191 U. S.

Argument for Defendant in Error.

449; State v. Baltimore Co., 29 Maryland, 516; Police Coroners v. Louisville, 3 Bush (Ky.), 597; Auditor v. Haycraft, 14 Bush (Ky.), 384; State v. Medaris, 1 Kansas, 90; Savannah v. State, 4 Georgia, 26; State v. Mason, 153 Missouri, 23; State v. McKenney, 5 Nevada, 194; Humboldt Co. v. Churchill, 6 Nevada, 30; Pell v. Newark, 40 N. J. L. 71; Lakewood Tp. v. Brick Tp., 55 N. J. L. 275; Peafle v. State Board &c., 129 N. Y. 360; McDermott v. Dennie, 6 N. Dak. 278; State v. Mitchell, 31 Ohio St. 592; State v. Whitworth, 8 Lea (Tenn.), 594; Williams v. Taylor, 83 Texas, 670; State v. Saux Co., 62 Wisconsin, 376.

The true doctrine is that every case stands upon its own facts. Here the auditor, a public officer, is in the attitude of defending the public revenue against dissipation and unlawful credit under an unconstitutional law. This is a case where the auditor not only may but must defend, and upon this very ground.

Mr. Cassius C. Hadley, with whom Mr. Charles W. Miller, Attorney General of the State of Indiana, Mr. L. G. Rothschild and Mr. William C. Geake, were on the brief, for defendant in error:

The decisions of the highest state court on state constitution and statutes are controlling in the Supreme Court of the United States. The only question in this court is whether the statute conflicts with the Federal constitution. West River Bridge Co. v. Dix, 6 How. 507; Bucher v. Cheshire Railroad, 125 U. S. 555; Bell's Gap Railroad v. Pennsylvania, 134 U. S. 232; Lewis v. Monson, 151 U. S. 545; Adams Express Co. v. Ohio, 165 U. S. 194; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685; Merchants Bank v. Pennsylvania, 167 U. S. 461; Rasmussen v. Idaho, 181 U. S. 198; Williams v. Parker, 188 U. S. 491.

No question is presented for the determination of this

court.

This court will not listen to objections made to the constitutionality of a statute by a party whose rights it does not

VOL. CXCI-10

Argument for Defendant in Error.

191 U. S.

Cooley's Const.

U. S. 114; Red

affect, and who has no interest in defeating it. Lim. 6th ed. 196; Clark v. Kansas City, 176 River Valley Bank v. Craig, 181 U. S. 548; Supervisors v. Stanley, 105 U. S. 305; Lampasas v. Bell, 180 U. S. 276; McNulta v. Lochridge, 141 U. S. 327; Ludeling v. Chaffe, 143 U. S. 301; Giles v. Little, 134 U. S. 645; Jones v. Black, 48 Alabama, 540; Dejarnette v. Haynes, 23 Mississippi, 600; Dorman v. State, 34 Alabama, 216, 249. In order to give this court jurisdiction to review a judgment of a state court against a title or right set up or claimed under a statute of, or an authority exercised under, the United States, that title or right must be one of the plaintiff in error, and not of a third person only. Owings v. Norwood, 5 Cranch, 344; Montgomery v. Hernandez, 12 Wheat. 129, 132; Henderson v. Tennessee, 10 How. 311; Hale v. Gaines, 22 How. 144, 160; Long v. Converse, 91 U. S. 105, and see as to state courts, Wellington, Petitioner, 16 Pick. 87; Gustavel v. State, 153 Indiana, 613; City of Kansas City v. Union Pac. Ry. Co., 59 Kansas, 427.

Plaintiff in error, therefore, has no right to prosecute his writ of error in this court, since he does not show that he has any just cause for complaint.

A ministerial officer cannot adjudge a law unconstitutional on the ground that it may affect the rights of others, and refuse to perform his plain duties thereunder, and excuse himself by attacking the constitutionality of the act. Commissioners v. Franklin County, 24 Florida, 55, 63; State v. Shakespeare, 41 La. Ann. 156; Bassett v. Barbin, 11 La. Ann. 672; Steele v. Auditor, 47 La. Ann. 1676, 1696; State v. Stevenson, 18 Nebraska, 416, 421; State v. Douglas County, 18 Nebraska, 506; Smyth v. Titcomb, 31 Maine, 272, 286; Tremont School District v. Clark, 33 Maine, 82; Wright v. Kelly, 43 Pac. (Idaho) 565; State v. Buchanan, 24 W. Va. 362, 383; Thoreson v. Examiners, 19 Utah, 18, 31.

Plaintiff in error has no standing in this court, and has no right to invoke the power of this court to aid him in refusing to obey the law enacted by the legislature, and decreed by the

191 U. S.

Argument for Defendant in Error.

highest judicial body of his state to be a valid law for his guidance and authority.

The only question before this court is whether said act is repugnant to the Fourteenth Amendment of the Federal constitution, and it is clear that it does not abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty or property without due process of law, or deny to any person within its jurisdiction the equal protection of the law.

The State may distinguish, select and classify objects of legislation, and necessarily this power must have a wide range of discretion. Magoun v. Illinois Trust & S. Bank, 170 U. S. 283, 292; Kentucky R. R. Tax Cases, 115 U. S. 321, 337; Railway Co. v. Mackey, 127 U. S. 205; Railway Co. v. Beckwith, 129 U. S. 26; Railway Co. v. Herrick, 127 U. S. 210; Duncan v. Missouri, 152 U. S. 377; Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232; Pacific Exp. Co. v. Seibert, 142 U. S. 339, 351. The act does not violate the constitutional rule of uniformity. Edwards v. People, 88 Illinois, 340, 347; People v. Barker, 155 N. Y. 330, 342; S. C., 49 N. E. Rep. 940.

As to uniformity the state court said that the act in question purports to be a law that is uniform throughout the State, and, as it permits all persons to take advantage of it when their circumstances bring them within its operation, it does not violate that requirement of the constitution. Cleveland, etc., R. Co. v. Backus, 133 Indiana, 513; 18 L. R. A. 729; Pittsburgh, etc., R. Co. v. Backus, 133 Indiana, 625; Gilson v. Board, etc., 128 Indiana, 65; 11 L. R. A. 835.

As to the exact nature of the obligation and liability of taxes, see Thompson v. McCorkle, 136 Indiana, 484, 501; Blackwell on Tax Titles, 3d ed. 547; §§ 8431, 8571, 8590, 8591, 8603; Burn's R. S. 190; Abbott v. Edgerton, 53 Indiana, 196. Mortgages are defeasible sales, they are more than mere liens. Savings Bank v. Multonomah County, 169 U. S. 421, 428, 429.

MR. JUSTICE BROWN, after making the foregoing statement, 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 choose 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, 101.

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. S. 405; Clark v. Kansas City, 176 U. S. 114; Turpin v. Lemon, 187 U. S. 51; Lampasas v. Bell, 180 U. S. 276; Ludeling v. Chaffe, 143 U. S. 301; Giles v. Little, 134 U. S. 645. These authorities

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 non-performance 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. We 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 decision.

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. Waters, 12 Johns. 500; Reid v. Vanderheyden, 5 Cow. 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. Schaick, 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 Indiana, 336, 342, and as his individual rights were not affected by such judgment, he is not entitled to an appeal.

The fact that the various statutes fixing the jurisdiction of