Unconstitutional Statutes and De Facto Officers
| Author | Clifford L. Pannam |
| Published date | 01 March 1966 |
| DOI | 10.1177/0067205X6600200103 |
| Date | 01 March 1966 |
| Subject Matter | Article |
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 '.1 Few areas
of
the law provide abetter
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 astatute
is
an utter nullity. Perhaps the most famous state-
ment
of
this doctrine
is
to be found in Norton
v.
Shelby County2where
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 aChief Justice
of
the High Court
of
Australia once
put
it:
'A
pretended law made in excess
of
power
is
not and never
has been alaw
at
all . . . it
is
invalid ab
initio'.
4
If
such adoctrine were to be mechanistically applied in all
of
its
rigorous simplicity then the consequences attendant upon ajudicial
declaration
that
astatute 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 amistake
of
law prevents the
recovery
of
unconstitutional taxes.5The doctrine
of
res judicata often
protects judgments based on unconstitutional statutes against collateral
attack.6Reliance in good faith on the terms
of
astatute 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 requiren1ents for the degree
of
Doctor
of
the Science
of
Law in the Faculty
of
Law, Colun1bia University.
t(1935) 48 Harv. L. Rev. 1271, 1273.
2(1886) 118 U.S. 425.
3Ibid., 442.
4South Australia
v.
The Commonwealth (1942)
65
C.L.R. 373, 408 per Latham C.J.
SSee generally: Pannam,
'The
Recovery
of
Unconstitutional Taxes in Australia
and the United
States'
(1964) 47 Texas
L.
Rev. 777.
6See generally:
Annot.,'
Validity And Effect
Of
Judglnent Based Upon Erroneous
View
As To Constitutionality
Or
Validity
Of
AStatute
Or
Ordinance Going
To
Merits'
(1945) 167 A.L.R. 517. 37
38
Federal Law Review [VOLUME 2
invalidated may protect public officers from liability in tort.7The
de
facto officer doctrine validates many official acts
of
bodies which are
unconstitutionally created
or
staffed. These various
'doctrines
and
devices' all operate to curb the drastic logical implications
of
the
traditional view that an unconstitutional statute
is
acomplete nullity.
This paper
is
concerned with an analysis
of
one
of
these
doctrines-
the
de
facto officer doctrine. Although the doctrine has roots deep
in the common law, it seems to have been almost forgotten by Australian
and English lawyers during the past hundred years. With
the
single
exception
of
one short article written by Sir Owen Dixon in
1938
8the
doctrine is
not
mentioned in any modern decision, text book, encyclo-
paedia,
or
legal periodical.9This situation stands in marked contrast
to that which
is
to be found in the United States where there is asub-
stantial body
of
case law dealing with all aspects
of
the
de
facto officer
doctrine.10
It
is
also expounded
at
length in the legal literature.
11
A
critical analysis
of
the way in which the American courts have used the
doctrine to limit the retroactive invalidation
of
official action based on
an
unconstitutional statute may therefore be
of
some value.
It
is
also intended to investigate asecond, though related, subject.
Together with the other rules referred to above the
de
facto officer
doctrine fulfils something
of
asalvage operation in this area
of
the law.
Each one
of
them protects various forms
of
official activity from the
risk
of
possible invalidity stemming from asubsequent declaration that
the statutory authority upon which they are based
is
unconstitutional.
They are necessary to curb the thrust
of
the traditional view
that
a
declaration
of
unconstitutionality operates retroactively. The statute,
as it
is
said, is void
ah
initio. An alternative approach would be for a
court to specifically provide
that
its declaration
of
unconstitutionality
is only to have aprospective operation. This approach would obviate
the need to resort to salvage doctrines which
is
made necessary by the
void
ab
initio theory concerning the effect
of
an
unconstitutional statute.
7See generally:
Pannam,'
Tortious Liability for Acts Performed Under
an
Uncon-
stitutional Statute' (1966) 5Melb. U. L. Rev.
113.
8 ,
De
Facto Officers' (1938) 1Res Judicatae 285.
9Indeed 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, ATreatise on the Law
of
Public 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) 9So. Cal. L. Rev. 189; Harris,
'The
Validity
of
Acts
of
Officers Occupying Offices Created Under Laws Declared Uncon-
stitutional'
(1938) 3U. Newark L. Rev. 123; Comment,
'The
De
Facto Officer
Doctrine'
(1963)
63
Columbo L. Rev. 909.
JUNE 1966] Unconstitutional Statutes and De Facto Officers
39
The Australian courts have never considered the use
of
this technique.
In the United States on the other hand it has been the subject
of
much
discussion and some significant judicial experimentation.
It
is
intended
to examine the possible use
of
prospective declarations
of
uncon-
stitutionality in conjunction with the
de
facto officer doctrine because
in asense they represent two different methods
of
dealing with the same
problem. The one concedes that an unconstitutional statute
is
acom-
plete nullity and operates to stem the consequences
that
seem to flow
from the concession. The other challenges the traditional view
of
an
unconstitutional statute and
is
prepared to admit that prior to a
declaration
of
unconstitutionality it
is
capable
of
giving rise to legal
rights and duties.
I.
The De Facto Officer Doctrine
An officer
de
facto
is
anotional creature only, erected by the law,
in order to answer the ends
of
justice and equity under particular
circumstances.
12
Lord Ellenborough once described a
de
facto officer as 'one who has
the reputation
of
being the officer he assumes to be and yet
is
not
a
good officer in point
of
law'.13 This terse description, which
is
con-
stantly referred to in the American
cases,14
contains astatement
of
the
central ingredient in the
de
facto officer doctrine and also indicates the
nature
of
the problem it
is
designed to solve. The problem concerns
the validity
of
acts performed by aperson who appears to be clothed
with official authority but who in point
of
fact has none. Asimple,
but harsh, solution to this problem would have been to make the validity
of
all such acts dependent upon the legality
of
the person's title to the
office
he purported to
fill.
Since
at
least the fifteenth century however
the common law has taken adifferent view.
15
12
R.
v.
Lisle (1738) And. 163, 166;
95
B.R. 345, 346 arguendo.
'The
de facto
concept is aproduct
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
A2d. 757, 765.
13
R.
v.
Bedford Level (1805) 6East 356, 368;
102
B.R. 1323, 1328. This is a
generalized version
of
Sir John Holt's description
of
ade facto steward in Parker
v.
Kett (1697) 1Ld. Raym. 658, 660;
91
E.R. 1338, 1340 as
one'
who has the reputation
of
being steward,
and
yet
is
not
agood 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
reI. 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. 9H. VI., f.
32.
See also Bagot's Case (1470) Y.B. 9
Bdw. IV,
f.
lb, pI.
5.
This case is conveniently translated in Hale, Historia Placi-
torum Coronae (1736)
L,
101
n. (f). The doctrine can also be seen reflected in the
statute 1Edw. 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'.
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