flict therewith, and the Constitution and not the act must prevail and be followed by executive officers as well as by the courts, and in fact by all individuals. This is well brought out by Mr. Justice Field, in Huntington v. Worthen (120 U, S., 101), wherein, after showing the unconstitutionality of the act then under consideration by the court, he said:

"When, therefore, under the advice of the Attorney-General, the Board of Railroad Commissioners treated as invalid the direction of the statute that the value of embankments, tunnels, cuts, ties, trestles, and bridges should not be included in the estimate of the railroad track, it obeyed the Constitution, rather than the legislature. It may not be a wise thing, as a rule, for subordinate executive or ministerial officers to undertake to pass upon the constitutionality of legislation prescribing their duties, and to disregard it if in their judgment it is invalid. This may be a hazardous proceeding to themselves, and productive of great inconvenience to the public; but still the determination of the judicial tribunals can alone settle the legality of their action. An unconstitutional act is not a law; it binds no one, and protects no one."

To which may be added the following brief quotation from the opinion of that same able judge in Norton v. Shelby County (118 U. S., 442):

"An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office: it is, in legal contemplation, as inoperative as though it had never been passed."

And this from the opinion of Attorney-General Speed (11 Opin. A. G., 214), where, referring to the case of Marbury v. Madison (1 Cranch, 180), wherein Chief Justice Marshall had said "A law repugnant to the Constitution is void, and courts as well as other departments are bound by that instrument,” he said:

"The Constitution is the supreme law-a law superior and paramount to every other. If any law be repugnant to the Constitution, it is void; in other words, it is no law. It is the peculiar province and duty of the judicial department to say what the law is in particular cases. But before such cases arise, and in the absence of authoritative exposition of the law by that department, it is equally the duty of the officer holding the executive power of the Government to determine, for the purposes of his own conduct and action, as well the operation of conflicting laws as the constitutionality of any one.” (See also opinion of Attorney-General Bates, 10 Opin. A. G., 56-61, and State v. Buchanan, 24 W. Va., 362.)

To the same effect are necessarily the decisions in all that well-established line of cases, holding that an executive officer can not justify himself for the doing of a wrongful act by rely ing upon the power conferred upon him under an unconstitutional statute. (Poindexter v. Greenhow, 114 U. S., 270; Sumner v. Beeler, 50 Ind., 341; Fisher v. McGirr, et al., 1 Gray, 1-46; Woolsey v. Dodge, 6 McLean, 142-146; Lynn v. Polk, 8 Lea (Tenn.), 121. See also Board of Liquidation v. McComb, 92 U. S., 531-541.)

Much reliance was placed upon the following cases: People v. Salomon, 54 Ill., 40; Smyth v. Titcomb, 31 Me., 272; Sessums v. Botts, 34 Tex., 335; State v. Carroll, 38 Conn., 449; and State v. Moore, 40 Nebr., 854; particular reliance being placed upon the case of People v. Salomon. Of that case nothing more need be said than is contained in the following note by Judge Cooley in his work on Constitutional Limitations, page 188:

"In People v. Salomon (54 Ill, 46), a ministerial officer was severely censured for presuming to disregard a law as unconstitutional. The court found it to be valid, but if they had held the contrary, the officer certainly would not have been punished for anticipating their decision in his own action."

The case of State v. Carroll was vigorously pressed upon the Supreme Court in Norton v. Shelby County (118 U. S., 445), where that case is fully explained in the opinion of the court. The case of State v. Moore, so far from being an authority in favor of the contention that an executive officer must obey an unconstitutional statute, is rather one to the contrary, for while the act then under consideration was held by the court to be constitutional the Auditor was commended for seeking the determination of the court upon that question in a case in which he was justified in having serious doubts. The court said:

"The Auditor is an able and conscientious officer and deserving of the highest commendation for the jealous care with which he guards the public Treasury, and he acts wisely in shielding himself from liability by the decisions of the courts in cases where he is in doubt; but in the case at bar he may not only legally draw the warrant demanded by the relator, but it is his duty to do so."

And therefore a mandamus was issued to compel him to act. The other two cases relied on, viz, Smyth v. Titcomb and Sessums v. Botts, are contrary to the doctrine established by the

Supreme Court of the United States in the cases above cited and to the weight of State authority.

From all these cases the conclusion is irresistible that it is the duty of the executive officer to obey the law; that the Constitution is the supreme law, and so are statutes passed in pursuance thereof; that statutes which do not conform to the Constitution are not law, and therefore when a statute is in apparent conflict with the Constitution it becomes the duty of the executive officer to determine for himself as between the statute and the Constitution whether the statute is the law. It is true that the statute is to be considered prima facie constitutional and should be followed unless it is clearly unconstitutional. It is also true that the officer acts at his peril if he does not execute a constitutional statute, but it is none the less true that he acts at his peril if he executes an unconstitutional statute. The fact that in the one case the consequences of a mistaken judgment may be greater than in the other does not affect the question, for the penalties which may attach to the failure to execute what is finally determined to be a constitutional statute can not change the officer's duty, although they may greatly increase his responsibilities. While in theory every executive officer, however subordinate, is obliged to obey the law, whether the Constitution or the statute, yet practically a mere subordinate officer, who acts under the orders of a superior who is bound to determine what the law is, may be justified in following the directions of his superior. In deciding questions upon the settlement of public accounts. the Comptroller is not subject to the direction of any superior upon whom he can throw the responsibility of determining what the law is. That question was finally settled by the act of March 30, 1868 (15 Stat., 54), incorporated in section 191 of the Revised Statutes, which, modified to meet the changes in the accounting system made in the Dockery Act, still remains the law.

As the Comptroller does not act under the directions of the Secretary of the Treasury or the President, his decisions within the sphere of his jurisdiction being final and conclusive upon the executive branch of the Government, it followed that the power to resist the execution of an unconstitutional statute was denied to any executive officer whatever. Some of the counsel at the hearing went to the extreme limit that under no circumstances whatever could even the President refuse to

obey an act of Congress until the same had been declared unconstitutional by the Supreme Court of the United States; that the decision of no inferior tribunal would justify him in refusing obedience to the statute. If the Comptroller was compelled to obey an unconstitutional act the logic of this position was irresistible. The conclusion, therefore, if that contention be right, necessarily is that the legislative department of the Government is supreme, as the executive can not resist the statute. It was furthermore claimed that no executive officer had the right to raise the point of the unconstitutionality of a statute even in a case in court in order to finally determine its validity by the only branch of the Government conceded to have the power to settle such question. This contention can not be sound, as shown by the quotations from the decisions of the Supreme Court of the United States and those of the State courts above cited. Applied to the question of the payment of money from the Treasury of the United States by an officer sworn to support the Constitution, the argument amounts to this, that while any individual whose rights are invaded even in the slightest degree by an unconstitutional act of Congress may seek his remedy in the courts, and if a trustee, would be required to do so in order to protect his trust, as did the trust companies in the recent income-tax cases, the officer of the Executive Department of the Government, bound to protect the Treasury of the United States against the payment of unlawful claims and to that extent being in the position of a trustee for the people, would be without power to protect the Treasury against such unlawful claims for the largest possible amount. That position can not possibly be tenable.

The Comptroller, when acting within his jurisdiction, must determine whether claims made against the United States are proper charges against the Treasury. A claim founded upon a statute passed under an erroneous construction of the Constitution, although having apparently greater sanction, has no more real validity than a claim founded upon an erroneous construction of a concededly constitutional act. The one should not be paid any more than the other, and it is clearly the duty of the Comptroller, when called upon to pass judg ment on such claims, to prevent the payment of both.

The Comptroller has never claimed to be invested with any judicial power by virtue of which he is authorized to hold and treat an act as unconstitutional otherwise than is any superior

executive officer charged with the responsibility of ascertaining what the law is in order to guide his actions. The Comptroller is an executive officer whose duties require the exercise of judicial functions in the highest degree. This, however, does not in any way change his character from an executive to a judicial officer. The exercise of the power by the Comptroller to treat an act as unconstitutional is no new thing. It has been acted on upon at least two different occasions-first, when the income tax levied upon the salaries of the Federal judges was returned, under the opinion of Attorney Gene: al Hoar that such taxes could not be constitutionally collected (13 Opin. A. G., 161); second, when payments were made to persons who had pro moted, encouraged, or sustained the rebellion, on claims which accrued prior to the 13th day of April, 1861, in violation of the provisions of the joint resolution of March 2, 1867 (section 3480, Rev. Stat.), under the opinion of Secretary Delano, that the provisions of that joint resolution were unconstitutional. (Copp's Public Land Laws, 1882, vol. 2, p. 1400.)

As neither the opinion of Attorney-General Hoar nor that of Secretary Delano was binding upon the Comptroller, his action in allowing the payments, notwithstanding the statutes, was taken upon his own responsibility that these opinions were correct expressions of the law. The Comptroller would certainly be as much justified in following the opinion of the Court of Appeals of the District of Columbia, if that opinion convinced his mind, as he was in following the opinion of an Attorney-General or that of a Secretary of the Interior. It is interesting to note that in the first case the opinion of the Attorney-General was approved by the Court of Claims in the case of Wayne v. United States (26 C. Cls. R., 274), while the opinion of Secretary Delano, although not directly drawn in question, was in fact disapproved by the determination of the Supreme Court in Hart v. United States (118 U. S., 62). Therefore in the one case the Comptroller was right, while in the other he was wrong.

It is true that the present Comptroller did pass without question claims for large amounts under the bounty provisions of the McKinley Act. Although having strong personal views upon the constitutionality of that bounty appropriation, he felt bound to obey the statute on the ground of its prima facie validity. Since the appropriation in the McKinley Act was repealed the Court of Appeals of the District of Columbia in