FROTHINGHAM V. MELLON
Facts: A federal taxpayer disagreed with the Treasury expenditures in
a Congressional Act. She felt that it exceeded the general power of the
Congress and thereby invade the province of the states under the 10th
Procedural Posture: The taxpayer filed suit challenging the act under
the theory that as a taxpayer, she would have property taken without due
process, because the expenditure would result in an increase, generally,
in her taxes.
Issue: Whether a single federal taxpayer has standing to sue the
federal government to prevent expenditures if her only injury is an
anticipated increase in taxes.
Reasoning: The taxpayer's interest in the treasury money is shared
with millions of others and is too small to determine. There are too
many uncertain and fluctuating factors to determine the effect this act
might have on one person's taxes. Furthermore, to decide this case,
where there is no controversy, would be to assume a position of review
of the governmental acts of another co-equal department, an authority
which the court does not possess.
THE UNITED STATES SUPREME COURT
Nos. 24, Original, and 962.
COMMONWEALTH OF MASSACHUSETTS
MELLON, Secretary of the Treasury, et al.
MELLON, Secretary of the Treasury, et al.
Argued May 3 and 4, 1923. Decided June 4, 1923.
APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
Original suit by the Commonwealth of Massachusetts against Andrew W.
Mellon, Secretary of the Treasury, and others, and suit by Harriet A.
Frothingham against Andrew W. Mellon, Secretary of the Treasury, and
others. A decree dismissing the bill in the second suit was affirmed by
the Court of Appeals of the District of Columbia, and plaintiff appeals.
First suit dismissed, and decree in the second suit affirmed.
Mr. Solicitor General Beck, of Washington, D. C., for Mellon and
Messrs. Alexander Lincoln and J. Weston Allen, both of Boston, Mass.,
Messrs. Wm. L. Rawls and George Arnold Frick, both of Baltimore, Md.,
and William H. Lamar and Lucius Q. C. Lamar, both of Washington, D. C.,
[CITE AS: 262 U.S. 447]
Mr. Justice SUTHERLAND delivered the opinion of the Court.
These cases were argued and will be considered and disposed of together.
The first is an original suit in this court. The other was brought in
the Supreme Court of the District of Columbia. That court dismissed the
bill and its decree was affirmed by the District Court of Appeals.
Thereupon the case was brought here by appeal. Both cases challenge the
constitutionality of the Act of November 23, 1921, 42 Stat. 224, c. 135,
commonly called the Maternity Act. Briefly, it provides for an initial
appropriation and thereafter annual appropriations for a period of five
years, to be apportioned among such of the several states as shall
accept and comply with its provisions, for the purpose of co-operating
with them to reduce maternal and infant mortality and protect the health
of mothers and infants. It creates a bureau to administer the act in co-
operation with state agencies, which are required to make such reports
concerning their operations and expenditures as may be prescribed by the
federal bureau. Whenever that bureau shall determine that funds have not
been properly expended in respect of any state, payments may be
It is asserted that these appropriations are for purposes not national,
but local to the states, and together with numerous similar
appropriations constitute an effective means of inducing the states to
yield a portion of their sovereign rights. It is further alleged that
the burden of the appropriations provided by this act and similar
legislation falls unequally the several states, and rests largely upon
the industrial states, such as Massachusetts; that the act is a
usurpation of power not granted to Congress by the Constitution--an
attempted exercise of the power of local self-government reserved to the
states by the Tenth Amendment; and that the defendants are proceeding to
carry the act into operation. In the Massachusetts Case it is alleged
that the plaintiff's rights and powers as a sovereign state and the
rights of its citizens have been invaded and usurped by these
expenditures and acts, and that, although the state has not accepted the
act, its constitutional rights are infringed by the passage thereof and
the imposition upon the state of an illegal and unconstitutional option
either to yield to the federal government a part of its reserved rights
or lose the share which it would otherwise be entitled to receive of the
moneys appropriated. In the Frothingham Case plaintiff alleges that the
effect of the statute will be to take her property, under the guise of
taxation, without due process of law.
We have reached the conclusion that the cases must be disposed of for
want of jurisdiction, without considering the merits of the
In the first case, the state of Massachusetts presents no justiciable
controversy, either in its own behalf or as the representative of its
The appellant in the second suit has no such interest in the subject-
matter, nor is any such injury inflicted or threatened, as will enable
her to sue.
First. The state of Massachusetts in its own behalf, in effect,
complains that the act in question invades the local concerns of the
state, and is a usurpation of power, viz. the power of local self-
government, reserved to the states.
Probably it would be sufficient to point out that the powers of the
state are not invaded, since the statute imposes no obligation but
simply extends an option which the state is free to accept or reject.
But we do not rest here.
Under article 3, s 2, of the Constitution, the judicial power of this
court extends 'to controversies * * * between a state and citizens of
another state' and the court has original jurisdiction 'in all cases * *
* in which a state shall be a party.' The effect of this is not to
confer jurisdiction upon the court merely because a state is a party,
but only where it is a party to a proceeding of judicial cognizance.
Proceedings not of a justiciable character are outside the contemplation
of the constitutional grant.
In Wisconsin v. Pelican Insurance Co., 127 U. S. 265, 289, Mr. Justice
Gray, speaking for the court, said:
'As to 'controversies between a state and citizens of another state':
The object of vesting in the courts of the United States jurisdiction of
suits by one state against the citizens of another was to enable such
controversies to be determined by a national tribunal, and thereby to
avoid the partiality, or suspicion of partiality, which might exist if
the plaintiff state were compelled to resort to the courts of the state
of which the defendants were citizens. Federalist, No. 80; Chief Justice
Jay, in Chisholm v. Georgia, 2 Dall. 419, 475; Story on the
Constitution, ss 1638, 1682. The grant is of 'judicial power,' and was
not intended to confer upon the courts of the United States jurisdiction
of a suit or prosecution by the one state, of such a nature that it
could not, on the settled principles of public and international law, be
entertained by the judiciary of the other state at all.' That was an
action brought by the state of Wisconsin to enforce a judgment of one of
its own courts for a penalty against a resident of another state, and,
in pursuance of the doctrine announced by the language just quoted, this
court declined to assume jurisdiction upon the ground that the courts of
no country will execute the penal laws of another."
In an earlier case it was held that a proceeding by mandamus by one
state to compel the Governor of another to surrender a fugitive from
justice was not within the powers of the judicial department, since the
duty of the Governor in the premises was in the nature of a moral rather
than a legal obligation. Kentucky v. Dennison, 24 How. 66, 109, 16 L.
Ed. 717. In New Hampshire v.Louisiana and New York v. Louisiana, 108 U.
S. 76, this court declined to take jurisdiction of actions to enforce
payment of the bonds of another state for the benefit of the assignors,
citizens of the plaintiff states. In Georgia v. Stanton, 6 Wall. 50, 75,
18 L. Ed. 721, and kindred cases, to which we shall presently refer,
jurisdiction was denied in respect of questions of a political or
governmental character. On the other hand, jurisdiction was maintained
in Texas v. White, 7 Wall. 700, 19 L. Ed. 227, The State of Florida v.
Anderson, 91 U. S. 667 and Alabama v. Burr, 115 U. S. 413, because
proprietary rights were involved; in Georgia v. Tennessee Copper Co.,
206 U. S. 230, 237, because the right of dominion of the state over the
air and soil within its dominion was affected; in Missouri v. Holland,
252 U. S. 416, because, as asserted, there was an invasion, by acts done
and threatened, of the quasi sovereign right of the state to regulate
the taking of wild game within its borders; and in other cases because
boundaries were in dispute. It is not necessary to cite additional
cases. The foregoing for present purposes sufficiently indicate the
jurisdictional line of demarcation.
What, then, is the nature of the right of the state here asserted and
how is it affected by this statute? Reduced to its simplest terms, it is
alleged that the statute constitutes an attempt to legislate outside the
powers granted to Congress by the Constitution and within the field of
local powers exclusively reserved to the states. Nothing is added to the
force or effect of this assertion by the further incidental allegations
that the ulterior purpose of Congress thereby was to induce the states
to yield a portion of their sovereign rights; that the burden of the
appropriations falls unequally upon the several states; and that there
is imposed upon the states an illegal and unconstitutional option either
to yield to the federal government a part of their reserved rights or
lose their share of the moneys appropriated. But what burden is imposed
upon the states, unequally or otherwise? Certainly there is none, unless
it be the burden of taxation, and that falls upon their inhabitants, who
are within the taxing power of Congress as well as that of the states
where they reside. Nor does the statute require the states to do or to
yield anything. If Congress enacted it with the ulterior purpose of
tempting them to yield, that purpose may be effectively frustrated by
the simple expedient of not yielding.
In the last analysis, the complaint of the plaintiff state is brought to
the naked contention that Congress has usurped the reserved powers of
the several states by the mere enactment of the statute, though nothing
has been done and nothing is to be done without their consent; and it is
plain that that question, as it is thus presented, is political, and not
judicial in character, and therefore is not a matter which admits of the
exercise of the judicial power.
In Georgia v. Stanton, supra, this court held that a bill to enjoin the
Secretary of War, and other officers, from carrying into execution
certain acts of Congress, which it was asserted would annul and abolish
the existing state government and establish another and different one in
its place, called for a judgment upon a political question and presented
no case within the jurisdiction of the court. Mr. Justice Nelson,
speaking for the court, said ( 6 Wall. 77, 18 L. Ed. 721): 'That these
matters, both as stated in the body of the bill, and, in the prayers for
relief, call for the judgment of the court upon political questions,
and, upon rights, not of persons or property, but of a political
character, will hardly be denied. For the rights for the protection of
which our authority is invoked, are the rights of sovereignty, of
political jurisdiction, of government, of corporate existence as a
state, with all its constitutional powers and privileges. No case of
private rights or private property, infringed, or in danger of actual or
threatened infringement, is presented by the bill, in a judicial form,
for the judgment of the court.' In Cherokee Nation v. Georgia, 5 Pet. 1,
8 L. Ed. 25, an injunction was sought to prevent *certain acts of
legislation from being carried into execution within the territory of
the Cherokee Nation of Indians, the original jurisdiction of this court
being invoked on the ground that plaintiff was a foreign nation. It was
asserted that the acts in question, if executed, would have the effect
of subverting the tribal government and subjecting the Indians to the
jurisdiction of the state of Georgia. It was held that the Cherokee
Nation could not be regarded as a foreign nation, within the meaning of
the Judiciary Act (1 Stat. 73), but Chief Justice Marshall, delivering
the opinion for the majority, said, further (5 Pet. 20, 8 L. Ed. 25):
'That part of the bill which respects the land occupied by the Indians,
and prays the aid of the court to protect their possession, may be * * *
The mere question of right might perhaps be decided by this court in a
proper case with proper parties. But the court is asked to do more than
decide on the title. The bill requires us to control the Legislature of
Georgia, and to restrain the exertion of its physical force. The
propriety of such an interposition by the court may well be questioned.
It savors too much of the exercise of political power to be within the
proper province of the judicial department.'
And Mr. Justice Thompson, with whom Mr. Justice Story concurred, in the
course of an opinion, said (6 Wall. 75): 'It is only where the rights of
persons or property are involved, and when such rights can be presented
under some judicial form of proceedings, that courts of justice can
'This court can have no right to pronounce an abstract opinion upon the
constitutionality of a state law. Such law must be brought into actual,
or threatened operation upon rights properly falling under judicial
cognizance, or a remedy is not to be had here.' See, also, Luther v.
Borden, 7 How. 1; Mississippi v. Johnson, 4 Wall. 475, 500; Pacific
Telephone Co. v. Oregon, 223 U. S. 118; Louisiana v. Texas, 176 U. S. 1,
23; Fairchild v. Hughes, 258 U. S. 126.
It follows that, in so far as the case depends upon the assertion of a
right on the part of the state to sue in its own behalf, we are without
jurisdiction. In that aspect of the case we are called upon to
adjudicate, not rights of person or property, not rights of dominion
over physical domain, not quasi sovereign rights actually invaded or
threatened, but abstract questions of political power, of sovereignty,
of government. No rights of the state falling within the scope of the
judicial power have been brought within the actual or threatened
operation of the statute, and this court is as much without authority to
pass abstract opinions upon the constitutionality of acts of Congress as
it was held to be, in Cherokee Nation v. Georgia, supra, of state
statutes. If an alleged attempt by congressional action to annul and
abolish an existing state government 'with all its constitutional powers
and privileges,' presents no justiciable issue, as was ruled in Georgia
Stanton, supra, no reason can be suggested why it should be otherwise
where the attempt goes no farther, as it is here alleged, than to
propose to share with the state the field of state power.
We come next to consider whether the suit may be maintained by the state
as the representative of its citizens. To this the answer is not
doubtful. We need not go so far as to say that a state may never
intervene by suit to protect its citizens against any form of
enforcement of unconstitutional acts of Congress; but we are clear that
the right to do so does not arise here.
Ordinarily, at least, the only way in which a state may afford
protection to its citizens in such cases is through the enforcement of
its own criminal statutes, where that is appropriate, or by opening its
courts to the injured persons for the maintenance of civil suits or
actions. But the citizens of Massachusetts are also citizens of the
United States. It cannot be conceded that a state, as parens patriae,
may institute judicial proceedings to protect citizens of the United
States from the operation of the statutes thereof. While the state,
under some circumstances, may sue in that capacity for the protection of
its citizens (Missouri v. Illinois and Chicago District, 180 U. S. 208,
241,) it is no part of its duty or power to enforce their rights in
respect of their relations with the federal government. In that field it
is the United States, and not the state, which represents them as parens
patriae, when such representation becomes appropriate; and to the
former, and not to the latter, they must look for such protective
measures as flow from that status.
Second. The attack upon the statute in the Frothingham Case is,
generally, the same, but this plaintiff alleges, in addition that she is
a taxpayer of the United States; and her contention, though not clear,
seems to be that the effect of the appropriations complained of will be
to increase the burden of future taxation and thereby take her property
without due process of law. The right of a taxpayer to enjoin the
execution of a federal appropriation act, on the ground that it is
invalid and will result in taxation for illegal purposes, has never been
passed upon by this court. In cases where it was presented, the question
has either been allowed to pass sub silentio or the determination of it
expressly withheld. Millard v. Roberts, 202 U. S. 429, 438; Wilson v.
Shaw, 204 U. S. 24, 31; Bradfield v. Roberts, 175 U. S. 291, 295. *The
case last cited came here from the Court of Appeals of the District of
Columbia, and that court sustained the right of the plaintiff to sue by
treating the case as one directed against the District of Columbia, and
therefore subject to the rule, frequently stated by this court, that
resident taxpayers may sue to enjoin an illegal use of the moneys of a
municipal corporation. Roberts v. Bradfield, 12 App. D. C. 453, 459,
460. The interest of a taxpayer of a municipality in the application of
its moneys is direct and immediate and the remedy by injunction to
prevent their misuse is not inappropriate. It is upheld by a large
number of state cases and is the rule of this court. Crampton v.
Zabriskie, 101 U. S. 601.
Nevertheless, there are decisions to the contrary. See, for example,
Miller v. Grandy, 13 Mich. 540, 550. The reasons which support the
extension of the equitable remedy to a single taxpayer in such cases are
based upon the peculiar relation of the corporate taxpayer to the
corporation, which is not without some resemblance to that subsisting
between stockholder and private corporation. 4 Dillon, Municipal
Corporations (5th Ed.) s 1580 et seq. But the relation of a taxpayer of
the United States to the federal government is very different. His
interest in the moneys of the treasury--partly realized from taxation
and partly from other sources--is shared with millions of others, is
comparatively minute and indeterminable, and the effect upon future
taxation, of any payment out of the funds, so remote, fluctuating and
uncertain, that no basis is afforded for an appeal to the preventive
powers of a court of equity.
The administration of any statute, likely to produce additional taxation
to be imposed upon a vast number of taxpayers, the extent of whose
several liability is indefinite and constantly changing, is essentially
a matter of public and not of individual concern. If one taxpayer may
champion and litigate such a cause, then every other taxpayer may do the
same, not only in respect of the statute here under review, but also in
respect of every other appropriation act and statute whose
administration requires the outlay of public money, and whose validity
may be questioned. The bare suggestion of such a result, with its
attendant inconveniences, goes far to sustain the conclusion which we
have reached, that a suit of this character cannot be maintained. It is
of much significance that no precedent sustaining the right to maintain
suits like this has been called to our attention, although, since the
formation of the government, as an examination of the acts of Congress
will disclose, a large number of statutes appropriating or involving the
expenditure of moneys for nonfederal purposes have been enacted and
carried into effect.
The functions of government under our system are apportioned. To the
legislative department has been committed the duty of making laws, to
the executive the duty of executing them, and to the judiciary the duty
of interpreting and applying them in cases properly brought before the
courts. The general rule is that neither department may invade the
province of the other and neither may control, direct, or restrain the
action of the other.
We are not now speaking of the merely ministerial duties of officials.
Gaines v. Thompson, 7 Wall. 347, 19 L. Ed. 62. We have no power per se
to review and annul acts of Congress on the ground that they are
unconstitutional. That question may be considered only when the
justification for some direct injury suffered or threatened, presenting
a justiciable issue, is made to rest upon such an act. Then the power
exercised is that of ascertaining and declaring the law applicable to
the controversy. It amounts to little more than the negative power to
disregard an unconstitutional enactment, which otherwise would stand in
the way of the enforcement of a legal right. The party who invokes the
power must be able to show, not only that the statute is invalid, but
that he has sustained or is immediately in danger of sustaining some
direct injury as the result of its enforcement, and not merely that he
suffers in some indefinite way in common with people generally. If a
case for preventive relief be presented, the court enjoins, in effect,
not the execution of the statute, but the acts of the official, the
statute notwithstanding. Here the parties plaintiff have no such case.
Looking through forms of words to the substance of their complaint, it
is merely that officials of the executive department of the government
are executing and will execute an act of Congress asserted to be
unconstitutional; and this we are asked to prevent. To do so would be,
not to decide a judicial controversy, but to assume a position of
authority over the governmental acts of another and coequal department,
an authority which plainly we do not possess.
No. 24, Original, dismissed.
No. 962 affirmed.
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