The Effect of an Unconstitutional Statute The Effect of an Unconstitutional Statute
By Oliver Peter Field
1999/12 - Beard Books - Law Classic
1893122530 - Paperback - Reprint - 366 pp.

This well-documented treatise expounds on the flexibility that has developed in judicial practice with regard to interpreting the effect of an unconstitutional statute.

Publisher Comments

Category: Law

This title is part of the Constitution and Treatises lists.

While the theory that an unconstitutional statute is void ab initio and should be eliminated from the consideration of a case is the traditional doctrine of American courts, this well-documented treatise expounds on the flexibility that has developed in judicial practice. It shows the interesting interplay of the forces of doctrine and the forces of practical necessity and justice. There are many cogent examples of the administration of justice in a case-to-case system, with a proper tempering of justice to the individual case.

From the back cover blurb:

This volume is an early comprehensive analysis of the legal effect of an unconstitutional statute and decisions upon questions of constitutionality. There may be non-legal effects of a declared unconstitutional statute which may be as important, or even more important, than the legal aspects. It is also a study of the effect and significance of judicial review, including its reach into politics, economics and government. Clear and logical progression of the treatment of the subject will interest all those involved in or curious about the fields of law or political science.

No book review available

Oliver Peter Field, 1897-1953, received a Bachelor's degree from St. Olaf College in 1919; a Master's from the University of Minnesota in 1924; a Bachelor of Laws degree from Indiana University in 1927; and a J.D. degree in 1928 from Yale. He taught for a period at both the University of Minnesota and at Harvard Universtiy, and then joined the Government Department at Indiana University in 1939. He taught there until his death, becoming chariman of the department in 1951. In his later years he was blind but continued with his teaching and research.

Introduction 1
Theories of the Effect of Unconstitutional Statutes 2
The Void ab Initio Theory 3
The Presumption of Validity Theory 4
The Case-to-Case Theory 6
The Historical and Doctrinal Basis of Theories 8
Scope and Limits of This Study 12
II. The Status of a Private Corporation Organized Under an Unconstitutional Statute 15
Cases in Which There Have Been Dealings on a Corporate Basis 16
Cases of Dealings between a Corporation and a Stranger 16
Where the Corporation is the Plaintiff 16
Where the Corporation is the Defendant 19
Disputes between a Corporation and Its Officers or Members 28
Cases in Which There Have Been No Dealings on a Corporate Basis 32
Conclusions 37
III. The Status of a Municipal Corporation Organized Under an Unconstitutional Statute 45
Attack on Corporate Status by an Official Representative of the State 45
Disputes between Two Municipal Corporations 49
Disputes between Officers or Claimants to an Office 51
Attack 53
Quo Warranto on Relation of Private Individuals 55
Tax Cases 56
Eminent Domain 62
Resisting Abatement of a Nuisance 62
Criminal Cases 63
Suits to Enforce Contractual Obligations against a Municipality 65
Tort Cases 72
Incidental Attack in Suits between Private Parties 73
Conclusion 73
IV. The Effect of an Unconstitutional Statute in the Law of Public Officers: the Effect on Official Status 77
Attack by Persons Acting in an Official Capacity 77
Quo Warranto by the Attorney-General or Some Official Representative of the State 77
Contests between Rival Claimants to an Office 79
Information in the Nature of Quo Warranto 80
Mandamus 81
Injunction 83
Attack by Persons Acting in an Individual Capacity 84
Quo Warranto 84
Tax Cases 85
Injunction 85
Action to Collect Taxes 86
Eminent Domain 88
Bonds and Other Contract Obligations 90
Torts 93
Civil Cases in Which Office or Title of Judicial or Clerical Officer is Challenged 94
Judicial Officer 94
Clerical Officer 100
Criminal Cases Challenging the Existence of a Court or the Title to Office of a Judge or Clerical Officer 101
Attack on Title of Judge 101
Attack on Title of Officers Attached to Court 105
Cases of Crimes Involving Official Status 107
Compensation 108
Summary and Conclusions 113
V. Liability of Public Officers for Action or Nonaction 119
Introduction 119
Injunction 119
Mandamus 119
Criminal Prosecution against an Officer 121
Action for Damages against an Officer 122
Refusal to Act 123
Direct Act without the Intervention of Judicial Process 129
Collection of Tax under an Unconstitutional Statute 129
Destruction or Invasion of Property 130
Interference with Personal Liberty in the Absence of a Warrant 133
Action Connected with Judicial Proceedings 135
Liability for Making Complaint or Filing Affidavit 135
Liability of Magistrate for Issuing Warrant, Trying, or Sentencing a Person under an Invalid Statute 138
Liability of Officer Serving Process 141
Liability of the City or Governmental Unit for Which the Officer Acts 144
Protection of Officers Acting or Refusing to Act under an Unconstitutional Statute 145
VI. Res Adjudicata, Stare Decisis, and Overruled Decisions in Constitutional Law 150
Exceptions to Res Adjudicata 152
Stare Decisis and Res Adjudicata 158
Stare Decisis 162
Between Coordinate Courts of One Judicial System 162
Between Courts of Different Jurisdictions 162
Between Superior and Inferior Courts of the Same Judicial System 163
Between the National and State Courts 163
As Applied to Decisions by the Same Court 164
VII. Reliance Upon Decisions and the Effect of Overruling Decisions in Constitutional Law 181
Criminal Cases 182
Civil Cases 187
Contract Cases 187
Property and Miscellaneous Cases 191
Personal Liability of Persons Acting in Reliance on Court Decisions or Orders 195
VIII. Government Bonds and Private Promises Under Unconstitutional Statutes 198
Promises Made by One Individual to Another 198
Government Bonds and Promises 204
Private Promises to Pay or Repay the Government 215
IX. Mistake of Law and Unconstitutional Statutes: Payments and Services 221
Payments and Services by One Individual to Another 222
Payments 222
Services 228
Donations to, and Performance of Services for, the Government 232
Donations to the Government 232
Services Performed for the Government 233
Recovery by Government of Payments to Officers and Private Individuals 237
Recovery of Payments Made by One Governmental Unit to Another 239
X. The Recovery of Unconstitutional Taxes 241
Preventive Measures 241
Tax Refunds 245
Tax Recovery 251
The Plaintiff Should Have Resisted Payment of the Tax 252
Ignorance of the Law Not a Ground for Relief 252
Only an Exercise of Legislative Power Can Authorize Repayment of Money Paid into Treasury 253
Taxpayer Has Received the Benefits from the Government's Expenditure of Tax Money 253
Taxpayer Only Nominally the Real Payer and Refuses to Refund Money to Those from Whom He Collected It 254
To Permit Recovery Would Disrupt Finance 255
Protest and Duress 261
Protest 261
Compulsion 264
Conclusion 269
A Note on the Recovery of Fines 272
XI. Amendatory, Validating, Curative, and Remedial Measures 274
Amendments to Invalid Statutes 274
Effect of an Invalid Amendatory or Repealing Statute 283
Effect of Congressional Action Removing Obstacle to State Exercise of Power 286
Effect on Invalid Statute of Subsequent Constitutional Amendment 288
Curative, Validating, and Compensatory Acts 294
XII. Judicial Review as an Instrument of Government 305
Introduction 305
Judicial Review in a Federal System 305
Judicial Review and the Separation of Powers 306
Judicial Review to Protect Private Rights 306
Defects in the Operation of Judicial Review 306
Private Litigants 306
Public Nature of Controversy Not Clear 308
Private Individuals Control Presentation of Questions 309
Rules on Parties Narrowly Interpreted 311
Conflict of Governmental and Private Interests 311
Judicial Review and Legislation 312
Delay 313
Furnishes Insufficient Standards for Legislation 313
Judicial Review as a Supervisory Agent 318
Judicial Review and Private Rights 324
Conclusion 324
Table of Cases 327
General Index 351

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