Page:Harvard Law Review Volume 8.djvu/347

331 SUPREME COURT ON JUDICIAL LEGISLATION. 33 1 There are many cases, to be sure, whose decision strongly sug- gests the question of judicial legislation to all observers, but of these of a decedent would ha^e descended to his widow, but by an Act of 1853 that section was amended so as to divide the estate equally between the widow and mother. In Langdon v. Applegate, 5 Ind. 327, the Supreme Court decided that amending Acts which failed to recite the amended section in full were unconstitutional. The Act of 1853 fell within that ruling. An administrator, in compliance with that rule, had conducted his distribution according to the Act of 1852, and had ignored the Act of 1853. In Turnpike Co. v. The State, 28 Ind. 382, the case of Langdon v. Applegate was expressly overruled, and the Act of 1853 declared to be constitutional. The court held the administration invalid, saying : — "The consequence of the overruling of those cases (Langdon v. Applegate, and others to the same effect) was that the statutes which, according to the rulings therein, would have been held unconstitutional, were valid, not from the time of overruling those cases, but from the time of their enactment until they were repealed. It was not the overruling of those cases which gave validity to the statutes ; but the cases having been overruled, the statutes must be regarded as having all the time been the law of the State. This court has no power to repeal or abolish statutes. If it shall hold an Act of the Legislature unconstitutional, while its decision remains the Act must be regarded as invalid. But if it shall afterward come to the conclusion that its former ruling was erroneous, and overrule it, the statute must be regarded for all purposes as having been constitutional and in force from the beginning, and the rights of parties must be deter- mined accordingly." In other words, the Statute of 1853 never was unconstitutional, and the decision in Langdon v. Applegate never was the law of the State. This is about as near as a court can be brought to deciding whether it has itself legislated or not. Observe, though, that the case does not necessarily call for the opinion delivered. It may well be that the de- cision of Langdon v. Applegate was the law of Indiana until the case of Turnpike Co. v. The State, and that the latter decision changed the law retroactively, — a power denied to legislatures, but constantly exercised by courts. This seem; to have been the view of the Court of Queen's Bench in a similar case, Henderson v. Folkestone Waterworks Co., I Times Law Rep. 329. There a house owner sued a water company for rates paid by him in excess of what had since been held to be legal by the House of Lords. The defendant pleaded that the payment was voluntary. " It was," said plaintiff's counsel, " a payment in ignorance of law." Lord Coleridge : " Of what law .' I was ignorant of it before the decision of the House of Lords. I had held the contrary, and two eminent judges agreed with me. Can that be put as ignorance of law?" Later, in giving judgment for the defendant, the Lord Chief Justice said : — " Here at the time the money was paid, which was before Dobb's case (the House of Lords' decision), the law was in favor of the company, and there is no authority to show that it can be recovered back on account of a judicial decision reversing the for- mer understanding of the law." Since money paid under a mistake of law cannot be recovered in England, the dis- pute with counsel as to what constitutes a mistake of law had no direct bearing on the case ; and the case is further distinguishable from the Indiana decision by the fact that the Queen's Bench is a court of subordinate jurisdiction, whereas in the Indiana case the opposite rulings were both made by the Supreme Court. The interruptions from the Bench show plainly, though, that the mind of the learned judge was not in accord with what the Indiana court had declared to be the status of an overruled decision. According to Pierce v. Pierce, the decision of the Lord Chief Justice and his asso- ciates, in view of Dobb's case, could certainly be put as ignorance of law.