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16 An Jur 256
I was not ready to do this. I am not done transcribing the text for all. However, it is important that new people do not leave with fear of colored law in thier hearts. Will post what i have now and will finish in day or two.
Pay attention charlesa6.
16 Am Jur § 256 generally- Constitutional law
The general rule is that an unconstitutional statute, whether federal [ref 29] or state [ref 30] , though having the form and name of law, is in reality no law[ref 31], but is wholly void[ref 32], and ineffective for any purpose[ref. 33], since unconstitutionality dates form the time of its enactment, and not merely form the date of the decision so branding it[ref. 34], an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed[ref. 35]. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted [ref. 36]. No repeal of such enactment is necessary [ref. 37].
Since an unconstitutional law is void, the general principles follow that it imposes no duties [ref. 38], confers no rights [ref. 39], creates no office [ref 40], bestows no power or authority on anyone [ref. 41], affords no protection [ref. 42], and justifies no act performed under it [ref. 43]. A contract that rests on an unconstitutional statute creates no obligation by subsequent legislation [ref. 44].
No one is bound to obey an unconstitutional law [ref. 45] and no courts are bound to enforce it [ref. 46]. Persons convicted and fined under a statute subsequently held unconstitutional may recover the fines paid [ref. 47].
A void act cannot be legally inconsistent with a valid one [ref. 48]. And an unconstitutional law cannot operate to supercede any existing valid law [ref. 49]. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superceded thereby [ref. 50]. Since an unconstitutional statute cannot repeal or in any way affect an existing one [ref. 51], if a repealing statute is unconstitutional, the statute it attempts to repeal remains in full force and effect [ref. 52]. And where a clause repealing a prior law is inserted in an act, which act is unconstitutional and void, the provision for the repeal of the prior law will usually fall with it and will not be permitted to operate as repealing such prior law [ref. 53]
The general principles stated above apply to the constitutions as well as to the laws of the several states insofar as they are repugnant to the Constitution and laws of the United States [ref. 54]. Moreover, a construction of a statute which brings it into conflict with a constitution will nullify it as effectively as if it had, in express terms, been in conflict therewith [ref. 55].
29. Under article VI of the United States Constitution, it is not the laws of the United States , but the laws of the United States which shall be made in pursuance of the Constitution, that bind the judge in every state.
People v Long, I. R. R., 113 misc. 700, 185 N.Y.S. 594, revd. on other grounds 195 app Div. 897, 186 N.Y.S. 589.
30. Atkins v Hertz Drivurself Stations Inc., 261 N.Y. 352, 185 N.E. 408, affd 291 U.S. 641, 78 L. Ed. 1039, 54 S Ct. 437.
31. Chicago I. & L. R. Co. v Hackett, 228 U.S. 559, 57 L Ed. 966, 33 S Ct. 581; United States v Realty Co., 163 U.S. 427, 41 L Ed. 215, 16 S Ct. 1120; Huntington v Worthen, 120 U.S. 97, 30 L Ed. 588, 7 S Ct. 469; Norton v Shelby Country, 118 U.S. 425, 30 L Ed. 178, 6 S Ct. 1121; Ex parte Royall, 117 U.S. 241, 29 L. Ed. 868, 6 S Ct. 734; Hirsch v Block, 50 App. D.C. 56, 267 F 614, 11 ALR 1238, cert den 254 U.S. 640, 65 L Ed. 452, 41 S Ct. 13, Texas Co. v State, 31 Ariz. 485, 254 P 1060, 53 ALR 258; Quong Ham Wah Co. v Industrial Acci. Com., 184Cal. 26, 192P 1021, 12 ALR 1190, writ dism 255 U.S. 445, 65 L Ed.723, 41 S Ct. 373; State ex rel. Nuveen v Greer, 88 Fla. 249, 102 So 739, 37 ALR 1298; Commissioners of Roads and Revenues v Davis, 213 Ga. 792, 102 S.E.2d 180; Grayson-Robinson Stores, Inc. v Oneida, Ltd., 209 Ga. 613, 75 S.E.2d 161, cert den 346 U.S. 823, 98 L Ed. 348, 74 S Ct. 39; State v Garden City, 74 Idaho 513, 265 P2d 328; Security Sav. Bank v Connell, 198 Iowa 564, 200 N.W. 8, 36 ALR 486; Flournoy v First Nat. Bank, 197 La. 1067, 3 So. 2d 244; Re Option of Justice, 269 Mass. 611, 168 N.E. 536, 66 ALR 1477; State ex rel Miller v O’Malley, 342 Mo. 641, 117 S.W.2d 319; Garden of Eden Drainage Dist. V Bartlett Rust Co., 330 Mo 554, 50S.W.2d 627, 84 ALR 1078; Anderson v Lehmkuhl, 119 Ned. 451, 229 N.W. 773; Daly v Beery, 45 N.D. 287, 178N.W. 104; Threadgillv Gross, 26 Okla. 403, 109 P 558; Ex parte Hollman, 79 S.C. 9, 60 S.E. 19; Atkinson v Southern Express Co., 94 S.C. 444, 78 S.E. 516; Henry County v Standard Oil Co., 167 Tenn. 485, 71 S.W.2d 683, 93 ALR 1483; Peay v Nolan, 157 Tenn. 222, 7 S.W.2d 815, 60 ALR 408; State ex rel. University of Utah v Candland, 36 Utah 406, 104 P 285; Miller v State Entomologist, 146 Va. 175, 135 S.E. 813, 67 ALR 197, affd 276 U.S. 272, 72 L Ed. 568, 48 S Ct. 246; Bonnett v Villier, 136 Wis. 193, 116 N.W. 885; Cincinnati, W. & Z. R. Co. v Commissioners of Clinton County, 1 Ohio St 77.
“An unconstitutional law is void and is as no law. An offense created by it is no crime. A conviction under it is not merely erroneous, but it is illegal and void and cannot be legal cause for imprisonment.”
Ex parte Siebold, 100 U.S. 371, 25 L Ed. 717.
“A discriminatory law is, equally with the other laws offensive to the Constitution, no law at all.”
Quong Ham Wah Co. v Industrial Acci. Com., 184Cal. 26, 192 P 1021, 12 ALR 1190, writ dism 255 U.S. 445, 65 L Ed.723, 41 S Ct. 373
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Last edited by kran sanis : 09-20-2006 at 03:47 AM.
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Check the statute of limitations
