This was an action by the appellant against the appellee, who was the clerk of the Hamilton .Circuit Court, to recover certain illegal fees and charges alleged to have been taxed to and collected from the appellant, as administrator of the estate of one Jane Perkins. The action is brought under the act of the General Assembly, approved February 28, 1883, section 8 of which gives a right of action for the recovery of money illegally collected by an officer, together with a certain penalty therein provided for. Elliott’s Supp., sections 1969-1976.
Upon issues joined there was a trial by the court, and a finding and judgment in favor of the appellee, over a motion by the appellant for a new trial.
The assignment of error calls in question the correctness of the court’s ruling upon the motion for a new trial, and this latter motion disputes the sufficiency of the evidence to sustain the finding and judgment.
Among other causes urged by the appellee in support of the ruling of the circuit court is that of the alleged unconstitutionality of the act above cited, which forms the basis of this action.
Section 1 of the act creating the Appellate Court, and defining its jurisdiction, approved February 28, 1891 (Acts of 1891, p. 39), contains the following proviso:
*600Filed Oct. 30, 1891.“ Provided, however, That if the validity of a statute of this State, or the United States, is involved, said court shall so certify, and thereupon the transcript and all papers in such cause shall be transmitted to the Supreme Court, with such certificate, and filed therein, and all proceedings conducted thereafter as if said cause had been originally appealed to the Supreme Court.”
The question of the constitutionality of the law seems to be made in good faith, and whatever may be its real merits when examined in the light of the authorities bearing upon such questions, we think it may be said to stand upon fairly debatable ground, and therefore within the jurisdiction of the Supreme Court. Ex parte Sweeney, 126 Ind. 583.
The cause should be transferred to the Supreme Court.
It is so ordered.