State ex rel. v. Imel.

the reason, that said section was in full force and effect at the time respondent was elected and accepted the office of probate judge, and at the time he gave the bond mentioned in the pleadings, and thereby having agreed to accept the fees so prescribed by said section, he will not now be heard to question that agreement, or the constitutionality of the statute, under which it was made.

That to my mind is a monstrous proposition; and why men of reputed and known legal ability can be misled by such clear sophistry is beyond my comprehension.

Let us suppose a case. By section 13 of article 6 of the Constitution and by the amendments thereto, it is provided that the judges of the St. Louis Court of Appeals shall receive for their services the same compensation that is now or may be provided by law for the judges of the circuit court of the city of St. Louis, which I believe is $5500, per annum. Suppose further, that the next Legislature should enact a statute fixing the compensation of the judges of the St. Louis Court of Appeals at $3000 per annum, without referring to the salary of the circuit judges of that city, and thereafter, while said statute still existing, Judge REYNOLDS, the next retiring judge of that court, I believe, should be re-elected and take his seat, would it be seriously contended for one moment that, because he accepted the office with that statute in existence (though void, as it must be conceded it would be) that he could not challenge its constitutionality? I think not. And the plain reason of that is, that the statute would be void-that is, it would have no life, force or effect; it would be a dead letter, and would be as inoperative as if it had never been enacted. [Norton v. Shelby County, 118 U. S. 425.] "An unconstitutional law is no law at all." [Williams v. Railroad, 233 Mo.

State ex rel. v. Imel.

I have repeatedly pointed out the class of cases to which the rule here announced by the majority applies, and have shown that said rule has no application to the facts of the case at bar, or to similar cases, but notwithstanding said fact, my learned brethren continue to err, without even condescending to consider the difference between the two classes of cases. I refer to those cases again: State ex rel. v. Turner, 210 Mo. 77; McCully v. Railroad, 212 Mo. 1, 1. c. 54 to 59; United Shoe Machinery Co. v. Ramlose, 231 Mo. 508; International Text-Book Co. v. Gillespie, 229 Mo. 397; State ex rel. v. Grimm, 239 Mo. 135; State ex rel. v. Blake, 241 Mo. 105. Those cases in brief hold that when a legal right is created by a valid law, that right cannot be taken away or destroyed by an invalid or unconstitutional law.

In the case at bar, the probate court of Buchanan county was by a valid law created, more than a half a century prior to the enactment of said section 10695, and the fees incident to that office were also fixed by a valid law, long prior to said enactment. That being true, clearly the invalid law could not repeal either of the two prior valid laws, nor can a void law be successfully interposed as a bar, as an estoppel to the claim of a right created by statute, such as we have in the case at bar.

The respondent in no sense of the word is claiming the fees in question under this void section of the statute mentioned, but is doing so by virtue of the laws that established the probate court of Buchanan county, and under the previous valid laws which fixed the fees of that office, long prior to the enactment of said section 10695, which he is repudiating, and which to my mind, is clearly unconstitutional.

The learned writer of the opinion in this case recognizes the invalidity of that section, by resorting to this flimsy plea of éstoppel to bridge the case over that yawning and otherwise impassable chasm.

State ex rel. v. Imel.

My learned associates confuse this class of cases with that class to which the case of State v. Seebold, 192 Mo. 720, belongs. The latter class hold, and correctly so, that when the right asserted by a party, created by, or purporting to be created by, and is based upon, an unconstitutional statute, the party making the assertion will not be permitted to hold on to the benefits received by him under the void statute, and at the same time be heard to say that the parts thereof imposing the burdens upon him are unconstitutional, null and void. In other words, if he claims the benefits given by a void statute, he will not be heard to say that the burdens imposed upon him by the same statute are void. It being void in toto he must repudiate it in toto. [State ex rel. v. Turner, 210 Mo. 77, 1. c. 84.] There is, however, this apparent exception to this latter rule (which upon reflection will be seen to be only apparent and not real) and that is, namely, if that portion of the statute conferring the right claimed is valid, and can be separated from the invalid part, which creates the burdens, the former will be upheld by the courts, unless it appears therefrom that the void part would not have been enacted unless the invalid part had been enacted also; that is unless the invalid part was the controlling or inducing cause of the enactment. [State ex rel. Bixby v. City of St. Louis, 241 Mo. 231.]

But there is another view to be taken of the contention that the respondent is estopped from raising the unconstitutionality of this statute, because of his agreement to accept the fees prescribed by this invalid statute, by accepting the office after the enactment of the statute. Suppose the respondent, instead of agreeing indirectly to accept the fees prescribed and limited by said section 10695 (which it is claimed he did by executing the bond mentioned), and in express terms agreed to have accepted those illegal fees as compensation for his services, or a sum, say, equal to one-half

State ex rel. v. Imel.

of the legitimate fees as his compensation, then what would have been the result?

In the case of State ex rel. v. Collier, 72 Mo. 13, the defendant, while a candidate for the office of probate judge of Callaway county, agreed, if elected, to perform the duties of that office for the sum of $1200 per annum, instead of the legal fees of the office, which at the time amounted to about $2600 per annum. He was elected and after qualifying, the Attorney-General instituted quo warranto proceedings against him to oust him from said office, upon the ground that said agreement amounted to a bribery of the electors, and resulted in his election. The ruling of the court is tersely stated in the syllabus of the case, which is as follows: "It is unlawful for a candidate for public office to make offers to the voters to perform the duties of the office, if elected, for less than the legal fees. An election secured by means of such offers is void."

The mere fact that the agreement (conceding that respondent made such an agreement by accepting the office) was made under the guise or sanction of a void statute, would in no manner change the legal effect of the agreement. The one would be just as illegal as the other, and equally reprehensible.

But the truth of the matter is, respondent in the case at bar made no agreement, either expressed or by implication, in so far as this record shows, to perform the services of probate judge for the sum specified in said section 10695, and for that reason he should not be estopped from questioning the constitutionality of the same. If upon the other hand he made such an agreement either expressly or by implication, then that agreement is necessarily void under the rulings in the case of State ex rel. v. Collier, supra; and if elected upon that understanding, the election would be void, and he should be ousted from the office.

(c) The third reason I have for dissenting from the majority opinion is, that said section 10695 violates

State ex rel. v. Imel.

section 10 of the Bill of Rights, which reads as follows: "The courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay."

This section of the Constitution has no reference to a corrupted sale of justice, as popularly understood, such as bribing of the judge or jury, but refers to and was intended to abolish the sale of justice, as it existed in England, under the early common law, which will be presently considered. This is manifested by the fact that the last clause of section 10 of the Bill of Rights is substantially the same as section 40 of the Magna Charta, which is as follows: "Nulli vendemus nulli negabimus aut differemus, rectum aut justiciam."

We have occasion to touch upon this subject in the case of Hayes v. Mining and Milling Company, 227 Mo. 288. It was there held that a statute which required a fee of three dollars to be paid by every person who brought a suit in the circuit court of certain counties of the State, to the clerk of the court, for the use of the general revenue of the county, amounted to a sale of justice, and was a violation of said section 10 of the Bill of Rights prohibiting the sale of justice.

Section 40 of the Magna Charta was aimed at the same abuses discussed in the Hayes-Mining & Milling Co. case. Under the early common law excessive fees were exacted and paid by persons in whose favor process of law was refused or delayed as against their adversaries. The wealthy and influential obtained in behalf of themselves and dependents, those favors, by means of that abuse. Those fees were openly exacted and paid before the charter and under the guise of a willing contribution (sponte) after, and were absorbed by the public revenue. The king or his deputies got the benefit of those fees just as the county or State