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2 Fed. L. Rev. 37 (1966-1967)
Unconstitutional Statutes and De Facto Officers

handle is hein.journals/fedlr2 and id is 47 raw text is: UNCONSTITUTIONAL STATUTES AND DE FACTO OFFICERS By CLIFFORD L. PANNAM* Introduction 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 con- stitutional law which is concerned with the legal character of acts per- formed under an unconstitutional statute. The traditional doctrine is that such a statute is an utter nullity. Perhaps the most famous state- ment of this doctrine is to be found in Norton v. Shelby County2 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 ,.3 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 .4 If such a doctrine were to be mechanistically applied in all of its rigorous simplicity then the consequences attendant upon a judicial declaration that a statute was unconstitutional would be dramatic indeed. Taxes paid under its terms could be recovered. Public officers would be liable in tort for all invasions of private rights which it pur- ported to justify. Judgments, orders and convictions made or obtained under its ostensible authority would be subject to collateral attack. The official acts of any public body it established could be disregarded. Thankfully the law is ' full of collateral doctrines and devices ' which operate to produce very different results. Thus the rule which prevents the recovery of payments made under a mistake of law prevents the recovery of unconstitutional taxes.' The doctrine of res judicata often protects judgments based on unconstitutional statutes against collateral attack.6 Reliance in good faith on the terms of a statute which is later * LL.B. (Hons.) (Melb.); LL.M. (Illinois); Senior Lecturer in Law in The University of Melbourne. Presently Thayer Fellow, Harvard Law School. 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. ' (1935) 48 Harv. L. Rev. 1271, 1273. 2(1886) 118 U.S. 425. 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 Judgment Based Upon Erroneous View As To Constitutionality Or Validity Of A Statute Or Ordinance Going To Merits' (1945) 167 A.L.R. 517.

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