Sullivan v. Berry's Adm'r

Judge Holt

delivered the response of the court to petition for rehearing.

After a careful consideration of the petition for a rehearing and an examination of authorities, we .think the opinion heretofore delivered is correct, both upon the merits and the law of this case.

The commissioner had the land appraised prior to the sale. This was certainly done in view of its redemption. It is to be presumed that the appellants knew that it had been done, and had notice of the record in his hands when the sale was made. They have said nothing to the contrary. The report of the sale stated that the land had been appraised before it was made, and the appraisement was returned with it.

Under these circumstances, it may fairly be presumed that the appellants, who purchased the property for less than two-thirds of its value, and who 'will, in any event, get back their money, bought it subject to a right of redemption. If they did not, it is singular that they have not said so.

The alarm of counsel at the opinion arises from a misapprehension of it. It is erroneously assumed *204that it holds that an unconstitutional legislative act is only voidable and not void. It is not based upon such a ground. This impression was doubtless created in the mind of counsel by these words, relating to an unconstitutional act, in the quotation in. the. opinion from Cooley’s Constitutional Limitations: “Respect for the Legislature, therefore, concurs with well established principles of law in the-conclusion that such an act is not void, but voidable only.” It is shown in the text that it is not the language of Judge Cooley; and the entire quotation, as given in the opinion, is that of Chief Justice Shaw, used in the case of Wellington et al., 16 Pick., 87; but even it substantially says, that when the objection of unconstitutionality is properly presented and sustained, that then the act should be-declared void.

The word “voidable” was doubtless used by the-distinguished judge in the sense that the effect of an unconstitutional act may be avoided, by reason of its being void, by one who has a right to question it, the burden being upon him to show its unconstitutionality. He may have placed himself in such a position that he has no right to say that-the act is invalid, or to ask the interposition of a court for this purpose. For instance, if it unconstitutionally encroaches upon some right belonging to-him, but he procured or consented to its passage.. An examination of the entire case supports this; view of its meaning; and the view of Judge Cooley,, as given in his own language, is: “The statute is; assumed to be valid until.some one complains whose; rights it invades.”

*205The Federal Constitution, as well as that of our • own State, has forbidden our Legislature from enacting any law impairing the obligation of a contract ; and section 30 of our Bill of Eights declares ■.that all laws contrary to our Constitution are void.

It is urged by counsel that the word “unconstitutional” is the legal synonym of “void;” that a legislative act is either valid or void, and can not be voidable; that if void, it is so db initio, and as to .strangers as well as' interested parties, and for all purposes' and under all circumstances; that ho one •can gain or lose a right by it, nor is any one bound .by it, because the Legislature had nó power to pass it, and it has no legal effect. Without dissenting from these views, or being understood as fully ¡adopting them in the broad sense in which they .are stated, we will state more fully the ground for ¡an affirmance in this case.

The act of April 9, 1878, was in the case of Collins v. Collins, 79 Ky., 88, where the question arose between the debtor and the creditor, or the parties to the original contract, held to be unconstitutional •so far as it gave the debtor a right of redemption .as to sales of his land made after its passage for debts created prior thereto, upon the sole ground that it impaired the obligation of the contract. The ■ entire right of the appellants arises out of their contract of purchase, made subsequent to the passage of the act in question, and not out of the contract made when the debt for which the land was- sold was created. They were not parties to the latter, nor interested in the enforcement of the obligation *206growing out of it. Their right to the land was acquired under the law in force when they purchased, and the then existing law enters into their contract.

Strange as it may now seem, it was for a long time doubted whether the courts of this country had the power to declare an act of a Legislature unconstitutional; and at least two examples can be-found in our judicial history where judges have been impeached for so doing. It is a delicate and important duty, but a necessary one, because, as the Constitution is the fundamental law, it must be determined whether legislative action is in conformity to it. It should be performed, however, with the utmost caution and deliberation, and with a proper respect for the law-making power. Its action should not be held invalid unless it is so beyond reasonable doubt; and it is then so done, not because of judicial supremacy over a co-ordinate branch of the government, but because the law must be declared and the fundamental law maintained.

It results naturally from these considerations, that a court will not listen to an objection to the consti.tutionality of an act, if it comes from one who is not interested or who has no right to make it; that it will not even pass upon such a question, unless it is the lis mota, and necessary to its decision, and will not go out of its way to find such a question.

It was said in the case of Jones, &c., v. Black, &c., 48 Ala., 540: “Nor will a court listen to an objection made to the constitutionality of an act of the Legislature by a party whose rights it does . not specially affect. An act of the Legislature will *207be assumed to be valid until some one complains-, whose rights it invades; and it is only when some person attempts to résist its operation, and calls in the aid of the judicial power to pronounce it void as to him, his property or his rights, that the objection of constitutionality can be presented and sustained.”

To the same effect are the cases of Williamson v. Carlton, 51 Me., 449; Dejarnette v. Haynes, 23 Miss., 600; and Turnpike Corp. v. County of Norfolk, &c., 6 Allen, 353.

The claim of the appellants is based alone upon a contract of purchase made subsequent to April 9,. 1878, and when the act in question was in force. There is no such connection between their contract and the one made when the debt was created, as to give them any rights under the latter ; and they can not be heard to say that the law is unconstitutional because it impairs the obligation of a contract to which they were not parties, and the obligation of which they were in no way or to any extent entitled, to enforce.

The petition for a rehearing is overruled.