were unconstitutional, there was still sufficient doubt about it to make it proper for the government, in discharge of a moral obligation, to reimburse those who had spent money upon the faith of the act (20). In so far as an officer, even though acting in good faith, invades rights. of private property and personal immunity under an unconstitutional statute, he is liable civilly to injured persons, just as though the act had not been passed (21). On the other hand, if a public officer honestly thinks the act unconstitutional and therefore declines to obey it, he is liable for refusal if the law is later upheld by the courts (22).

§ 46. Effect of partial unconstitutionality. More difficult questions arise where an act is unconstitutional in part only. Does the entire act fail in this case, or do only the unconstitutional parts of it? This question was discussed in the Income Tax case of 1895. Congress had attempted to levy a tax upon incomes in excess of $4,000, from whatever sources derived. A majority of the court held that the income from real estate and invested personal property was a direct tax, and hence forbidden to Congress unless it were apportioned according to population, which had not been done. Of course there remained a large number of taxable incomes from the professions, trades, and other employments, but the income from $65,000,000,000 of real and personal property would

(20) United States v. Realty Co., 163 U. S. 427.

(21) Campbell v. Sherman, 35 Wis. 103.

(22) Clark v. Miller, 54 N. Y. 528.

be excluded, leaving the entire burden to fall on other incomes. The court said:

"It is undoubtedly true that there may be cases where one part of a statute may be enforced as constitutional, and another declared inoperative and void, because unconstitutional; but these are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see and declare that the intention of the legislature was that the part pronounced valid would be held enforceable, even though the other part should fail. To hold otherwise would be to substitute for the law intended by the legislature one they may never have been willing by itself to enact."

Measured by this test a majority thought Congress could not have intended to tax incomes at all, if the income from real and personal property was to be excluded (23).

SECTION 4. ADVISORY OPINIONS.

§ 47. Nature and effect of advisory opinions. As previously explained in this chapter, it is usually held unconstitutional to require the courts to give opinions to the other departments of the government for their convenience in advance of actual litigation, as such opinions have not a judicial character. The constitutions of a few states, however, expressly require the rendition of such opinions by the highest court of the state at the request of the governor or legislature. Even in these cases such opinions do not acquire a judicial character and bind the

(23) Pollock v. Farmers' Loan & Trust Co., 158 U. S. 601.

court as precedents. Being ordinarily rendered without the arguments of counsel, the court is far less likely to consider all phases of the question; and so, even though it may have given an opinion in favor of the validity of the proposed law to the executive or legislature, it holds itself free to reconsider the question entirely on its merits, if it afterwards comes before the court in actual litigation (24).

Opinions thus given to assist other departments of government in the discharge of duties are called "advisory opinions," and the better usage of government in this country tends to discourage the practice of giving them. It is thought, with reason, likely to draw the judges into the heat of partisan controversies and to impair public confidence in their impartiality, without any corresponding advantage.

(24) Green v. Commonwealth, 12 Allen, 155.

NOTE.-There is no omission of material here. The next subsections begin with number 62. Owing to a mistake in the plates, there are no subsections numbered from 48 to 61.

PART II.

FUNDAMENTAL RIGHTS.

CHAPTER III.

R STORY AND SCOPE OF FUNDAMENTAL CONSTITUTIONAL

RIGHTS.

SECTION 1. CLASSIFICATION OF CONSTITUTIONAL PRO

VISIONS.

§ 62. Provisions establishing the frame of government. Broadly speaking, the provisions of American constitutions, state and national, fall into four great classes:

1. Provisions dealing with the frame of government itself. Of this character are those clauses of our constitutions that divide the government into departments, provide for officials, regulate their qualifications, duties, and the modes of choosing them, distribute the powers of government between the various departments, and provide for the manner of their exercise. These provisions are mainly political in their nature, and the careful discussion of them belongs rather to the subject of political science than to the law of private rights. They will therefore receive little attention in this article.

§ 63. Provisions guaranteeing fundamental private rights. 2. Provisions securing certain fundamental political, religious, and civil rights to citizens or other per

sons within the jurisdiction, mainly by prohibiting the exercise of governmental powers to the prejudice of these rights. These are the parts of our constitutions supremely important to the individual, and these are the ones treated at greatest length in this article.

Both the United States and the states are forbidden to infringe these fundamental rights. The prohibitions upon the United States are of course contained in the United States constitution. Those upon the states are partly in the United States constitution and partly in the separate state constitutions. For convenience, similar prohibitions, whether upon the United States or the states, will be treated together, although the illustrations used will be drawn so far as possible from the decisions of the United States Supreme Court. For instance, the Fifth amendment of the Constitution forbids the United States to deprive anyone of liberty without due process of law. The Fourteenth amendment of the Constitution forbids any state to deprive a person of liberty without due process of law. All of the state constitutions likewise forbid their governments to deprive anyone of liberty without due process of law. It may be alleged, therefore, that the United States has violated the Fifth amendment; or that a state has violated either the Fourteenth amendment or its own state constitution, and upon similar states of fact it is very likely that similar decisions will be given in regard to each of these three separate allegations. Similar prohibitions, no matter in what constitution found, may thus with propriety and convenience be considered together.