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Opinion of the Court.

of the District, and, upon appeal, by the three justices of the Court of Appeals, we are not disposed to disturb it. Great consideration will be paid to the concurring views of the auditor or master and the courts respecting a mere question of amount. High on Receivers, §§ 781 to 786.

It has been said in a number of cases that an allowance of five per cent upon the receipts and disbursements of the business was a fair compensation to receivers, Stretch v. Gowdey, 3 Tenn. Ch. 565; but in view of the facts above stated and the further fact that no compensation was allowed him for the custody and responsibility of the large amount of personal property that came into his possession, we are not prepared to say that the allowance was so excessive as to justify us in reducing it.

The reasons given by the auditor for the allowance of $500 counsel fee are full and satisfactory. "The record shows that. the receiver was frequently called into court either to answer the call of other parties in the cause or to ask instructions or authority from the court to meet emergencies arising in the business. It is evident that wise and capable advice was needed to protect him in the proper discharge of his duties, both as affecting himself and his responsibility, and as affecting the property entrusted to his charge. In view of what is disclosed in the record and proceedings, I consider the sum so allowed to be reasonable and fair." High on Receivers, § 805. This disposes of all the errors assigned, and, upon the whole, we think the judgment of the court should be

Affirmed.

Statement of the Case.

CITIZENS' BANK v. CANNON.

APPEAL FROM THE CIRCUIT COURT OF THE

UNITED STATES FOR

THE WESTERN DISTRICT OF LOUISIANA.

No. 58. Argued and submitted October 21, 1896. - Decided November 30, 1896.

Jurisdiction cannot be conferred on a Circuit Court of the United States, by joining in one bill against distinct defendants claims, no one of which reaches the jurisdictional amount.

In proceedings under a bill to enjoin the collection of taxes for a series of years, where the proof only shows the amount of the assessment for one year, which is below the jurisdictional amount, it cannot be assumed, in order to confer jurisdiction, that the assessment for each of the other years was for a like amount.

Although, as a general rule, an appeal will not lie in a matter of costs alone, where an appeal is taken on other grounds as well, and not on the sole ground that costs were wrongfully awarded, this court can determine whether a Circuit Court, dismissing a suit for want of jurisdiction, can give a decree for costs, including a fee to the defendants' counsel in the nature of a penalty; and it decides that the decree in this case was erroneous in that particular.

When a Circuit Court dismisses a bill for want of jurisdiction it is without power to decree the payment of costs and penalties.

IN March, 1893, the Citizens' Bank of Louisiana, a banking corporation created by the legislature of Louisiana, filed a bill of complaint in the Circuit Court of the United States for the Western District of Louisiana, against several defendants who were sheriffs respectively of a number of parishes in that district, seeking to enjoin the defendants from enforcing the payment of taxes alleged to be due from the bank on lands owned by it in the several parishes.

The main allegation of the bill was that the bank was by the terms of its charter exempt from taxation of every kind on its capital and property, and that certain specific and subsequent statutes of the State of Louisiana, by virtue of whose provisions the defendants were proposing to enforce the payment of taxes, would, if carried into effect, operate to impair the contract between the bank and the State, contrary to the tenth section of the first article of the Constitution of the

Statement of the Case.

United States. The taxes, which it was alleged it was the purpose of the defendants to assess and collect, were for state and parish taxation for the years 1889, 1890, 1891 and 1892.

Restraining orders were issued against the several defendants. Afterwards, in May, 1893, an amended bill of complaint was filed by the bank against the same defendants, alleging that, since the granting of the restraining orders and pending the disposition of the case, certain named assessors of the said several parishes were proceeding to list for assessment and taxation for the year 1893 the property of the bank situated in the said parishes, and praying that the said assessors might be subpoenaed to appear and answer said original and amended bill, and to abide the decrees of the court. Restraining orders were likewise issued under this amended bill.

On July 17, 1893, the defendants filed a general demurrer to both bills, and, on the same day, filed a plea to said bills, alleging that the taxes levied on the property of the complainant did not in any one of the parishes named in the bill amount to the sum of two thousand dollars, and because such taxes so levied were payable to and levied for the State, the respective parish, and the levee board of the levee district in which such parish was situated; and alleging that the assessors and tax collectors of each of said parishes could not be joined for the purpose of giving the Circuit Court jurisdiction. The defendants also filed an answer, setting up various matters on which they contended that the bank's exemption from taxation was no longer operative.

The demurrer was, after argument, overruled. Replications to the plea and answer were filed. The complainant put in evidence the original charter of the bank and several acts of the legislature amendatory thereof; the revenue act of the legislature for the year 1890, and extracts from the assessment rolls of the several parishes named in the original and amended bill, showing the property owned by the bank and the amount of taxes assessed thereon. The defendants put in evidence certificates from the respective parishes, showing the property owned by the bank and the amount of taxes assessed thereon.

Opinion of the Court.

On November 22, 1893, after argument, the court entered a decree, sustaining the plea to the jurisdiction and dismissing the bill at complainant's costs. The decree further ordered that a fee should be allowed the solicitor of the defendants, amounting to ten per cent of the taxes sought to be enjoined in the bill, viz., the sum of three hundred and seventeen dollars, to be paid by complainant as part of the costs in the From this decree an appeal was prayed and allowed to this court. A certificate was duly signed by the judge of the Circuit Court, setting forth that the question decided was solely that raised by the plea to the jurisdiction of the court, and directing that copies of the bill, the exhibits showing the taxes involved and the property on which the taxes were levied, and the valuation of said property, and of the plea and decree, should be attached to the certificate.

case.

Mr. William A. Maury for appellant. Mr. Charles J. Boatner was on the brief.

Mr. M. J. Cunningham, Attorney General of the State of Louisiana, Mr. A. H. Leonard and Mr. Alexander Porter Morse, for defendants, submitted on their brief.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

The first assignment of error questions the correctness of the decree of the court in sustaining the plea to the jurisdiction and dismissing the bill.

The bill alleged that the defendants were about to assess and collect state and parish taxes for the years 1889, 1890, 1891 and 1892, and the amended bill alleged a similar purpose as to taxes for 1893. Neither bill contained a specific allegation as to the amount of the assessment or taxes for any one parish, but averred that the taxes so assessed exceeded, exclusive of interest and costs, the sum of two thousand dollars.

This must be understood to mean that the aggregate amount of the taxes for the several parishes exceeded two thousand

VOL. CLXIV-21

Opinion of the Court.

dollars, and the theory of that part of the bill evidently was that the amount involved, in order to confer jurisdiction on the Circuit Court, could be reached by adding together the taxes for the several parishes. But, for reasons given in the recent cases of Walter v. Northeastern Railroad, 147 U. S. 370, and Northern Pacific Railroad v. Walker, 148 U. S. 391, jurisdiction cannot be conferred on the Circuit Court by joining in one bill against distinct defendants claims no one. of which reached the jurisdictional amount. It is now contended that, as it appears in the extract from the assessment roll for the year 1892, that the tax for that year assessed and in the hands of John S. Young, sheriff for the parish of Caddo, for collection, amounted to upwards of nine hundred dollars, it can be assumed that the taxes for the years 1889, 1890 and 1891 were for similar amounts, and thus, in the case of that parish at least, that jurisdiction was shown. But, as the facts showing jurisdiction do not affirmatively appear in the bill, and as, for some reason that does not appear, the proof was restricted to the year 1892, we do not think the defect is supplied by such a conjecture.

It is further argued that jurisdiction may be seen in the averment of the bill that the value of the exemption of the bank's property during the continuance of its charter exceeds two thousand dollars for each parish. But the answer to this is, that this is not a suit to exempt property from taxation permanently. The purpose of the bill is to restrain certain tax assessors and tax collectors from collecting taxes for specific years, and, if the amount of such taxes does not confer jurisdiction, it is, from the nature of things, impossible for a court to foresee what, if any, taxes may be assessed in the future.

It is, however, suggested that as the allegations of the bill and the evidence adduced to sustain the plea leave it uncertain whether, if the facts were made fully to appear, jurisdiction might not be maintainable, this court should reverse the decree in order to afford an opportunity to the complainant to make it appear, by competent evidence, what were the amounts of the taxes assessed and levied for the whole four

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