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.
US$34.95

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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