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tion. In a general way, the same rule governs a treaty ceding territory to us. “It is true,” said Wayne, J., " that .. its national character continues for all commercial purposes; but full sovereignty, for the exercise of it, does not pass to the nation to which it is transferred until actual delivery. But it is also true that the exercise of sovereignty by the ceding country ceases, except for strictly municipal purposes, especially for granting lands. And for the same reason in both cases; because, after the treaty is made, there is not in either the union of possession and the right to the territory which must concur to give plenum dominium et utile."? Yet, as a “law” under our constitution, and affecting private rights, it, like a statute which is fully enacted only on receiving the executive sanction, dates simply from the ratification.

Haver v. Yaker, 9 Wall. 32; Hyl. v. Ducros, 15 How. (U. 8.) 38; Inton v. Brown, 1 Wash. C. C. 343, and nerarity v. Mims, 1 Ala 660; Mims cases in the next note. See Succes. v. Huggins, 1 Ala. 676. sion of Schaffer, 13 La. An. 113. 8 Ante, SS 11, 13, 14. 2 Davis v. Concordia, 9 How. (U. S.)

* Haver v. Yaker, supra; U. S. v. 280, 289; U. S. v. Reynes, 9 How. Arredondo, 6 Pet. 691. And (U. S.) 127, 148. And see Montault U. 8. v. Percheman, 7 Pet. 51; Yeaker V. U. 8., 12 How. (U. S.) 47; U. 8. v. v. Yeaker, 4 Met. (Ky.) 33, [81 Am. Pillerin, 18 How. (U. S.) 9; U. 8. v. D. 530.] Rillieus, 14 How. (U. 8.) 189; U. &

81

see

CHAPTER V.

THE ENACTMENT AND VALIDITY OF STATUTES

8 32a. Introduction.
33, 34. Constitutional validity.
35–355. Interpreters of constitution.
86-37a. Constitutional formalities at enactments
38-41. Defects other than constitutional

$ 32a. How chapter divided. We shall consider: I. The constitutional validity of statutes enacted in due form; II. The interpreters of the constitution; III. Constitutional formalities at the enactment; IV. Defects other than constitutional.

I. TAE CONSTITUTIONAL VALIDITY OF STATUTES ENACTED IN DUE

FORM. $ 33. People sovereign - Legislative bodies. It is the theory of our state and national governments that sovereignty dwells primarily with the people. For the orderly exercise of it, they have delegated so much as they chose, and no more, to the various official bodies and persons. Legislative powers have thus been conferred on our state legislatures and on congress, the limits whereof, beyond which all attempted acts are nullities, are defined in the constitutions of the several states and the United States. Hence,

Unconstitutional statutes. - A statute, state or national, thus in excess of constitutional power, is deemed simply void, having no effect, direct or collateral, for any purpose whatever. Not

1 And see Tennessee v. Davis, 100 St. 77; Frye v. Partridge, 82 Ill. 267; U. S. 257, 275.

National Bank v. Southern Porcelain 21 Kent, Com. 448–455; Marbury v. Mfg. Co., 55 Ga. 36; S. v. Osawkee, 14 Madison, 1 Cranch, 137; S. v. Flem- Kan. 418, [19 Am. R. 99; Re Plurality ing, 7 Humph. 152, [46 Am. D. 73); Elections, 15 R. L. 617, 8 Atl. R. 881. Bliss v. Com., 2 Litt. 90, [13 Am. D. An unconstitutional act cannot be 251); Bank of St. Mary's v. S., 12 Ga. validated by the legislature. S. 2. 475; Haley v. Clark, 26 Ala. 439; Whitesides, 3 L. R. A. 777, 9 S. E. R. Strong v. Daniel, 5 Ind. 348; Cincin. 661.] nati, etc. R. R. Co. v. Clinton, 1 Ohio

even, like an erroneous judgment rendered by a competent tribunal on a valid law,' will it protect an officer in performing any of its requirements, or obeying process founded upon it.? In England, no superior law of the realm exists to override an act of parliament. What is called constitutional law there is declared by the parliament itself. Still,

§ 34. Unconstitutional in part.— A statute may be in conflict with the constitution in part, and the rest of it be free from objection. In which case, if the parts are properly separable, the courts will sustain what is sound, and reject the unsound. This may be so even where the sound and the unsound are in one section together. But if the unconstitutional parts are essential to the constitutional, all must fail. And, beyond what thus comes from necessity, the doctrine has been laid down, and it seems to be just, that, if the parts are so mutually related as to make it evident the legislature intended them to constitute one whole, so that if all could not be carried into effect none would have received the legislative sanction, the case is within the same rule. On the other hand, absolute in

1S. v. Weed, 1 Fost. (N. H.) 262, [53 Darby v. Wilmington, 76 N. C. 133; Am. D. 188;) Rex v. Dyer, 6 Mod. 41. Lea v. Bumm, 83 Pa. St. 237; S. v.

2 Astrom v. Hammond, 3 McLean, Amery, 12 R. I. 64; Lathrop v. Mills, 107; Fisher v. McGirr, 1 Gray, 1, [61 19 Cal. 513; Maize v. S., 4 Ind. 342; Am. D. 381.]

Santo v. S., 2 Iowa, 165, C63 Am. D. 3 Dwar. Stat. (2d ed.) 523.

487;] Mobile & Ohio R. R. v. S., 29 Ala. * Bank of Hamilton v. Dudley, 2 573; (Eureka v. Wilson, 15 Utah, 67, 48 Pet. 492, 526; Clark v. Ellis, 2 Blackf. Pac. R. 150; S. v. F. I. Co., 152 Mo. 1, 8; Fisher v. McGirt, 1 Gray, 1, [61 Am. 45 L. R. A. 363, 52 S. W. R. 395. Every D. 381;) Steele v. S., 5 Blackf. 110; presumption must be taken in favor McCulloch v. S., 11 Ind. 424; S. v. of the validity of a statute. Columbia Allen, 2 McCord, 55; Yarmouth v. R. R. Co. v. Gibbes, 24 S. C. 60; Phoenix North Yarmouth, 34 Me. 411, [56 Am. Ins. Co. v. Burdette, 112 Ind. 204, 13 D. 666:] Myers v. P., 67 Ill. 503; N. E. R. 705.] Hagerstown v. Dechert, 32 Md. 369; 5 Exchange Bank v. Hines, 3 Ohio McCready v. Sexton, 29 Iowa, 356, [4 St. 1, 34; Hinze v. P., 92 III. 406; P. v. Am. R. 214;] Christy v. Sacramento, Cooper, 83 Ill. 585; Ex parte Towles, 39 Cal. 3; S. v. Clarke, 54 Mo. 17, [14 48 Tex. 413; P. v. Mahaney, 13 Mich. Am. R. 471;) Rood v. McCargar, 49 481; Campau v. Detroit, 14 Mich. 276; Cal. 117; Bucky v. Willard, 16 Fla. Reed v. Omnibus R. R., 33 Cal. 212; S. 330; S. v. Newton, 59 Ind. 173; In re v. Perry, 5 Ohio St. 497, 506; [O'Brien Jilz, 3 Mo. Ap. 243; S. v. Clinton, 28 v. Krenz, 36 Minn. 136, 30 N. W. R. La. An. 201; Berlin v. New Britain, 9 458; S., Maggard v. Pond, 93 Mo. 606, Conn. 175; Robinson v. Bidwell, 22 6 S. W. R. 469; Crowley v. S., 11 Oreg. Cal. 379; S. v. Swift, 11 Nev. 128; 512; Alexander v. P., 7 Colo. 155.] Gamble v. McCrady, 75 N. C. 509; 6 Neely v. S., 4 Bax. 174; S. v. Dous

dependence of the provisions is not a prerequisite to letting a part stand while the rest fall."

In by-laws.- As already seen the like doctrine applies to municipal by-laws. “A by-law,” said Lord Kenyon, C. J., “may be good in part and bad in part, yet it can be so only where the two parts are entire and distinct from each other.” 3

Repeals in statutes.- An act consisting of affirmative provisions and a repealing clause may be void as to the former and good as to the latter. Yet practically this would not be so commonly; because, in most instances, the new provision is the motive for repealing the old, so that where the new cannot stand the repeal should not. It was in one case even held that the clause, “All acts and parts of acts inconsistent with

the provisions of this act are hereby repealed," was effectual, though the rest of the statute was unconstitutional. But not only the reason just suggested shows that this doctrine cannot be sound in principle; it is also unsound, and it has been so adjudged, because, as observed in the Alabama court, “if the new law is void, the provisions of the former law cannot with propriety be said to be in conflict or contravention of it.”

II. THE INTERPRETERS OF THE CONSTITUTION.

$ 35. The courts.- It is a popular idea, not altogether absent from judicial opinions, that the courts are both specially and exclusively the interpreters of our constitutions. But nothman, 28 Wis. 541; Eckhart v. 8., 5 W. See also Com. v. Dow, 10 Met. 382; Va. 515; Warren v. Charlestown, 2 Austin v. Murray, 16 Pick. 121, 126; Gray, 84; Com. v. Clapp, 5 Gray, 97; Fitzacherly v. Wiltshire, 11 Mod. 352, Com. v. Hitchings, 5 Gray, 482; Com. 354; 8. C. nom. Fazakerly v. Wiltshire, v. Pomeroy, 5 Gray, 486, note; (Cher- 1 Stra. 462, 469; Lee v. Wallis, 1 Keny. okee Com’rs v. S., 36 Kan. 337; S. v. 292, 295; Cincinnati v. Rice, 15 Ohio, Pugh, 43 Ohio St. 98.]

225; S. v. Snow, 3 R. L. 64; 8. v. Cope 1 And see P. v. Hill, 7 Cal 97; [Re land, 3 R. I. 33. Liquors of McSoby, 15 R. I. 608, 10 * Ely v. Thompson, 3 A. K. Mar. 70. Atl. R. 659. Where the language of Meshmeier v. S., 11 Ind. 482. a statute is capable of two construc- 6 Tims v. S., 26 Ala. 165, 170; P. v. tions, equally obvious, that will be Tiphaine, 3 Par. Cr. 241; 8. v. La preferred which makes it constitu- Crosse, 11 Wis. 50; Shepardson v. tional. Supervisors v. Brogden, 112 Milwaukee, etc. R. R. Co., 6 Wis. 605. U. S. 261; McGwigan v. Ry. Co., 95 N. And see S. v. Hallock, 14 Nev. 202, C. 428; Quarttebaum v. S., 79 Ala. 1.] [33 Am. R. 559;] Childs v. Shower, 18 2 Ante, & 26.

Iowa, 261. 3 Rex v. Faversham, 8 T. R. 352, 356.

ing of this sort appears in the instruments themselves. The judges are indeed sworn to observe them; so equally are all the other officers of the government. Their function is to decide judicial causes; and, when a cause is presented to them involving a constitutional question, they must interpret the constitution as to it, and no appeal lies to any other department of the government. Thus far, therefore, the courts are the interpreters; nor can the legislature, for example, interfere inany way with this function. But

Other governmental departments. The other departments of the government, being bound equally with the judicial to obey the constitution, are under equal obligations to interpret it for themselves. Indeed there are doubtless circumstances in which the courts would feel obliged to place reliance upon, and give effect to the interpretation made by another branch of the government. There are, moreover, many constitutional questions arising only in such forms that they can never be taken before the courts; so that, if the other departments before which they present themselves could not interpret the constitution to decide them, this “supreme law” would be as to them of no practical effect.

$ 35a. Further of courts interpreting.-- Except in the one instance about to be mentioned, courts will not take jurisdiction of a cause simply on the ground that it involves an interpretation of the constitution. Some, on the other hand, and perhaps in a degree all, avoid the consideration of constitu

And see Ex parte Blanchard, 9 of the lawmaking power, it becomes Nov. 101; Barnett v. Woods, 5 Jones, a serious question bow far the judiEq. 428, 434.

cial power can or should interfere. 2 See this topic discussed, Bishop,

Where, under an executive First Book, ss 114-123.

construction of the law, a wrong is :We are perhaps wanting in au- done to an individual, the courts will thority on this precise point; but in give him redress. But where no such U.S. e. Lytle, 5 McLean, 9, 17, 18, the wrong is done, it is supposed that court refused to interfere with the in- acts of the executive within the genterpretation of a statute by the exec- eral scope of its powers, and by virutive department; observing, that tue of law, cannot be reviewed; the executive is bound to give effect though, to some extent, the letter of to laws regulating its duties, in doing the law may not have been followed.” which it must necessarily interpret McLean, J. Of a like sort is Mathews them. “And, where suck construc- v. Shores, 24 Ill. 27. And see post, tion has been acted on for a great $ 104. number of years, under the sanctions 4 Jones v. Black, 48 Ala540; Hoover

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