law. When therefore we describe any particular measure as an unconstitutional law, and therefore, of course, void, we are in fact, strictly speaking, guilty of a contradiction of terms, for if it is unconstitutional it is not a law at all; or, if it is a law, it cannot be unconstitutional. Thus when any particular so-called law is declared unconstitutional by a competent court of last resort, the measure in question is not "vetoed" or "annulled," but simply declared never to have been law at all, never to have been, in fact, anything more than a futile attempt at legislation on the part of the legislature enacting it. This is a very important point, for did the decision of the court operate as a veto the effect would be simply to hold that the law should cease to be valid from and after the time such decision was rendered, whereas, in fact, the effect is to declare that the law never having had any legal force no legal rights or liabilities can be founded upon it. In Norton v. Shelby Co., Mr. Justice Field says: "An unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed."

An exception to this doctrine, and, to the author's mind, an illogical and ill-considered one, is that made by the Supreme Court in Gelpeke v. Dubuque and the cases affirming it. In these cases it has been held that while a decision of the highest court of a State holding void an act of the State because in conflict with the Constitution of that State will be followed by the federal Supreme Court as to all rights of action accruing after the rendition of such decision, it will not be applied to earlier transactions entered into when the law in question had been declared valid by the state courts and these transactions had been entered into in good faith confiding in the decision of the courts upholding the law.9

6118 U. S. 425; 6 Sup. Ct. Rep. 1121; 30 L. ed. 178. 71 Wall. 175; 17 L. ed. 520.

8 See section 517. There are also some other exceptions, among which is the validity given to acts of de facto officers and de facto corporations whose tenure of office or existence is based upon statutes later held unconstitutional.

9 It may also be proper to observe that acts committed by persons exercising in good faith powers conferred by acts later held unconstitutional are some

In declaring unconstitutional, and therefore void, the enactment of a legislative body, it has sometimes been argued that a court defeats the will of the people as whose law-making organ and mouthpiece the legislature acts. In truth, however, what is done is this: The people, acting solemnly and deliberately in their sovereign capacity, declare that certain matters shall be determined in a certain way. These matters, because of their great and fundamental importance, they reduce to definite written form, and declare they shall not be changed except in a particular manner. In addition to this they go on to say, in substance, that so decided is their will, and so maturely formed their judgment, upon these matters, that any act of their own representatives in legislature inconsistent therewith, is not to be taken as expressing their deliberate will. Therefore, when the courts declare void legisla tive acts inconsistent with constitutional provisions, the judges are giving effect to the real will of the people as they have previously solemnly declared it. Thus, "In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law." 10

times given a certain validity. This, however, is in accordance with a general principle governing de facto officers and is hardly to be treated as an exception to the doctrine stated in the text. In United States v. Realty Co. (163 U. S. 427; 16 Sup. Ct. Rep. 1120; 41 L. ed. 215) it was held that persons acting in good faith under an unconstitutional act of Congress might have an equitable claim against the United States, for the payment of which an appropriation might be made by Congress.

10 Lindsay v. Commissioners, 2 Ray, 38, 61.

CHAPTER II.

PRINCIPLES OF CONSTITUTIONAL CONSTRUCTION.

§ 6. Circumstances Under Which the Courts Will Hold an Act of Congress Void.

Because an act of Congress is the declaration of a co-ordinate branch of the National Government, the courts have established for themselves certain more or less definite rules governing the conditions under which they will undertake to pass upon the constitutionality of federal statutes. These rules are self-established, under a sense of propriety and expediency, and are not created by any constitutional necessity.1

1. Courts of first instance will not hold an act unconstitutional except in clear cases, but will leave this to the final judgment of the higher courts. Inferior courts hold themselves bound by the prior decisions of superior courts as to the validity of an act, even though new reasons, pro or contra, are raised. The presumption is that all possible arguments were in fact considered by the superior courts.

2. The Supreme Court has held that, ordinarily, it will not hold a law void except by a majority of the full bench. Thus, in 1825, the Court of Appeals of Kentucky refused to follow a decision of the Supreme Court of the United States, which had held a law of Kentucky void as contrary to the federal Constitution, stating as a reason that the decision had not been concurred in by a majority of the entire court.2 After this occurrence the Supreme Court adopted the rule as stated above. In New York v. Miln,3 decided in 1834, Marshall said: "The practice of this court is not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional questions are involved, unless four justices [the court then consisted of seven]

1 Cf. the enumeration of these rules by Cooley in his Const. Lim., Chap. VII. 2 Bodley v. Gaither, 3 Monroe, 57.

38 Pet. 120; 8 L. ed. 888.

concur in the opinion, thus making the decision that of a majority of the whole court. In the present cases four justices do not concur in opinion as to the constitutional questions which have been argued. The court therefore direct these cases to be reargued at the next term, under the expectation that a larger number of the judges may then be present."

3. The courts will not pass upon the constitutionality of a law except in suits duly brought before them at the instance of parties whose material interests are involved.*

4 Advisory Opinions: The following data regarding Advisory Opinions is largely taken from Thayer, Cases on Constitutional Law, I, 175.

The constitutions of four of the States (Massachusetts, Maine, New Hampshire, Rhode Island) provide that upon request by the executive or legislature, the judges of the highest courts shall render an opinion upon the constitutionality of a proposed measure submitted to them. And six States (Colorado, Florida, Idaho, Illinois, Nebraska, Washington) provide that judges may suggest improvements in the law for legislative action. (Dealey, Our State Constitutions, p. 40, Annals of the American Academy of Political and Social Science. Supplement, March, 1907.)

In general it may be said that these opinions thus obtained are purely advisory in character, and that they do not even constitute judicial precedents to control the future judgments of the courts that render them. This has been definitely declared in Massachusetts, New Hampshire, Rhode Island, Missouri (where the practice existed from 1865 to 1875) and Florida. In Maine and Colorado, however, these decisions have been held binding. (12 Col. Rept. 466, 70 Maine, p. 503). The Maine court said: "Various questions involving the true construction of the Constitution and statutes . . . arose, and the Governor called upon this court for its opinion on the questions propounded. The court was required by the Constitution to expound and construe the provisions of the Constitution and statutes involved. It gave full answers. The opinion of the court was thus obtained in one of the modes provided in the Constitution for an authoritative determination of important questions of law.' The law thus determined is the conclusive guide of the Governor and Council in the performance of their ministerial duties. Any action on their part . . . in violation of the Constitution and law thus declared is a usurpation of authority and must be held void.”

Despite Maine and Colorado, the weight of precedent, as well as the better reason and wisdom, is in favor of holding such opinions advisory merely. Such decisions do not arise out of or relate to any particular facts or particular purpose which might explain or limit the generality of their statements. The judges have not had the benefit of the hearing of counsel, and there has been no argument before them.

The opinions of the Attorney-General of the United States resemble in their advisory character these opinions of judges.

4. The court will not pass adversely upon the validity of an act of Congress unless it is absolutely necessary for it to do so in order to decide the question at issue. This principle has been so often declared that the citation of authorities is not necessary.

A number of instances have occurred in which justices in States, whose Constitutions did not give the legislature or executive this power to call for their opinions, have refused to give them when called upon to do so. Especially in Minnesota (10 Minn. 78, 1865) the court held unconstitutional an act which provided that "either house may by resolution require the opinion of the Supreme Court or any one or more of the judges thereof upon a given subject, and it shall be the duty of such court, or judges thereof, when so requested respectively to give such opinions in writing."

The Pennsylvania court, however, in a similar case, gave the desired opinion without comment. (3 Binney, 595.)

In several cases, justices have refused, even in those States where the power to call for an opinion is in the Constitution, to give an opinion upon questions which it was possible might afterward come before them for adjudication. Instances of this occurred several times in Missouri and once in Maine.

In the Constitutional Convention of 1787 it was proposed to give this power to the President and Congress and to ask opinions of the Supreme Court. but nothing came of it. (5 Ell. Deb. 445.)

In 1793 Washington asked the opinion of the Supreme Court in re Jay's Treaty. Twenty-nine questions were propounded. The Court refused to answer. Thayer thinks it fortunate that this first request should have come in so weighty a form, else the court might have slipped into an unfortunate precedent, and thus become concerned in politics.

"New York originally not only gave her legislators a share in judicial power, but her judges a share in that of legislation. Her Constitution of 1777 provided for a council of revision, consisting of the Governor, the Chancellor, and the judges of the Supreme Court, to whom all bills which passed the Senate and Assembly should be presented for consideration; and that if a majority of them should deem it improper that any such bill become a law they should within ten days return it with their objections to the house in which it originated, which should enter the objections at large in its minutes, and proceed to reconsider the bill; and that it should not become a law unless repassed by a vote of two-thirds of the members of each house. For forty years this remained the law, and the Council of Revision contained from time to time judges of great ability, Chancellor Kent being one. During this period, 6590 bills in all were passed. One hundred and twenty-eight of them were returned by the Council with their objections, and only seventeen of these received the two-thirds necessary to re-enact them." Baldwin, The American Judiciary, p. 30.

5 In Marbury v. Madison the Supreme Court, although it declared that it had not jurisdiction of the case, went on to lay down the law applicable to the other points at issue. The excuse for so doing was that the court felt itself