The American Judiciary

by Simeon E. Baldwin

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.]