The Effect of an Unconstitutional Statute

The Effect of an Unconstitutional Statute

OLIVER P. FIELD
Copyright Date: 1935
Edition: NED - New edition
Pages: 368
https://www.jstor.org/stable/10.5749/j.ctttv8bg
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  • Book Info
    The Effect of an Unconstitutional Statute
    Book Description:

    This thorough study shows that the courts do not hold, though they often so say, that an unconstitutional statue is void in the sense that it never has any effect upon legal relations. Professor Field says, “In some instances all courts, federal and state, decide cases by giving effect to unconstitutional statutes, and giving effect to them directly, as such, for the case under consideration; in other instances all courts agree that effect shall be given to such statutes by use of other legal rules or doctrines, such as estoppel, de facto [officer or corporation] or clean hands in equity.” ... ...The professional lawyer will find substantial aid in the full discussion and abundant citation of decisions, while the student of government will find much light upon the harmful workings of judicial review of legislation, and suggestion for amelioration. -Dudley O. McGovney, University of California -JSTOR: California Law Review, Vol. 23, No. 5 (Jul., 1935), pp. 542-544

    eISBN: 978-1-4529-3616-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-xii)
  3. Chapter I INTRODUCTION
    (pp. 1-14)

    For over a hundred years, state and federal courts in the United States have been declaring statutes unconstitutional, and a great deal of discussion has centered about the American doctrine of judicial review.¹ For many years prior to independence, the judicial committee of the Privy Council had attempted to establish the principle of the supremacy of parliamentary or royal acts over inconsistent enactments of the colonial legislatures.² The practice of judicial review is one of the oldest of American political practices.

    It is a little curious that during all these years so little should have been said or written upon...

  4. Chapter II THE STATUS OF A PRIVATE CORPORATION ORGANIZED UNDER AN UNCONSTITUTIONAL STATUTE*
    (pp. 15-44)

    Suppose that A, B, and C associate themselves in a corporate form of organization for carrying on a business. They comply with all the conditions specified in the statutes as necessary to the enjoyment of corporate privileges. Ten months later the corporation files a complaint against X for having cut a cable belonging to it. X defends by asserting that the statute under which plaintiff is organized is unconstitutional and that therefore plaintiff has no corporate existence. Is there no party plaintiff if the statute is held to be contrary to the state or federal constitution?

    Perhaps a subscriber for...

  5. Chapter III THE STATUS OF A MUNICIPAL CORPORATION ORGANIZED UNDER AN UNCONSTITUTIONAL STATUTE*
    (pp. 45-76)

    A municipal corporation has governmental as well as proprietary functions to perform. It differs from a private corporation in that its primary functions are governmental.¹ Municipal corporations are usually spoken of as legal persons, or entities, in the same sense as private corporations are, but in studying them it must always be borne in mind that the main purpose for which most of them are created is to perform certain governmental functions.

    The problem to be considered in this chapter is the status of a municipal corporation, that term being used in a generic which has been organized in accordance...

  6. Chapter IV THE EFFECT OF AN UNCONSTITUTIONAL STATUTE IN THE LAW OF PUBLIC OFFICERS: THE EFFECT ON OFFICIAL STATUS
    (pp. 77-118)

    The effect of an unconstitutional statute becomes of importance at two points in the law of public officers: (1) in connection with official status, involving the doctrines concerning de facto officers and (2) in connection with the liability of officers for action or non-action under an invalid statute. The first of these points of contact between the two fields will be the subject of this chapter.¹

    Three situations may arise with respect to the invalidity of a statute in the law of public officers. First, the statutecreating an officemay be defective. Second, the statute creating the office may...

  7. Chapter V LIABILITY OF PUBLIC OFFICERS FOR ACTION OR NONACTION*
    (pp. 119-149)

    The question of the liability of an officer for acting or failing act under an unconstitutional statute may arise in a variety of situations.

    Injunctive.—Injunctive relief is often sought to prevent an officer from taking threatened action under a statute alleged to invalid. If the court decides that the law is unconstitutional the decree will issue, and such a suit is not one against the state because the officer is being restrained in his private instead of in his official capacity. He is said to be stripped of his official character and consequently to be stripped of his official...

  8. Chapter VI RES ADJUDICATA, STARE DECISIS, AND OVER-RULED DECISIONS IN CONSTITUTIONAL LAW
    (pp. 150-180)

    The effect of unconstitutionality may be considered from two points of view: (1) from the point of view of the effect of the unconstitutional statute or (2) the effect of a decision declaring the statute to be unconstitutional. Such phrases asres adjudicata, stare decisis, orthe permanence of constitutionalityrefer primarily to the second of these aspects, and it is with that aspect that the following discussion deals.

    The idea expressed by the phrasethe permanence of constitutionalityis more general than that expressed byres adjudicataorstare decisisand includes both of them. Fifty years ago the...

  9. Chapter VII RELIANCE UPON DECISIONS AND THE EFFECT OF OVERRULING DECISIONS IN CONSTITUTIONAL LAW
    (pp. 181-197)

    Judicial change of decision as to the constitutionality of statutes gives rise to problems that are most vexing. The question of the amount of legal protection to be given to persons who have acted in reliance upon, or with reference to, judicial decisions that hold statutes to be constitutional or unconstitutional has been presented to the courts in numerous instances. In a sense this problem of reliance is common to all cases involving the effect of unconstitutional statutes, whether the statutes have been the subject of judicial decision or not, and in a general sense the whole of such a...

  10. Chapter VIII GOVERNMENT BONDS AND PRIVATE PROMISES UNDER UNCONSTITUTIONAL STATUTES*
    (pp. 198-220)

    A study of the law of promises made under or in reliance upon an unconstitutional statute is in a sense a study in the field of mistake of law. The rules on mistake of law have been formulated to apply to situations involving payments, but to make an agreement to pay is only one step removed from payment. The rules applicable to payments made under invalid statutes are considered elsewhere,¹ and the question to be dealt with here is whether promises to pay or to repay are enforceable if made under such statutes. In a later chapter will be considered...

  11. Chapter IX MISTAKE OF LAW AND UNCONSTITUTIONAL STATUTES: PAYMENTS AND SERVICES
    (pp. 221-240)

    The generally stated rule with respect to the recovery of money paid under mistake of law is that courts will not relieve against such mistake, and that recovery will not be permitted.¹ Statutes have altered or modified the rule in some states, and in a smaller number the courts have refused to follow the “weight of authority.” ²

    Certain exceptions to the general rule have also become well established, and are perhaps growing in importance.³ The rule does not apply to mistakes relating to foreign law, such mistakes being treated as mistakes of fact, not as mistakes of law.⁴ However...

  12. Chapter X THE RECOVERY OF UNCONSTITUTIONAL TAXES*
    (pp. 241-273)

    State and national court reports contain hundreds of cases on taxation every year, and in them some tax statutes are declared unconstitutional almost as a matter of course. Not long ago the Supreme Court of the United States declared unconstitutional the provisions of state inheritance statutes under which millions of dollars had been collected.¹ Some of these taxes were paid many years ago; others have been paid very recently. Many other instances of invalid taxing statutes that remained on the books for many years before they were declared unconstitutional will occur to those familiar with the tax law of this...

  13. Chapter XI AMENDATORY, VALIDATING, CURATIVE, AND REMEDIAL MEASURES
    (pp. 274-304)

    How to make the legislation effective again is naturally one of the questions that arises when a statute is declared unconstitutional, if there is a strong demand that it be continued. Proposals to amend the statute suggest themselves; constitutional amendments to remove obstacles or to grant new powers are occasionally resorted federal legislation to remove restrictions upon state legislation has often been attempted; and in other instances curative and validating legislation has been enacted. All of these will be considered in this chapter. In addition, some attention will be paid to the problem of the effect of unconstitutional amendments to...

  14. Chapter XII JUDICIAL REVIEW AS AN INSTRUMENT OF GOVERNMENT
    (pp. 305-326)

    A study of the effect of an unconstitutional statute or of decisions on constitutionality is a study of one phase of the operation of judicial review. Some observations upon judicial review as a device o government rather than as a purely legal doctrine may therefore not be amiss, although they should be taken as suggestive fragments only, pending further studies that will furnish more reliable data and generalizations.

    Three phases of judicial review suggest themselves when the doctrine is viewed as an instrument of government: (1) its function in a federal system in enforcing the constitutional distribution of powers territorially;...

  15. TABLE OF CASES
    (pp. 327-350)
  16. GENERAL INDEX
    (pp. 351-355)