3l8 HARVARD LAW REVIEW. * to look into the merits of the question at all; and, in declining to follow the later decision of the Iowa court, a rule was laid down which established the validity of the bonds, irrespective of any opin- ion whether, as an original question, they were lawfully and consti- tutionally issued or not. The Supreme Court, quoting substantially an obiter remark of Taney, C. J., in Ohio Co. v. Debolt, i6 How., at p. 432, put forward this proposition: — The sound and true rule is that if the contract when made was valid by the laws of the State as then expounded by all departments of the gov- ernment, and administered in its courts of justice, its validity cannot be impaired by any subsequent action of legislation or decision of its courts altering the construction of the law.^ Has the United States court any right to say this? To announce that it will not look into the question, whether the bonds were originally authorized by the State constitution or not? Any right to say that although, in this court's judgment, it may be true, as an original question, that they were issued in viola- tion of the State constitution, the court will still hold them to be valid? With a certain qualification, I think that it has. The laying down of some rule of administration is legitimate, for the court, as we see, has the right to look into the question for itself; and all courts, in regulating the exercise of their functions, lay down, from time to time, rules of presumption and rules of administration. It is a usual, legitimate, necessary practice. It is, to be sure, judicial legislation; but it is impossible to exercise the judicial function without such incidental legislation. If this rule in Gelpcke v. Du- buque be understood, as it was probably meant, as being subject to a certain qualification, it appears to me good. It will not do, of course, to allow the United States courts, through the medium of any principle of presumption or judicial administration, or any- thing else, to sanction a violation of the State constitution or the State laws. There might be a case wherein the violation of the constitution was gross and palpable, and such that those who took part in it, whether in making contracts or doing anything else, must be held to have known what they were doing; and in such a case no court would be justified in laying down a rule that would pro- tect these parties. But courts often have to recognize, especially 1 I Wall. 206.
