34 Tex. 335 | Tex. | 1871
On the 9th day of November, 1866, an act of the Legislature was approved, entitled, “An act to prevent judgments from becoming dormant, and to create and preserve judgment liens,” and provides “ that whenever final judgment shall be rendered by any court of record of this State, such judgment shall
It is believed that any citizen of the State whose interests are affected by an act which he believes unconstitutional, may, by pursuing a legal course, test the constitutionality of a law; or, if he chooses, may wholly disregard that act as law, but in that case he acts at his peril, and should the act of which he complains be decided to be law, then he must suffer the consequences of a bad judgment or a perverted will. It is therefore deemed advisable for every good citizen to obey whatever may be promulgated by the law-making power as law, until the same shall have been passed upon by the courts of the country in a legitimate and proper manner. If this, then, is the duty of the citizen, and he obeys or submits to whatever has received the legislative sanction as law, then he should be protected in that obedience, or, at least, he should not be deemed guilty of laches, and his rights sacrificed to those who are ready to usurp the province of the judiciary and declare for themselves what is and what is not law. We are not willing to indorse the proposition, in its broadest sense, that a ministerial officer has the right or power to decide upon the constitutionality or unconstitutionally of an act passed with all the formality of law. It is the duty of such officers to execute and not to pass judgment upon the law, and we are of the opinion that the clerk of the district court should have refused to issue execution in violation of what appeared to be a valid and binding law, until the same had been declared void by the tribunal properly constituted for that purpose.
We are not willing to construe the quotation from Cooley’s Constitutional Limitation, page 188, in the same light as the learned counsel for the plaintiff in error appears to have done. It is true that when an act has been declared unconstitutional, then it is as though it had never been; but we do not think that the author in the text, or the cases cited by him, intended to anpounce
It follows that the judgment lien was preserved; and as the execution issued within a few months from the time when it could by law issue, and was levied on the land in question, upon which there was a lien to satisfy the execution, the sale was a good and valid sale, and Botts, the purchaser, received a good and legal title; and that the plaintiff, who purchased the .land in question after the rendition of judgment, and after the issuance of execution, cannot be considered an innocent purchaser
There being no error in the judgment of the court below, it is affirmed..
Affirmed. ■