A case where certain bonds were sold in Shelby County, Tennessee. The point of contention was whether
the commissioners who were allegedly authorized to sell the bonds were indeed lawfully appointed.
The statutes that commissioned the commissioners were being challenged as
unconstitutional. The Tennessee high court had ruled the laws unconstitutional.
The Supreme Court had no contention with this decision. The point raised to the Supreme Court was
that even if the commissioners were not appointed de jure, they were in fact working de facto, and thus
this provided lawful authority and should be binding on the county. The Supreme Court responded, “This
contention is met by the fact that there can be no officer, either de jure or de facto, if there be no
office to fill. As the act attempting to create the office of commissioner never became a law, the
office never came into existence…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.”
Full text: Norton v. Shelby County,
118 U.S. 425 (1886)