The extent of the power of a public officer to question the
constitutionality of a state statute as an excuse for refusing to
enforce it is purely a local question. Huntington v.
Worthen, 120 U. S.
The jurisdiction of this Court can only be invoked by a party
having a personal interest in the litigation.
Where a public officer of a state who has no interest in the
controversy except as such officer tests the constitutionality of a
state statute purely in the interests of third parties by a suit in
the state courts, and a judgment has been rendered against him by
the highest court of the state, a writ of error from this Court to
revise such judgment will not lie.
The fact that costs were rendered against him personally in the
state court will not give this Court jurisdiction in such case.
This was a petition filed in the Circuit Court of Marion County
by the state, upon the relation of Martha and Benjamin Lewis,
against the Auditor of Marion County for a writ of mandamus to
compel the defendant, in his official capacity, to allow an
exemption of a mortgage of $500 upon a lot of land in Indianapolis
owned by the relators, and that the same be deducted from the value
of such lot.
The petition was based upon an act passed by the General
Assembly March 4, 1899, the first section of which declares:
"That any person being the owner of real estate liable for
taxation within the State of Indiana, and being indebted in any
sum, secured by mortgage upon real estate, may have the amount of
such mortgage indebtedness, not exceeding seven hundred dollars,
existing and unpaid upon the first day of
Page 191 U. S. 139
April of any year, deducted from the assessed valuation of
mortgage premises for that year, and the amount of such valuation
remaining after such deduction shall have been made shall form the
basis for assessment and taxation for said real estate for said
An alternative writ having been issued, defendant interposed a
general demurrer, which was sustained by the court, and, the
relators declining to plead further, judgment was entered against
Upon appeal to the supreme court, the action of the court below
was reversed, the law held to be constitutional, and the cause
remanded. 158 Ind. 543. Thereupon the defendant made formal return
to the writ, alleging the unconstitutionality of the act both under
the state and federal Constitutions, to which relators demurred.
The demurrer was sustained, and a judgment entered for a peremptory
mandamus commanding the defendant to allow the exemption and to
deduct from the assessed valuation of the real estate the amount of
the mortgage, $500, and also that relators recover from the
defendant their costs, which, however, appear never to have been
taxed. This judgment was subsequently affirmed by the supreme court
upon the authority of its opinion upon the previous appeal, and a
writ of error sued out from this Court.
Page 191 U. S. 148
MR. JUSTICE BROWN delivered the opinion of the Court.
The constitutionality of the exemption law of Indiana was
apparently the only question raised by the parties. It was argued
elaborately, both in the circuit and supreme court of the state,
and was finally affirmed by a majority of the latter court. The
power of the county auditor, who is charged by law with the duty of
making the assessment, to refuse to allow the relators their
exemption upon the ground of the unconstitutionality of the act
does not appear to have been raised in the state courts, and is not
noticed in either opinion of the supreme court. In fact, the
celerity of the proceedings and the admissions of counsel indicate
that the suit was begun and carried on for the purpose of testing
the constitutionality of the law, and that the litigation was at
least not an unfriendly one.
We have no doubt of the power of state courts to assume
jurisdiction of the case if they chose to do so, although there are
many authorities to the effect that a ministerial officer, charged
by law with the duty of enforcing a certain statute, cannot refuse
to perform his plain duty thereunder upon the ground that, in his
opinion, it is repugnant to the Constitution.
It is but just to say, however, that the power of a public
officer to question the constitutionality of a statute as an excuse
for refusing to enforce it has often been assumed, and sometimes
directly decided, to exist. In any event, it is a purely local
question, and seems to have been so treated by this Court in
Huntington v. Worthen, 120 U. S. 97
120 U. S.
Different considerations, however, apply to the jurisdiction of
this Court, which we have recently held can only be invoked by a
party having a personal interest in the litigation. It follows that
he cannot sue out a writ of error in behalf of third persons.
Tyler v. Judges of Court of Registration, 179 U.
; Clark v. Kansas City, 176 U.
; Turpin v. Lemon, 187 U. S.
; Lampasas v. Bell, 180 U.
; Ludeling v. Chaffe, 143 U.
; Giles v. Little, 134 U.
. These authorities
Page 191 U. S. 149
control the present case. It is evident that the auditor had no
personal interest in the litigation. He had certain duties as a
public officer to perform. The performance of those duties was of
no personal benefit to him. Their nonperformance was equally so. He
neither gained nor lost anything by invoking the advice of the
supreme court as to the proper action he should take. He was
testing the constitutionality of the law purely in the interest of
third persons -- viz.,
the taxpayers -- and in this
particular the case is analogous to that of Caffrey v.
Oklahoma, 177 U. S. 346
think the interest of an appellant in this Court should be a
personal, and not an official, interest, and that the defendant,
having sought the advice of the courts of his own state in his
official capacity, should be content to abide by their
It is true there seems to have been a personal judgment in form
against the defendant for costs, the amount of which, however, has
never been taxed, and when taxed and paid would probably be
reimbursed to him. It was formerly held, under the practice which
disqualified interested witnesses, that a liability for costs was
sufficient to render a witness incompetent. 1 Greenl.Ev. secs. 401,
402. But it seems to be well settled that, even if the fact that
costs are awarded against a party gives him an appealable interest,
of which there appears to be considerable doubt, Travis v.
12 Johns. 500; Reid v. Vanderheyden,
719, 736, it does not give him an appealable interest in the
judgment upon the merits, but limits him to the mere question of
costs. Studabaker v. Markley,
7 Ind.App. 368; Hone v.
7 Paige 221; Card v. Bird,
10 Paige 426;
Cuyler v. Moreland,
6 Paige 273. If plaintiff in error
objected to this judgment for costs, he might have moved to modify
it in that particular. Not having done so, his appeal is
presumptively from the judgment on the merits, American Ins.
Co. v. Gibson,
104 Ind. 336, 342, and as his individual rights
were not affected by such judgment, he is not entitled to an
The fact that the various statutes fixing the jurisdiction
Page 191 U. S. 150
the circuit court of the United States and of this Court, which,
from the original Judiciary Act of 1789, have, where the amount
involved was made the test of jurisdiction, uniformly used the
words "exclusive of costs," would indicate, so far as the federal
courts are concerned, that a mere judgment for costs could not
ordinarily be made the basis of an appeal to this Court.
For the reasons above given, the appellant did not have the
requisite interest to maintain this appeal, and it is therefore
MR. JUSTICE HARLAN and MR. JUSTICE WHITE are of opinion that the
plaintiff in error was entitled to prosecute the present writ, and
that the court should determine the case upon its merits.