The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
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.]
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