Unconstitutional Statutes and De Facto Officers

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 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 2 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 purported 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. 5 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 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. 3 Ibid., 442. 4 South Australia v. The Commonwealth (1942) 65 C.L.R. 373, 408 per Latham C.J. S 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 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. 7 The 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 a complete nullity. This paper is concerned with an analysis of one of these doctrinesthe 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 8 the doctrine is not mentioned in any modern decision, text book, encyclopaedia, or legal periodical. 9 This situation stands in marked contrast to that which is to be found in the United States where there is a substantial body of case law dealing with all aspects of the de facto officer doctrine. 1 0 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 a second, though related, subject. Together with the other rules referred to above the de facto officer doctrine fulfils something of a salvage 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 a subsequent 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 a prospective 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. 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 on the 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. 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 unconstitutionality in conjunction with the de facto officer doctrine because in a sense they represent two different methods of dealing with the same problem. The one concedes that an unconstitutional statute is a complete 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 a notional 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 constantly referred to in the American cases,14 contains a statement 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 a person who appears to be clothed with official authority but who in point of fact has none. A simple, 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 a different view. 15 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 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. 9 H. 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 Placitorum Coronae (1736) L, 101 n. (f). The doctrine can also 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'. 40 Federal Law Review [VOLUME 2 The de facto officer doctrine operates to validate certain acts of those in apparent, though not lawful, authority. Members of the public are entitled to rely on the 'reputation ' of the officials they deal with and are not required to run the risk that the officials do not have proper title to their offices. A typical situation arose in Leak v. Howell in 1596. 16 There a merchant was prosecuted for landing' 144 pieces of buckram, 14 pieces of cloth of gold, 124 pieces of linen cloth, and divers other parcels' without having agreed to pay customs duty on them. The merchant alleged that he had entered an agreement to pay the customs duty with one Richard Enys, who had acted as deputy customer at the port of Penryn in Cornwall for three years. It appeared however that Enys was not lawfully entitled to hold the office of deputy customer. In spite of this the Court of Exchequer found that the agreement was valid and directed acquittal of the merchant. The Barons stated the following ground for their decision: Here Richard Enys was deputy in facto, and exercised the place in the customhouse; and although he were not de jure, that shall not prejudice the merchants who made their compositions with him; for it would be very mischievous unto them to examine by what authority they sit and make their composition. 17 The doctrine thus appears to be based, in part at least, on the understandable reliance that the citizen places on the apparent authority of persons who are actually exercising official power. This policy is reflected in the old cases relating to copyhold tenure where some legal defect was alleged to exist in the title of the steward of the manor. 18 It was held that the tenants and third persons were entitled to rely on the apparent authority of the person who was acting as steward and that surrenders and admittances made by him were valid. 19 Cro. Eliz. 533; 78 E.R. 780. 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 evidence concerning 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 Ope 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. 16 17 JUNE 1966] Unconstitutional Statutes and De Facto Officers 41 But perhaps the more important policy foundation on which the doctrine rests is the protection of official action against collateral attack by private individuals on the ground that it lacks a proper legal basis. This appears clearly from the long line of cases in which the official acts of local government bodies were challenged on the ground that some member of the body was improperly elected. The de facto officer doctrine was applied to validate these acts. Thus improperly elected mayors are held to be capable of binding their corporations by normal commercial contracts 20 and to validly administer the oath of office to burgesses.21 Similarly, the vote of a de facto Justice of the Peace did not invalidate the election of a County Treasurer,22 nor did the improper appointment of a group of aldermen affect the validity of their appointment of a bailiff,23 nor that of an under-sheriff invalidate his assignment of a bail bond. 24 Attempts to resist payments of tolls and rates on the grounds that the persons who levied or fixed them, such as overseers,25 toll assessors,26 tithe valuers,27 churchwardens,28 or vestrymen,29 were illegally elected or appointed all failed on the basis that they were de facto officers. In other cases, the acts of de facto town clerks30 and a deputy registrar of the prerogative office of Canterbury31 were upheld. The policy behind the application of the de facto doctrine in these cases is expressed in the following passage from the speech of the Lord Chancellor, Lord Truro, in the House of Lords in Scadding v. Lorant. 32 He was inviting the House to adopt the unanimous opinion of the judges, reported to them by Pollock L.C.B.,33 that a poor-rate was 20 De Grave v. Mayor and Corporation of Monmouth (1830) 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. A de facto Bailiff was 21 R. v. Pursehouse (1733) 2 Barn. K.B. 264; 94 E.R. 490. 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' concurred' with this view. 25 Penney v. Slade (1834) 5 Bing. (N.C.) 319. 26 Waterloo Bridge Co. V. Cull (1858) 1 El. & EI. 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. 164. 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 42 Federal Lal'v Review [VOLUME 2 valid despite the fact that one of the vestrymen who participated in striking it was illegally appointed. He said: . . . your Lordships will see at once the importance of that objection, when you consider how many public officers and persons there are who are charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers, and it might also lead to persons, instead of resorting to ordinary legal remedies to set right anything done by officers, taking the law into their own hands. I think therefore, that the principle laid down by the learned Judges, as the principle of law, is one that is in conformity with public convenience, with reference to the discharge of the duties connected with the office. 34 The de facto officer doctrine thus constituted a clear rejection of the view that the validity of official action depended upon the legality of the officer's appointment. A person's title to any office could of course be challenged directly in Quo Warranto proceedings. Defective title however did not automatically invalidate all official acts that had been performed. On the other hand the doctrine did not automatically validate all of the de facto officer's acts. There were many exceptions. To begin with the doctrine only validated official acts as far as the general public or third persons were concerned. It did not give any protection whatsoever to the officer himself. This is a fundamental limitation on the doctrine. 35 The point may be illustrated by reference to Gahan v. Lafite. 36 That was an action in which trespass and false imprisonment were alleged against three men who purported to act as judges of the Royal Court of the Island of St. Lucia. They had been illegally appointed after the improper dismissal of the rightful judges. One of the rightful 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 [Le. 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, Ope cit. ch. XVII, XXII. 36 (1841) 3 Moo. P.C. 382; 13 E.R. 155. JUNE 1966] Unconstitutional Statutes and De Facto Officers 43 judges was imprisoned by them for two months for contempt because he refused to swear them in. At the hearing he protested the legality of the court but to no avail. The Privy Council upheld an award of damages in his favour against the other judges and refused to accept the contention that the committal for contempt was valid because they were de facto judges. 37 To apply the doctrine here would give them personal protection against the consequences of their own abuse of the office. However it is clear that other judgments they might have given where third persons were concerned would have been held to be valid. 38 Even where the interests of the public or third persons were concerned the courts imposed several restrictions on the doctrine. Some of these restrictions were quite vague but the point is that the courts never used the de facto doctrine as an automatic validating technique. To begin with where the defect in an officer's title violates a strong statutory policy there is authority for the proposition that the doctrine cannot be applied. Take, for example, the provisions of the first Test Act in 1672 under which every holder of an office under the Crown was obliged to take the oaths of Supremacy and Allegiance and to receive the ' Sacrament of the Lord's Supper according to the usages of the Church of England '.39 The officer also had to make a declaration that he did not believe in the doctrine of transubstantiation. The Act, which was designed to prevent' the dangers which may happen from Popish recusants and quieting the minds of His Majesty's good Subjects', further provided that if these things were not done then the person was incapable of holding any such office. If he persisted in exercising the powers of the office he was liable to the then enormous fine of £500. In Hipsley v. Tucke40 the question arose as to whether an officer's failure to comply with the provisions of this Act resulted in the invalidity of his subsequent official acts. A mayor had sat as judge and given judgment in an inferior court without taking the requisite oaths. His judgment was attacked on a writ of error before the Court of King's Bench. It was argued that he was a de facto judge and that his 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 Ope cit. 395; 160. These were probably made ex abundanti cautela. 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, 199203, 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 decided in 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. 44 Federal Law Review [VOLUME 2 judgments could not be collaterally attacked in this way. Sir Matthew' Hale C.J., leading the majority of the Court, with Twisden J. dissenting" accepted this argument. He is reported as having said that as to the interest of a stranger as acts of jurisdiction they are not void, as judgments here in Westminster would not be void by any one, or all, not having duly taken the oaths; these matters are ,collateral and therefore not void. 41 This decision was later reversed by a Court composed of Raynsford C.J.,. Twisden, Jones and Wild JJ. with Wild J. dissenting. 42 In the only terse report of the reasons for this reversal, it appears that it was based on a special construction of the Test Act in the light of the strength of its anti-Roman Catholic objectives. The report reads: But it was answered and resolved by the Court, 1. That by the not taking of the oaths the office is void by the said Act, and all acts done by colour of the office. And this was the principal intent of the Act, not the penalty, which may be easily avoided by the covinous action of a friend. And it was observed that the Act of 5 E. 6, against the buying of offices, had a special proviso to make good the acts of offiters; but here is no such provision. 43 Although Holt C.J.44 and Lee C.J.45 have denied the correctness of this reversal of Sir Matthew Hale's decision, and despite the fact that the reversal has bee strongly criticized,46 there is much to be said for proper. What the 'udges seem to have said was that the statutory policy embodied in the Test Act pointed so strongly to the complete invalidity of OffiCi)) action taken in defiance of it that the de facto doctrine could not e applied to validate these acts even if the interests of third persons ere thereby prejudiced. This does not seem an unreasonable limitation to place on the operation of the doctrine. 47 41 3 Keble 606; 84 E.R. 905. He pointed out that 'there must be a conviction [Le. 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. JUNE 1966] Unconstitutional Statutes and De Facto Officers 45 There were many other limitations on the doctrine. In the copyhold cases which are referred to above it was clear that a de facto steward could not make a voluntary grant of copyhold land although he could validly perform such ministerial duties as taking a surrender and ,admitting a new tenant. Such a grant was not ' a thing of necessity' and hence it was void as it might be contrary to the interest of the lord of the manor. 48 Similarly in the de facto ecclesiastical officer cases it was held that ' all judicial acts made by him, as admissions, institutions, certificates, and such like shall be good; but not such voluntary acts as tend to the de-pauperation of the successor '.49 Thus a lease of ecclesiastical land for 101 years by an improperly appointed bishop was held to be invalid in O'Brian v. Knivan. 50 The same distinction is to be found in the cases dealing with de facto mayors. In these cases a distinction is drawn between' such acts as are necessary for the good of the body, which comprehend judicial and ministerial acts, and such as are arbitrary and voluntary'. 51 On this basis a de facto mayor can swear in a successor,52 or other persons who have a right to their positions,53 but .cannot appoint a friend as a burgess. 54 It is not intended to explore what is involved in these various exceptions. The point to be made here is that they exist. This is important because they demonstrate that the de facto officer doctrine is not inflexible. It is based on public policy and yields when there are policy reasons why it should not be applied. Another point that emerges from the English cases is that the doctrine tends to be used as a convenient solution for particular problems without the judges subjecting it to any very precise analysis. Indeed in R. v. Lisle in 1738 counsel for the Crown was able to state that 'an officer de facto is nowhere defined in the books '.55 That statement is almost as true to-day as it was then. The only condition that seems to be necessary for the doctrine to operate is that a person should have ' the reputation of being the officer he assumes to be'. 56 This requirement is sometimes stated in slightly 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) ero. 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. 46 Federal Law Review [VOLUME 2 different language. A de facto officer is said to be one who carries out official duties under a colourable title to the office. 57 The meaning of these concepts has never been clarified by the English courts. The only proposition that can be stated with any confidence is that a person who is a manifest usurper and is known not to have any title to the office he purports to fill cannot be a de facto officer. 58 In the United States the doctrine has received a far more detailed analysis than is to be found in the English cases referred to above. The courts have explored the meaning of ' reputation' or 'colour' which is the central ingredient of the doctrine. They have considered the type of official acts it validates and the personal rights and duties of a de facto officer. There has also been a clear formulation of the policies the doctrine serves. In State v. Carroll,59 which is the classic 60 American authority on the de facto officer doctrine and the starting point of the modern law on the subject, Butler C.l. explained these policies in the following passage: The de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of an office, without being lawful officers. It was seen, . . . that the public could not reasonably be compelled to enquire into the title of an officer, nor he compelled to show a title, and these became settled principles in the law. But to protect those who dealt with such officers when apparent incumbents of offices under such apparent circumstances of reputation or colour as would lead men to suppose they were legal officers, the law validated their acts as to the public and third persons, on the ground that, as to them, although not officers de jure, they were officers in fact, whose acts public policy required should be considered valid. It was not because of any quality or character conferred upon the officer, or attached to him by reason of any defective election or appointment, but a name or character given to his acts by the law, for the purpose of validating them. When, therefore, in civil cases, the public or third persons had knowledge that the officer was not an officer de jure, the reason for validating the acts to which they submitted, or which they invoked, failed, and the law no longer protected them. 61 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 & nul droit' 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 Ope cit. (usurpation of office of mayor 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. JUNE 1966] Unconstitutional Statutes and De Facto Officers 47 Butler e.J. went on to give a definition of de facto officers which has been followed in both State and Federal courts ever since. 62 As one judge has recently put it, 'the definition has had a remarkably concordant decisional lineage'. 63 The definition provides that: An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid as far as they involve the interests of the public and third persons, where the duties of the office were exercised, First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without enquiry, to submit to or invoke his action, supporting him to be the officer he assumed to be. Second, under colour of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like. Third, under colour of a known void election or appointment, because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth, under colour of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such. 64 Certain aspects of this definition will be considered in the next section of this paper. The point to be noted here is that it allows the de facto officer doctrine a very broad operation. Ever since State v. Carroll there has been little debate in the American courts as to what is necessary to constitute a de .facto officer. The development of the doctrine has taken place in other areas. Questions have arisen as to the payment of de facto officers. Are they entitled to be paid for their services? Can a de jure officer recover the salary he should have been paid from the de facto officer who has acted in his place or from the governmental authority which employs him? These questions have generated much litigation. 6s In the area of criminal law questions have arisen as to the 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. 48 Federal Law Review [VOLUME 2 responsibility for crimes committed by and against de facto officers in their official capacities. 66 There has also been considerable attention given to the kinds of official action that the doctrine validates. If, for example, a de facto officer has any personal interest in the validity of his acts they are void as against him. The doctrine only validates official acts as far as members of the general public or third persons are concerned. 67 Such then is the general nature of the de facto officer doctrine. It is now necessary to consider its application in the situation where the defect in an officer's title arises from an unconstitutional statutory creation of his office or authorization of his appointment. H. Unconstitutional Offices and Officers Maxims and aphorisms are among the tritest, not to say cheapest weapons, of legal contests. If one may annihilate an opponent's position by attacking it with a maxim, or a phrase, the conquest is ' easy, for the legal quiver is full of them. 68 Given the existence of the de facto officer doctrine several problems concerned with its operation in connection with unconstitutional statutes may now be posed. The first is whether a person who is appointed to a legally existing office by, or pursuant to, the terms of an unconstitutional statute can be regarded as a de facto officer. The second raises the same enquiry in regard to a person who is appointed to an office which is established by an unconstitutional statute. These problems are peculiar to a constitutional system which delimits, defines and controls the exercise of governmental powers. They could not arise in England, for example, because there the concept of an unconstitutional statute is unknown. The first problem may be illustrated by reference to the facts of State v. Carroll which has already been referred to. That was an appeal from a conviction for criminal libel and breach of the peace which ,had been obtained before an acting judge of the City Court of New Haven, Connecticut. The basis of the appeal was that the statute which purported to authorize a clerk of the court to request a justice of the peace to act as judge of the court in the event of the normal judge's illness was unconstitutional. There was a legally constituted office but it was alleged that the appointment of the acting judge was unconstitutional. The question 66 Constantineau, Ope cit. ch. XVIII & XXI; Annot., 'De Facto Status Of Officer As Affecting His Criminal Responsibility' (1929) 64 A.L.R. 534; 43 Am. Jur. Ope cit. s. 498; 67 C.J.S. Ope cit. S. 147. 67 Constantineau, Ope cit. ch. XVII & XXII; 43 Am. Jur. Ope cit. ss.493-496; 67 C.J.S. Ope cit. s. 146. 68 State v. Gardner (1896) 54 Ohio St. 24, 53; 43 N.E. 919, 1012 per Spear I. concurring. JUNE 1966] Unconstitutional Statutes and De Facto Officers 49 before the Connecticut Supreme Court was whether, assuming the statute was unconstitutional, the de facto officer doctrine validated the proceedings in the trial court. Could a person derive sufficient ' colour' or , reputation ' to constitute him a de facto officer from an unconstitutional appointment ? There was some authority in the earlier American decisions for the view that an unconstitutional statute could not be used to found a claim to de facto status. This view was based on a supposed requirement that in order to constitute a de facto officer there must be colour of appointment or election by a body which has legal power to appoint. An unconstitutional statute could confer no such power and therefore it could give no colour to the appointment. 69 Butler e.J. rejected the supposed limitation on the basis that it ignored the true character of the doctrine. It was not concerned with the nature of the defect in an officer's title but rather with whether third persons were entitled to rely on its validity. On this basis even a usurper or a mere intruder could become a de facto officer if there was evidence to show that there had been such acquiescence in his exercise of official power as would lead members of the public to assume that he was legally appointed. This was included as the first limb of his definition of a de facto officer which has already been set out. 70 Later cases have confirmed this view. 71 Reputation is enough. It was then argued in State v. Carroll that nevertheless a ' manifestly' unconstitutional statute could never give the necessary reputation or colour because members of the public would not be acting reasonably if they relied on the validity of its provisions. Butler e.J. rejected this argument on the basis that it was not possible, or proper, to draw distinctions beween statutes which are 'manifestly' unconstitutional and those which are of merely doubtful constitutionality. Any statute which was later declared to be unconstitutional could operate to give colour to a de facto officer because members of the public are entitled to rely upon its ostensible validity. He thought it 'absurd' to say that such statutes were incapable of conferring sufficient colour to constitute de facto officer status. 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 the court 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 that it 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 facto status. 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, Ope cit. ch. 9. FLR-4 50 Federal Law Review [VOLUME 2 Although in several earlier cases the same decision had been reached 72 it was State v. Carroll that became the leading case on the point. 73 The conclusion has never been subsequently questioned and it is now settled law in the United States that a person who is appointed to a legally existing office pursuant to an unconstitutional statutory authorization is a de facto officer. 74 With regard to the second problem posed above there is no such unanimity in the authorities. Some courts hold that there cannot be a de facto officer unless there is a legally constituted, or de jure, office which he purports to fill. On the other hand there is just as much authority for the proposition that there can be a de facto officer of a de facto office. The trouble began with Norton v. Shelby County. 75 That was an action brought upon certain bonds which had been issued on behalf of Shelby County in Tennessee by a Board of County Commissioners. Prior to 1867, when the statute was passed which created the Board of Commissioners, responsibility for the administration of county affairs in Tennessee was vested in a County Court which was composed of elected justices of the peace. The County Court alone had authority to issue bonds in the name of the County. The 1867 statute purported to abolish the County Courts and to transfer all of their powers to Boards of County Commissioners. Within a month of its passage the constitutionality of the statute was attacked by the members of the County Court of Shelby County. Before the conclusion of this litigation the Board of County Commissioners for Shelby County issued the bonds which were the subject of the present action. Shortly thereafter the Supreme Court of Tennessee held that the Act of 1867 was unconstitutional. When suit was brought on the bonds in a federal court the County defended on the basis that it was not bound by the acts of the members of the unconstitutional Board. The defence succeeded. The main argument addressed to the Supreme Court of the United States on appeal was that the members of the Board were de facto 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 rei Tamminnen v. City of Eveleth (1933) 189 Minn. 229; 249 N.W. 184. The earlier authorities are collected in Constantineau, Ope cit. ch. XV and Annot., 'De Facto Officers' (1911) 140 Am. St. Rep. 164, 186 if. 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. JUNE 1966] Unconstitutional Statutes and De Facto Officers 51 officers and therefore their acts bound the County. Field J., who wrote the opinion for the Court, rejected this argument. After stressing the general importance of the de .facto doctrine,76 he went on: But the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a public office can exist only by force of law. This seems to us so obvious that we should hardly feel called upon to consider any adverse opinion on the subject but for the earnest contention of plaintiff's counsel ... Their position is, that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent ... It is difficult to meet it by any argument beyond this statement. An unconstitutional act is not a law; it 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. 77 Norton v. Shelby County thus states a very serious limitation on the operation of the de facto doctrine. It operates to deny the status of a de facto officer to any person who purports to fill an office which has been created by an unconstitutional statute. The decision was subsequently reaffirmed by the Supreme Court in U.S. v. Royer 78 but the state courts are divided on the question. A majority of them have approved the Norton rule, but there are many which have refused to follow it. 79 One of the most curious aspects of the judgment delivered by Field J. in Norton is that he does not question the validity of the rule that a person appointed or elected to a de jure office by an unconstitutional statute becomes a de facto officer. 80 So that although an unconstitutional 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 title of 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) 15 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. 52 Federal Law Review [VOLUME 2 statute must be treated as if 'it had never been passed', nevertheless it can confer sufficient colour to constitute a de facto officer. One would have thought that this concession contradicted his dogmatic statement that such a statute had no effect at all. 81 Putting that to one side, it is clear that his whole judgment rests on the simple assertion that the existence of a de jure office is a condition precedent to the application of the de facto officer doctrine. Field J. gives no reasons to justify this limitation on the doctrine and almost all of the cases which follow his decision are content to merely repeat his assertion. The few courts which have ever attempted to rationalize it have not found the task easy. In Kimble v. Bender the Supreme Court of Maryland explained it as follows: The fundamental assumption of this theory is that the attempt to create a new office is not likely to induce people, without enquiry, to make or to submit to the action of a person on the assumption that he is a duly accredited and empowered officer of the character of his representation. 82 This is unconvincing. The question is whether, if people are induced to deal with such a person, they should be protected against the risk that a statute which creates his office will be later declared unconstitutional. The Supreme Court of Kansas made a similar attempt in In Re Norton. 83 It was there pointed out that The strongest reasoning why the acts of de facto officers are sustained is that the office is created by the public and put into operation as part of a system of organized society, and a continued administration of the office becomes necessary to the proper adjustment of its affairs and to the perpetuity of the system. This reasoning loses force when we undertake to apply it to a de facto office. Such office, not having been created by the public, and not having been adopted into the organized system, never becomes a part of it, and its displacement does not disturb the harmony of the organisation. 84 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. JUNE 1966] Unconstitutional Statutes and De Facto Officers 53 This is also unconvincing. The fact is that when an unconstitutional statute ostensibly sets up an office it has been 'created by the public'. Furthermore, if the office has been exercised and its existence acquiesced in by the public, then it is unreal to say that it has not been 'adopted into the organized system '. The real question is whether, if its displacement does ' disturb the harmony' of the organization, the de facto doctrine can give limited validity to the purported acts of its incumbent. The proposition stated by Field J. is thus seen to ultimately rest upon an a priori assumption about the nature of an unconstitutional exercise of legislative power. It is a complete nullity which must be entirely ignored in order to preserve the constitutional balance. This argument is stated in its most persuasive form by Judge Constantineau in his classic book on the de facto officer doctrine as follows: If a legislative body, whose powers are limited by a written instrument, be permitted to create offices in violation of such instrument, and the courts are to condone such wrongdoing by holding the incumbents thereof officers de facto, it is easily seen that the paramount rights of the people are unduly sacrificed to avoid occasional evils to a few individuals or to a small portion of the community. To sanction such usurpation of power, is to allow the legislature to ignore and override the sovereign will and authority of their masters. Where one of two evils must exist, reason, justice, and expediency demand the adoption of the lesser one. 85 In this view the problem is precisely the same as that which would arise if an individual purported to create an office for himself which was completely unknown to the governmental system. The mere fact that he exercised his invented powers would not make him a de facto officer because there is no office in fact or in law which he purports to fill. That is the thrust of the first part of the passage from the judgment of Field J. which is set out above. 'The idea of an officer' does indeed 'imply the existence of an office which he holds'. It is the next step which gives rise to the difficulty. The proposition enunciated by Field J. is that not only must the office have a factual existence, but it must have a lawful existence as well. There are several basic objections which can be made to any such limitation on the de facto doctrine. The first is that it overlooks the fact that before a statute is declared unconstitutional a citizen is not acting unreasonably if he assumes its validity. This is the real vice of Norton v. Shelby County. It throws upon the citizen the risk that the public official with whom he had dealt lacks legal authority to conclude the dealing. This is so even though the official is held out by the state itself as having that authority. Gummere C.J. makes this point very clearly during the course of his powerful judgment in Lang v. Bayonne. 86 85 86 Op. cit., 61. (1907) 74 N.J.L. 455; 68 Atl. 90. 54 Federal Law Review [VOLUME 2 After pointing out that some 2,400 statutes had been passed in New Jersey during the previous ten years, and that only 400 of these had come before the courts, he said : To require the citizen to determine for himself, at his peril, to what extent, if at all, the legislature has overstepped the boundaries defined by the constitution in passing this mass of statutes, would be to place upon him an intolerable burden, one which it would be absolutely impossible for him to bear-a duty infinitely beyond his ability to perform. In my opinion the provisions of a solemn act of the legislature, so long as it has not received judicial condemnation, are as binding on the citizen as is the judgment of a court rendered against him so long as it remains unreversed. 87 This, in the present submission, goes to the very root of the problem. The statement by Field J. that an unconstitutional statute is a complete and utter nullity is one that can only be made after a court has made its decision. It is easy to be wise at that point of time, but before then the statute was an apparently valid constituent of the vast array of legal provisions which each citizen refuses to obey at his peril. Looked at from this point of view there is, as one commentator has put it, only one effective answer to the statement of Field J.-' It is not true '.88 This sentiment was stated in a far more sophisticated form by Hughes C.J. in Chicot County Drainage District v. Baxter State Bank 89 in the following passage which represents a clear repudiation of the utter nullity doctrine by the Supreme Court of the United States. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualification. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects,-with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified. 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. JUNE 1966] Unconstitutional Statutes and De Facto Officers 55 It is submitted that the application of this approach to the present problem leads to the conclusion that there may be an office that can be filled by a de facto officer in many situations where the office is established by an unconstitutional statute. Those situations will be examined in the next part of this article. The present concern is to combat the conceptualism of Field J.'s view of an unconstitutional statute which would deny the possibility of applying the doctrine in such a situation. The second objection to Norton v. Shelby County is that it ignores the fact that the de facto doctrine was designed to deal with effects and not causes. It does not look at the nature of the defect in the officer's title but rather at whether members of the public were justified in supposing him to be a properly authorised officer. This was the precise basis of the judgment of Butler C.J. in State v. Carroll and is the rationale of the whole doctrine. The same considerations of public policy apply whether a person has been invalidly appointed to a de jure office or whether the office itself is invalidly created. Two Arkansas cases will illustrate the point. In Howell v. Howe1l 91 the Arkansas Supreme Court held that the statute which established the Second Division of the Pulaski County Court of Chancery was unconstitutional. It then adhered to the Norton rule and declared that all of the decrees made by the Chancellor of the Second Division were null and void. This decision created great consternation in Arkansas 92 because the Chancellor had made more than 2000 decrees. The outcry was such that within a few months the Supreme Court reversed itself in Pope v. Pope 93 on the ground that the portions of the statute which created the Second Division were valid and could be severed from the rest of it. Thus the Chancellor could be treated as a de facto judge. The Court went to great lengths to make it clear, however, that it was not doubting the validity of the Norton rule. 94 However, the confusion created by the application of the rule in Howell v. Howell must surely be regarded as a powerful criticism of its validity.9s It produces the very situation that the de facto doctrine was designed to avoid by reference to the very technicalities that it was intended to overcome. In 1909 the Supreme Court of Maine treated this consideration as determinative when it was confronted with the choice of either following the Norton rule or rejecting it. 96 Spear J. explained the Court's conclusion as follows: (1948) 212 Ark. 600; 208 S.W. 2d. 22. 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 clamourings of the public and the bar. 9S See Beaver v. Hall (1920) 142 Tenn. 416; 217 S.W. 649. 96 State v. Poulin (1909) 105 Me. 224; 74 Ad. 119. 91 92 56 Federal Law Review [VOLUME 2 Follow one or the other we must. Follow either we may. Our concern here is to discover which the better coincides with the reason for, and the purpose of, the de facto doctrine. And we may say here ... that we are unable to discover any difference, in reason, for declaring an officer to be de facto, whether he holds de .facto or de jure office, if he has occupied it with the usual insignia of a de facto officer. The authorities are in harmony that the de facto doctrine was invented to deal with effects, not with causes. The effects only can be reached. The causes cannot. The official acts are accomplished. If the effects are alike, it is immaterial that the causes differ. The effects, whether from a de jure or de facto office, are alike. Hence, the acts of the officer occupying either position should be declared de facto. 97 It is submitted then that whether the Norton rule is approached either in terms of legitimate reliance on the ostensible validity of an unconstitutional statute or in terms of the purposes and policies of the de facto doctrine the same result is reached. The rule just does not make sense. There is also a third point to be made in relation to the rule which is just as important a criticism of it as the two which have already been discussed. This is that a great many of the courts which pay verbal homage to the Norton rule have developed so many exceptions to it that the rule is more honoured in statement than in application. In some States, for example, it is held that, even if the statute authorizing the creation of an office is unconstitutional, nevertheless the incumbent will be treated as a de facto officer if the office is one known to the laws of that State. Norton's case is explained as being dependent upon the fact that Boards of County Commissioners had never been known in Tennessee. Using this technique, the acts of a Justice of the Peace,98 a Judge of a County Court,99 and the Board of Supervisors of a County' have been upheld. A similar exception has been created where a legal office having functions of the same nature as the one in question is in existence. Thus where the office of County Attorney was recognized in the Constitution of Texas, a Criminal District Attorney whose office was created by an unconstitutional statute, was held to be a de facto officer because he performed the same functions as a County Attorney.2 Some States have even gone so far as to hold that if the office had a Ibid. 231; 122. Kimble v. Bender (1938) 173 Md. 608; 196 At!. 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 rei 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). 97 98 JUNE 1966] Unconstitutional Statutes and De Facto Officers 57 potential legal existence then an unconstitutional attempt to establish it by a particular statute does not exclude the de facto doctrine. 3 Other exceptions relate to situations where more officers than there are de jure offices to fill have been appointed,4 where officers have been appointed before the effective date of the statute authorizing the creation of an office, s and where an officer continues to exercise the power of an office after it has been abolished. 6 Then again the Supreme Court of New Mexico has held that the Norton rule does not apply 'where uncertainty, chaos and confusion' would result. 7 This last exception is a superb example of both having one's cake and eating it. The Norton rule is all right as long as it causes no confusion, but if it does, then that confusion creates an exception to it! Finally, and probably most important of all, it is settled law in every American jurisdiction that the acts of a de facto municipal corporation organized under an unconstitutional statute are valid. 8 The reason for this is that the consequences of completely invalidating the acts of a municipal corporation would be very far reaching and catastrophic. 9 Field J. did not mention this rule in Norton although it was well established and contradicted the central proposition in his judgment. Later judicial and academic critics of the Norton rule have not failed to point this out. 10 The fact that so many of the courts which verbally approve the Norton rule have seen fit to formulate such a variety of exceptions to its operation casts considerable doubt on its validity. All of the exceptions involve statutes which make unconstitutional attempts to create offices. According to Field J. these statutes must be treated as though they had never been passed. And yet, in each of these exceptions, courts have held that the incumbent of the office must be treated as a de facto officer. When this is taken in association with the other two objections to the rule stated above, it is submitted that the Norton rule is revealed as a threadbare exercise in juristic conceptualism. 11 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 reI 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 Occupying 58 ITI. Federal La}v Review [VOLUME 2 Some Relevant Criteria The elements of a true claim to de .facto office are not described in any pat formula but are to be looked for in all the attendant circumstances, the basic consideration being always the convenience or necessity of the public or the prevntl0~1 of prejudice to disinterested third persons. 12 The analysis this far has been directed to demonstrating that the Norton rule places an unnecessary restriction on the operation of the de facto officer doctrine in its relation to unconstitutional offices. There has been no attempt to argue that the doctrine should be automatically applied in such cases. The argument is rather that any limits which are to be placed on the operation of the doctrine should be based on a more rational foundation than the conceptualism of the Norton rule. It now becomes necessary to ascertain the nature of the limits which may be necessary. Furthermore the analysis will not be confined to the problem of unconstitutional offices. It will also be necessary to consider the validity of the view, which has been accepted ever since State v. Carroll, that an unconstitutional appointment to an existing office automatically confers de facto officer status on the appointee. There are two preliminary difficulties associated with any attempt to formulate criteria to govern the application of the doctrine in this area. The first is that the decided cases give very little, if any, assistance. This is only to be expected because the doctrine tends to be used rather than subjected to any detailed judicial analysis. It is functional, in the sense that it produces results, rather than analytical, in the sense that it ever gets subjected to detailed investigation in its own right. Thus most of the cases cited in the previous section are content to state the rules governing the application of the doctrine in anyone of the following forms. A person who is appointed to an established office by an unconstitutional statute is a de facto officer. There can be no de facto officer if the statute creating the office he purports to fill is unconstitutional. A person who purports to exercise the powers of an unconstitutional office is a de facto officer. These rules are then applied to produce a desired result without any discussion of the difficulties implicit in them. The second difficulty stems from the fact that the consequence of applying the doctrine in this area is to give limited validity to an unconstitutional exercise of power. In other words a common law doctrine is being used to validate acts which a Constitution declares invalid. It was argued in the previous section that this fact does not forbid the Offices 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. JUNE 1966] Unconstitutional Statutes and De Facto Officers 59 application of the doctrine, but is a relevant consideration. Even at common law the de facto doctrine yielded when there were policies involved which outweighed public inconvenience and the frustration of legitimate reliance which are the foundation of the doctrine. 13 It would be surprising therefore if there were not some basic policies reflected in a constitutional document which overcome certain claims to de .facto status. There is a tension between a constitutional provision which invalidates an act and a common law doctrine which gives it limited validity. This tension cannot be ignored by an automatic application of the de facto officer doctrine any more than it can be by the automatic refusal to apply it in these cases. One relevant factor which should be taken into account is the length of time the unconstitutional office or officer has acted without any legal challenge. This may be important in two situations. In one where there has been a considerable lapse of time the argument for the application of the doctrine is strong, almost conclusive. In the other where there is an immediate and public legal challenge the argument is very weak. Take for example the facts of Norton v. Shelby County because it might be that the actual decision in that case was correct. There, it will be remembered,14 the Justices of the Peace who composed the County Court publicly refused to recognize the statutory abolition of their office. They immediately instituted legal proceedings to challenge the validity of the Board of County Commissioners which was established by the same statute and to which the functions of the County Court had been transferred. The bonds in question were issued during the course of these proceedings. In these circumstances it might have been said that it was unreasonable for a member of the public to rely upon the ostensible powers of the Board to issue the bonds. 15 The colour conferred by the unconstitutional statute seems to have been dimmed by the immediate challenge to its validity. Such a view would have been consistent with the only decision relied on by Field J. to support his decision. That was Hildreth's Heirs v. McIntyre's Devisee 16 decided by the Kentucky Court of Appeals in 1829. There the Kentucky Legislature passed a statute which purported to abolish the Court of Appeals established by the State Constitution and to substitute a new court of the same name. The judges of the existing court refused to recognize the constitutionality of this Ante pp. 43-46. 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. 13 14 60 Federal Law Review [VOLUME 2 legislative action and continued to publicly exercise their functions. In Hildreth's case they had to consider the validity of an order of the new court upon which it was sought to levy execution. It was held that the statute creating the new court was unconstitutional and that the members of it could not be regarded as de facto judges. Although there are certain passages in the judgment which, if taken out of context, support the Norton rule, it is clear that the decision turned on the fact that there was an existing de jure court openly acting throughout the relevant period and openly questioning the constitutionality of the new court. This is certainly the view of the case which has been taken in the Kentucky decisions. 17 Such a limitation on the de facto officer doctrine seems reasonable. It may be formulated as follows. Where an unconstitutional statute purports to abolish an existing office, and to transfer its functions to a new one, the incumbents of the new office may not derive sufficient colour to give them de .facto status if the old officers refuse to recognize the validity of the statute and openly flout and challenge the validity of its provisions. Another closely related limitation suggests itself. It might be said that whenever a substantial doubt has been raised to the constitutionality of the statutory creation of an office, or appointment of an officer, by a well publicized legal challenge the colour conferred by the statute is weakened. It will be difficult to apply the doctrine in such a case because the person concerned to uphold the validity of the official act in question will be unable to demonstrate legitimate reliance. 18 JlC On the other hand if there is no immediate challenge to the validity of an office, and the incumbent purports to exercise the powers attached to it for many years and without question, it seems a classic situation in which the doctrine should be allowed to operate. Take for example the constitutional vicissitudes of the Commonwealth Court of Conciliation and Arbitration. The Court was established by statute in 1904 and vested with both arbitral and judicial functions. It was to be constituted by judges appointed for a term of seven years. Between 1904 and 1918 the Court exercised its powers of conciliation and arbitration in regard to industrial disputes without question. Then in 1918 the High Court held in Alexander's case 19 that the Court was unconsitutional because the judicial power of the Commonwealth could not be exercised by judges who did not hold life appointments. The Court was reconstituted to comply with this objection and continued to exercise 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 \vijI nevertheless apply. 19 Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. (1918) 25 C.L.R.434. JUNE 1966] Unconstitutional Statutes and De Facto Officers 61 its arbitral and judicial function for almost forty years. Then in 1957 the Privy Council held that it was unconstitutionally created because it violated the separation of powers embodied in the Australian Constitution. 20 A court exercising the judicial power of the Commonwealth cannot be vested with non-judicial powers. The validity of the judgments and orders of the Court between 1904 and 1918 and between 1918 and 1957 were never called in question before the Australian courts. It seems clear however that if they had the de facto doctrine would have validated them. Where there is a general assumption of validity extending over a long period of time the claim to de facto status cannot be stronger. The chaos and confusion involved in a retroactive invalidation of acts performed over a long period could not be countenanced. Another factor which seems to be relevant is the nature of the constitutional defect in the office or the officer's appointment to it. Where the defect is of a technical nature which could be corrected by the legislature the argument in favour of an application of the de facto officer doctrine is very strong. This can be illustrated by reference to those decisions referred to in the previous section where courts which normally follow the Norton rule have created exceptions to it. 21 These exceptions nearly all arise when the unconstitutional office is one recognized by the laws of the jurisdiction in question. They appear to be based on proposition that, even accepting the Norton rule, there is no objection to conferring de facto status where the legislature could have created a legal office. Defects might be described as technical for this purpose if they relate to the manner and form in which admitted legislative powers may be exercised. At the other end of the constitutional scale are express limitations or prohibitions on the extent of legislative power. Such limitations on legislative power are far more common in the United States Constitution and in the various State Constitutions than they are in their Australian counterparts. We have no Bill of Rights or a Due Process clause. 22 The point however is the same in both countries. It is that there may be constitutional policies and provisions which are deemed to be so important that their thrust should not be curbed by the application of the de facto doctrine. In other words there may be situations in which public inconvenience and the frustration of legitimate reliance must give way to the retroactive invalidation of official acts in order to vindicate 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 :ylaren~ 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. 62 Federal Law Review [VOLUME 2 a constitutional boundary, or to guarantee a constitutional right. The decision of the Supreme Court of the United States in Glidden v. Zdanok 23 may be taken as an illustration. There it was sought to attack the validity of the proceedings in the court below on the basis that the judges had not been appointed under Article III of the United States Constitution. It was argued that only judges with the life tenure and guaranteed salaries provided for in that Article could exercise the judicial power of the United States. The point was not raised in the lower court and it was contended that the de facto doctrine foreclosed the point being taken on appeal. This contention reflected the traditional rule in the federal 24 and state 25 courts that the de facto doctrine prevented a conviction being either attacked on appeal or collaterally on the basis that the judge had no authority to try the case unless the point was raised at the trial. The Supreme Court however refused to apply the rule in this case. Harlan J., who wrote the opinion of the Court, pointed out that : The alleged defect of authority here relates to basic constitutional protections designed in part for the benefit of litigants ... It should be examinable at least on direct review, where its consideration encounters none of the objections associated with the principle of res judicata, that there be an end to litigation. At the most is weighed in opposition the disruption to sound appellate process entailed by entertaining objections not raised below, and that is plainly insufficient to overcome the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers. 26 This is an important decision because it recognizes that the de facto doctrine cannot be automatically applied to preclude a challenge to an officer's authority where that challenge is based on a fundamental constitutional policy. The fact that the prosecution has relied on the ostensible authority of the judge and that the point was not raised by the defence are not as important as the preservation of the constitutional policy in question. Glidden was a case of appellate review of a conviction and Harlan J. referred to the additional res judicata difficulty (1962) 370 U.S. 530. 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 of judges 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 ref. Bafes v. Bailey (1908) 106 Minn. 138; 118 N.W. 138; State ex ref. 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. 23 24 JUNE 1966] Unconstitutional Statutes and De Facto Officers 63 which might be met in applying the same rule in proceedings where a conviction is attacked collaterally. However even in this area the Court of Appeals for the Second Circuit, relying on Glidden, has recently allowed a collateral attack on a conviction some six years after it was obtained. 27 The attack was based upon an argument that the trial judge was a recess appointment who had not been confirmed by the Senate and hence did not have life er~nt and a guaranteed salary. In the result the Court refused to uphold the attack but the important point is that it was allowed. This decision has been criticized as an unjustified extension of Glidden. 28 There seems to be little merit in the criticism. After all if a person is convicted and sentenced for committing a statutory crime and it later transpires that the legislature had no constitutional power to enact the statute almost all the American state courts hold that he can be released on habeas corpus in spite of the res judicata objection. 29 It is therefore difficult to appreciate why a convicted person ought to be automatically foreclosed by the de facto doctrine from collaterally questioning the validity of an equally important constituent element in his detention, that is the tribunal which convicted him. The importance of Glidden is that it denies the propriety of an automatic application of the de facto doctrine and instead directs attention to the nature of the constitutional defect which is alleged. Another relevant factor to be taken into account in applying the de facto doctrine in these cases would seem to be the nature of the particular act which is to be validated by reference to it. If the act in question relates to personal status the pressures pointing towards an application of the doctrines will be very strong indeed. Take for example official acts like marriage, divorce, adoption or naturalization. Or again take the situation where the validity of a normal commercial contract for the supply of goods is in question. In such cases the hardship and confusion which would inevitably follow a retroactive invalidation of such acts make them classic cases where the de facto officer doctrine should operate. On the other hand where an individual has been deprived of his property or liberty by governmental action the pressures point away from an application of the doctrine. Examples of such action might be found in the case of criminal convictions30 and the compulsory acquisition of private property. In these cases members of the public have not relied on the apparent authority of the office or officer to perform their functions. U.S. v. Allocco (1962) 305 F. 2d. 704. 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. 27 28 64 Federal Law Review [VOLUME 2 The only reliance has been by the government which wants to exercise the compulsory power. In such a case the constitutional limitation on the government's power which has been violated may have more significance than the case where only the interests of members of the public are concerned. Because there is this distinction in terms of policy between the various official acts which the doctrine may be called upon to validate it becomes necessary to ascertain whether the doctrine is capable of partial application. That is to say can it be applied to validate a divorce or a grant of probate and yet not applied so as to release a person who has been convicted of a crime when all of these acts are performed by the same unconstitutional court? There is no direct authority on the point. It is submitted however that it should be capable of such an application. The doctrine applies to the facts of a particular case and does not attach a permanent de facto label on an officer for all purposes. This has been recognized in general terms in the early common law cases which have been discussed above. 31 Moreover such a view is consistent with the flexibility essential to a concept which is rooted in considerations of public policy. It will have been noticed that the foregoing analysis has not drawn any distinction between the application of the doctrine to an unconstitutional office and an unconstitutionally appointed officer. This has been intentional because it is not believed that there is any basic difference between the two situations. Although State v. Carroll seems to suggest that the doctrine will automatically apply where an officer's appointment is unconstitutional there seems to be little to commend that view. The defect in an officer's appointment may be just as significant as the defect in an office. Glidden v. Zdanok is a good example of just such a situation. Of course it may be that in most cases a technical defect in an officer's appointment will not prevent the operation of the doctrine. This provides no reason however for precluding the possibility that there may be such serious constitutional defects as prevents its application in a particular case. The factors, or criteria, which have been discussed do not purport to be exhaustive. Similarly the examples which have been given of them are not put forward as dogmatic instances of situations where the de facto officer doctrine will, or will not, be applied. They are put forward as relevant considerations to be taken into account in applying the doctrine as a validating technique when the defect to an officer's title is a constitutional one. There is an almost complete absence of judicial authority in this area and so the analysis can be no more than tentative and exploratory. What is clear in the present submission is that the doctrine should not be indiscriminately applied by invoking conceptual 31 Ante pp. 43-45. JUNE 1966] Unconstitutional Statutes and De Facto Officers 65 formulae whether they be in terms of Norton, automatically denying its application, or in terms of Carroll, automatically applying it. The doctrine performs a sensitive task in a system of constitutionally limited government and the task for a court in each case is to carefully isolate and weigh the various policies pointing to, and away from, its application. IV. Prospective Overruling In arriving at a new principle, the judicial process is not impotent to define its scope and limits. Adjudication is not a mechanical exercise nor does it compel 'either/or' determinations. We should not indulge in the fiction that the law now announced has always been the law.... It is much more conducive to law's self respect to recognize candidly the considerations that give prospective content to a new pronouncement. 32 A statute which authorizes the appointment of an officer, or which creates an office, can be declared unconstitutional in two different situations. First of all such a declaration may be made the first time that the statute is attacked in the courts. Secondly a court might hold the statute valid the first time it is attacked and then, on a subsequent occasion, overrule itself and hold that it is unconstitutional. Thus far no distinction has been drawn between these two situations. It has been assumed that in both of them the appropriate method of determining the validity of official acts performed prior to the declaration of unconstitutionality is by reference to the de facto officer doctrine. This assumption must now be examined to see whether there may be a more direct and simpler method of dealing with the second situation. In a sense the de facto officer doctrine concedes that a declaration of unconstitutionality is completely retroactive back to the date of its enactment. It is because the statute is regarded as always having been a complete nullity that the doctrine is necessary. Acts which appeared valid when performed are retroactively stripped of their legal foundation. The only way they can be given limited validity is by reference to this salvage doctrine which operates to staunch the drastic consequences that would otherwise flow from this retroactive invalidity. In this view nothing turns on whether a court reverses itself on the question of the constitutionality of a statute or whether the statute is invalidated the first time the question arises. It is void ab initio in both cases. There is of course nothing peculiar to constitutional law in this regard. After all the void ab initio doctrine is only the old declaratory theory of the common law in another guise. Judges do not make law. Their sole function is to discover what the rules are and then to apply them to 32 Griffin v. Illinois (1955) 351 U.S. 12, 26 per Frankfurter J. (Concurring opinion). FLR-5 66 Federal Law Review the facts of a particular case. Blackstone explains: [VOLUME 2 If an earlier decision is overruled then as .... the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a decision was bad law, but that it was not law. ... 33 This theory insists that an overruling decision merely declares what the common law has always been. The law is not changed; an earlier mistaken view as to what it was has been corrected. We no longer believe in these 'childish fictions', as Austin called them,34 if anybody ever did. It is a platitude of modern legal philosophy that the judicial process is inescapably creative. The influence of the declaratory theory can however still be seen in the general rule that an overruling decision has a retroactive operation. The public law analogue of this rule is the void ab initio doctrine. Thus if a statute which establishes the Tennessee Valley Authority in the United States, or the Snowy Mountains Authority in Australia, is held to be constitutional and then that decision is reversed some forty years later the statute will be regarded as a legal nullity from the date of its enactment. This is so even though the highest judicial tribunal had decided that the statute was a valid exercise of constitutional power. The void ab initio doctrine thus forces the courts to use salvage techniques to minimize the resulting confusion. There is however an alternative approach to these problems which is both simple and direct. In the situation where a court decides to overrule an earlier decision that a statute is constitutional it could specify that the decision would only operate prospectively and would have no retroactive effect. This would preserve the validity of all official acts which had been performed under the statute without the need for calling in aid the de facto officer doctrine. The court would thus acknowledge that the statute had the force of law up until the decision which had upheld its constitutionality was overruled. This approach constitutes a direct confrontation of the view that an unconstitutional statute is void ab initio irrespectively of whether it has previously been upheld or not. The basic objection to the void ab initio doctrine in this area is that it is predicated on a fundamental misconception about the nature of law and legal rules. The same misconception is at the root of the declaratory theory of the common law. Both theories assume the existence of an ideal, fixed, immutable, unchanging body of law. They both deny the proposition that the decision of an ultimate appellate court is the law. Decisions are merely evidence of the ' true' meaning of the constitution 33 Blackstone, Commentaries (7th ed. 1775) vi, 70. Common Law (5th ed. 1794) 141. 34 Austin, Jurisprudence (4th ed. 1879) ii, 655. See also Hale, History of the JUNE 1966] Unconstitutional Statutes and De Facto Officers 67 or the' true' rules of the common law. An overruled decision in this view was never the law because the overruling decision states what the , true' rule has always been. This is palpably absurd. When an appellate court has upheld the constitutionality of a statute it is the law until that decision is overruled. The constitution has provided for a court to police the limits of the powers it allocates and controls. That court has decided that a particular exercise of legislative power is valid and therefore it satisfies the criteria of legality laid down in the constitution itself. To say that such an exercise of power is not law is nonsense. Of course it may be that when the law is changed there may be various factors which persuade a court not to apply the old law to a fact situation where it would seem to be applicable. But that is a different enquiry and one that will be looked at a little later. Once it is recognized that an overruling decision produces a dramatic change in the law the injustice of allowing it to have an automatic retroactive operation is clearly revealed. The old rule will have been relied on by many people and in various ways. It will have determined conduct and been used as the basis of many transactions. This reliance will be frustrated by a subsequent change in the law which, by hypothesis, could not have been foreseen. On the other hand if the overruling decision is only given a prospective operation then this reliance will be protected and the creative nature of the court's action will not be camouflaged by a fictional formula. Prospective overruling is unknown in the English and Australian courts. In England one of the reasons explaining this may be that, until recently, the House of Lords denied itself the power to reverse its previous decisions. This reason however does not apply in Australia where the High Court is free to overrule its earlier decisions, although the power has been sparingly exercised. 3s On the other hand prospective overruling has been known in the United States for more than a hundred years although not always under that name. The first cases were concerned to protect contract and property rights against the retroactive operation of an overruling decision. A good example can be found in the municipal bond cases decided by the Supreme Court in the last half of the nineteenth century.36 These cases concerned the validity of bonds issued by municipalities under the provisions of an unconstitutional statute in the period after a decision that it was constitutional and before that decision was overruled. It was uniformly held that the validity of these bonds was to be determined in accordance with the law as it existed at the time they were 35 Australian Agricultural Co. v. Federated Engine-Drivers and Firemen's Association of Australasia (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. 68 Federal Law Review [VOLUME 2 issued. The later change in the law did not affect them. There were other cases that protected personal liberty against the retroactive operation of an overruling decision. When it was held that legislative divorces were an unconstitutional usurpation of judicial power, after earlier decisions that they were valid, the courts refused to allow such divorces to be questioned. 37 Then again when a criminal statute was held to be unconstitutional and later to be constitutional it was held that the statute could not retroactively make criminal conduct that was innocent when it took place. 38 These are only examples. There are many other situations in which the courts limited the retroactive operation of overruling decisions. 39 It is important to note however that these exceptions to the general rule of retroactivity were not put on any constitutional ground but on the simple basis that it would be unfair and unjust to frustrate the legitimate reliance which had been placed on the old rule. 40 The next step was for the court which overruled an earlier decision to specifically limit the new rule to a prospective operation. These earlier cases dealt with relief against an assumed retroactivity of the new rule. The technique of direct prospective overruling has been advocated during this century by many distinguished scholars41 and judges. 42 It involves a direct contradiction of the theory that an overruling decision has a retroactive operation. The old rule is acknowledged as governing all transactions and conduct that took place prior to the effective date of the new decision. During the last decade this technique has been increasingly used by the American courts. Thus a change in the law E.g. Bingham v. Miller (1848) 17 Ohio 445. 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) 49 A.L.R. 1273. In the converse situation where a person was convicted under a statute later declared unconstitutional the 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 Unconstitutional or 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.). 37 38 JUNE 1966] Unconstitutional Statutes and De Facto Officers 69 relating to the defence of insanity in criminal cases has been given prospective operation. 43 So too have overruling decisions in the area of probate,44 taxation45 and commercial law. 46 The most widespread use of prospective overruling however has been in the wave of cases since 1959 which have abolished the tort immunity of local government units, charitable organizations and school districts. 47 In all of these cases the reason for refusing to allow the new rule to have a retroactive operation is the unfairness of frustrating the reliance that was placed on the old rule. Local governments had not insured against the risk of liability. Commercial transactions had taken place and testamentary provisions had been made on the assumption that the old rule was the law. The importance of a specific direction by a court as to whether an overruling decision is to have a prospective or retroactive operation can be illustrated by reference to the decision of the Supreme Court in Mapp v. Ohio48 in 1961. In that case the court overruled Wo(f v. Colorado and held that the Due Process clause of the United States Constitution prohibited the use of evidence obtained by an illegal search and seizure in a state criminal prosecution. The court gave no indication as to whether the new rule was to be applied to future prosecutions or whether it could be used to retroactively question previous convictions. During the last four years there has been considerable debate in the lower federal and state courts and by academic commentators on this question. 49 The dominant view at this stage seems to be that Mapp was prospective and had no retroactive effect. 50 All of the uncertainty that has been generated by the silence of the Supreme Court on this question could have been avoided if a clear direction had have been given in M app itself. 50A Durham v. U.S. (1954) 214 F 2d. 862. 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 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. 43 44 70 Federal Law Review [VOLUME 2 There are still many matters that are unsettled about the use of the technique of prospective overruling. For example, should the new rule be applied to the facts of the case before the court or should it be completely prospective. Irrespective of how that question is determined does the new rule apply to all causes of action that accrue after the date of the overruling decision or should an ' effective date' on which the new rule will come into operation be specified. Different courts have approached these matters in different ways. 51 Then again there is the basic question as to whether the overruling decision will be limited to a solely prospective application. This seems to involve a consideration of the underlying purposes of the new rule and whether they will be served by allowing it a retroactive operation. 52 In the post-Mapp cases the majority of the lower federal and state courts have decided that the purpose of that rule was to deter undesirable police conduct and not to exclude evidence because it was intrinsically unreliable. They have held that this deterrent purpose would not be furthered by allowing the reopening of earlier convictions. 53 On the other hand the decisions in Gideon v. Wainwright 54 and Griffin v. Illinois 55 relating to the right of an indigent accused to be provided with counsel and a free transcript have been given a retroactive operation. The new rules they state go to the very essence of the concept of a fair trial and they therefore cast doubt on the propriety of convictions obtained before they were decided. 56 It is unnecessary to the present analysis to pursue any of these matters further. The point to be made is simply that the technique of prospective overruling avoids the necessity of resorting to the de facto doctrine in the situation where the constitutionality of a statute has been upheld and then that decision is overruled on a subsequent occasion. Instead of indulging in the fiction that the statute was void ab initio and then applying a salvage doctrine to validate certain official acts it can be recognized that the statute was valid until it was declared unconstitutional. This is not merely a more satisfying doctrinal approach to the problem but it also involves considerable substantive differences. It will be remembered that the de facto doctrine only validates an officer's acts as 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; Con1ment, '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 reI. Durocher v. La Vallee (1964) 330 F 2d. 303. (Gideon). JUNE 1966] Unconstitutional Statutes and De Facto Officers 71 far as third persons are concerned. The officer himself is not assisted in any way. He is treated as a mere usurper liable for all of his acts and is not entitled to pay for his services or anything else. 57 This is most unfair in many cases as the officer has relied on the ostensibly valid terms of a statute. 58 By using the technique of prospective overruling in those cases where it is appropriate these difficulties are avoided. The officer is protected because up until the statute is declared unconstitutional he is a de jure and not a de facto officer. Conclusion The major submissions made in this paper may be summarized as follows: 1. The de facto officer doctrine applies equally to a person who is appointed to an office which has been created by an unconstitutional statute and a person who is appointed pursuant to the terms of an unconstitutional statute to a valid office. It thus protects the official actions of both unconstitutional offices and officers. 2. It should not be used as an automatic validating technique in either situation. There are limits on its operation that stem from the fact that it is being used to validate an unconstitutional exercise of power. The relevant criteria to be taken into account seem to include: (a) The length of time the officer has carried out the duties of the office without challenge. (b) The nature of the constitutional defect in the relevant statute. (c) The nature of the act that is sought to be validated by reference to the doctrine. 3. When the relevant statute has been held constitutional and then overruled the overruling decision should be limited to a prospective operation in order to avoid the need for resort to the doctrine. Ante pp. 42-43. Pannam, 'Tortious Liability for Acts Performed Under an Unconstitutional Statute' (1966) 5 Melb. U.L.Rev. 113. 57 58