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
When a circuit court dismisses a bill for want of jurisdiction,
it is without power to decree the payment of costs and
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
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
Page 164 U. S. 320
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
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
$2,000, 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
Page 164 U. S. 321
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.
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 percent
of the taxes sought to be enjoined in the bill, viz.,
sum of $317.44, to be paid by complainant as part of the costs in
the case. 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
MR. JUSTICE SHIRAS, after stating the facts as above, 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 $2,000.
This must be understood to mean that the aggregate amount of the
taxes for the several parishes exceeded $2,000,
Page 164 U. S. 322
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.
, 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 $900, 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 agreed 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 $2,000 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 where the amounts of the taxes assessed and
levied for the whole four
Page 164 U. S. 323
years, and also for the year 1893 covered by the amended bill,
and reference is made to Northern Pacific Railroad v.
Walker, 148 U. S. 392
a case somewhat similar to the present, where such a course, it is
said, was followed. We do not feel warranted to reverse the decree
of the court below on such a view, but as we are constrained to
reverse the decree for reasons presently to be stated, we shall
leave it to the court below to exercise its own discretion in the
matter of further proceedings of the kind suggested.
Error is assigned to the action of the court decreeing that the
complainant should pay the costs, including a fee of upwards of
$300 to the defendants' counsel.
As a general rule, an appeal will not lie in a matter of costs
alone. But such appeals have been sustained in particular
circumstances, as, for instance, where the costs have been directed
to be paid out of a trust fund. In Trustees v. Greenough,
105 U. S. 528
this Court said, through Mr. Justice Bradley, that the objection to
an appeal on the ground of its being from a decree for costs only
is untenable. However, in the present case the appeal was not taken
from the decree on the sole ground that costs were wrongfully
awarded, and, as the entire decree is before us, it is competent
for us to consider whether, when a circuit court dismisses a suit
for want of jurisdiction, it can give a decree for costs, including
a fee in the nature of a penalty, to the defendants' counsel.
The revenue law of Louisiana, Act 106 of 1890, section 56,
provides that the attorney at law who represents the tax collector
in injunction proceedings shall, in case of a successful defense,
receive a compensation of ten percent on the amount of taxes and
penalties collected as the result of the proceedings, which shall
be paid to the said attorney by the party against whom the judgment
is rendered, and shall be collected by the tax collector as costs
at the same time that the taxes and other penalties are collected.
It would seem that the court below applied that provisions of that
statute in the present instance.
Without considering or deciding whether it would be the duty of
a federal court to follow the state statute in assessing costs, and
particularly in making a payment to an attorney at
Page 164 U. S. 324
law of a fee proportionate to the amount recovered a part of the
decree, we are of opinion that this decree was erroneous in the
particular complained of. Having dismissed the bill for want of
jurisdiction, the court was without power to decree the payment of
costs and penalties.
6 Wall. 250, was a case where the circuit
court of the United States had held that it had no jurisdiction of
case, removed to it from a state court, and had sustained a motion
to remand for that reason, yet proceeded to give a judgment for the
costs of the motion, and ordered that an execution should issue to
collect them. This Court said:
"The court held that it had no jurisdiction whatever of the
case, and yet gave a judgment for the costs of the motion and
ordered that an execution should issue to collect them. This was
clearly erroneous. If there were no jurisdiction, there was no
power to do anything but to strike the case from the docket. In
that view of the subject, the matter was as much coram non
as anything else could be, and the award of costs and
execution were consequently void. Such was the necessary result of
the conclusions of the court."
In Ingle v.
2 Wheat. 363, it was said by the Chief
Justice that this Court does not give costs where a cause is
dismissed for want of jurisdiction.
In Hornthall v.
9 Wall. 560, 76 U. S. 566
where the Circuit Court of the United States for the District of
Mississippi had dismissed a bill for want of jurisdiction, and had
awarded costs to the respondents, this Court reversed the decree
for that reason, and remanded the cause with directions to dismiss
the bill of complaint, but without costs. Blacklock v.
Small, 96 U. S.
The decree of the court below is reversed, and the cause
remanded, with directions to proceed in conformity with this