to a denial of the equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States.

We at the outset dispose of the eighth and ninth assignments just referred to. The questions which they raise are not properly here for consideration. They are not presented by the record nor do they result by necessary intendment therefrom. Indeed, they were excluded from the cause, as Federal questions, by the implications resulting from the pleadings. Whilst it was charged that the penalties were unlawful, there was no allegation that their enforcement would violate any Federal right. On the contrary, the petition and the amendments to it clearly placed the objection to the penalties on the ground that their enforcement would violate the state law and the state Constitution. The distinction between the state right thus asserted and the Federal right was clearly made when the only Federal issue which was relied on, the impairment of the obligation of the contract, was alleged, for then it was plainly stated to depend upon a violation of the Constitution of the United States. Even after the opinion of the court of appeals was announced there was not a suggestion made in the petition for rehearing that a single Federal question was considered by the parties as arising except the one which the court had fully decided, and as to which it was expressly declared a rehearing was not prayed. The assignments of error in question therefore simply attempt to inject into the record a Federal question not lawfully therein found, never called to the attention of the state court by pleading or otherwise, and not necessarily arising for consideration in reviewing the judgment of the state court to which the writ of error is directed. But after a decision by the court of last resort of a state the attempt to raise a Federal question for the first time is too late. Miller v. Texas, 153 U. S. 535 [38: 812]; Loeber v. Schroeder, 149 U. S. 580 [37: 856]. It is also clear that where it is disclosed that an asserted Federal question was not presented to the state court or called in any way to its attention, and where it is not necessarily involved in the decision of the state court, such question will not be considered by this court. Louisville & N. R. Co. v. Louisville, 166 U. S. 709 [41: 1173]; Oxley Stave Co. v. Butler Coun[644]ty, 166 U. S. 648 [41: 1149]; *Kipley v. Illinois, 170 U. S. 182 [42: 998]; Green Bay & Miss. Canal Co. v. Patten Paper Co. 172 U. S. 58 [ante, 364]; Capital Bank v. Cadiz Bank, 172 U. S. 425 [ante, 502]. We therefore decline to review the errors alleged in the eighth and ninth assignments, and passing their consideration are brought to the real Federal controversy which arises on the record that is the question of irrevocable contract.

The claim is that the Hewitt act and its

acceptance by the banks constituted an irrevocable contract, although at the time that act was passed there was a general statute of Kentucky reserving the right to repeal, alter, or amend "all charters or grants of or to corporations or amendments thereof and all statutes" passed subsequent thereto, and although this general statute was expressly made a part of the Hewitt act by the sixth section thereof. The wording of the sixth section accomplishing this result is: "This act shall be subject to the provisions of section 8, chapter 68, of the General Statutes," the provision thus referred to being the general law of 1856, reserving the power to repeal, alter, or amend as above. When the proposition relied upon is plainly stated and its import clearly apprehended, no reasoning is required to demonstrate its unsoundness. In effect, it is that the contract was not subject to repeal, although the contract itself in express terms declares that it should be so subject at the will of the legislative authority. The elementary rule is that if at the time a corporation is chartered and given either a commutation or exemption from taxation, there exists a general statute reserving the legislative power to repeal, alter, or amend, the exemption or commutation from taxation may be revoked without impairing the obligations of the contract, because the reserved power deprives the contract of its irrevocable character and submits it to legislative control. The foundation of this rule is that a general statute reserving the power to repeal, alter, or amend is by implication read into a subsequent charter and prevents it from becoming irrevocable. In a case like the one now considered where not only was there a general statute reserving the power, but where such general law was made by unambiguous language one of the provisions of[645] the contract, of course the legislative power to repeal or amend is more patently obvious to the extent that that which is plainly expressed is always more evident than that which is to be deduced by a legal implication. In Tomlinson v. Jessup, 15 Wall, 454 [21: 204], in speaking of a contract exemption from taxation arising from a charter, and of the right to repeal the same springing from a general law, reserving the power to alter or amend, which existed at the time the charter was conferred, the court, through Mr. Justice Field, said (p. 459 [21: 206]):

"Immunity from taxation, constituting in these cases a part of the contract with the government, is, by the reservation of power such as is contained in the law of 1841, subject to be revoked equally with any other provision of the charter whenever the legislature may deem it expedient for the public interests that the revocation shall be made. The reservation affects the entire relation between the state and the corporation and places under legislative control all rights, privileges, and immunities derived by its charter directly from the state."

In Maine C. Railroad Co. v. Maine, 96 U. S. 499, 510 [24: 836, 841], the question was as to the liability to taxation of a consolidated corporation which came into existence while a general statute was in force, provid

ing that any act of incorporation subse- | had no purpose at the time the act of 1886[647] quently passed might be amended, altered, or was passed to withdraw the exemption from repealed at the pleasure of the legislature, in taxation; not that the power reserved would the same manner as if an express provision never be exerted, so far as taxation was conto that effect were therein contained, unless cerned, if in the judgment of the legislature there was in the act of incorporation an ex- the public interest required that to be done. press limitation or provision to the contrary. The power expressly reserved to amend or The court said: "There was no limitation in repeal a statute should not be frittered away the act authorizing the consolidation, which by any construction of subsequent statutes was the act of incorporation of the new com- based upon mere inference. Before a statpany, upon the legislative power of amend- ute-particularly one relating to taxationment and alteration, and, of course, there should be held to be irrepealable, or not subwas none upon the extent or mode of taxa- ject to amendment, an intent not to repeal tion which might be subsequently adopted. or amend must be so directly and unmisBy the reservation in the law of 1831, which takably expressed as to leave no room for is to be considered as if embodied in that doubt; otherwise, the intent is not plainly act, the state retained the power to alter i | expressed. It is not so expressed when the in all particulars constituting the grant to existence of the intent arises only from inferthe new company formed under it, of corpo- ence or conjecture." rate rights, privileges, and immunities. The [646]existence of the corporation and its franchises and immunities, derived directly from the state, were thus under its control."

he conclusions stated in these cases are but the expression of many other adjudged causes. Atlantic & G. Railroad Company v. Georgia, 28 U. S. 359, 365 [25: 185, 188]; lioge v. Richmond & D. Railroad Company, 99 U. S. 348, 353 [25: 303, 304]; Sinking Fund Cases, 99 U. S. 700, 720 [25: 496, 502]; Greenwood v. l'nion Freight R. Company, 105 U. S. 13, 21 [26: 961, 965]; Close v. Glenwood Cemetery, 107 U. S. 466, 476 [27: 408, 412]; Louisville Gas Company v. Citizens' Gas Company, 115 U. S. 683, 696 129: 510, 515]; Gibbs Consolidated Gas Company, 130 U. S. 396, 408 [32: 979, 984]; Sioux City Street Railway Co. v. Sioux City, 138 U. S. 98, 108 [34: 898, No02].

In Louisville Water Company v. Clark, 143 U. S. 1, 12 [36: 55, 58], the corporation claimed that it had acquired under an act of the legislature of the state of Kentucky an exemption from taxation which could not be withdrawn by subsequent legislation without its consent. As the act granting the exemption was passed subsequent to the adoption by the general assembly of Kentucky of the act of 1856 (the general law which was in being when the Hewitt act was adopted, and which was expressly made a part of the alleged contract), it was held that the ex- Undoubtedly in the Bank Tax Cases, 97 emption from taxation could be repealed Ky. 597, the court of appeals of Kentucky without impairing the obligation of the con- decided that the Hewitt law created an irtract. The court, through Mr. Justice Har- revocable contract, and that the general aslan, said: "In short, the immunity from sembly of that state could not repeal, alter, taxation granted by the act of 1882, was ac- or amend it without impairing the obliga companied with the condition-expressed in tions of the contract, despite the xistence the act of 1856 and made part of every sub- of the act of 1856, and despite the ircumsequent statute, when not otherwise express-stance that that act was in express te ms inly declared that, by amendment or repeal of the former act, such immunity could be withdrawn. Any other interpretation of the act of 1856 would render it inoperative for the purposes for which, manifestly, it was enacted."

Again, in the City of Covington v. Kentucky, 173 U. S. 231[ante, 679], considering the same subject in a case which involved the application of the power reserved by the state of Kentucky, in the act of 1856, to repeal, alter, or amend all grants or contracts made subsequent to that act, the court said, through Mr. Justice Harlan:

"There was in that act (that is, the one making the grant) no 'plainly expressed' intent never to amend or repeal it. It is true that the legislature said that the reservoirs, machinery, pipes, mains, and appurtenances, with the land upon which they were situated, should be forever exempt from state, county, and city taxes. But such a provision falls short of the plain expression by the legislature that at no time would it exercise the reserved power of amending or repealing the act under which the property was acquired. The utmost that can be said is that it may be inferred from the terms in which the exemption was declared that the legislature

corporated in and made part of the ewitt
law. But the reasoning by which the urt
reached this conclusion is directly in contict
with the settled line of decisions of is
court just referred to, and the case has b
specifically overruled by the opinion a
nounced by the Kentucky court of appea
in the cause now under review. It is not
and cannot be asserted that the Bank Tax
Cases were decided before the contract
evidenced by the Hewitt law was accepted,
hence it cannot be urged that such decision [6
entered into the consideration of the parties
in forming the contract. It is not pretend-
ed that the bank, whose rights are here con-
tested, was either a party or privy to the
Bunk Tax Cases. And even if such were the
case, we must not be understood as intimat-
ing that the construction of the Hewitt act,
which was announced in the Bank Tax Cases,
would be binding in controversies as to other
taxes between those who were parties or
privies to those cases. On this subject we
expressly abstain from now intimating an
opinion. In determining whether, in any
given case, a contract exists, protected from
impairment by the Constitution of the Unit-
ed States, this court forms an independent
judgment. As we conclude that the decision

in the Bank Tax Cases above cited, upon the question of contract, was not only in conflict with the settled adjudications of this court, but also inconsistent with sound principle, we will not adopt its conclusions.

of thought involved in the contention. It was upon the distinction existing between the implication of the power to amend, alter, or repeal, and its express statement in a contract, that the case of New Jersey ▼. Yard, 95 Ú. S. 104 [24: 352], proceeded, and that case is therefore wholly inapposite to the controversy here presented.

It was earnestly argued that conceding the general rule to be that a reserved power to repeal, alter, or amend enters into and forms a part of all subsequent legislative enact- The argument predicated on what is said ments, nevertheless this case should not be to be the peculiar language of the act of controlled thereby, first, because of peculiar 1856 is this: That act, whilst reserving the conditions which it is asserted existed at the right to amend or repeal "all charters and time the Hewitt law was enacted, and, sec- grants of or to corporations, or amendments ond, because of the terms of the act of 1856 thereof, and all other statutes," accompanied by which the power to repeal, alter, or amend this reserved right with the restriction that was reserved. The conditions relied upon it should not be exercised where "a contrary[650] and stated in argument as removing this intent be therein plainly expressed (in the case from the operation of the general prin- act creating the right), provided, that whilst ciple are as follows: When the Hewitt law privileges and franchises so granted may be was enacted there existed much uncertainty changed or repealed, no amendment or reas to the power of the state of Kentucky to peal shall impair other rights previously tax banks within its borders. There were vested." The bank, it is asserted, had under banks claiming to be only subject to limited its charter a right to be taxed only to a taxation because of charters enacted prior to limited amount; and this, it is claimed, conthe act of 1856. Again, there were other stituted a contract which was surrendered banks asserting a like right because of char- on the theory that the Hewitt law was irrevters adopted since 1856, but which, it was ocable, and if it were not so, then there was said, were not dominated by that act. In no surrender of the right under the charter, consequence of these pretensions on behalf of and therefore it now exists. This contenstate banks which were then undetermined, tion, however, but states in another form the the national banks, organized in the state, claims which we have already disposed of. were insisting that they were subject only The charter was conferred on the bank subto the rate of taxation to which the most sequent to the act of 1856, and the limit of favored state bank was liable, because it was taxation stated in the charter was therefore urged that to tax such banks at a higher rate subordinated to that act and subject to the [649] would be a discrimination in favor of these exercise of the power of amendment or rebanks and against the national banks, which peal. True it is in Franklin County Court was forbidden by the law of the United v. Deposit Bank of Frankfort (June, 1888, States. To add to this complexity, it is said, 87 Ky. 382) the court of appeals of Kenthe varying rate of local taxation was oper- tucky decided that a grant, after the act of ating inequality among banks, and driving 1856, of an exemption from taxation for a banking capital from the localities where the designated time, signified such a plain manitax was highest, thus producing a public festation of the will of the legislature that detriment. To assuage these difficulties and the grant should not be subject to alteration conflicts, to secure as to all banks, state and or amendment, that the right so conferred national, a uniform and higher rate of state was therefore not submitted to the parataxation than that existing as to other prop-mount power of repeal or amendment reerty, it is asserted that the Hewitt law tendered to all banks a contract giving freedom from local burdens if a higher state tax was voluntarily paid. This must have been contemplated to be irrevocable, for otherwise the very object of the law could not have been accomplished. Conceding, arguendo, to the fullest degree the situation to have been as described, the conclusion sought to be deduced from it is wholly unsound, since it disregards the fact that the contract proposed and which was actually entered into contained an express reservation of the right to repeal, alter, or amend. Indeed, the contention, when analyzed, amounts to this, that the plain letter of the contract should be disregarded upon the theory that the parties intended to make a different contract from that which they actually entered into. The distinction between the potentiality of a particular state of facts, for the purpose of preventing the implication of the reserved power to alter, amend, or repeal, and the impotency of such facts to overcome the express and unambiguous provisions of the contract, at once demonstrates the confusion

served by the act of 1856. This decision,
however, was rendered long after the enact-
ment of the charter of the bank, whose
rights are now before us, and has been ex-
pressly overruled by the court of appeals in
the case which we are reviewing. The doc-
rine settled by the adjudications of this
court is this: That the mere grant for a
designated time of an immunity from taxa-
tion does not take it out of the rule subject-
ing such grant to the general law retaining
the power to amend or repeal, unless the
granting act contain an express provision to
that effect. The doctrine on which the argu-
ment depends is that any grant for a desig
nated time is by implication taken out of
the general rule, even although there be no
express provision to that end in the act mak-
ing the grant.

The assertion that wherever it is stated in
a legislative grant or charter that it is to[651]
last for a given period of time, therefore such
provision is a plain manifestation of the in-
tention of the legislature that the grant or
charter shall not be repealed or amended for
the time for which it was declared that it

should exist, is fallacious, since it overlooks | be taken away by the repealing act, therefore the consideration that the limit of time fixed the exemption from taxation could not be for the duration of the charter or grant, like withdrawn; but this is a mere form of reevery other provision therein, is qualified by stating the arguments already examined, and the reserved power to alter, amend, or re- is tantamount to the reassertion of the peal. It hence results that where in a char- proposition that the limited taxation estabter or grant enacted, when there is a general | lished by the Hewitt act, or the one constatute reserving the power to repeal, alter, ferred by the charter, could not be taken or amend, a time is stated, the granting act away at all. Referring to this subject, this must be read just as if it declared that the court in Greenwood v. Union Freight R. Comcharter or grant should exist for a desig-pany (ubi supra), said (p. 17 [26: 964]): nated time, unless sooner repealed, altered, "Such an act may be amended; that is, it or amended. Indeed, reduced to its final analy. may be changed by additions to its terms or sis, the argument that because in a grant by qualifications of the same. It may be alor charter a time is designated for its dura- tered by the same power, and it may be retion, it cannot, therefore, until the expira- pealed. What is it that may be repealed! tion of such time, be repealed, altered, or It is the act of incorporation. It is this amended, is equivalent to saying that the re-organic law on which the corporate existence served power cannot be exercised in any case of the company depends which may be reof contract. For, if every case of charter or pealed, so that it shall cease to be a law; grant where a time is fixed, either expressly or the legislature may adopt the milder or by necessary construction in the charter course of amending the law in matters which or grant, is taken out of the reach of the need amendment, or altering it when it needs reserved power, it would follow that only substantial change. All this may be done at those charters or grants which were deter- the pleasure of the legislature. That body minable at will would come under the con- need give no reason for its action in the mattrol of the power reserved. But to say this ter. The validity of such action does not simply amounts to declaring that the re- depend on the necessity for it or on the served power applies and can be enforced soundness of the reasons which prompted it." only in those cases where it would be entire- In considering what constituted vested[653] ly unnecessary or useless to do so. rights, the court clearly pointed out that rights of this character did not embrace mere privileges or franchises conferred by the granting act, and such rights obviously came within the power to repeal and amend, and were not within the category of those taken out of the reach of such power.

In the Greenwood Case the reserved power was, by the general statute, authorized to be exercised "at the pleasure of the legis lature." But this qualification was decided in Hamilton Gas Light & Coke Company v. Hamilton City, 146 U. S. 271 [36: 969], to be no more comprehensive than the power which would be implied from a general law simply reserving the right to repeal, alter, or amend.

The source of the reservation, by many of the states in general laws, of the power to amend, alter, or repeal, was fully reviewed in Greenwood v. Union Freight R. Company, 105 U. S. 13 [26: 961], where it was shown that such legislation had its origin in the purpose to provide for a case exactly like the one before us. Referring to the decision in Dartmouth College v. Woodward, 4 Wheat. 518 [4: 629], the court through Mr. Justice Miller, said (p. 20 [26: 965]): "It was, no doubt, with a view to suggest a method by which the state legislatures could retain in a large measure this important power" (the power to repeal or amend), "without violating the Federal Constitution, that Mr. Justice Story, in his concurring opinion in the Nor is there force in the claim that before [652]Dartmouth College *Case, suggested that the adoption of the charter in question the when the legislature was enacting a charter courts of the state of Kentucky had settled for a corporation, a provision in the statute the law to be that vested rights would inreserving to the legislature the right to clude a mere privilege conferred by the grantamend or repeal it must be held to be a part ing act, and which was therefore necessarily of the contract itself, and the subsequent ex- subjected to the power to repeal or amend if ercise of the right would be in accordance such power is to have any application at all. with the contract, and could not, therefore, This claim is based on what is assumed to impair its obligation. And he cites with ap- have been decided in Kentucky in Commisproval the observations we have already sioners of the Sinking Fund v. Green & Barquoted from the case of Wales v. Stetson, 2 ren River Navigation Company, 79 Ky. 73, Mass. 143 [3 Am. Dec. 39]. It would seem 75, 83. The case has not the import attrib that the states were not slow to avail them-uted to it. The scope of the question, in selves of this suggestion. As, then, that case adjudged, was considered and comthe limitation in the charter of the bank mented on by this court in Louisville Water was subject to repeal by the legislature, it Company v. Clark, supra, where it was said cannot be claimed that such exemption was (p. 16 [36:59]): vested in the bank, and was therefore subject to be reinstated if the Hewitt act was not an irrevocable contract, even if the correctness of the claim that this result would legally arise, if the charter had been an irrevocable contract, be arguendo conceded.

It is urged that as the act of 1856 provides that other rights previously vested could not

"But there is nothing in that case inconsistent with the views we have expressed. It was there decided that the legislature could not consistently with the Constitution, or with the above statute of 1856, take from the Green & Barren River Navigation Company, without making compensation therefor. the right it acquired under a contract

facts, indicates at least that the question is not free from a reasonable doubt. Indeed the judiciary of Kentucky appears to be about equally divided upon the subject.

with the state, concluded in 1868, to take, | opposite conclusion upon the same state of for a term of years, tolls from vessels navigating Green and Barren rivers, in consideration of its agreement, which had been fully performed, to maintain and keep in re pair, at its own expense, such line of navigation. The case before us presents no such features. As already indicated, in losing an exemption from taxation the water company [654]*1egained its rights to make such charges for water, furnished for fire protection, as it could rightfully have done before the act of 1882 was passed, and whilst its property was subject to taxation."

The dominant question in the case is whether the written acceptance by the bank of the proposition contained in the act of 1886, known as the Hewitt act, constituted a contract which neither the legislature nor the bank could repudiate at pleasure. As stated in the opinion of the court, the bank was chartered in 1884, with a provision that its life should continue for thirty years, and that Finally, it is said that as at the time the a payment of fifty cents on each one hundred Hewitt act was passed the rate of state tax-dollars of stock should "be in full of all tax ation was lower than the sum of taxation and bonus thereon of every kind." This fixed by that act on the banks, giving their charter fell under the provisions of the prior assent to it, therefore this increased sum act of 1856, declaring that all such charters over and above the amount of state taxes should be subject to amendment or repeal at paid by other taxpayers, to the state, con- the will of the legislature. There seems, howstituted a consideration received by the state, ever, to have been some dispute as to whether,. and created a vested right of such a nature under the power to amend, it was within the that the state could not repeal the Hewitt competency of the legislature to increase this act without providing for the refunding of tax during the life of the charter, without a the sum paid the state in excess of the state violation of the Fourteenth Amendment to taxes paid by other taxpayers. But this dis- the Federal Constitution. To settle this regards the patent fact that whilst the question beyond peradventure, the legislaamount of the state taxes, paid by the bank ture, in 1886, inaugurated a new policy, and under the Hewitt act, was larger than the in the Hewitt act made a distinct proposition taxes paid by other taxpayers to the state, that, if the banks and corporations interested the bank was by the Hewitt act relieved from with the consent of the majority in interest all obligation to pay county and municipal of their stockholders, at a regular meeting taxes. As the bank had at the time of the thereof, should give their consent to the levyHewitt act no contract limiting the taxing ing of a tax of seventy-five cents on each power of the state which could not have been share equal to one hundred dollars, and agree repealed, it therefore could have been sub- to pay the same as therein provided, and jected by the state to the same rate of county would agree to waive and release all right[656] and municipal taxes resting upon other tax- under the act of Congress, or under their payers. It is not asserted that if this legis- charters, to a different mode or smaller rate lative power had been exerted and the bank of taxation, and should evidence such consent been compelled to pay the same amount of by writing under the seal of the bank deliv taxation, for all governmental purposes, that ered to the governor of the commonwealth, other property owners were obliged to pay "such bank and its shares of stock should be that it would not have contributed more than exempt from all other taxation whatever, it was called upon to do under the Hewitt so long as said tax shall be paid during the act. The claim therefore amounts to this: corporate existence of such bank." There was That because the Hewitt act relieved the a further provision that, in case of refusal to bank from a part of the burden of taxation enter into this compact, the bank should be which rested upon the other taxpayers of assessed as directed by a previous section, the state, and this relief from burden was and such state, county, and municipal taxes purely the result of the voluntary act of the imposed as were imposed on the assessed taxlawmaker, that the power to remove the priv-able property in the hands of individuals. ilege cannot be exerted without refunding to the bank a portion of the lesser burden which it has paid. Thus to analyze the proposition is to answer it.

Our conclusion being that there was no irrevocable contract protecting the bank [655] from taxation, and therefore that the taxing law of Kentucky did not violate the contract clause of the Constitution of the United States, it follows that the decree below must be and it is affirmed.

Mr. Justice Brown dissenting:
The cogency with which the opinion of the
court is expressed is calculated to awaken a
distrust as to the soundness of any conflict-
ing views; but the very fact that the court to
which this writ of error was issued, only two
years before the decree was pronounced which
this court has affirmed, came to a precisely

It is true that this act was made expressly subject to the prior act of 1856, declaring that all charters and grants to corporations should be subject to amendment or repeal at the will of the legislature; but this very act limited the power to repeal and amend to cases where a "contrary intent" was not "therein plainly expressed." In other words, that while such charters or grants were generally subject to amendment or repeal, if language were used by the legislature indicating clearly an intention that the privileges and franchises therein granted should not be subject to amendment or repeal, it was perfectly competent to do so, and the stipulation was binding. There was a further provision that no amendment or repeal should "impair other rights previously vested." How, then, could such intent to limit its own powers be manifested by the legislature? It will prob

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