dissenting.
I respectfully dissent.
The opinion in State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner, 583 S.W.2d 107 (Mo. banc 1979) was handed down on February 13, 1979. The intervenor (attorney general representing the Review Board) at the time for motion for rehearing, filed a motion for clarification of the opinion and suggested that by holding the Professional Liability Review Board Act unconstitutional, we may have made § 538.020 thereof invalid, thereby eliminating the tolling effect of the section on which all persons pending before the Review Board had relied.
Section 538.020.2, provided:
The giving of the notices shall toll the running of the statutes of limitations until such time as the review board has completed its hearing, made its recommendations, and given the parties an opportunity to act thereon as provided in sections 538.010 to 538.080.
Our per curiam Supplemental Opinion to Cardinal Glennon was filed March 13, 1979, to eliminate the possibility of any such alleged unjust result as had been pointed out by the intervenor and stated as follows:
SUPPLEMENTAL OPINION
PER CURIAM:
On February 13, 1979, this Court ruled Chapter 538, RSMo Supp.1976, unconstitutional. Section 538.020 provided a means of tolling the statutes of limitations during the time required for the Professional Liability Review Board to consider a malpractice claim and make its recommendations. We are now reminded that during the period from the effective date of Chapter 538 until February 13, 1979, a substantial number of claims against health care providers have been submitted under Chapter 538 and that such claimants have undoubtedly relied on the protection afforded them by the tolling provision of § 538.020.
In the past it has been stated that ‘An unconstitutional statute is no law and confers no rights ... (citations omitted) .... This is true from the date of its enactment, and not merely from the date of the decision so branding it.’ State ex rel. Miller v. O’Malley, 342 Mo. 641, 652, 117 S.W.2d 319, 324 (Mo. banc 1938); accord, Norton v. Shelby County, 118 U.S. 425, 442, 6 S.Ct. 1121, [1125] 30 L.Ed. 178 (1886). The modern view, however, rejects this rule to the extent that it causes injustice to persons who have acted in good faith and reasonable reliance upon a *41statute later held unconstitutional, e. g., Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1972); Perkins v. Eskridge, 278 Md. 619, 366 A.2d 21 (Md.1976); Shreve v. Western Coach Corporation, 112 Ariz. 215, 540 P.2d 687 (Ariz. banc 1975); Downs v. Jacobs, 272 A.2d 706 (Del.1970). We join the view espoused in Lemon, Perkins, Shreve, and Downs.
If the tolling provision of § 538.-020 is viewed as retroactively unconstitutional, those claimants who have reasonably and in good faith relied upon § 538.-020 to protect their rights to ultimately submit their claims to the courts would suffer a manifest injustice.
We, therefore, order that the statutes of limitations shall be tolled pursuant to § 538.020 as to those claims submitted to the Professional Liability Review Board between the effective date of Chapter 538 and February 28, 1979.
583 S.W.2d at 118 (emphasis added).
There is no way that I can read, nor do I believe that the attorneys in these cases could read, the words “the statutes of limitations shall be tolled pursuant to § 538.020 as to those claims submitted ... between the effective date of Chapter 538 [Jan. 1, 1977] and February 28, 1979.”, to read and mean instead that the statute of limitations is tolled from January 1, 1977, to February 28, 1979, on all claims filed between January 1, 1977, and February 28, 1979. The latter is not the plain meaning of the words employed by this Court.
“[Pjursuant to § 538.020;” /. e., or in accordance with the provisions of § 538.020, the most tolling to which anyone was ever entitled was from the day the case went before the Review Board until the day the case was finally out of the Review Board. This time may have been a few weeks for some and many months for others, but whatever it was, it was a “time out” for as long as you were before the Board. In all other respects, except for the time out, the statute ran its normal course from the date of the injury to the date of filing of the suit.
The principal opinion offers no logical or reasonable explanation as to why this Court would have abandoned the “time out” provided by § 538.020 and in its explanatory Supplemental Opinion substituted in lieu thereof an arbitrary “two year and two month” extension to both the two year statute of limitations, § 516.105, RSMo Supp. 1976, and the one year statute, § 537.080, RSMo 1978. I cannot believe that this Court abandoned the “time out” provided by § 538.020. The mere fact that we added fifteen days of grace in the Supplemental Opinion is proof of the fact that we thought we were finally disposing of the statute of limitation question in the Supplemental Opinion.
None of the claims are timely filed under the terms of our Supplemental Opinion in Cardinal Glennon. The three peremptory writs should be made permanent.