Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-05-13
- Although all the provisions of the Csnsti.
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tuition are to be regarded az manoatory, tnere
are some which, from the nature Of the case,
are as incapable Of compulsory enforcement
as are directory provisions in general. The
reason is, that while the purpose may be to
establish rights or to impose duties, they do
not in and Of themselves constitute sutt-
Gent rule by means OF which such right may
be protected or such duty enforced. In such
cases, before the constitutional provision can
be made effectusl, supplemental legislation
must be had and the provision is in its
nature mandatory to the Legislature to enact
the needed legislation, though back OF 1t there
lies no authority to enforce the command.
Illustrations may be found ia con-
stitutional provisions requiring the Legislature
TO provide by law uniform and just rules for
the assessment and collection of taxes. These
must lie dormant until the legislation is had.
(Cooleys Constitutional Limitations, 4th ed,
PIP. 80. 1907
The provision under consideration is clearly
one which requires legislation to enforce it.
The expenses to which Directors are entitled
are to be audited as the Legislature may
direct" In no other manner, therefore, can
those expenses be audited, and until the Leg
isature in conformity with the requirements
of the Constitution, does direct the method
of auditing those demands, they cannot be
audited at all. To undertake the auditing of
such accounts without appropriate legislation
would be to undertake to audit them not as
directed by the Legislature, but as directed
by the judgment of the auditing Board.
Such a proceeding would plainly be in viola
ton Of the Cons titution. If these views be
correct, the defendant was not authorized to
receive any of the money for which this
action was instituted.
III. The plaintiff has the right to recover
back money paid to an officer, out of the
State Treasury, under an unconstitutional
Act of the Legislature. In such cases, the
officer who pays the money and the person
who receives it are mere trespassers upon the
public treasury. The person who receives
the money under a void Act of the Legisla-
ture must be eonclusively presumed to know
that the officer making the payment is acting
in excess Of his authority. The act of the
officer is not the act of his principal, the
State, because it is not within the scope of
his authority The powers of the officer are
measured by the law, of which he and all
others must take notice. The fundamental
law, with its limitations upon the exercise of
legislative, judicial aid executive power,
notifies all the world of those things which
are in conflict with its commands and pre-
hibitions. When. therefore. the Legislature,
acting in excess of its power under the Con-
stitutiOn, attempts to authorize the improper
disbursement of the public funds, those who
receive money from officers under such void
enactment, take it with the knowledge that
such taking is prohibited by the Constitu-
ton, that such enactment is unconstitutional,
that such officer is acting in excess of his
authority, and that in so taking said money,
he and the officer are improperly taking the
money Of the State without its consent ex-
pressed through the Legislature. This prop
ositicn necessarily follows the maxim that
every man is presumed to know the law"
Where a statute is adjudged to be Hncon-
stitutional it is as if it had never been. Rights
cannot be built up under it contracts which
depend upon it for their consideration are
void it constitutes a protection to no one
who has acted under it, and no one can be
punished for having refused obedience to it
before the decision was made and what is
true of an Act void in toto is true also as to
any part of an Act which is found to be IN
constitutional, and which, consequently, is to
be regarded as having never, at any time,
been possessed of any legal force" (Cooley's
Constitutional Limitations, 4th ed, 227
No question in law is better settled-and
this is admitted by the counsel for the appel
liant in their brief-than that ministerial eff
GERS and other persona are liable for acts done
under an Act Of the Legislature which is IN
constitutional and void. All persons are pre-
sumed to know the law, and if they act
under an unconstitutional Act of the
Legislature, they do so at their peril and
must take the consequences" Sumner ct al.
vs. Beeler. 80 Ind. 81; Astrom vs. Ham,
mond, Mclean. 10Y; Detroit vs.. Martin,
"a Mich. 10; Hoover VS.. Barkshoof, Al n.
Y. 49, Clark VS.. Miller, "a n. Y. 52S !;
Meaghen vs. Story, New. pa Woolsey vs..
Commercial Bank. 6 Mclean, 1922
The rule here announced, with the right to
recover in cases like the present. has been an
nounced by many Of the Courts of highest
authority in this country. The cases in
which different doctrine has been held, upon
examination will be found to have been the
result of confusion of the principles of the
American Constitutions with those of the
English Constitution.
The term unconstitutional law" in
American jurisprudence is a nisnomer, and
implies contradiction.
Says Smith, j., in Eaton VS. Boston, Con-
cord and Montreal Railroad, II Am. r. 157
The error in question originates in fall
lacy of reference 1t arises from following
English authorities without adverting to the
immense differences between the practically
omnipotent powers of the British Parliament,
and the comparatively limited powers of our
State Legislatures, acting under the restric-
lions of written Constitutions. Parliament
is the supreme power of the realm.
1t is at once a Legislature and
Constitutional Convention. Parlia-
ment can do everything that is not naturally
impossible and what it does no power on
earth can undo. A State Legislature on the
other hand is powerless when it attempts to
pass the limits prescribed by the Constitution.
In this country, when it appears
that the Legislature have gone through the
form of enacting statute purporting to au-
thorize the Act complained eff, the further
inquiry remains whether the Legislature had
the constitutional power to pass such stat
ute. If they had not, then their enactment
is not : law and can afford no justification"
The payment in this instance could not be
said to be voluntary payment made by the
State, unless made by an officer acting within
the scope of his authority, and no one could
be authorized to make such payment except
after the demand had been audited as com.
marded by the Constitution. Respectfully
submitted. A. l.. HART,
Attorney General.