Cent. Nat'l Bank. v. City of Lynn

• Decision Date: 01 February 1929
• Citation: 266 Mass. 145,164 N.E. 927
• Parties: CENTRAL NATIONAL BANK. v. CITY OF LYNN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

266 Mass. 145

164 N.E. 927

CENTRAL NATIONAL BANK.

v.CITY OF LYNN.

Supreme Judicial Court of Massachusetts. Essex.

Feb. 1, 1929.

Exceptions from Superior Court, Essex County; Henry T. Lummus, Judge.

Henry R. Mayo, of Lynn, for plaintiff.

Samuel H. Hollis, of Lynn, for defendant.

RUGG, C.J.

This is an action of contract brought to recover the tax assessed upon shares of stock in the plaintiff bank for the year 1921. It is stated in the plaintiff's bill of exceptions that “exceptions taken by the defendant to the rulings” of the judge at a previous trial “were argued before the Supreme Judicial Court, and said exceptions were sustained. The opinion of that court is reported in” Central Nat. Bank v. City of Lynn, 259 Mass. 1, 156 N.E. 42, “and is incorporated into this bill of exceptions by reference. No new question has been raised since the first trial of the case. To carry up the federal question raised, retrial was deemed necessary, because of the fact that under the terms of the rescript of the Supreme Judicial Court there could be no final judgment without rehearing. The federal question now raised is precisely the same as that raised at the first hearing; in fact, all questions raised at the first hearing, and by the exceptions sustained by the Supreme Judicial Court in its said opinion, are now raised.”

Every question raised upon the record when the case was here before was discussed at large in the opinion then given. No argument has been addressed to us now, not then considered and dealt with. The ground of the earlier decision was that, although the plaintiff might recover in this form of action a tax paid which was wholly illegal, this tax was not wholly illegal, but merely excessive and that full and complete remedy was afforded to the petitioner for every wrong of this nature by proceedings for abatement of the tax. The plaintiff now calls to our attention two decisions rendered by the Supreme Court of the United States since our earlier decision. First National Bank of Hartford v. Hartford, 273 U.S. 548, 47 S.Ct. 462, 71 L.Ed. 767, and Minnesota v. First National Bank of St. Paul, 273 U.S. 561, 47 S.Ct. 468, 71 L.Ed. 774. The principles declared by those decisions were fully recognized in our earlier opinion. Of course, we are bound by those decisions and the principles there declared. We endeavored to follow them implicitly and to demonstrate that they were not applicable to the facts here disclosed, in view of the...