Judgment was entered in the Supreme Court, February 23,1875,

We are all of opinion that the 5th section of the Act of May 1st 1868 is not repealed by the Act of 24th April 1874, Pamph. L. 70, but stands as a necessary part of the system intended to be perfected by the latter act. In regard to the nature of the tax itself no change has been made. In the Phœnix Iron Co. v. The Commonwealth, 9 P. F. Smith 104, the Acts of 1844 and 1859 were considered, and it was shown that the tax imposed by them was on the capital stock measured by the dividends, but not a tax on the dividends. The Act of May 1st 1868 was but a revision of the former laws, and in express terms imposed the taxes on the capital stock. The subject is referred to in the case of Commonwealth v. The Pittsburg, Fort Wayne and Chicago Railroad Co., 24 P. F. Smith 83. If this case depended wholly on the Act of 1874 and the 5th section of the Act of 1868, the case would be clear against the defendants. But the question of relative liability for the tax, between the first and second preferred stock*62holders, is m the case, together with the right of the company to adjust this relative liability between the different kinds of stock, in the order of their title to the dividends. That question cannot be determined upon the present state of the ease as it appears before •us. It is a question to be considered, how far the holders of the first preferred stock may be entitled to be heard in a matter affecting their rights. We are not at liberty to determine these questions now. The injunction must therefore be continued, and the case go on to a final hearing, when all parties can be fully heard on a report of a master, which will settle the facts and present the proper points for decision. In the meantime, it is in the power of the company to pay out the undisputed portion of the dividends, and thus prevent any injustice arising from delay.

Decree of the District Court affirmed, and the costs of the appeal ordered to abide the final result.

Appeal dismissed and record ordered to be remitted.