The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1903-10-15
BRIEF FOR HIGH COURT
DEPUTY ATTORNEY GENERAL HAD
LEY REPLIES FOR STATE.
Famous "MOrtgage Deduction" Case
Is Now Before the Supreme Court
of the United States.

of the United States.
Deputy Attorney General Hadley has filed
the reply brief OF the State in the mort
gage deduction" case in the United States
Supreme Court. The case is that of Harry
b. Smith, auditor of Marion county, against
the State of Indiana. There Is general
interest all over the State in this suit, as
thousands of people who have mortgages
on their property are interested in the
question. In this case the constitutionality
of the law is attacked.
Auditor Smith declined to allow these
mortgage deductions and Judge Allen, of
the Circuit Court, before whom mandatory
proceedings were brought, decided in favor
of the auditor and held the law to be I'M
constitutional The State Supreme Court
later reversed, Judge Allen, and the auditor
appealed to the United States Supreme
Court The brief prepared by Attorney
Hadley is in reply to one filed by the other
side. Among other things. the States brief
says:
1.-The law was drawn by the attorney
general of the State upon the almost uni
versal demand of the small real estate
owners. 1t was never a political question,
but both parties, as the records show, sup
porting it; 1t passed the Senate on vote or
rs TO IL and the House by vote of "a to 4,
or total of 1873 votes cast. The narrow
majority was SO. Not a single court in the
State outside of the Marion Circuit Court
ever held the law unconstitutional, nor has
the constitutionality of the law ever been
questioned in any other court of the State
that has come to the knowledge of the
legal department of the State The writer
of this brief has been an assistant in the
office of the attorney general of the State
continuously since the passage of the act
in question. Hundreds of letters have been
received from all over the State asking for
instructions and interpretations OF the law,
but not one was ever received by the legal
department questioning its constitutional
ity, as is shown by the records of said
office. OF the ninety-two county auditors
in the State, all except the plaintiff in error
endeavored to faithfully obey it and per-
form their duties under il, as is shown by
the records in the auditor of States office.
and there was no confusion outside of
Marion county until this suit was brought
and the judge of the Circuit Court decided
the law unconstitutional.
EFFECT ON VALUATIONS.
LAS to the effect upon the valuation of
assessable property, plaintiff in error is
auditor of the county and he knows or
can easily know that the total assessed
valuation in Marion county, as shown by
the settlement sheets in the auditor of
states Office made by plaintiff in error for
the year of 1898. before that law was
passed, was Sl41, 1886, 225 that for the year
1900 the assessed valuation of Marion coun-
ty less the mortgage deductions was $145,-
939, 405, or $4,604,1S0 more than 1898: for the
year of 1901 and 1902 the deductions were
not made until the decision in this case by
the Supreme Court, SO that the increase
in the tax rate cannot be attributed to the
decrease in taxables. The law is popular
law with the masses, and only obnoxious
to those mortgage holders whose mortgages
have been uncovered by the afidavits of
the mortgageors and placed upon the tax
duplicates by the county assessor OF the
several counties and made to bear their
share of the burdens of government.
THE county. auditor in the State of In
diana is ministerial officer. The duties
laid upon the auditor by the act in Ques-
ton are purely ministerial duties; they In
no way affect his rights as an officer, and
1t was his duty to obey the legislative will.
He had no right to question the legislative
authority merely because the exercise of
his functions might affect third parties In
such way as to be violative OF the Con-
stitution.
ct has been decided by numerous cases
throughout this country that 1t is the duty
of a ministerial officer to obey the law, and
not to question it; that a ministerial officer
is not vested with judicial authority, and
clothed with the right to pass upon the con-
stitutionality Of an act that prescribes GER
tain duties for him to perform. Especially
is this true of ministerial officer charged
with collecting the revenues, as 1T is rec
cgnzed t ma SPEEDY co f OF tns Re
all important, and that delays and confu-
sion are always injurious to the welfare of
the municipality.
1.-The decree of the Supreme Court was
recognized and obeyed by the judge of the
Marion Circuit Court, the judicial officer
charged with the duty of first passing upon
| the constitutioIality of the laws of this
| State, but this petty ministerial officer,
whose duties and functions are purely stat
| utory and subject to the legislative will,
refuses to be bound by such decree of the
| highest court and still insists that he shall
| not perform the functions OF the office pre-
| scribed by the legislative and judicial man.
| date, not because any of his rights are
affected or infringed, or because his prop
| erty is taken without due process of law,
| but because, forsooth, some third persons
| property or personal rights may be inJuri-
| ously affected if he performs the duties that
| the legislative and judicial departments Of
| the State government have said he shall
| the rights of third persons, there is time
| enough for this court to so declare when
| properly requested so to do.
STRONGLY ILLUSTRATED.
1.-THE evil of permitting a ministerial off,
| Ger to assume judicial authority and pass
| ing upon the constitutionality of law pre-
| scribing his duties is strongly illustrated in
| this case. Here the auditor is one of the
| important wheels in the machinery of the
collection of revenues for sustaining the
government. By refusing TO obey the law
| in question he delayed and threw into con-
fusion the collection of the taxes-state.
| county and city-of the richest county in the
| State.
1--WE insist that under this state of facts
the plaintiff IN error has 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 highest judicial body of
his STATE to be a valid law for his guidance
/ and authority
| Counsel argue at great length and with
| much righteousness that we have no prop
| erty deductions in this State: that what is
| called a deduction of debts owning from
| credits owing to the person taxed is not a
deduction. but simply taxation upon the
| net balance due the person sought to be
/ taxed upon the debts owing 10 him, and
| counsel cite Section S4ll. Burns X. S. 1901,
/ in proof OF this proposition. That portion
| of the said section relating to this PROPOSE
| ton is as follows
| All Indebtedness due to inhabitants of
| this State above the amounts respectively
owed by them, whether such indebtedness
| is due from individuals or corporations,
| public private. and whether such debtors
| reside within or without the State
| 1.-The argument of counsel on this propo-
sition seems be a vigorous argument
| on the difference between twiddledee- dun
| and twiddledee-dee. BY whatever name II
| may be called there Is deduction of in
| debtedness owing from Indebtedness due.
| The same Legislature that enacted the last
| above quotation. in the same act also pro-
4 vided the form OF schedule that should be
| used by the assessors In listing the prop