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“Contract Clause” Litigation in Colombia; A Comparative Study in Judicial Review1

Published online by Cambridge University Press:  02 September 2013

J. A. C. Grant
J. A. C. Grant*
Affiliation:
University of California (Los Angeles)
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Extract

The 1910 amendments to the Colombian constitution provided:

Art. 40. In every case of incompatibility between the Constitution and the law the constitutional provisions shall be applied by preference.

Art. 41. To the Supreme Court of Justice is confided the guardianship of the integrity of the Constitution. Consequently, in addition to the powers conferred upon it by this Constitution and the statutes, it shall have the following: To decide definitively as to the enforceability of bills that have been vetoed as unconstitutional by the Government, or as to all laws and decrees accused before it by any citizen as unconstitutional, first hearing the Attorney-General of the Nation.

The first function, “to decide definitively as to the enforceability of bills that have been vetoed as unconstitutional,” was merely a restatement of the plan copied from Ecuador in 1886 and still in use, although it has proved a major disappointment.

Type
Research Article
Information
American Political Science Review , Volume 42 , Issue 6 , December 1948 , pp. 1103 - 1126
Copyright
Copyright © American Political Science Association 1948 

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Footnotes

1

This is one of a series of articles presenting the results of a study begun in 1942 on a Guggenheim Fellowship, but interrupted by war service. The field research was completed in 1946 with a grant-in-aid from the Social Science Research Council. The author takes this opportunity to thank both foundations.

For previous articles, see “Estudio Comparativo de los Sistemas de Control de la Constitutionalidad de Leyes,” Revista de la Escuela Nacional de Jurisprudencia (Mexico), Vol. 8, p. 121 (1946); “El Control de la Constitucionalidad de las Leyes a Peticion del Ejecutivo Previamente a la Promulgacion: la Experiencia de Colombia,” Revista Mexicana de Derecho Publico, Vol. 1, p. 243 (1947); “Judicial Review by Executive Reference Prior to Promulgation; The Colombian Experience,” So. Calif. Law Rev., Vol. 21, p. 154 (1948).

References

2 These provisions now appear in inverse order as Articles 214 and 215 of the 1945 codification of the constitution. The only important change, made in 1945, has been to divest the Supreme Court of jurisdiction over actions against ordinary decrees, which go to the Consejo de Estado, or administrative court.

3 See the second and third articles cited in note 1.

4 The proceeding bears some semblance to the indictment for unconstitutional legislation used in classical Athens.

5 Const. 1945, Art. 30; formerly Art. 26 of the codification of 1936. Until revised in 1926, the clause (Const. 1886, Art. 31) read: “Rights acquired with correct legal title according to the civil laws, by natural or legal persons, cannot be disavowed or injured by later laws.”

6 See Fletcher v. Peck, 6 Cranch 87 (U.S. 1810); New Jersey v. Wilson, 7 Cranch 164 (U.S. 1812); Terrett v. Taylor, 9 Cranch 43 (U.S. 1815); Dartmouth College v. Woodward, 4 Wheaton 518 (U.S. 1819).

7 Perry v. United States, 294 U.S. 330, 351 (1935), quoting Sinking Fund Cases, 99 U.S. 700, 718–9 (1879).

8 Sentence of July 25, 1912, Gaceta Judicial 21 (#1046–7): 53. Hereafter Gaceta Judicial is abbreviated G.J. Unless otherwise stated, all decisions cited were by a full court.

9 Sentence of Oct. 30, 1912, G.J. 21 (#1079–80): 322. Cf. our own doctrine: “The test of the validity under the contract clause of subsequent legislation affecting the remedy is whether the change does or does not materially impair the value of the rights established by a contract.” Rottschaefer on Constitutional Law (1939), 573.

10 Sentence of Nov. 16, 1925, G.J. 32 (#1659–60): 122, 123. See also, Acuerdo 4 of Nov. 30, 1920, G.J. 28 (#1464): 225.

11 Sentence of Dec. 16, 1914, G.J. 23 (#1197–8): 409.

12 General Division (3 justices), sentence of May 30, 1911, G.J. 20 (#992–3): 24.

13 Acuerdo 3 of Oct. 20, 1920, G.J. 28 (#1460): 193.

14 Sentence of Nov. 18, 1930, G.J. 36 (#1833): 233, 236.

15 At note 61.

16 Resolution of Nov. 21, 1912, G.J. 22 (#1091–2): 9.

17 Acuerdo 52 of Nov. 21, 1919, G.J. 27 (#1406): 177. This case was one of the most bitterly contested in Colombian history, since it turned upon the question of whether or not petroleum deposits had been retained by the government in selling or otherwise disposing of large tracts of land, a point on which the Court divided 5 to 4 against the government. Eight years later, the decision was the basis of a bitter attack upon the Court on the floor of Congress, and those justices who were still in office were called upon to appear and explain the ruling. Two of the dissenting justices declined to appear, but sent a message defending the independence of the Court and insisting that as judges they were not responsible to the Congress but “to God and their own consciences.” In the end, Congress passed a resolution “solemnly reaffirming the profound respect that the decisions emanating from the highest judicial tribunal merit, to whose wisdom and rectitude the people have confided the honor of the Republic.” Revista de la Academia Colombiana de Jurisprudencia, Vol. 10, p. 79 (1927).

18 General Division (3 justices), sentence of Apr. 25, 1942, G.J. 53 (#1984–5): 519, 524.

19 Compare Terrett v. Taylor, 9 Cranch 43 (U.S. 1815), with Town of Pawlet v. Clark, 9 Cranch 292 (U.S. 1815).

20 Sentence of Mar. 4, 1940, G.J. 49 (#1953–4): 14.

21 Const. 1945, Art. 183, first introduced as Art. 50 of Const. Amend. #3 (1910). Our own constitution contains no such clause, and has not been construed to give any protection to a public corporation or local government against its principal. See City of Trenton v. New Jersey, 262 U.S. 182 (1923).

22 Sentence of Nov. 25, 1940, G.J. 50 (#1966–8): 653. See also sentence of May 31, 1930, G.J. 36 (#1829): 121.

23 Sentence of Mar. 18, 1941, G.J. 50 (#1966–8): 701.

24 General Division (3 justices), sentence of June 2, 1943, G.J. 55 (#1996–7): 473.

25 Sentence of Apr. 25, 1942, cited supra note 18.

26 Sentence of Dec. 10, 1915, G.J. 24 (#1225–6): 165, 167. A previous effort to raise the issue had failed because the actual effect of the statute involved was to increase rather than decrease pensions. Sentence of Dec. 11, 1913, G.J. 29 (#1502): 109.

27 Sentences of July 28, 1932, G.J. 38 (#1869): 161, and Nov. 27, 1936, G.J. 44 (#1916): 207.

28 Acuerdo 12 of June 6, 1916, G.J. 25 (#1263–4): 49.

29 Sentence of Mar. 26, 1925, G.J. 32 (#1661–2): 145.

30 Acuerdo 4 of July 4, 1922, G.J. 29 (#1510): 173, and sentence of Nov. 27, 1936, cited supra note 27.

31 Sentences of Nov. 27, 1936, cited supra note 27, and July 29, 1938, G.J. 47 (#1942): 303.

32 Sentence of Apr. 21, 1944, G.J. 57 (#2006–9): 14.

33 Id. at 19.

34 Sentence of Feb. 28, 1946, G.J. 60 (#2029–31): 3.

35 See Dodge v. Board of Education, 302 U.S. 74 (1937).

36 General Division (3 justices), sentence of Feb. 7, 1913, G.J. 21 (#1072): 267.

37 Sentence of Oct. 15, 1914, G.J. 26 (#1337): 33, 34.

38 Sentence of Nov. 18, 1924, G.J. 31 (#1611): 149. The decision appears sound, since increasing the amount to be paid out as prizes would not have curbed gambling. Of course the ruling was in general terms, applying to all valid franchises rather than merely to that of the petitioner. This is true of all popular action rulings. Dispute as to the validity of a given franchise is matter for a private suit.

39 Sentence of Aug. 12, 1930, G.J. 36 (#1831): 173. The doctrine that statutes should be so construed as not to violate the constitution is well established in Colombia. See sentences of May 26, 1931, infra note 46, Aug. 10, 1937, G.J. 45 (#1925): 209, 213–4, and Sept. 28, 1938, G.J. 47 (#1941): 211, 221.

40 Turnpike Co. v. Illinois, 96 U.S. 63, 68 (1877). And see Charles River Bridge v. Warren Bridge, 11 Peters 420, 544 (U.S. 1837), quoting Stourbridge Canal v. Wheeler, 2 Barn. & Adol. 792, 793, 109 Eng. Rep. 1336, 1337 (K.B. 1831).

41 11 Peters at 558 and 598, dissenting opinions.

42 Knoxville Water Co. v. Knoxville, 200 U. S. 22 (1906).

43 Sentence of Aug. 12, 1930, supra note 39.

44 Sentence of Oct. 30, 1912, supra note 9.

45 Sentence of Aug. 9, 1924, G.J. 31 (#1596–7): 30. The dissenting justice, id. at 42, felt that the Court had not duly deliberated over the issue. Cf. Butler v. Pennsylvania, 10 Howard 414 (U.S. 1851).

46 Sentence of May 26, 1931, G.J. 36 (#1840): 405, 417. See also the June 5, 1930, ruling of the Superior Court of Medellín, reported in Derecho (Medellín) 2: 836 (1930), refusing to apply the criminal sections of the act to practice by unlicensed attorneys in an area where there were no attorneys qualified to practice under the law. The court held that a statute, however clear, is never to be applied so as to render absurd results.

47 Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 349–50 (1935).

48 Sentence of Nov. 7, 1933, G.J. 40 (#1886): 18. The opinion would have furnished excellent quotations for the four dissenting justices in the Alton case. And see United States v. Lowden, 308 U.S. 225, 239–40 (1939).

In its sentence of Sept. 29, 1947, G.J. 62 (#2050–1): 597, the Colombian court found it unnecessary to pass upon the constitutionality of subsequent statutes retroactively increasing the size of these pensions.

49 Sentence of Nov. 12, 1937, G.J. 45 (#1929): 698.

50 Under Colombian practice, such extra justices are chosen by lot from a list prepared annually by the Court itself. Codigo Judicial, Arts. 57–67.

51 Law 153 of 1887, Art. 4.

52 G.J. 45: 723.

53 See Pennsylvania Hospital v. Philadelphia, 245 U.S. 20 (1917).

54 Const. 1886, Art. 69 (14); now Art. 76 (17) of the codification of 1945.

55 Acuerdo 7 of May 17, 1921, G.J. 28 (#1474–5): 305, 307.

56 Sentence of Feb. 25, 1937, G.J. 44 (#1920–1): 613, 621.

57 Sentence of Dec. 11, 1913, G.J. 29 (#1502): 109, and Acuerdo 28 of Aug. 28, 1917, G.J. 26 (#1360): 217.

58 Acuerdo 3 of Oct. 20, 1920, G.J. 28 (#1460): 193.

59 Sentence of July 28, 1935, G.J. 42 (#1897): 6.

60 Acuerdo 7 of May 17, 1921, supra note 55.

61 Sentence of Feb. 25, 1937, G.J. 44 (#1920–1): 613, 621, 622.

62 Norman v. Baltimore and Ohio R. Co., 294 U.S. 240, 307–8 (1935).

63 Perry v. United States, 294 U.S. 330 (1935). But Congress, by a joint resolution of Aug. 27, 1935, rendered the decision abortive by forbidding suits on such contracts. 49 Stat. 938, 939, 31 U.S.C. s. 773b.

64 Sentence of May 30, 1911, supra note 12.

65 Acuerdo 7 of May 17, 1921, G.J. 28 (#1474–5): 305, 307.

66 The quotation is from the sentence of Feb. 25, 1937, G.J. 44 (#1920–1): 613, 619, which was discussed above at note 61. And see note 51.

67 See the dissenting opinion of Mr. Justice Black in Adamson v. California, 332 U.S. 46, 68 (1947); J. A. C. Grant, “The Natural Law Background of Due Process,” Columbia Law Rev., Vol. 31, p. 56 (1931).

68 See supra note 14.

69 See supra note 61.

70 Resolution of Aug. 2, 1912, G.J. 22 (#1091–2): 2, 5.

71 Sentence of July 28, 1924, G.J. 31 (#1599): 53.

72 Sentence of Dec. 6, 1935, G.J. 42 (#1899): 292, 296. This is a well established rule of jurisdiction. See sentence of Dec. 14, 1931, G.J. 38 (#1877): 541. The same is true of disputes as to the title to property claimed alike by the government and by private parties. Compare the sentence of Dec. 9, 1946, G.J. 61 (#2042–4): 623, dismissing a popular action for lack of jurisdiction, with the rulings of the General Division (3 justices) in J. del Castillo et al. contra la Nación, April 25, 1942, G.J. 53 (#1984–5): 519, and Colegio de Jesús, María y José contra la Nación, June 2, 1943, G.J. 55 (#1996–7): 473.

73 Sentence of May 4, 1938, G.J. 46 (#1935): 386.

74 Colombian Petroleum Co. contra el Estado, Oct. 7, 1938, G.J. 47 (#1942): 374, 378.

75 101 U.S. 814, 820 (1880).

76 1 Ohio State 623, 701 (1853). Chief Justice Bartley's opinion placed great reliance upon the doctrines of natural law in defending this thesis, and quoted both Rutherford's Institutes of Natural Law and Puffendorf.

77 Op. cit. at 378–9.

78 South American Gulf Oil Co. contra el Estado, Oct. 7, 1938, G.J. 47 (#1942): 380, 384.

79 Stone v. Mississippi, 101 U.S. 814, 819 (1880).

80 Const. 1886, Art. 44, now Art. 39 of the codification of 1945. Since 1936, it has read “professions and employments” instead of “industries and professions.”

81 Sentence of Sept. 25, 1925, G.J. 32 (#1646–7): 17.

82 Sentence of Nov. 18, 1924, G.J. 31 (#1611): 149, 150.

83 See the case cited supra, note 81.

84 Sentence of Sept. 25, 1925, G.J. 32 (#1646–7): 17, 17–8.

85 Id. at 170, 172.

86 Sentence of Feb. 25, 1937, G.J. 44 (#1920–1): 613, 616.

87 Id. at 621.

88 Id. at 623.

89 Id. at 617.

90 Colombian Petroleum Co. contra el Estado, supra note 74 at 377.

91 Tascón, T. E., Derecho Constitucional Colombiano (3d ed., 1944), 111–2.Google Scholar

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