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Published online by Cambridge University Press: 24 January 2025
Thomas Reed Powell once commented that it is just as well that‘ the law is full of collateral doctrines and devices that keep it from behaving as badly as it sometimes talks ’. Few areas of the law provide a better example of his point than does that frequently neglected area of constitutional law which is concerned with the legal character of acts performed under an unconstitutional statute. The traditional doctrine is that such a statute is an utter nullity. Perhaps the most famous statement of this doctrine is to be found in Norton v. Shelby County where Field J. stated that an unconstitutional statute ‘confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed’. Or as a Chief Justice of the High Court of Australia once put it: ‘A pretended law made in excess of power is not and never has been a law at all . . . it is invalid ab initio’.
This article was written in 1965 in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the Faculty of Law, Columbia University.
1 (1935) 48 Harv. L. Rev. 1271, 1273.
2 (1886) 118 U.S. 42.
3 Ibid., 442.
4 South Australia v. The Commonwealth(1942) 65 C.L.R. 373, 408 per Latham C.J.
5 See generally: Pannam, ‘The Recovery of Unconstitutional Taxes in Australia and the United States’ (1964) 47 Texas L. Rev. 777.
6 See generally: Annot.,‘ Validity And Effect Of Judglnent Based Upon Erroneous View As To Constitutionality Or Validity Of A Statute Or Ordinance GoingTo Merits’ (1945) 167 A.L.R. 517.
7 See generally: Pannam, ‘Tortious Liability for Acts Performed Under an Unconstitutional Statute’ (1966) 5 Melb. U. L. Rev. 113.
8 ‘ De Facto Officers’ (1938) 1 Res Judicatae 285.
9 Indeed many of the cases in which the doctrine is discussed do not even appear in The English and Empire Digest and even those that do appear are impossible to find by use of the index.
10 For collections of the cases see: Annots.,‘ De Facto Officers’ (1911) 140 Am. St. Rep. 164-205; (1910) 19 Am. Rep. 63; 67 C.J.S. SSe 135-154; 43 Am. Jur. SSe 470-499.
11 The classic text is Constantineau, Public Officers and the De Facto Officer Doctrine (1910). See also: Mechum, A Treatise onthe Law ofPublic Office and Officers(1890) SSe 315-346; Throop, Public Officers (1892) ch. 27; McQuillan, Municipal Corporation Law (1958) 160 et seq.; Wallach, ‘De Facto Office’ (1891) 22 Pol. Sci. Q. 460; Jarrett, ’De Facto Public Officers’ (1936) 9 So. Cal. L. Rev. 189; Harris, ‘The Validity of Acts of Officers Occupying Offices Created Under Laws Declared Unconstitutional’ (1938) 3 U. Newark L. Rev. 123; Comment, ‘The De Facto Officer Doctrine’ (1963) 63 Columbo L. Rev. 909.
12 R. v. Lisle (1738) And. 163, 166; 95 B.R. 345, 346 arguendo. ‘The de facto concept is a product of judicial invention based on considerations of policy and public convenience rather than the dictates of strict logic.’ Jersey City v. Department of Civic Service (1959) 57 N.J. Super 13, 24; 153 A 2d. 757, 765.
13 R. v. Bedford Level (1805) 6 East 356, 368; 102 B.R. 1323, 1328. This is a generalized version of Sir John Holt's description of a de facto steward in Parker v. Kett (1697) 1 Ld. Raym. 658, 660; 91 E.R. 1338, 1340 as one‘ who has the reputation of being steward, and yet is not a good steward in point of law’.
14 ‘This definition has been generally approved in this country.’ Ridout v. State (1930) 161 Tenn. 248, 256;30 S.W. 2d. 255, 257. See also: Oliver v. Mayor of Jersey City (1899) 63 N.J.L. 634, 638; 44 AtI. 709, 712; State ex rel. Bockmeir v. Ely (1907) 16 N.D. 569,573; 113 N.W. 711,713; Annot., ‘De Facto Officers’ (1911) 140 Am. St.Rep. 164, 165.
15 The first reported case on the de facto officer doctrine appears to be the Abbot of Fountaine's Case (1431) Y.B. 9 H. VI., f. 32. See also Bagot's Case (1470) Y.B. 9 Edw. IV, f. lb, pl. 5. This case is conveniently translated in Hale, Historia Placitorum Coronae (1736) i., 101 n. (f). The doctrine canalso be seen reflected in the statute 1 Edw. IV c.l. (1461). This statute was passed to ‘eschew any Ambiguities, Doubts and Diversities of Opinions’ as to the validity of the official acts of the Lancastrian kings Henry IV, V and VI. It described them as kings ‘en fait et nient en droit’, or ‘ in deed and not of right’.
16 Cro. Eliz. 533; 78 E.R. 780.
17 Ibid. 534, 781. Sir Roger Manwood C.B., Flowerdew, Gent and Ewens BB. See also Costard v. Winder (1600) Cro. Eliz. 775; 78 E.R. 1005 where Popham C.J. and Fenner J. stress that where a person is in possession of an office ‘… the people cannot take notice of any other ’. Ibid.
18 The steward usually held a manorial court which regulated and recorded these tenures. If a copyholder wanted to dispose of his land it had to be surrendered to the steward who would then admit the new tenant. Similarly this procedure regulated the transmission of copyhold land on death. As Littleton points out ‘ the tenants are called tenants by copy of court roll; because they have no other evidenceconcerning their tenements, but only copies of court rolls ’. Tenures (1481) f. 62. They were thus ‘copyholders ’. See generally: Coke, Compleat Copyholder (1630); Fisher,Copyhold Tenure (2nd ed. 1803); Gray, Copyhold Equity and the Common Law (1963).
19 E.g. Knowles v. Luce (1580) Moore (K.B.) 109; 72 E.R. 473; Parker v. Kett (1697) 1 Ld. Raym. 658; 91 E.R. 1338; Harris v. Jays (1599) Cro. Eliz. 699; 78 E.R. 934; The Lord Dacre&s Case (1584) 1 Leon. 288; 74 E.R. 263. However a purely voluntary grant of copyhold land by a de facto steward would not bind the lord of the manor. Harris v. Jays op. cit.; Rous v. Arters (1587) 4 Co. Rep. 24a; 76 E.R. 927; Dillon v. Freine (1589) 1 Co. Rep. 120a; 76 E.R. 270; Coke, Compleat Copyholder (1630) ch. 5 s. 45.
20 De Grave v. Mayor and Corporation of Monmouth (1889) 4 C. & P. 111; 172 E.R. 630 (contract to purchase weights and measures for the corporation). Knight v. Corporation of Wells (1695) Lutw. 508; 125 E.R. 267.
21 R. v. Pursehouse (1733) 2 Barn. K.B. 264; 94 E.R. 490. A de facto Bailiff was held to have the power to swear in burgesses in R. v. Slythe (1827) 6 B. & C. 240; 108 E.R. 441.
22 R. v. Justices of Herefordshire (1819) 1 Chitto 700.
23 R. V. Malden (1767) 4 Burr. 2135; 98 E.R. 113.
24 Kitton V. Fag (1714) 10 Mod. 288; 88 E.R. 732 expressly contradicts this statement but the note to that case by Michael Nolan at the end of the report in 1 Str.6O; 93 E.R. 384 reads: ‘This case was denied to be law … by Lord Mansfield in the case of Harris V. Ashley [unreported], sittings in Middlesex, Mich. Term 30 Geo. 2, B.R.’ He notes that the‘ other Judges of the Court’ in Harris V. Ashley‘ con-curred’ with this view.
25 Penney v. Slade (1834) 5 Bing. (N.C.) 319.
26 Waterloo Bridge Co. V. Cull (1858) 1 El. & El. 213; 120 E.R. 888.
27 Lancaster and Carlisle Rly. Co. v. Heaton (1858) 8 EI. & BI. 952; 120 E.R. 354.
28 R. v. The Inhabitants of St. Clements (1840) 12 Ad. & E. 177; 113 E.R. 778. See also Turner V. Baynes (1795) 2 H. Black. 559; 3 R.R. 506.
29 Scadding V. Lorant (1851) 3 H.L.C. 418; 10 E.R. 16.
30 R. V. Mayor. Aldermen and Burgesses of the Borough of Calnbridge (1840) 12 Ad. & E. 702; 113 E.R. 980; Milward V. Thatcher (1787) 2 T.R. 81; 1 R.R. 431.
31 Seymour V. Bennet (1742) 2 Atkyn 482; 26 E.R. 691.
32 (1851) 3 H.L.C. 418; 10 E.R. 164.
33 Sir Frederick Pollock tells the following story of his grandfather Pollock L.C.B. When he was appointed Attorney-General in 1834 he was knighted and had to provide himself with a coat of arms. He applied to the College of Arms but found the fees very expensive. After a good deal of negotiation a messenger from the Garter King-of-Arms called and informed him of the lowest price. Pollock answered: ‘Tell Garter King-of-Arms, with my compliments, that he may go to the devil sable in flames gules with a pitchfork ardent stuck into his backside proper’. For My Grandson (1933) 171.
34 (1851) 3 H.L. 418, 447; 10 E.R. 164, 175. Abbot C.J. made the same points in two important judgments on this topic. ‘If this rule were made absolute [i.e. to invalidate the election and swearing in of a burgess by de facto bailiffs] we might be called upon in the very next term to grant hundreds of the same description, to the disturbance of almost every corporation in the kingdom.’ R. v. Slythe (1827) 6 B. & C. 240, 247; 108 E.R. 441, 444. ‘The interest of the public at large requires that the acts done should be sustained: sufficient effect is given to the statutes [i.e. requiring Justice of the Peace to take an oath] by considering them as penal upon the party acting.’ Margate Pier Co. v. Hannam (1829) 3 B. & Ald. 266, 271; 106 E.R. 661, 663.
35 Constantineau, op. cit. ch. XVII, XXII.
36 (1841) 3 Moo. P.C. 382; 13 E.R. 155.
37 In In Re Aldridge (1893) 15 N.Z.L.R. 361 Richnlond J. states that the de facto doctrine was not argued in this case. Ibid. 372. This is incorrect.
38 In point of fact two Orders In Council were issued declaring the proceedings and acts of the court presided over by the three improperly appointed judges to be valid. Gahan v. Lafite op. cit. 395; 160. These were probably made ex abundanticautela. An interesting point is that although the Orders cover all proceedings and were made before the Privy Council appeal the award of damages in this case was nevertheless upheld. No reasons for this were given in the Advice although the point was argued.
39 25 Car. 11, c. 2. It also applied to persons who held offices under the Duke of York. See generally: Holdsworth, History of English Law (3rd ed. 1963) vi, 199-203, 223-226.
40 The case is variously reported as Hipsley v. Tucke, Hipsly v. Tuck, Hippesly v. Tucke, and Ipsley v. Turk. It is also reported as having been decidedin 1674, 1675 and 1676. 3, Keble 606, 665, 682, 121; 84 B.R. 905, 940, 950, 973; 2 Lev. 184; 83 E.R. 510; J. Jones 81; 84 B.R. 1157; 2 Mod. 193; 86 B.R. 1019.
41 3 Keble 606; 84 E.R. 905. He pointed out that ‘there must be a conviction [i.e. under the Test Act] before this can be made a nullity ’. Ibid.
42 3 Keble 721; 84 E.R. 973; 2 Lev. 184; 83 E.R. 510; J. Jones 81; 84 E.R. 1157;2 Mod. 193; 86 E.R. 1019.
43 J. Jones 81; 84 E.R. 1157. Jones the reporter was the Jones J. who sat in the case.
44 In the report of Andrews v. Linton (1702) 2 Ld. Raym. 884; 92 E.R. 91 there is the following passage: ‘… he ’, [Holt C.J.] ‘denied the case of Hippisley v. Tucke to be the law. ’ Ibid.
45 During argument in R. v. Lisle (1738) And. 163; 95 E.R. 345 when counsel cited this decision as reported in 2 Lev. 184 Lee C.J. said ‘ that the case in fol. 184 is against the law and has always been so held ’. Ibid. 166; 346.
46 See the remarks of Thomas Leach the editor of the Modern Reports in a note at the end of the judgment in Hipsely v. Tucke 2 Mod. 193, 194; 86 E.R. 1019, 1020. Hawkins in his Pleas of the Crown (1739) argues that the mayor 's acts should have been held valid ‘ For otherwise not only those who no way infringe this law, but even those whose Benefit is intended to be advanced by it, might be sufferers for another 's Fault, to which they are in no way privy… ’ Ibid. Bk. 1, ch. 8, s. 16.
47 See below pp. 61-63. A town clerk was held to be a de facto officer although he had not taken an oath under the Test Act in R. v. Mayor, Aldermen and Burgesses of the Borough of Cambridge (1840) 12 Ad. & E. 702; 113 E.R. 980 and a justice of the Peace was similarly treated in Margate Pier Co. v. Hannam (1819) 3 B. & Ald.266; 106 E.R. 661. It should be pointed out however that the Test Acts were not as important in the mid-nineteenth century as they were at the end of the seventeenth century. Indeed Lord Mansfield was able to say in 1777 that they were the product of ‘ warmer times’ . R. v. Monday (1777) 2 Cowp. 530, 540; 98 E.R. 1224, 1229.
48 Harris v. Jays (1599) Cro. Eliz. 699; 71 E.R. 934, 935. See the cases cited ante n. 19.
49 O'Brian v. Knivan (1620) Cro. Jac. 552; 79 E.R. 473.
50 Ibid.
51 R. v. Lisle (1738) And. 163, 173; 95 E.R. 345,349.
52 R. v. Castle (1737) And. 119; 95 E.R. 325. ‘An officer de facto may do such acts as are for the preservation of the constitution.’ Per Probyn J., 124; 328.
53 R. v. Pursehouse (1733) 2 Bam. K.B. 264; 94 B.R. 490.
54 R. v. Lisle (1738) And. 163; 95 E.R. 345.
55 And. 163, 165; 95 E.R. 345, 346.
56 Ante D. 13.
57 See e.g. Knowles v. Luce (1580) Moore (K.B.) 109; 72 E.R. 473. In this case Manwood C.B. draws a distinction between a steward who has ‘ colour & nuldroit’ and ‘ n’ad ‘colour ne droit ’or one who has colour and no right as opposed to one who has neither colour nor right.
58 R. v. Bedford Level (1805) 6 East 356; 102 E.R. 1323 (lack of title‘ notorious ’);R. v. Lisle op. cit. (usurpation of office ofmayor immediately contested in Quo Warranto proceedings).
59 (1871) 38 Conn. 449; 9 Am. Rep. 409.
60 The case has been referred to as a ‘landmark of the law’ by Field J. in Norton V. Shelby County (1886) 118 U.S. 425, 445.
61 (1871) 38 Conn. 449, 467; 9 Am. Rep. 409, 423. See for similar statements: Butler V. Phillips (1906) 38 Colo. 378; 88 P. 480; Ekern V. McGovern (1913) 154 Wis.157; 142 N.W. 595; Petersilea v. Stone (1876) 119 Mass. 465; 20 Am. Rep. 335.
62 The compiler of the annotation on De Facto Officers in (1910) 19 Am. Rep. 63 was able to say that the definition ‘was substantially recognized and adopted by nearly all of the adjudications in the American courts of the present day ’. Ibid., 65.See also: Comment, ‘The De Facto Officer Doctrine ’ (1963) 63 Columbo L. Rev. 909, 910-914.
63 De Fazio v. Mayor and Council of City of Hobokin (1953) 12 N.J. 515, 520; 79 At!. 877, 880.
64 State v. Carroll (1871) 38 Conn. 449, 471-472; 9 Am. Rep. 409, 427.
65 Constantineau, op. cit. ch. XIX; Annot., ‘Payment Of Salary To De Facto Officer As Defence To Action By De Jure Officer For Salary ’ (1954) 64 A.L.R. 2d. 1375; Annot., ‘ Right Of De Facto Officer To Salary Or Other Compensation Annexed To Office ’(1934) 93 A.L.R. 258, supp. (1944) 151 A.L.R. 952; (1950) 67 C.J.S. ‘ Officers ’ s. 145; (1942) 43 Am. Jur. ‘Public Officers ’ ss. 487-492.
66 Constantineau, op. cit. ch. XVIII & XXI; Annot., ‘De Facto Status Of Officer As Affecting His Criminal Responsibility’ (1929) 64 A.L.R. 534; 43 Am. Jur. op. cit. s. 498; 67 C.J.S. op. cit. S. 147.
67 Constantineau, op. cit. ch. XVII & XXII; 43 Am. Jur. op. cit. ss.493-496; 67 C.J.S. op. cit. s. 146.
68 State v. Gardner (1896) 54 Ohio St. 24, 53; 43 N.E. 919, 1012 per Spear J. con-curring.
69 The origin of this requirement was a passage from the report in Strange of the decision in R. v. Lisle (1738) 2 Str. 1090; 93 E.R. 1051 which has thecourt saying that ,‘ in order to constitute a man an officer de facto, there must be at least the form of an election ’. This report has been described as ‘brief, inaccurate and deceptive’. State v. Carroll 9 Am. Rep. 409, 420. The report in And. 163; 95 E.R. 345 is much better. It is there made clear thatit was no defence to Lisle in Quo Warranto proceedings to claim he had been appointed by a de facto mayor because he knew that the mayor had never been elected and had no valid title to the office. In this context it is sensible to say that the mayor needed the colour of an election to give him de factostatus.
70 Ante p. 47.
71 Petersilea v. Stone (1876) 119 Mass. 465; 20 Am. Rep. 335; Van Amringe v. Taylor (1891) 108 N.C. 196; 12 S.E. 1005; Constantineau, op. cit. ch. 9.
72 Taylor v. Skrine (1815) 3 Brevard (N. Carol.) 516 (judge); Coke v. Halsey (1842) 41 U.S. 71, (clerk of probate court); People v. White (1871) 24 Wend.520 (judges); Carleton v. People (1862) 10 Mich. 250 (county officers); Commonwealth v. McCombs (1867) 56 Penn. 436 (legislative officer); Brown v. O'Connell (1870) 36 Conn. 432, 4 Am. Rep. 89 (judge of police court); Ex Parte Strang (1870) 21 Ohio St. 610 (judge of police court).
73 Ante p. 46.
74 E.g. Smith v. Larsden (1963) 214 Tenn. 34; 370 S.W. 2d. 557 (Members of Civil Service Commission); Book v. State Office Building Commission (1958) 238 Ind. 210; 149 N.E. 2d. 223; State ex rel Tamminnen v. City of Eveleth (1933) 189 Minn. 229; 249 N.W. 184. The earlier authorities are collected in Constantineau, op. cit. ch. XV and Annot., ‘De Facto Officers’ (1911) 140 Am. St. Rep. 164, 186 ff. All of the cases which are cited in connection with the next subject dealt with in the next support this proposition as well.
75 (1886) 118 U.S. 425.
76 He pointed out that the doctrine is ‘founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the titleof persons clothed with the evidence of such offices and in apparent possession of their powers and functions.‘ Ibid. 441.
77 Ibid. 442. At a later stage of his judgment Field J. said: ‘Where no office legally exists, the pretended officer is merely a usurper, to whose acts no validity can be attached.’ Ibid. 449.
78 (1925) 268 U.S. 394, 397 (obiter).
79 The cases are collected in McQuillan, Municipal Corporations (1949) s. 12.04; Annots, ‘ De Jure Office As A Condition Of A De Facto Officer’ (1908) 5 L.R.A. (n.s.) 94 and (1935) 99 A.L.R. 294. To the cases therein cited should be added the following. In favour of Norton:
Miller v. County Commissioners of Miller County (1961) 226 Md. 105; 172 A 2d.867; State v. Ferguson (1959) 236 La. 589; 108 So. 2d. 520; Fee v. Bornhorn (1952) 251 S.W. 2d. 230 (Ky. C of A); Lowe v. City of Bowling Green (1952) 247 S.W. 2d.376 (Ky. C of A); Idol v. Street (1951) 233 N.C. 730; 65 S.E. 2d. 313; Howell v. Howell (1948) 213 Ark. 298; 208 S.W. 2d. 22; Bodcaw Lumber Co. v. Jordan (1943) 203 La. 482; 14 So. 2d. 98; Annoni v. Bias Nadal's Heirs (1938) 94 Fed. 513 (C.C.A. 1st); Brandon v. State (1936) 27 Ala. App. 176; 173 So. 240.
Against Norton:
In Re Hans (1963) 174 Neb. 612; 119 N.W. 2d 72; Jersey City v. Dept. of Civil Service (1959) 57 N.J. Super 13; 153 A 2d. 757; Anderson v. State (1946) 149 Tex. Cr. R.423; 195 S.W. 2d. 368; Marckel Co. v. Zitzow (1944) 218 Minn. 305; 15 N.W. 2d. 777;,Michigan City v. Brossman (1937) 105 Ind. App. 259; 11 N.E. 2d. 538.
80 (1886) 118 U.S. 425, 444-445. Indeed he refers to the nineteenth century cases cited in n. 71 ante, which establish the proposition with approval.
81 There are other unsatisfactory aspects of Field J.‘s judgment which should be noticed. He asserts that the fourth limb of Butler C.J.’s definition in State v. Carroll was not intended to apply to an unconstitutional statute which purports to create an office. This does not seem to be correct. State v.Poulin (1909) 105 Me 224, 229;74 A 119, 124. Then again Hildreth's Heir v. McIntyre's Devisee (1829) 1 J.J. Marsh (Ky.) 206; 19 Am. Dec. 61 which is the only authority Field J. cites to support his central proposition does not really support it all. Wendt v. Berry (1913) 154 Ky. 586; 157 S.W. 1115. Finally he cites two cases, Carleton v. People (1862) 10 Mich. 250 and Fowler v. Beebe (1812) 9 Mass. 231; 6 Am. Dec. 62 with approval in which persons are held to be de facto officers even though no office of any kind was in existence at the time the acts in question were performed. It is difficult to see how a person who acts where there is no office can be in a better position than one who acts where the office is created by an ostensibly valid statute.
82 (1938) 173 Md. 608, 625; 196 Atl. 409, 417.
83 (1902) 64 Kan. 842; 68 N.W. 639.
84 Ibid. 845; 640.
85 Op. cit., 61.
86 (1907) 74 N.J.L. 455; 68 Atl. 90.
87 Ibid. 460; 102. See the similar remarks of Carroll J. in Wendt v. Berry (1913) 154 Ky. 586, 590; 157 S.W. 1115, 1119; of Parke J. in Kimble v. Bender (1938) 173 Md. 608, 615; 196 A 409, 417; and of Spear J. in State v. Gardner (1896) 54 Ohio St. 24, 38; 42 N.E. 999, 1005.
88 Field, The Effect of an Unconstitutional Statute (1935) 91.
89 (1939) 308 U.S. 371.
90 Ibid. 374-375.
91 (1948) 212 Ark. 600; 208 S.W. 2d. 22.
92 Note, (1949) 6 Wash. and Lee L. Rev. 84.
93 (1948) 213 Ark. 321; 210 S.W. 2d. 319.
94 The dissent of Griffen-Smith C.J. points out however that, in his view, the only reason for reversing Howell v. Howell was the vociferous clamouringsof the public and the bar.
95 See Beaver v. Hall (1920) 142 Tenn. 416; 217 S.W. 649.
96 State v. Poulin (1909) 105 Me. 224; 74 Ad. 119.
97 Ibid. 231; 122.
98 Kimble v. Bender (1938) 173 Md. 608; 196 Atl. 409 (Office referred to in Constitution).
99 Butler v. Phillips (1906) 38 Colo. 378; 84 P. 480 (Office referred to in Constitution).
1 Leach v. People (1887) 122 Ill. 420; 12 N.E. 726 (Office recognized by earlier statutes).
2 Anderson v. State (1946) 149 Tex. Crim. R. 423; 195 S.W. 2d. 368. ‘… where the office of similar functions does exist, and the name of the officer only is changed, the duties being the same as that of the established de jure office, a mere change of name of the officer would not destroy the office.’ Ibid. 430; 371. See also: State ex rel A.G. v. Judge of 8th Judicial Circuit (1905) 142 Ala. 87; 38 So. 835 (Statute creating judge of 16th circuit unconstitutional but same tasks as judge of old valid 8th circuit).
3 Smith v. Lynch (1876) 29 Ohio St. 261 (Board of Health could be validly created); Buck v. Eureka (1895) 109 Cal. 504; 42 Pac. 243 (Office of City Attorney could be validly created); Clarke v. Easton (1888) 146 Mass. 43; 14 N.E. 795 (Office of Road Supervisor could be validly created).
4 E.g. Walcott v. Wells (1890) 21 Nev. 47; 24 Pac. 247. (District Judges increased from three to four under unconstitutional statute).
5 E.g. State ex rel Bockmeir v. Ely (1907) 16 N.D. 569; 113 N.W. 711.
6 E.g. Arnold v. Hilts (1916) 61 Colo. 8; 155 Pac. 316.
7 In Re Santillanes (1943) 47 N.M. 140; 138 P. 2d. 503. (Unconstitutional statute creating Juvenile Court which had been in existence for several years.)
8 See generally: Tooke,‘ De Facto Municipal Corporations’ (1928) 37 Yale L. J.935.
9 City of Albuquerque v. Water Supply Co. (1918) 24 N.M. 368; 174 P. 217; Ackerman v. Baird (1938) 42 N.M. 233; 76 P. 2d. 947; Annot. 99 A.L.R. 294, 314-317.
10 E.g. Lang v.Bayonne (1907) 74 N.J.L. 455, 470; 68 A 90, 105 per Gummere C.J. See n. 11 post.
11 The Norton rule has had a vitriolic academic press. See e.g. Field, The Effect of an Unconstitutional Statute (1935) ch. IV; Jarrett,‘ De Facto Public Officers’ (1936) 9 S. Cal. L. Rev. 189; Harris, ‘The Validity of Acts of Officers OccupyingOffices Created Under Laws Declared Unconstitutional’ (1938) 3 U. Newark L. Rev. 123; Tooke, ‘ De Facto Municipal Corporations’ (1928) 37 Yale 935; Wallach, ‘De Facto Office’ (1907) 22 Pol. Sci. Qu. 460; Comment, (1952) 12 La. L. Rev. 200; Note, (1949) 1 Mercer L. Rev. 120; Note (1949) 6 Wash. & Lee L. Rev. 84; Note, (1944) 29 Minn. L. Rev. 36; Note, (1938) 86 U. Pa. L. Rev. 55t.
12 De Fazio v. City of Hobokin (1950) 9 N.J. Super 486, 489; 75A 2d. 551, 554 per Drewer C.J.
13 Ante pp. 43-46.
14 Ante p. 50.
15 ‘The inarticulate ground for the decision must have been a strong policy against unauthorized extensions of the public debt-a grave danger in that period. The decision may have been influenced also by the fact that the constitutionality of the statute in question was notoriously in grave doubt when the bonds were issued under its authority.’ Note, (1925) 39 Harv. L. Rev. 373, 374.
16 1 J. J. Marsh 206; 19 Am. Dec. 61.
17 E.g. Wendt v. Berry (1913) 154 Ky. 586, 589; 157 S.W. 1115, 1117; Lowe v. City of Bowling Green (1952) 247 S.W. 2d. 386.
18 This is a question of fact however and there may even be cases where although there is some doubt as to the constitutionality of the office the doctrine will never-theless apply.
19 Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. (1918) 25 C.L.R.434.
20 Attorney-General (Commonwealth) v. The Queen; Ex parte The Boilermakers'Society of Australia (1959) 95 C.L.R. 529.
21 Ante pp. 56-57.
22 See generally: Kadish,‘ Judicial Review in the High Court and the United States Supreme Court’ (1959) 2 Melb. U.L.R. 4 and 127; Pannam,‘ Travelling Section 116 with a U.S. Road Map’ (1963) 4 Melb. U.L.R. 41, 43-48.
23 (1962) 370 U.S. 530.
24 Ex parte Ward (1899) 173 U.S. 452; McDowell v. U.S. (1895) 159 U.S. 596; Manning v. Weeks (1881) 139 U.S. 504; In re Ah Lee (1880) 5 Fed. 899 (D.C. Oregon). All of these cases involved the invalid appointment ofjudges to a de jure office because the Norton rule forbade the application of the de facto doctrine to an unconstitutionally established court.
25 In Re Hans (1963) 174 Neb. 612; 119 N.W. 2d. 72; State v. Ness (1954) 75 S.D.373; 65 N.W. 2d. 923; Marckef Co. v. Zitzow (1944) 218 Minn. 305; 15 N.W. 2d. 777; In Re Santillanes (1943) 47 N.M. 140; 138 P 2d. 503; Ridout v. State (1930) 161 Tenn. 248; 30 S.W. 2d. 255; Nagel v. Bosworth (1912) 148 Ky. 807; 147 S.W. 840; State ex rel. Bafes v. Bailey (1908) 106 Minn. 138; 118 N.W. 138; State ex rel. Bockmeir v. Ely (1907) 16 N.D. 569; 113 N.W. 711; Butler v. Phillips (1906) 38 Col. 378;88 P. 480; Curtin v. Barton (1893) 139 N.Y. 505; 34 N.E. 1093; Burt v. Winona & St. P. R. Co. (1884) 31 Minn. 472; 18 N.W. 285 ; State v. Carroll (1871) 38 Conn.449; 9 Am. Rep. 409.
26 (1962) 370 U.S. 530, 536.
27 U.S. v. Allocco (1962) 305 F. 2d. 704.
28 E.g. Note, (1963) 38 N.Y.U.L.Rev. 169.
29 Annot., ‘ Validity And Effect Of Judgment Based Upon Erroneous View As To Constitutionality Or Validity Of Statute Or Ordinance Going To The Merits’ (1945) 167 A.L.R. 517.
30 Note, ‘ The De Jure-De Facto Controversy and its Effect Upon Legal Rights‘ (1961) 1 Washburn L.J. 458, where it is argued that the Norton rule should be retained in criminal cases.
31 Ante pp. 43-45.
32 Griffin v. Illinois (1955) 351 U.S. 12, 26 per Frankfurter J. (Concurring opinion).
33 Blackstone, Commentaries (7th ed. 1775) vi, 70. See also Hale, History of the Common Law(5th ed. 1794) 141.
34 Austin, Jurisprudence (4th ed. 1879) ii, 655.
35 Australian Agricultural Co. v. Federated Engine-Drivers and Firemen's Association ofAustralasia (1913) 17 C.L.R. 261; Attorney-General for N.S. W. v.Perpetual Trustee Co. {1951) 85 C.L.R. 237; Hughes & Vale Pty. Ltd. v. N.S.W.(1953) 87 C.L.R. 49.
36 E.g. Gelpcke v. Dubuque (1863) 68 U.S. 520 (1 Wall 175); Anderson v. Santa Anna (1886) 116 U.S. 356.
37 E.g. Bingham v. Miller (1848) 17 Ohio 445.
38 E.g. State v. Stout (1949) 210 P. 2d. 199; State v. O'Neil (1910) 147 Iowa 513;126 N. W. 454. See generally: Annot., ‘ Reliance On Judicial Decision As Defence To Prosecution’ (1926) 49A.L.R. 1273. In the converse situation where a person was convicted under a statute later declared unconstitutionalthe retroactive theory was normally applied because it protected personal liberty. See infra p. 70.
39 Freeman, ‘The Protection Afforded Against The Retroactive Operation of an Overruling Decision’(1918) 18 Columbo L. Rev. 230; Snyder, ‘ Retrospective Operation of Overruling Decisions’ (1940) 35 Ill. L.Rev. 121; Spruill,‘ The Effect of an Overruling Decision’(1940) 18 N.C.L. Rev. 199; Note,‘ Prospective Operation of Decisions Holding Statutes Unconstitutionalor Overruling’ (1947) 60 Har. L. Rev.437.
40 There was some attempt to claim that the retroactive operation of an overruling decision would violate the provisions of Art. 1, s. 10 of the U.S. Constitution in that it would constitute ex post facto legislation or an irnpairn1ent of contractual obligations. This was unsucessful. Ross v. Oregon (1913) 227 U.S. 150; Frank v. Magnum (1915) 237 U.S. 309; Tidal Oil Co. v. Flanagan (1924) 263 U.S. 444. Retroactivity may however occasionally invoke a due process problem. Brinkerhoff-Faris Trust & Savings Co. v. Hill (1930) 281 U.S. 673.
41 For a survey of the academic writing see Levy, ‘ Realist Jurisprudence and Prospective Overruling’ (1960) 109 U.Pa.L.Rev. 1.
42 Cardozo, Address to the New York State Bar Association (1932) 55 Report of the New York State Bar Association 262; Great Northern Rly. v. Sunburst Refining Co. (1932) 287 U.S. 358; Schaeffer, Precedent and Policy (1956) 12-15; Mosser v. Darrow (1951) 341 U.S. 267, 276 (Black J.); Commissioner v. Hall's Estate (2nd Circ. 1946) 153 F 2d. 172, 173 (Frank J.); Griffin v. Illinois (1955) 351 U.S. 12, 25-26 (Frankfurter J.).
43 Durham v. U.S. (1954) 214 F 2d. 862.
44 Phillips Exeter Academy v. Gleason (1960) 102 N.H. 369; 157 A 2d. 769.
45 Southern Pacific Co. v. Cochise (1963) 92 Ariz. 395; 377 P. 2d. 770.
46 State v. Martin (1963) 384 P. 2d. 833 (Washington).
47 Molitor v. Kaneland Community Unit District No. 302 (1959) 11 Ill. 2d. 11; 163 N.E. 2d. 88; Parker v. Port Huron Hospital (1960) 361 Mich. 1; 105 N.W. 2d. 1; Williams v. City of Detroit (1961) 364 Mich. 231; 111 N.W. 2d. 1; Holytz v. City of Milwaukee (1962) 17 Wise. 2d. 26; 115 N.W. 2d. 618; Spanel v. Mounds View School District No. 621 (1962) 118 N.W. 2d. (Minn.); Stone v. Arizona Highway Commission (1963) 93 Ariz. 384; 381 P. 2d. 107.
48 (1961) 367 U.S. 643.
49 E.g. Sisk v. Lane (1964) 331 F 2d. 235; U.S. v. Fay (1964) 333 F 2d. 12; U.S. v. Rundle (1964) 337 F 2d. 268; Comment,‘ Prospective Overruling and Retroactive Application in the Federal Courts’ (1962) 71 Yale L.J. 907; Bender,‘ The Retroactive Effect of an Overruling Constitutional Decision’ (1962) 110 U.Pa.L.Rev. 650.
50 It does apply however to all cases which were in the appellate process at the time Mapp was decided. Dillon v. Peters (1965) 341 F 2d. 337; U.S. v. La Vallee (1964) 335 F 2d. 230.
50A A Since the above was written the Supreme Court has held that the Mapp v. Ohio rule does not apply to convictions which had become final by the date of its decision in that case. Linkletter v. Walker (1965) 381 U.S. 618. The Court has also considered the retroactive effect of some of its latest decisions which broaden the scope of the Due Process clause in State criminal prosecutions. Tehan v. Shott (1966) 382 U.S. 406; . Johnson v. New Jersey (1966) 16 L. ed. 882.
51 Littlefield, ‘Stare Decisis, Prospective Overruling and Judicial Legislation in the Context of Sovereign Immunity’ (1964) 9 St. Louis L. J. 56; Note,‘Limitation of Judicial Decisions to Prospective Operation’ (1961) 46 Iowa L. Rev. 600; Con1-ment,The Prospective Decision-A Useful“ Tool of the Trade” , (1961) 38 Wash.L. Rev. 584.
52 Comment, ‘Prospective Overruling and Retroactive Application in the Federal Courts’ (1962) 71 Yale L. J. 907, 942.
53 See the authorities in n. 50 and n. 50A. Linkletter v. Walker (1965) 381 U.S. 618.
54 (1963) 372 U.S. 335.
55 (1955) 351 U.S. 12.
56 Eskridge v. Washington State Board (1958) 357 U.S. 214 (Griffin); Doughty v. Maxwell (1964) 376 U.S. 202 (Gideon); Palumbo v. State of New Jersey (1964) 334 F 2d. 524 (Gideon); U.S. ex rel. Durocher v. La Vallee (1964) 330 F 2d. 303. (Gideon).
57 Ante pp. 42-43.
58 Pannam, ‘Tortious Liability for Acts Performed Under an Unconstitutional Statute’ (1966) 5 Melb. U.L.Rev. 113.