in cases where its unconstitutionality is plain and unmistakable. This rule is based, not only upon the respect which is due to the legis lative body, but also upon the consideration that the judgments of these courts are subject to review in the higher tribunals, where any erroneous determinations may be corrected. Yet it is the right, and may become the duty, of an inferior court, in proper cases, to pass upon the validity of acts of legislation. Thus, a county court of a state may adjudge an act of the state legislature to be void for repugnance to the federal constitution; for the judge of that court is bound by his oath to support that constitution as the supreme law of the land.10 2. If the court of last resort in a state has pronounced in favor of or against the constitutionality of a state statute, its decision is binding on all the inferior courts of the state, and the question is no longer an open one for such courts.11 3. If the question of the validity of a statute of one state comes legitimately before the courts of another state, such courts are at liberty to determine the question for themselves. But in so doing, they will pay great respect to the opinions of the courts of the state which enacted the statute, if the question concerns its conformity to the constitution of that state. If the question arises from an alleged repugnance to the federal constitution or an act of congress, the court trying the case will be bound by a decision of the United States supreme court, if any there be, on the same question, otherwise it will be at liberty to exercise its own judgment.12 4. The judgment of the highest court of a state, that a statute has been enacted in accordance with the requirements of the state constitution, is conclusive upon all the courts of the United States and will not be reviewed by them. But if the ground of invalidity urged against the statute is that it contravenes the federal constitution or an act of congress, the federal courts will not be bound by the decisions of the state courts.1 18 ⚫ Sarony v. Lithographic Co., 17 Fed. 591; White v. Kendrick, 1 Brev. (S. C.) 469. 10 Lent v. Tillson, 140 J. S. 316, 11 Sup. Ct. 825. 11 Palmer v. Lawrence, 5 N. Y. 389; Wheeler v. Rice, 4 Brewst. (Pa.) 129. 12 Stoddart v. Smith, 5 Bin. (Pa.) 355. 18 Atlantic & G. R. Co. v. Georgia, 98 U. S. 359. 5. The validity of an act of congress may be passed upon by the state courts, until it has been settled by the supreme court of the United States; after that, the question is no longer open. 6. A decision of the supreme federal court, for or against the validity of an act of congress, or for or against the validity of a state law in respect to its conformity to the federal constitution or federal laws, is binding and conclusive, until overruled, on all courts of every grade, both state and national. SAME-FULL BENCH. 33. It is a rule adopted by many appellate courts, though not all, that they will not decide the question of the constitutionality of a statute until a hearing has been had before the full bench of judges, in order that all the members of the court may participate in the decision. The reasons for this rule are two: In the first place it is possible that a judgment pronounced by less than a majority of the whole court might be overruled by the full court when the question again arises; and all courts are disposed to avoid events which so seriously unsettle the law. Secondly, the courts are inclined to defer the decision of such questions until a full bench can be had on account of the great importance of the question involved and on account of a delicacy in the matter of setting aside a legislative act unless their full number has considered it. But this rule is not Imposed upon the courts by any constitutional provision or statute. And it is sometimes impossible to apply it. For instance, the decision in the very important case known as the "Chicago Lake Front Case" 14 was rendered by four judges out of the nine who compose the supreme court. But that was because two of the judges, on account of interest, took no part in the decision of the case, and three dissented. 14 Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110. SAME-NATURE OF THE LITIGATION. 34. To induce the courts to pass upon the constitutionality of a statute, the question must arise in the course of an actual and bona fide litigation. The judicial tribunals will decline to exercise this high office unless it becomes necessary in order to determine the rights of parties in a real and antagonistic controversy. "It never was thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act." 15 SAME-PARTIES INTERESTED. 35. A statute will not be declared unconstitutional on the application of a mere volunteer or person whose rights it does not specially affect. "It is a rule, and a very wholesome rule, that no one can take advantage of the unconstitutionality of an act who has no interest in and is not affected by it." 18 For instance, the objection that a state statute impairs the obligation of contracts cannot be urged against it in a proceeding to which the only parties who have any contract rights to be affected by it, if any such exist, have not been made parties. It is only when some person attempts to resist the operation of an act claimed by him to impair the obligation of a contract, 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 unconstitutionality can be presented and sustained.1 So, again, white persons will not be heard to object that an act under which a tax has been levied is unconstitutional because the property of colored persons is made subject to the tax, while they are neither allowed 18 Chicago & G. T. Ry. Co. v. Wellman, 143 U. S. 339, 12 Sup. Ct. 400. 16 State v. Snow, 3 R. I. 64; Wellington, Petitioner, 16 Pick. (Mass.) 96; State v. Becker, 3 S. D. 29, 51 N. W. 1018. 17 People v. Brooklyn, F. & C. I. Ry. Co., 89 N. Y. 75; Moore v. City of New Orleans, 32 La. Ann. 726. to vote on the question of taxation nor to participate in the benefits for which the tax is levied." Persons may also become estopped from denying the constitutionality of a statute, by participating in the procurement of its passage, by acquiescing in it after its passage, or by accepting benefits under it, although it may be invalid as to all other persons.19 And an individual has no right to complain that a law is unconstitutional after he has endeavored to take the benefit of it to the injury of others.20 But taxpayers, citizens of the state, may maintain a bill quia timet to restrain the executive officers of the state from funding the public debt under an act which is unconstitutional and void."1 SAME-NECESSITY OF DECISION. 36. The question of constitutionality will not be decided unless it is imperatively necessary to the right disposition of the case. Courts are not eager to annul acts of the legislature. A becoming respect for a co-ordinate branch of the government will make them loath to adjudicate the grave question of the constitutional validity of a statute, and they will not do so when the matters or questions presented by the record do not require it."2 The decision of a case will be rested on grounds which do not involve a determination as to the validity of the statute, if there be any such in the case. It is only when the question of the power of the legislature under the limitations of the constitution is the very gist and marrow of the case that the courts will give their judgment on this point. And if a judgment on the question of constitutionality was not necessary to the determination of the particular case, it will usually be regarded as obiter dictum and not as concluding the question. As a corollary to the foregoing rule, it may be stated that the courts will ordinarily refuse to decide upon the constitutionality of 18 Norman v. Boaz, 85 Ky. 557, 4 S. W. 316. 10 Ferguson v. Landram, 5 Bush (Ky.) 230. 20 Hansford v. Barbour, 3 A. K. Marsh. (Ky.) 515. 21 Lynn v. Polk, 8 Lea (Tenn.) 121. 12 Weimer v. Bunbury, 30 Mich. 201; Hopson v. Murphy, 1 Tex. 314. a statute except when the decision is necessary to the final disposition of the case. That is, they will not allow the question to be raised, or will not determine it, upon preliminary, provisional, or collateral proceedings, such as motions for a preliminary injunction, motions to strike out pleadings, hearings concerning costs, or the like. 28 SAME-CONSTRUCTION. 37. Unconstitutionality will be avoided, if possible, by putting such a construction on the statute as will make it conform to the constitution. The courts will not so construe the law as to make it conflict with the constitution, but will rather put such an interpretation upon it as will avoid conflict with the constitution and give it the force of law, if this can be done without extravagance. They may disregard the natural and usual import of the words used, if it is possible to adopt another construction, sustaining the statute, which shall not be strained or fantastic. In so doing, they construe the act in accordance with the presumed intention of the legislature. For the law-making body is always presumed to have acted within the scope of its powers.24 SAME-EXECUTIVE CONSTRUCTION. 38. Courts will be influenced, but not bound, by a long and uniform construction of a statute, with respect to its constitutionality, by the other branches of the government. While the courts are to determine for themselves all questions of constitutionality which come properly before them, yet it is proper and usual for them to show much respect to the decisions of the executive and legislative departments, made for their own guidance, upon the same questions, especially when such decisions have been acquiesced in and acted upon for a long period of time."" 28 Deering v. Railroad Co., 31 Me. 172; Lothrop v. Stedman, 42 Conn. 583. 24 Inkster v. Carver, 16 Mich. 484; Newland v. Marsh, 19 Ill. 376; Roosevelt v. Godard, 52 Barb. 533; Parsons v. Bedford, 3 Pet. 438; Grenada Co. v. Brogden, 112 U. S. 261, 5 Sup. Ct. 125. 25 Stuart v. Laird, 1 Cranch, 299. |