This case was here upon a former appeal, which was dismissed for want of final decree in the court below. Covington v. Covington First Nat. Bank, 185 U.S. 270, 46 L. ed. 906, 22 Sup. Ct. Rep. 645.
The original action was brought to enjoin the assessment or collection of taxes on certain shares of capital stock of the First National Bank of Covington for the years from 1893 to 1900, inclusive, and to enjoin the arrest of the president and cashier of the bank for not listing such shares, and for a decree adjudicating the same not liable to taxation up to the time of the expiration of the charter of the bank on November 17, 1904.
The principal grounds alleged and relied upon are that, by reason of the acceptance of the terms of the act of the general assembly of Kentucky, passed in 1886, known as the Hewitt law, an irrevocable contract had been made between the bank and the state, whereby the former was to pay to the state taxes at a certain rate on its stock, surplus, and undivided profits, which, when paid, were to be in full of all other state, county, or municipal taxes, except those levied on the bank's real estate. It was averred that complainant had regularly paid such taxes up to and including those due July 1, 1900. That the fact that the bank had such irrevocable contract had been adjudicated and finally determined by a decision in the* court of appeals of Kentucky in a litigation wherein the state and the city of Covington and the bank were parties. The bill further set up that an attempt was being made to compel the complainant to list for taxation its shares of stock under an act of the state of Kentucky, passed March 21, 1900 (Session Acts 1900, p. 65). The act under which the taxes were assessed is given in the margin of the opinion in the case of Covington v. First Nat. Bank, 185 U.S. 270, 46 L. ed. 906, 22 Sup. Ct. Rep. 645, and for convenience of reference is also inserted in the margin here. It was also averred in the bill that the act of March 21,
'An Act Relating to the Taxation of the Shares of Stock of National Banks.
'Whereas, the Supreme Court of the United States has lately decided that article three (3), chapter one hundred and three (103), of the acts of 1891, 1892, and 1893 is void and of no effect in so far as the same provides for the taxation of the franchise of national banks. in consequence of which decision there is not now, and has not been since adoption of said article in 1892, any adequate mode of taxing national banks, while state banks are now, and have been ever since 1892, taxable for all purposes, state and local; therefore:
'Be it enacted by the General Assembly of the Commonwealth of Kentucky:
'Section 1. That the shares of stock in each national bank of this state shall be subject to taxation for all state purposes, and shall be subject to taxation for the purposes of each county, city, town, and taxing district in which the bank is located.
'Sec. 2. For purposes of the taxation provided for by the next preceding section, it shall be the duty of the president and the cashier of the bank to list the said shares of stock with the assessing officers authorized to assess real estate for taxation, and the bank shall be and remain liable to the state, county, city, town, and district for the taxes upon said shares of stock.
'Sec. 3. When any of said shares of stock have not been listed for taxation for any of said purposes under levy or levies of any year or years since the adoption of the revenue law of 1892, it shall be the duty of the president and cashier to list the same for taxation under said levy or levies: Provided, That where any national bank has heretofore, for any year or years paid taxes upon its franchise as provided in article three (3) of the revenue law of 1892, said bank shall be excepted from the operation of this section as to said year or years: And provided further, That where any national bank has heretofore, for any year or years, paid state taxes under the Hewitt bill in excess of the state taxes required by this act for the same year or years, said bank shall be entitled to credit by said excess upon its state taxes required by this act.