lan, and James Rich, and H. C. Anderson, | Tennessee; illegal, null, and void; and "not
representing "that at the January Term, effective to deprive the said parties of the
1898, G. H. Strong and T. A. Rambo were several offices aforesaid, to which they were
duly and legally elected by the county court regularly elected, or of the rights, powers,
of Knox county, Tennessee, members of the privileges, and emoluments thereof," and
pike commission of Knox county for the that defendants "are unlawfully holding and
term of four years, which would make their exercising said offices of public road com-
terms of office expire in January, 1902, and missioners and superintendent of roads and
G. L. Maloney, who is the judge of Knox associate members, and that they are usurp-
county, Tennessee, is by operation of the ers of said offices."
law, ex officio chairman of said commission.
The said Sam Vance and J. F. C. Harrell
were duly elected members of the said work-
house commission by the said county court
of Knox county, Tennessee, at its January
Term, 1901, which would make their terms
of office expire in 1903. The said S. L. Eng-
land and I. N. White were duly elected
workhouse commissioners of Knox county,
Tennessee, at its January Term, 1900, which
would make their terms of office expire in
1902, and the said G. L. Maloney as judge
of the county is ex officio chairman of the
said commission. The said R. L. Peters
was elected superintendent of the work
house in January, 1898, which would
make his term of office expire in Jan-
uary, 1902. All of said officers were
duly and legally elected, and inducted into
their respective offices, and assumed the du-
ties thereof, and up to the time of the quali-
fication of defendants, to wit, on March 2,
1901, continued to perform the duties and
exercise the functions and receive the emolu-
ments pertaining to said offices."

The prayer was (1) for process; (2)
"that the said defendants may be enjoined
from holding the said offices of public road
commissioners, or superintendent of public
roads, or associate members of said road
commission, or manager of the workhouse,
or from exercising any of the powers and
rights which the said act of February 8,
1901, attempts to confer upon them, and
that they may be enjoined from receiving
any of the emoluments appertaining to the
said offices under and by virtue of the said
unconstitutional and void act, and that upon
final hearing said injunction may be made
perpetual;" (3) that the defendants be re-
quired to execute a bond to indemnify and
hold harmless; (4) "that upon final hear-
ing a decree may be rendered declaring that
the said act of February 8, 1901, *is uncon-[67]
stitutional, null, and void, and that the
same confers no right upon the defendants,
and that the defendants are not entitled to
exercise any of the powers and privileges
therein contained, or to enjoy any of the
rights and emoluments therein given to
them, and that they be required to surren-
der same and turn over all the powers,
property, and privileges thereof to the right-
ful owners aforesaid;"(5) and for general
relief.

The bill then averred that, on February 8, 1901, an act of the general assembly of the state of Tennessee was approved by the governor, and went into effect, entitled: An Act to Create a Board of Public Road Commissioners, to Regulate the Laying Out On March 21, 1901, an application for inand Working of Public Roads in this State, junction was denied, and on March 23d the in Counties Having a Population of Not bill was amended by striking out the third Less than 70,000 and Not More than 90,000, clause of the prayer. Defendants filed a deunder the Federal Census of the Year 1900, murrer March 29, 1901, which, on the next or any Subsequent Federal Census, and to day, was sustained and the bill dismissed. [66] Provide a Method for the Management and The case was then carried to the court of Control of County Workhouses in Counties chancery appeals, and it was there contendComing under the Provisions of this Act." ed, on errors assigned, that the act of FebThat, in pursuance of the act, the governor ruary 8, 1901, was invalid because in vioof Tennessee, on February 16, 1901, appoint-lation of the 14th Amendment to the Coned Stephen P. Condon, James Rich, and T. T. McMillan as the board of public road commissioners; that Condon was appointed superintendent of public roads, and the other two associate members of the road commission; that the governor had issued to defendants commissions as such public road commissioners; and that they gave bond and qualified March 2, 1901, "and are now attempting to perform the duties of the said

offices."

That defendants had in fact ousted the pike commissioners, the workhouse commissioners, and superintendent from their respective positions, and deprived them of their privileges and powers; and that H. C. Anderson had been elected by defendants manager of the workhouse.

stitution of the United States, as well as of
the state Constitution. The court of chan-
cery appeals affirmed the judgment of the
chancellor, August 29, 1901, and an appeal
was prosecuted to the supreme court of the
state, where it was again alleged, in the as-
signment of errors, that the act in question

was in violation of the state Constitution

and of the 14th Amendment. The supreme
court held, on November 15, 1901, that the
statute was not in violation of either, and
affirmed the decrees of the chancellor and
of the court of chancery appeals. 108 Tenn.
82, 65 S. W. 871. Thereupon a writ of er-
ror was sued out from this court, and the
record was filed and the cause docketed De-
cember 10, 1901. No motion was made to
advance the case, and it came on for argu-
ment and was argued March 12 and 13,

Complainants further represented that the act of February 8, 1901, was in plain violation of the Constitution of the state of 1903.

1

United States v. Boutwell, 17 Wall. 604, such claimant may thereupon proceed to ex21 L. ed. 721.

The question of constitutionality had been the attainment of the results above indicatraised in an application for mandatory in-ed, but cannot be held to include an inquiry junction to compel the county judge to ap- into the damages sustained." prove the bonds of the persons appointed commissioners under the act, the writ had been awarded and obeyed, and the decree was affirmed and the act sustained by the supreme court at the same time that the decree in this case, subsequently brought, was affirmed. Condon v. Maloney, 108 Tenn. 82, 65 S. W. 871. But the supreme

The present case was argued March 12 and 13, and it appears on the face of the bill that the terms of office of all the relators, except the county judge, expired before that day. And this was true as to him, because we find, by reference to *articles 6 [70] and 7 of the Constitution of Tennessee, and State ex rel. Rambo v. Maloney, 92 Tenn.

62, 20 S. W. 419, that his then term of of- | will not proceed to a formal judgment, but fice as county judge terminated in 1902.

will dismiss the appeal." Mr. Justice Gray, Mills v. Green, 159 U. S. 651, 653, 40 L. ed. 293, 294, 16 Sup. Ct. Rep. 133.

We think this writ of error comes within the rule thus declared, and it is therefore dismissed without costs to either party.

As to the defendants, the bill shows that defendant Anderson was merely a subordinate appointee of his codefendants, and that they had been appointed by the governor commissioners under the act of February 8, 1901. That act provided for the appointment of three commissioners, to "hold their offices until the next general election of county officers, when their successors shall UNION & PLANTERS' BANK OF MEMbe elected by the people, and every two (2) PHIS, Appt., years thereafter said offices shall be filled by popular election." The next general election CITY OF MEMPHIS and John H. Alsup, of county officers referred to was held, according to § 1154 of the Code, in August,

v.

Trustee. (No. 67)

1902. So that these commissioners were ap- UNION & PLANTERS' BANK OF MEMpointed to serve until that date, and their temporary commissions then terminated.

We cannot assume that relators, who were originally elected by the county court, would hold over, and manifestly, the provisional title of defendants has determined. It follows that the relief as prayed cannot now be granted.

PHIS, Appt.,

V.

CITY OF MEMPHIS. (No. 221)

(See S. C. Reporter's ed. 71-76.)

Jurisdiction of circuit court of appeals-effect of state judgment as res judicata― question of local law.

There are cases in quo warranto in which judgment of ouster has been entered, although the term of the person lawfully entitled had expired, and also where informa-1. tions have been retained, when the statute provided for fine or damages; but here the proceeding cannot now be maintained as on behalf of the public; and, considered, as counsel insists it should be, as merely a contest between two sets of officials, and not between the state and its officials, the state courts would be at liberty to treat it as abated, and the mere matter of costs cannot be availed of to sustain jurisdiction. See Boring v. Griffith, 1 Heisk. 457, 461; State v. McConnell, 3 Lea, 332; Williamson Coun ty v. Perkins (Tenn. Ch. App.) 39 S. W. 347; State ex rel. Robinson v. Lindsay, 103 Tenn. 635, 53 S. W. 950.

Doubtless, the question of the validity of the act of 1901 is of importance, but it has

A decree of the circuit court of appeals affirming a judgment of a circuit court in a cause in which the latter's jurisdiction depended on the sole ground that the cause of action arose under the Federal Constitution will, on appeal to the Supreme Court of the United States, be reversed for the lack of jurisdiction in the circuit court of appeals to review the circuit court judgment.

2. A judgment of a state court sustaining the exemption claimed by a bank, under its charter, from municipal taxation on its capital stock, which, under the local law of the state, is only res judicata in respect to the identical taxes litigated in the suit, can be accorded no greater efficacy in the Federal courts.

[Nos. 67, 221.]

been upheld by the highest judicial tribunal Submitted March 20, 1903. Decided April

of the state of Tennessee as consistent with the state Constitution, and it affects only the citizens of that state.

subjected to the test of the 14th AmendIf we were to hold that the act could be [71]ment, and that it could not stand that test, we should do nothing more than reverse the decree below and remand the cause, and, as such a judgment would be ineffectual, we must decline to intimate any opinion on the subject.

"The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court

13, 1903.

of Tennessee to review a judgment denying APPEAL from the Circuit Court of the the claim of a bank to exemption from

United States for the Western District

NOTE.-On the jurisdiction of the circuit court of appeals-see notes to Lau Ow Bew v. United States, 1 C. C. A. 6; Salmon v. Mills, 13 C. C. A. 374; and United States Freehold Land & Emigration Co. v. Gallegos, 32 C. C. A. 475.

On conclusiveness of judgments generally— see notes to Sharon v. Terry (C. C. N. D. Cal.) 1 L. R. A. 572: Bollong v. Schuyler Nat. Bank (Neb.) 3 L. R. A. 142; Wiese v. San Francisco Musical Fund Soc. (Cal.) 7 L. R. A. 577: Morrill v. Morrill (Or.) 11 L. R. A. 155: Bank of United States v. Beverly, 11 L. ed. U. S. 76; The Johnson Steel Street R. Co. v. Wharton, 38 L. ed. U. S. 429; and Southern P. R. Co. v.

United States, 42 L. ed. U. S. 355.

As to conclusiveness and effect of judgments as between Federal and state courts-see notes to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; and Union & P. Bank v. Memphis, 49 C. C. A. 468.

municipal taxes under its charter. Affirmed.

Also an appeal from the United States Circuit Court of Appeals for the Sixth Circuit to review a decree which affirmed a decree of the Circuit Court for the Western District of Tennessee denying the claim of a bank to exemption from municipal taxes under its charter. Reversed, with directions to dismiss the appeal from, and writ of error to, the Circuit Court.

See case number 221 below, 49 C. C. A. 455, 111 Fed. 561.

was heard June 10, 1901, and the decree below was affirmed October 21, 1901. 49 C. C. A. 455, 111 Fed. 561. Thereupon complainant, appellant in that court, prosecuted an appeal from its decree to this court, and the case was docketed here January 13, 1902, and is now No. 221.

Both cases were submitted, as one case, on printed briefs.

Mr. William H. Carroll submitted the cause for appellant. Mr. Tim E. Cooper was with him on the brief:

The mere fact that the demand in this case is for a tax for one year, and the demands in the adjudged cases were for taxes for other years, does not prevent the operation of the thing adjudged, if, in the prior cases, the question of exemption was necessarily presented and determined upon identically the same facts upon which the right of exemption is now claimed.

New Orleans v. Citizens' Bank, 167 U. S. Bank of Kentucky v. Stone, 88 Fed. 383; 371, 42 L. ed. 202, 17 Sup. Ct. Rep. 905.

The Tennessee cases hold that where a

given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, that that matter is their privies, where the judgment is final. forever concluded between the parties and

Statement by Mr. Chief Justice Fuller: The Union & Planters' Bank of Memphis was incorporated under a charter granted by the general assembly of the state of Tennessee in 1858, which contained the follow ing provision: "That said company shall pay an annual tax of of 1 per cent on each share of stock subscribed, which shall be in lieu of all other taxes." The corporation was located in the city of Memphis, Shelby county, Tennessee, and that city, pursuant to an act of the legislature of Tennessee, assessed an ad valorem tax for the year 1899, for municipal purposes, on the capital stock of the bank. The bank thereupon filed its bill in the circuit court of the United States for the western division of the western district of Tennessee, in which it was alleged that the law under which the 498; Gray v. Faris, 7 Yerg. 161; King v. Estill v. Taul, 2 Yerg. 467, 24 Am. Dec. assessment was made impaired the obligation of the contract created by the above- Vaughn, 8 Yerg. 59, 29 Am. Dec. 104; quoted clause of the charter. The bill fur-Hodges v. Bauchman, 8 Yerg. 186; Elrod v. ther averred that in a former litigation be- Lancaster, 2 Head, 574, 75 Am. Dec. 749; tween the bank and the city, wherein it Warwick v. Underwood, 3 Head, 238, 75 Am. Dec. 767; Brewster v. Galloway, 4 Lea, 567; was sought to enforce a municipal assessment of taxes on the capital stock of the McClanahan v. Stovall, 6 Lea, 505; Roper bank for the years 1888, 1889, and 1890, it. Rowlett, 7 Lea, 321; Parkes v. Clift, 9 was adjudged by the supreme court of Ten- Lea, 524; Peak v. Ligon, 10 Yerg. 469; nessee that, by the provision aforesaid, the Westbrook v. Thompson, 104 Tenn. 363, 58 S. W. 223; Sale v. Eichberg, 105 Tenn. 333, capital stock of the corporation was exempt 52 L. R. A. 894, 59 S. W. 1020. from all general taxation. The record and

judgment in that suit were set out in full, and pleaded as a final judicial determination of the bank's exemption from the pay; ment of ad valorem taxes on its capital stock; and it was averred that the judg ment so pleaded was based on the identical claim of exemption now asserted, and on identically the same facts and conditions under which this assessment was made.

The prayer was that the assessment be canceled, and complainant be declared to be exempt from the payment. to the city of ad valorem taxes on its capital stock. [73] *Defendants demurred, and the demurrer was sustained and the bill dismissed, November 6, 1900, whereupon complainant prayed and perfected an appeal to, and also took a writ of error from, the United States circuit court of appeals for the sixth circuit, and the case was docketed there on or about November 27, 1900.

On February 11, 1901, complainant prayed, and was granted an appeal from the decree of the circuit court directly to this court, the record was filed here, March 23, 1901, and the case is now No. 67.

The case in the circuit court of appeals

different, a decision by a court of compe Though the form and causes of action be fact or question in the one action is conclutent jurisdiction in respect to any essential sive between the parties in all subsequent

actions.

Southern P. R. Co. v. United States, 168 U. S. 5, 42 L. ed. 355, 18 Sup. Ct. Rep. 18; Forsyth v. Hammond, 166 U. S. 506, 41 L ed. 1095, 17 Sup. Ct. Rep. 665.

Mr. Luke E. Wright submitted the cause for appellee. Mr. John H. Watkins Iwas with him on the brief:

The precise point involved herein having been determined by both this court and the state court, there is no longer any Federal or other question as to the taxability of appellant's capital

stock as contradistin

guished from the shares of stock.

Shelby County v. Union & P. Bank, 161
U. S. 150, 40 L. ed. 652, 16 Sup. Ct. Rep.
558;
Union & P. Bank v. Memphis, 101
Tenn. 168, 46 S. W. 557.

There is such a well-defined and unbroken line of decisions in Tennessee that judg ments and decrees in tax cases are limited to the taxes actually involved that, as a

|

local question, that proposition is no longer | Dist. v. Bradley, 164 U. S. 112, 41 L. ed. debatable. 369, 17 Sup. Ct. Rep. 56; First Nat. Bank v. Chehalis County, 166 U. S. 440, 41 L. ed. 1069, 17 Sup. Ct. Rep. 629; Wilson v. North Carolina, 169 U. S. 586, 42 L. ed. 865, 18 Sup. Ct. Rep. 435; Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130; Merchants' & Mfrs. Nat. Bank v. Pennsylvania, 167 U. S. 461, 42 L. ed. 236, 17 Sup. Ct. Rep. 829.