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far beyond the scope of this document, using a great many more subheadings, going into infinite detail, and giving extracts and quotations not only from Supreme Court decisions but from cases in all the circuit courts, district courts, courts of appeals, Court of Claims, State courts, Opinions of the Attorney General, etc. Recourse has also been had to Compiled Statutes Annotated, Watson on the Constitution, Sutherland's Notes on the Constitution, Evans's Cases on American Constitutional Law, Thayer's Cases, McClain's Cases, Wambaugh's Leading Cases, Modern American Law, Ruling Case Law, Story on the Constitution, Cooley's Constitutional Limitations, Warren on the Constitution, Paschal's Annotated Constitution, Norton's Sources and Application of the Constitution, and Moore on Supreme Court and Unconstitutional Legislation, all of which works should be consulted for a more detailed study Constitutional Law.
It may be felt by some that many of the quotations used in this work are obiter dicta, but it must be remembered that all such dicta are not unimportant. Justice Brewer, in delivering the opinion of the court in the case of Wilson v. Shaw (204 U. S. 24), after citing various reports of the courts in substantiation of the decision, said:
Plaintiff, recognizing the force of these decisions, seeks to obviate it by saying that the expressions were obiter dicta, but plainly they were not. They announce distinctly the opinion of this court on the questions presented, and would have to be overruled if a different doctrine were now announced. Congress has acted in reliance upon these decisions in many ways, and any change would disturb a vast volume of rights supposed to be fixed; but we see no reason to doubt the conclusions expressed in those opinions, and adhere to them.
The doctrine announced by Chief Justice Marshall in the case of Marbury v. Madison (1 Cranch, 137), that acts of Congress in conflict with the Constitution are void, has been much criticized as a usurpation of power not conferred on the court, and was in fact obiter dicta, but the doctrine has been consistently followed for over a hundred years. It has been said that the historic importance of the Dred Scott case (19 How. 393), involving the Missouri Compromise and the citizenship of negro slaves, lies in the dicta in the opinion of the Chief Justice rather than in the decision of the court that it had no jurisdiction. In Watson v. St. Louis, etc., R. Co. (169 Fed. 942), the court said:
General expressions in an opinion which are not essential to the disposition of the case, on points not presented nor argued to the court, are obiter, and are not permitted to control the judgment of the courts in subsequent cases; but when a question is directly involved in the issues raised, is determined by the trial court, is assigned as error on appeal, argued by counsel, and distinctly decided by the court, the decision of such question is not obiter dictum although the cause is disposed of on other grounds, and this applies specially when the question involves the power of Congress to enact legislation.
And in the very recent case of United States v. Title Ins. Co., 265 U. S. 472, the court said:
Where there are two grounds upon either of which an appellate court may rest its decision, and it adopts both, the ruling on neither is obiter dictum, but each is the judgment of the court and of equal validity. A long-standing decision of a doubtful question which has become a rule of property affecting many land titles should not be disturbed.
It will be found that in a few cases the decisions have characterized former expressions of the court as dicta and in still fewer cases the former holdings of the court have been overruled, but such instances are exceedingly rare.
Of all the great mass of Congressional enactments since the beginning of the Federal Government under the Constitution there have been only about 44 acts or parts of acts of Congress declared invalid by the United States Supreme Court. At the end of this document (p. 759) is a chronological list of such acts, and citations to the cases in which they were considered.
GEORGE GORDON PAYNE. WASHINGTON, D. C., December 1, 1924.
Of general application ----