The American Judiciary

S >> Simeon E. Baldwin, LLD >> The American Judiciary

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It is seldom that an inferior court declares a statute void. The
mere fact that it was enacted by the legislature imports the
opinion of that body that it was within its powers; and such an
opinion of a department of government is entitled to great
respect. If a different, opinion is to prevail, it should
ordinarily be first pronounced by the highest authority that can
speak for the judicial department. So far, however, as the
question of power or jurisdiction is concerned, a justice of the
peace, in trying a five-dollar case, has the same authority to
disregard a statute, whether it be one enacted by the State
legislature or by Congress, if he deems it unconstitutional,
which belongs to the full bench of the Supreme Court of the
United States. If he is wrong, the only remedy is by appeal.

The number of statutes which have been judicially pronounced in
whole or part invalid in the United States is very large. Among
the Acts of Congress which have fallen in this manner and have
been made the subject of elaborate opinions may be mentioned the
provision in the original Judiciary Act giving the Supreme Court
of the United States greater original jurisdiction than the
Constitution provided;[Footnote: Marbury _v._ Madison, I
Cranch's Reports, 137.] the Act of 1865, excluding from practice
in the United States courts attorneys who could not take the
"iron-clad oath" that they had not supported the South in the
Civil War;[Footnote: _Ex parte_ Garland, 4 Wallace's
Reports, 333.] the Legal Tender Act of 1866;[Footnote: Hepburn
_v._ Griswold, 8 Wallace's Reports, 603, overruled in the
Legal Tender Cases, 12 Wallace's Reports, 457.] the Act of 1870,
to protect the colored voter;[Footnote: United States _v._
Reese, 92 U. S. Reports, 214.] the Civil Rights Act of
1875;[Footnote: United States _v._ Stanley, 109
U. S. Reports, 3.] the Trade Mark Act of 1876,[Footnote: The
Trade Mark Cases, 100 U. S. Reports, 82.] and the Income Tax Act
of 1894.[Footnote: Pollock _v._ Farmers' Loan and Trust Co.,
157 U. S. Reports, 429.] Fifteen others of less importance have
fallen by the same sword. The Supreme Court of the United States
has also set aside in the same manner, as inconsistent with the
Constitution of the United States, over two hundred statutes
passed by States. Of the twenty-one acts of Congress thus
declared unconstitutional, the decisions as to all but two were
rendered after 1830; of the State statutes all but
twenty-six.[Footnote: Condensed Reports Supreme Court (Peters'
Ed.), 325. note a; see also 131 U. S. Reports, ccxxxv.] The
fourteenth amendment has added largely to the list of the latter
since its adoption in 1868.

State statutes set aside by the State courts since 1780 as in
violation of their respective State constitutions number
thousands. In the year from October 1, 1902, to October 1, 1903,
the legislatures of forty-four States and fully organized
Territories of the United States were in session and nearly
14,400 new statutes were enacted. During the same year fifty
State statutes were declared in whole or part unconstitutional by
courts of last resort. Three of these decisions were rendered by
the Supreme Court of the United States. Five statutes of
Missouri and as many of Indiana were thus set aside; three each
of California, Kansas and Ohio; two each of Florida, Illinois,
Mississippi, Montana, Nebraska, New York, Oregon and Wisconsin,
and one each of those of Kentucky, Maine, Michigan, Minnesota,
New Jersey, Georgia, South Carolina, South Dakota, Tennessee,
Texas, Vermont, Washington and West Virginia.[Footnote: Bulletin
No. 86, New York State Library, "Comparative Summary and Index of
Legislation, 1903," 273, 281.] On the average probably as many
as one statute out of every three hundred that are enacted from
year to year are thus judicially annulled.

The declaration by a court that a statute is unconstitutional and
void is only a step in a cause. In the judgment it may not be
found necessary or proper even to allude to it. But the order of
the court which the judgment contains must be executed precisely
as if no such statute had ever been enacted. It may, in effect,
be directed against the State whose statute is pronounced void if
the plaintiff complains of action taken under it which has
deprived him of property and put it in the hands of public
officers, or seeks a remedy to prevent a threatened wrong.

The State of Ohio in 1819 passed a statute reciting that a branch
of the United States Bank was transacting business there contrary
to the law of the State, and imposing a tax upon it, in case it
continued to do so, of $50,000 a year, to be collected by the
auditor and paid over to the treasurer. The auditor subsequently
sent a man to the bank who forcibly seized and carried off
$98,000 in specie. This was given to the State treasurer, who
kept it in the treasury in a trunk by itself. The bank sued all
three for the money in the Circuit Court, setting forth all these
proceedings at length. Judgment went against them and, with a
slight modification, was affirmed by the Supreme Court of the
United States. It was held by Marshall in giving the opinion
that the statute was void; that the money had never become
mingled with the funds of the State; and that they were liable
for it precisely as if they were private individuals who had
wrongfully seized it.[Footnote: Osborn _v._ Bank of the
United States, 9 Wheaton's Reports, 738.]

These proceedings awakened great feeling in Ohio, and became the
subject of much criticism throughout the country by those
adhering to the Democratic party. The legislature of Ohio
adopted resolutions denouncing them as unauthorized by the
Constitution of the United States, and directed the Governor to
forward a copy to the legislature of every other State with a
request for its opinion on the subject. The replies varied in
tone according to the political predilections of the party then
in control of the State addressed.

Still closer does a court come to collision with the political
sovereignty of the State when it commands a public officer to do
something in violation of a statute which it pronounces void, or
not to do something which such a statute requires. A striking
instance of this is furnished by the power to nullify legislative
gerrymanders. The Constitutions of almost every State provide
that it shall be districted from time to time by the legislature
for the purpose of electing certain officers or local
representatives, and that this shall be so done as to make the
districts as nearly equal in population as conveniently may be,
and composed of contiguous territory. If a legislature
undertakes to construct districts by any other rule, the courts
can compel those charged with the conduct of elections to
disregard it and to hold them according to the districts
previously established under the former law.[Footnote: State
_v._ Cunningham, 83 Wis., 90; 53 Northwestern Reporter, 35;
17 Lawyers' Reports Annotated, 145; 35 American State Reports,
29; Board of Supervisors _v._ Blacker, 92 Michigan Reports,
638; 52 Northwestern Reporter, 951; 16 Lawyers' Reports
Annotated, 432 Brooks _v._ State 152 Indiana Reports; 70
Northeastern Reporter, 980.] But however necessary may be the
conclusion from the premises, it can hardly be agreeable to the
authors of a law which it serves to destroy. In effect, though
not in theory, it subordinates one department of government to
another. The practical result is to give the judiciary a
superior power to the legislature in determining what laws the
latter can enact. It is not a right of veto, but in a case which
calls for its exercise it is an equal right exercised in a
different way.

In the first instance of a resort to it[Footnote: See p. 100.]
the section of the New Jersey Constitution of 1776 confirming the
right of trial by jury was held by the full bench of the Supreme
Court to render a statute void which authorized a trial without
appeal before a jury of six, on a proceeding for the forfeiture
of goods brought in from British territory or the British
military lines. This was an unwelcome decision to many who were
interested in such seizures, and they sent in several petitions
to the legislature for redress. No action criticising the
judges, however, was taken by that body.

Four years later the Mayor's Court of New York, in the case of
Rutgers _v._ Waddington, held that an act of the legislature
of that State, if given the effect which it was plainly intended
to secure, would be contrary to the Constitution of the State,
and therefore allowed it so limited an operation as virtually to
annul it. The legislature retorted by resolutions of
censure.[Footnote: Hunt, "Life of Edward Livingston," 49-51.]

What was probably the second instance of the actual use of the
power in question arose in 1786, out of a statute of Rhode Island
passed to support the credit of her paper money of that year's
issue. Any one declining to receive it in payment for goods sold
at par was to be liable to a _qui tum_ action, to be tried
without a jury. Counsel for a man sued in such a proceeding put
in a plea that the act was unconstitutional and so
void.[Footnote: Trevett _v._ Weeden. See Coxe, "Judicial
Power and Unconstitutional Legislation," 234, 237.] The court,
which was composed of five judges, threw out the action on this
ground, treating the charter from Charles II and the long usage
under it as having established trial by jury as a fundamental and
indefeasible right. The General Assembly shortly afterward
summoned the judges before it to account for this judgment. They
appeared and stated their reasons for their conclusion,
protesting also against the adoption of any resolution for their
removal from office (which had been suggested) until after a
formal trial. They were not impeached, but at the ensuing
session, their terms of office having expired, the Assembly chose
others in their place.

Not far from the same time the Supreme Judicial Court of
Massachusetts pronounced a statute unconstitutional, but there
the legislature displayed no feeling, and at the next session
unanimously repealed it.[Footnote: This, no doubt, was one of the
instances of the exercise of this power referred to by Elbridge
Gerry in the Federal Convention of 1787. Elliot's Debates, V,
151. It is described in Proceedings Massachusetts Historical
Society, XVII, 507.]

In 1808, Judge Calvin Pease of the Ohio Circuit Court was
impeached for holding a law of Ohio unconstitutional. He avowed
the act, and insisted that as it was a judicial one the soundness
or unsoundness of his conclusions could not be inquired into as a
ground of impeachment. The result was an acquittal.[Footnote:
Foster, "Commentaries on the Constitution of the United States,"
I, 691.]

Georgia was the only one of the original States which set up no
Supreme Court at the beginning of its statehood. Her
Constitution established (Art. III, Sec. 1) a Superior Court, and
left it to the General Assembly to give it, if they thought best,
appellate jurisdiction. The judges were subsequently by statute
authorized to sit _in banc_ and hear appeals. In 1815,
while so sitting, they declared a certain statute of the State
unconstitutional and void. The legislature showed its resentment
by a set of resolutions, of which the parts material in this
connection read thus:

Whereas, John McPherson Berrien, Robert Walker, Young Gresham
and Stephen W. Harris, judges of the Superior Court, did, on
the 13th day of January, 1815, assemble themselves together in
the city of Augusta, pretending to be in legal convention, and
assuming to themselves ... the power to determine on the
constitutionality of laws passed by the general assembly, and
did declare certain acts of the legislature to be
unconstitutional and void; and ... the extraordinary power of
determining upon the constitutionality of acts of the state
legislature, if yielded by the general assembly whilst it is
not given by the constitution or laws of the state, would be an
abandonment of the dearest rights and liberties of the people,
which we, their representatives, are bound to guard and protect
inviolate;

Be it therefore resolved, That the members of this general
assembly view, with deep concern and regret, the aforesaid
conduct of the said judges ... and they can not refrain from an
expression of their entire disapprobation of the power assumed
by them of determining upon the constitutionality of laws
regularly passed by the general assembly, as prescribed by the
constitution of this state; we do, therefore, solemnly declare
and protest against the aforesaid assumption of powers, as
exercised by the said judges, and we do, with heartfelt
sensibility, deprecate the serious and distressing consequences
which followed such decision; yet we forbear to look with
severity on the past, in consequence of judicial precedents,
calculated in some measure to extenuate the conduct of the
judges, and hope that for the future this explicit expression
of public opinion will be obeyed.

In 1821 a case was argued before the Supreme Court of the United
States involving the validity of a Kentucky statute passed to
protect occupants of land who had made valuable improvements upon
it in good faith, in case it should be subsequently proved to
belong to some one else. The occupant had employed no lawyer,
and it was surmised that the court would decide against him. The
Governor of Kentucky called the attention of the legislature to
this, and advised the employment of counsel to defend the law.
The legislature responded by resolving "that they consider an
adjudication, that the laws in question are void, incompatible
with the constitutional powers of this state, and highly
injurious to the best interests of the people; and therefore do,
in the name of the commonwealth of Kentucky, and the good people
thereof, solemnly remonstrate and protest against any such
adjudication," but that two commissioners should be appointed "to
attend the Supreme Court of the United States at the next term
and oppose any decision that may be attempted to be procured from
the Supreme Court, that those laws are void in such manner as
they may deem most respectful to the court and most consistent
with the dignity of this state."[Footnote: Niles' Register, XXI,
190, 404, 405.] The case had already been heard _ex parte_,
and the court soon proceeded to give judgment that the statute in
question was void. The Kentucky commissioners employed counsel,
who moved for a reargument, and obtained one, but with the same
result.[Footnote: Green _v._ Biddle, 8 Wheaton's Reports,
1.] The legislature at its next session discussed the opinion in
the case and resolved "that they do most solemnly protest against
the doctrines promulgated in that decision as ruinous in their
practical effects to the good people of this commonwealth and
subversive of their dearest and most valuable political
rights."[Footnote: Niles' Register, XXV, 275.]

They then took up two decisions of their own Court of Appeals,
declaring other statutes of the State unconstitutional and void,
and resolved "that in the opinion of this legislature the
decision of the Court of Appeals of Kentucky in the cases of
Blair against Williams[Footnote: 4 Littell's Kentucky Reports,
34.] and Lapsley against Brashears[Footnote: _Ibid_., 47.]
are erroneous, and the laws declared therein to be
unconstitutional are, in the opinion of this present General
Assembly, constitutional and valid acts."[Footnote: Niles'
Register, XXV, 275.] The next step was to endeavor to remove the
judges, but the two-thirds vote required by the Constitution to
support an address to the Governor for that purpose could not be
secured. At the next session, in 1824, the judges were summoned
to show cause why they should not be removed. They defended
their conclusions so well that the two-thirds vote of each house
required by the Constitution could not be obtained. By a
majority vote the court was then abolished, a new one set up by
the same name, and four new judges appointed. The old court
refused to recognize the validity of their proceedings. The new
one assumed to organize and to do business. At the next election
the question which court ought to be recognized was the dominant
one. The result was that the friends of the old court gained
control of the House and those of the new court that of the
Senate, one of them being also chosen as the Governor. The new
court now got possession of most of the papers of the old court.
The latter ordered their sergeant to bring them back. The
Governor made preparations to use military force to resist the
execution of this order. At last, in 1826, an act was passed
(Session Laws, p. 13) over the Governor's veto, declaring the
acts abolishing the old court unconstitutional and void. The
Governor thereupon appointed a warm champion of the new court
chief justice of the old one to fill a vacancy which had occurred
on that bench, and for the first time for two years the judicial
establishment of the State was on a proper footing.[Footnote:
Niles' Register, XXXI, 324; McMaster "History of the People of
the United States," V, 162-166; "The Old and the New Court, in
The Green Bag," XVI, 520.]

Meanwhile both courts had been sitting and disposing of cases.
New appeals from the inferior courts had been entered in the one
which the appellant's counsel thought most likely to stand as the
rightful authority. The judges of the inferior courts were in
despair when the mandates of the Court of Appeals came down, and
they were called upon to determine whether to obey them. Some
held that the new court was a _de facto court_, and to be
respected accordingly. The ultimate decision fell to the old
court, which, after the repealing Act of 1826, held that there
could be no such thing as a _de facto_ Court of Appeals so
long as civil government was maintained and the _de jure_
court was in the exercise of its functions.[Footnote: Hildreth's
Heirs _v._ M'Intire's Devisee, 1, J. J. Marshall's Kentucky
Reports, 206.]

The same spirit of jealousy still occasionally manifests itself
in a less outspoken but more effective fashion. If a question of
political importance is likely to come before a court, it may be
within the power of the legislature to prevent it by a change in
its statutory jurisdiction.

In this way the Supreme Court of the United States was kept from
passing on the validity of the Reconstruction Acts enacted by
Congress at the close of the Civil War, in a case which was
actually pending. Under these Acts a Mississippi newspaper
editor was arrested in 1867 by military order on account of an
article which he had published reflecting on the policy of the
government, and held for trial before a military commission. He
appealed to the Circuit Court of the United States for the
District of Mississippi for discharge on a writ of _habeas
corpus_. Judgment went against him, and he appealed to the
Supreme Court of the United States. The court, on August 1, held
that it had jurisdiction to review the decision and to decide
whether he could be tried before such a commission.[Footnote:
_Ex parte_ McCardle, 6 Wallace's Reports, 318, 327.] The
cause was then heard on its merits and all the questions involved
discussed at length, four days being devoted to it. Congress
apprehended a decision that the Reconstruction Acts were
unconstitutional, and before one was arrived at, during the same
month, passed an act repealing the right of appeal in such cases
from the Circuit Court. The purpose of this was obvious, but it
was none the less effective, and the court, without deciding the
case, dismissed it for want of jurisdiction.[Footnote: _Ex
parte_ McCardle, 7 Wallace's Reports, 506.]

A legislature whose work has been set aside by the courts as
unconstitutional sometimes asks, in effect, for a reconsideration
of the question by passing another law substantially of the same
nature, although expressed in somewhat different terms. This is
oftenest done when the decision was made by a divided court or is
contrary to the weight of judicial opinion in other States.
Early in the history of California, for instance, a statute was
passed making it a misdemeanor to keep open any store, shop or
factory, or to sell goods, on Sunday. The Supreme Court of the
State held this to be contrary to the provisions in her
Constitution that all men had the inalienable right of acquiring
property, and that the free exercise of religious profession
should be allowed without discrimination or preference. Most of
the other States had similar statutes, and their courts had
supported their validity. Judge Stephen J. Field, then on the
California bench, dissented in a vigorous opinion.[Footnote:
_Ex parte_ Newman, 9 California Reports, 502.] Three years
later the legislature, unconvinced by the reasoning of the
majority of his associates, passed a new Sunday law, which did
not differ materially from the other, and after a few months the
court overruled their former decision, on the very ground taken
by Judge Field.[Footnote: _Ex parte_ Andrews, 18 California
Reports, 679.]

Any dissent from a judgment setting aside a statute greatly
weakens its force. It has also much less claim to public
confidence if all the judges on the bench did not participate in
it. In 1825, the Court of Appeals of Kentucky declined to follow
a decision of the Supreme Court of the United States, which held
certain statutes of Kentucky to be contrary to the Constitution
of the United States.[Footnote: Green _v._ Biddle, 8
Wheaton's Reports, 1.] The reason stated for this was that the
decision was not concurred in by a majority of the court. It had
been made by a majority of a quorum, but not by a majority of the
whole court.[Footnote: Bodley _v._ Gaither, 3 Monroe's
Kentucky Reports, 57.] After this it became the practice of the
Supreme Court under Chief Justice Marshall not to give judgment
in any case involving constitutional questions, unless a majority
of the court concurred in opinion in regard to these.[Footnote:
New York _v._ Miln, 8 Peters' Reports, 118, 122.]

Several American courts have asserted the doctrine that the
judiciary can disregard a statute which plainly violates the
fundamental principles of natural justice, although it may not
contravene any particular constitutional provisions. The English
courts now claim no such power, although Sir Edward Coke, in one
of his discursive opinions, very little of which was necessary
for the determination of the cause, asserted that an act of
Parliament "against common right and reason" could be adjudged
void at common law.[Footnote: Dr. Bonham's Case, 8 Coke's
Reports, 114, 118.] So far as there was any previous judicial
authority for this position, however, it is believed that it can
only be found in decisions made before the Reformation, on
questions arising from interference by Parliament with rights
claimed under the Church of Rome. Such questions were of the
nature of those arising under a written Constitution. The law of
the church within its province was then accepted as a supreme
law.[Footnote: Coxe, "Judicial Power and Unconstitutional
Legislation,"' 147, _et seq_.]

The rule laid down by Sir Edward Coke was accepted by the Supreme
Court of South Carolina in two early cases,[Footnote: Ham
_v._ M'Claws, 1 Bay's Reports, 98; Bowman _v._
Middleton, _Ibid_., 252.] and has been substantially
repeated in some judicial opinions in other States.[Footnote: See
Goshen _v._ Stonington, 4 Connecticut Reports, 209, 225, and
Regents _v._ Williams, 9 Gill & Johnson's Reports, 365, 31
American Decisions, 72.] In the Supreme Court of the United
States its authority was emphatically denied by Mr. Justice
Iredell, near the close of the eighteenth century,[Footnote:
Calder _v._ Bull, 3 Dallas' Reports, 386, 399.] but in 1874
the full court only one member dissenting, held a State statute
void which authorized cities to issue bonds in aid of private
manufacturing enterprises, because they could only be discharged
by taxation, and to tax for such a purpose would be taking
property from all for the good of one. That, said Mr. Justice
Miller in delivering the opinion, "is none the less a robbery
because it is done under the forms of law and is called taxation.
This is not legislation. It is a decree under legislative
form."[Footnote: Loan Association _v._ Topeka, 20 Wallace's
Reports, 655, 664; approved in Parkersburg _v._ Brown, 106
U. S. Reports, 487, 501.]

This view of the law had been forcibly, though tentatively, put
shortly after he came to the bench by Chief Justice Marshall in a
leading case,[Footnote: Fletcher _v._ Peck, 6 Cranch's
Reports, 87.] but one in which it was not necessary to decide
whether the doctrine was sound. "It may well be doubted," he
observed, "whether the nature of society and of government does
not prescribe some limits to the legislative power; and, if any
be prescribed, where are they to be found, if the property of an
individual, fairly and honestly acquired, may be seized without
compensation? To the legislature all legislative power is
granted; but the question whether the act of transferring the
property of an individual to the public be in the nature of the
legislative power is well worthy of serious reflection."

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