In the discussion of this subject expres sions have been used from time to time by courts and legal authors which tend to leave in the mind of the reader an impres sion that legislative acts have been set aside upon some other or higher ground than that of unconstitutionality. These expressions will be found on examination either to con sist of dicta not only entirely obiter, but usually not justified even as dicta by the facts of the cases in which they occur, or to be qualified by a context usually omitted in citing them. A few of them will suffice as examples. Judge Cooley, in the preface to the second edition 'of his very learned work on Constitutional Limitations, says: "There are on all sides definite limitations which circumscribe the legislative author ity, independent of the specific restraints which the people impose by their state con stitutions." Again, in the work itself it is said that it is not necessary that the courts, before they can set aside a law as invalid must be able to find some specific inhibi tion which has been disregarded, or some specific command which has been disobeyed; Cooley, Const. Lim. 206. This language has been quoted and interpreted to sus tain the idea sometimes hinted at rather than seriously and argumentatively advanc ed, that there is some vague sense of jus tice and right—some higher law, it might be termed—which may justify a court in holding that a legislative act is invalid, in the absence of an express or implied con stitutional objection. And it has been con sidered that the same view is maintained by Judge :Redfield in an article in 10 Am. L. Reg. N. S. 161. So in an early case it has been said that statutes against plain and obvious principles of common right and common reason are void ; Ham v. McClaws, 1 Bay (S. C) 98. So also Judge Story made some forcible observations respecting "fun damental maxims of free government," to disregard which no power "lurked under any general grant of legislative authority," Wilkinson v. Leland, 2 Pet. (U. S.) 627, 7 L. Ed. 542, 657, which have been referred to as supporting the view under consideration. Of the like character were the assertions of Hosmer, C. 3., that he could not agree with those judges who assert the omnipotence of the legislature in all cases when the consti tution has' not interposed an explicit re straint ;" Inhabitants of Goshen v. Inhabit ants of Stonington, 4 Conn. 209, 225, 10 Am. Dec. 121; and the language of a New York court which' declared that the vested right! of the inhabitants of the city of New York in certain public property rested "not ly upon the constitution, but upon the great principles of eternal justice which lie at the foundation of all free government;" Ben son v. City of New York, 10 Barb. Y.) 223, 244. Commenting on these and sim ilar statements, Mr. C. A. Kent, in an ar ticle in 11 Am. L. Reg. N. S. 734, says on this subject: "The judiciary of a state can not declare a legislative act unconstitu tional, unless it conflict, expressly or by im plication, with some provision of the state or of the federal constitution." See City of Evansville v. State, 118 Ind. 426, 21 N. E. 267, 4 L. R. A. 93, note. A careful exami nation of these and other authorities relied upon for the purpose stated will make it apparent that there is no substantial basis for a doctrine which will permit a court to apply to a legislative act any test of valid ity other than that of its constitutionality. When there is doubt as to the construction of a law, courts may give to it one conso nant with rather than opposed to principles of right and justice, and this was precisely the scope of the South Carolina case. In the New York case the great fundamental principles need not have been referred to by the court, for the reason that they were all protected by the constitution, and in the Connecticut case not only was no law held invalid, but the sole decided was that an act declaring valid all marriages previously celebrated by a clergyman of any religious denomination according to its forms was constitutional. The note by Judge Red field, referred to, is directed only to show that there are limitations to the power, and that it does not embrace "ju dicial decrees or despotic orders or assess ments such as a military conqueror might make," under the guise of taxation. But it will be found that the cases put by him, as well as those used by Judge Cooley, to illus trate the expression quoted from his work, and indeed all of those which have given rise to the theory under consideration, are provided for In the American constitutions either by express prohibitions and declara tions of rights, or by the distribution of the powers of government and the right of the judicial branch to determine finally wheth er a given act is an exercise of legislative power. The whole subject is thoroughly dis cussed by Judge Cooley in his Constitu tional Limitations, 6th ed., and full consideration of the authorities he concludes that a court cannot "declare a statute un constitutional and void, solely on the ground of unjust and oppressive provisions, or be cause it is supposed to violate the natural, social, or political rights of the citizen, un less it be shown, that such injustice is pro hibited or such rights guaranteed or pro tected by the constitution (p. 197); . . . that except when the constitution has im posed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural jus tice or not in any particular case" (p. 201), nor because of "apparent injustice or im policy," or because "they appear to the minds of the judges to violate fundamental principles of republican government, unless it shall be found that those principles are placed beyond legislative encroachment by the constitution" (p. 202). See also Potter,
Dwar. Stets. 62.
"There is no room in our constitutional theory for any transcendent right or in stinct of nature, except as guaranteed by the constitution" ; Henry v. Cherry & Webb, 30 R. I. 13, 31, 73 Atl. 97, 24 L. R. A. (N. S.) 991, 136 Am. St. Rep. 928, 18 Ann. Cas. 1006; State v. McCrillis, 28 R. I. 165, 66 Atl. 301, 9 L. 'R. A. (N. S.) 635, 13 Ann. Cas, 701; State v. Ins. Co., 73 Conn. 255, 47 Atl. 299, 57 L. R. A. 481, denying the existence of "the vague notion of a higher law." The courts are not guardians of the rights of the people except as those rights are se cured by some constitutional provision ; Oooley, Const. Lim. 201. And see a thorough discussion of the subject of "Implied Limi tations upon the Exercise of the Legislative Power" by R. C. Dale, Am. Bar. Ass'n Rep. (1901) 294.
A court cannot interfere merely because it does not consider that the circumstances at the time justified the action of the legis lature; there must, be a clear unmistakable infringement of rights secured by the funda mental law; Otis v. Parker, 187 U. S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323, where an act forbidding sales of stock on margins was held not unconstitutional. By way of il lustration, Holmes, J., said that no court would declare usury laws or Sunday laws unconstitutional, though every member of it believed such law to be unwise or useless ; while on the other hand wagers may be de clared illegal without a statute, or lotteries under one, though formerly thought par donable.
In the consideration of these questions, the distinction between the federal and state constitutions must be borne in mind: "Con gress can pass no laws but such as the constitution authorizes expressly or by clear implication; while the state legislature has jurisdiction of all subjects on which its leg islation is not prohibited." Cooley, Const. Lira. 210 ; see Weister v. Hade, 52 Pa. 477 ; Giozza v. Tiernan, 148 U. S. 657, 13 Sup. Ct. 721, 37 L. Ed, 599. But it has been held that the decision of congress that certain claims upon the public treasury are found ed upon moral and honorable obligations and upon principles of right and justice, and that public money be appropriated in payment of such claims is constitutional, and can rarely, if ever, be the subject of re view by the judicial branch of the govern ment; U. S. v. Realty Co., 163 U. S. 427, 16 Sup. Ct. 1120, 41 L. Ed. 215.
No one can attack as unconstitutional an independent prevision of a law, who has no interest in and is not affected by such 'provision ; State v. Becker, 3 S. D. 29, 51 N. W. 1018; Farneman v. Cemetery Ass'n, 135 Ind. 344, 35 N. E. 271; Burnside v. County Court, 86 Ky. 423, 6 S. W. 276 ; Jones v. Black, 48 Ala. 540 ; Moore v. City of New Orleans, 32 La. Ann. 726; People v. R. Co., 89 N. Y. 75.
The judiciary of the United States should not strike down a legislative enactment of a state, especially if it has direct con nection with the social order, health and morals of its people, unless such legisla tion plainly and palpably violates some right granted or secured by the national constitution, or encroaches upon the au thority delegated to the United States for the attainment of objects of national con cern; Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223.
An act adjudged to be unconstitutional is as if it had never been enacted ; Sumner v. Beeler, 50 Ind. 341, 19 Am. Rep. 718 ; City of Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512; Woolsey v. Dodge, 6 McLean, 142, Fed. Cas. No. 18,032 ; Clark v. Miller, 54 N. Y. 528; Norton v. Shelby County, 118 U. S. 425, 6 Sup. Ct. 1121, 30 L. Ed. 178 ; Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903, 962, 29 L. Ed. 185 ; though it was held in Com. v. McCombs, 56 Pa. 436, that an officer acting under an unconstitu tional law was a de facto officer. An un constitutional law must be deemed to have the force of law so far as to protect an of ficer acting under it, until it is declared void; Sessums v. Botts, 34 Tex. 335 ; but see Astrom v. Hammond, 3 McLean, 107, Fed. Cas. No. 596; Poindexter v. Greenhow, 114 U. S. 288, 5 Sup. Ct. 903, 962, 29 L. Ed. 185. If a decision adjudging a statute un constitutional is afterwards overruled, the statute is considered to have been in force during the whole period since its enactment ; Pierce v. Pierce, 46 Ind. 86; but see Menges v. Dentler, 33 Pa. 495, 75 Am. Dec. 616; Geddes v. Brown, 5 Phila. (Pa.) 180 ; Gelp cke v. Dubuque, 9 Am. L. Rev. 402. An unconstitutional act can under no circum stances be validated by the legislature ; State v. Whitesides, 30 S. C. 579, 9 S. B. 661, 3 L. R. A. 777.
See 11 Am. L. Reg. N. S. 730; 9 id. 585.
The power of the courts to declare legis lative acts unconstitutional is the subject of an extended article by Wm. M. Meigs, in 40 Am. L. Rev. 641, which in a sense con tinues a previous article in 19 Am. L. Rev. 175. Mr. elaborates the argument on the subject, particularly with reference to the early decisions and the congressional debates on the repeal of the Judiciary Act, in 1802, of which he declares his ignorance at the time he wrote his first article. He cites five cases in which the right was exer cised and two others in which it was ap proved prior to 1800, and gives an interest ing history of the earlier development of the subject, which has been less discussed in connection with it.
In passing upon an act the court can only take the facts before it ; in this way it may sometimes enforce laws which would be declared invalid if attacked in a differ ent manner ; Quong Wing v. Kirkendall, 223 U. S. 59, 32 Sup. Ct. 192, 56 L. Ed. 350.
As to the constitutionality of various classes of statutes, see the several titles of constitutional law, including: Aims; BONDS;