(concurring). — While concurring in the result reached, the case is so peculiar in its facts and the principles upon which it is decided by the majority opinion, so important, that I deem it my duty to express my views thereon in a separate opinion. I am constrained to do this largely because of the fact that it is an illustration of the truth of Lord Campbell’s exclamation of many years ago, that “hard cases must not make bad law.” Some things are said in the majority opinion . with which I fully agree, but there are other statements therein which I can not approve, and which I think will rise to plague us in the future if they be adopted without dissent. The majority make the decision turn, as I understand it, upon the thought that defendant had no criminal *524.intent, and for that reason should not be punished for his violation • of a statute which to my mind involves no question of intent, other than the doing of the prohibited act. I do not believe that this is sound.
Again, the opinion seems to proceed upon the theory that there is an implied exception in this statute which •the courts should recognize. I do not believe that this is true.
Moreover, ignorance or mistake of law seems to be thought of some merit in deciding the question before us. I fear that the introduction of this principle into the case at bar is fraught with much danger. I must especially dissent from the statement in the opinion that the real question as to the guilt of the defendant is to be settled by referring to the doctrine of criminal intent. The statement in the opinion that “if a mistake of fact is due to a mistake of law, so that it appears there is no guilty mind, punishment should not be imposed,” I can not agree to this unless the statute in question in some way makes intent, either general or specific, an element of the offense.
/Í do not like that part of'the discussion in the opinion which treats of the effect to be given judicial opinions, ' particularly where they involve constitutional questions, or relate to the construction of statutory enactments. I think the case may be decided and properly bottomed ‘ upon two well-settled principles. (The first one is that a change of judicial decision involving the constitutionality of an act or construing an act of the Legislature should, like an act emanating from the lawmaking power, be given a prospective rather than a retrospective or retroactive operation^ second, the Constitution provides that “excessive fines shall ? not be imposed and cruel and unusual punishment shall» not be inflicted.” See section 17, art. 1. My own convictions regarding the effect of a change in judicial decisions, as applied to contracts, are fully expressed in the case of *525Swanson v. City of Ottumwa, 131 Iowa, 540, and need not’ be elaborated here. I heed only quote the following from that opinion: “We are inclined to the view that there is nothing in the Constitution which forbids a change of judicial opinion, except it be with reference to a particular statute, although we must confess that there are some strong cases to the contrary. As supporting our view, see Storrie v. Cortes, 90 Texas, 283 (38 S. W. 154, 35 L. R. A. 666); Center School Tp. v. State, 150 Ind. 168 (49 N. E. 961); Land Co. v. Hotel, 134 N. C. 397 (46 S. E. 748.)” It will be noticed from this extract that, if the decision be with reference to a particular statute, there may be a violation of the constitutional limitation if the .change of judicial opinion be with reference to that particular statute. It is quite fundamental, I think, that the judicial construction of a statute becomes a part of it, and, as to rights which accrue afterwards, it should be adhered to for the protection of those rights. As said in Sutherland on Statutory Construction, section 819: “To divest them by a change of the construction is to legislate retroactively. The constitutional harrier to legislation impairing the obligation of contracts applies also to decisions altering the law as previously expounded, so as to affect the obligation of existing contracts made on the faith of the earlier adjudication.” As further supporting this view, see Green v. Neal, 31 U. S. 291 (8 L. Ed. 404); Shelby v. Guy, 11 Wheat. 368 (6 L. Ed. 497). In the case of Ohio Ins. Co. v. Debolt, 16 How. 432 (14 L. Ed. 997), Chief Justice Taney said: “That the sound and true rule was that, if the contract when made was valid by the laws of the state as then expounded by all the departments of its government, and administered in its courts of justice, its validity and obligation can not be impaired by any subsequent act of the Legislature or decisions of its court altering the construction of the law.” In Douglass v. Pike County, 101 U. S. 677 (25 L. Ed. 968), *526it was held that: “The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a'legislative amendment;-that is to say, make it prospective, but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts as an amendment of the law by means of a legislative enactment.” The following cases also support this doctrine: Green County v. Conness, 109 U. S. 104 (3 Sup. Ct. 69, 27 L. Ed. 872); Olcott v. Fond du Lac County Sup’rs, 16 Wall. 689 (21 L. Ed. 386); Fairfield v. Gallatin County, 100 U. S. 52 (25 L. Ed. 546); Carroll County Sup’rs v. United, States, 18 Wall. 71 (21 L. Ed. 771); Gelpcke v. Dubuque, 68 U. S. (1 Wall.) 206 (17 L. Ed. 525). In Endlich on Interpretation of Statutes, section 363, it is said: “Ju- . dicial ■ interpretation of a statute becomes a' part of the statute law, and a change of it is, in practical effect, the same as a change of the statute.” See, also, as sustaining this doctrine, Ray v. Natural Gas Co., 138 Pa. 591 (20 Atl. 1065, 12 L. P. A. 290, 21 Am. St. Rep. 927); Walker v. State, 12 S. C. 271; Lyon v. Richmond, 2 Johns. Ch. (N. Y.) 51; County Com’rs v. King, 13 Fla. 463; Edwards v. Darby, 12 Wheat. 206 (6 L. Ed. 603); Stallcup v. Tacoma, 13 Wash. 152 (42 Pac. 541, 52 Am. St. Rep. 32); Ex parte Selma R. R., 45 Ala. 730 (6 Am. Rep. 730); Hall v. Wells, 54 Miss. 301; Herndon v. Moore, 18 S. C. 354; Wickersham v. Savage, 58 Pa. 369; State v. Comptoir Nat., 51 La. Ann. 1272 (26 South. 94); Vermont Co. v. Railroad Co., 63 Vt. 23 (21 Atl. 262, 10 L. R. A. 565); Opinion of Judges, 58 N. H. 625; Muhlker v. New York, 197 U. S. 573 (25 Sup. Ct. 522, 49 L. Ed. 872). It must be remembered that I *527am not now discussing the effect of a decision relating to that great body of the law known as the unwritten, wherein as I think, a different principle is to be applied. See further as supporting these views, Ryalls v. Mechanics’ Mills, 150 Mass. 190 (22 N. E. 766, 5 L. R. A. 667); Philadelphia Co. v. Ry. Co., 53 Pa. 20; Packard v. Richardson, 17 Mass. 122 (9 Am. Dec. 123). It is well settled, of course, that when the Legislature adopts a statute of another state, it adopts with it the judicial construction of that statute as interpreted by the court from which the statute is borrowed. Trabant v. Rummell, 14 Or. 17 (12 Pac. 56); Pratt v. Am. Bell Co., 141 Mass. 225 (5 N. E. 307, 55 Am. Rep. 465). There is much ground for holding that a change of decision with reference to the interpretation of a statute is to all intents and purposes the same in its effect as an amendment of the law by means of legislative enactment. That view finds express support in Farrior v. New England Co., 92 Ala. 176 (9 South. 532, 12 L. R. A. 856); Taylor v. Ypsilanti, 105 U. S. 72 (26 L. Ed. 1008); Lane v. Watson, 51 N. J. Law, 186 (17 Atl; 117); State v. Bell, 136 N. C. 674 (49 S. E. 163); Center Twp. v. State, 150 Ind. 168 (49 N. E. 961); Lewis v. Symmes, 61 Ohio St. 471 (56 N. E. 194, 76 Am. St. Rep. 428); State v. Fulton, 149 N. C. 485 (63 S. E. 145); Haskett v. Maxey, 134 Ind. 182 (33 N. E. 358, 19 L. R. A. 379); Loeb v. Trustees, 179 U. S. 472 (21 Sup. Ct. 174, 45 L. Ed. 280), and eases cited; State v. Mayor, 109 Tenn. 315 (70 S. W. 1031); Gross v. Board, 158 Ind. 537 (64 N. E. 25, 58 L. R. A. 394); Harmon v. Auditor, 123 Ill. 122 (13 N. E. 161, 5 Am. St. Rep. 510); Mountain Bank v. Douglass County, 146 Mo. 42 (47 S. W. 946); Stockton v. Mfg. Co., 22 N. J. Eq. 56; Richardson v. County, 100 Tenn. 346 (45 S. W. 440); Falconer v. Simmons, 51 W. Va. 172 (41 S. E. 193).
In very many of these cases it is squarely held that *528a change of judicial opinion should be given the same effect as a subsequent enactment of the Legislature; that is to say, a prospective operation in order to avoid the objections which have just been pointed out. I shall not take the time to quote from • all of these; but do wish to call attention to what is said to be a well-established and well-understood exception to the rule pointed out in the majority opinion. This exception, as stated in. the Haskett case, supra, is as follows: “After a statute has been settled by judicial construction, the construction becomes, so far as contract rights are concerned, as much a part of.the statute as the text itself; and a change of decision is to all intents and purposes the same in effect on contracts as an amendment of the law by means of legislative action.” In Douglass v. Pike County, supra, it is said: “The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contract and existing contract rights that would be given to a legislative amendment; that is to say, making it prospective, but not retroactive.” In the Hawkins case, supra, it is said: “The true rule affirmed by the authorities, and the prevailing one, is to give 'a change of judicial construction in regard to a statute the same effect in its operation, so as not to disturb vested rights, as would be given to a legislative amendment; that is, apply the change made in the interpretation of the law so as to operate prospectively, and not retroactively.” If this be the rule with reference to the interpretation of statutes in actions involving property or contract rights, and such seems to be the doctrine established by the weight of judicial decisions, there is the more reason for holding it applicable to criminal cases, particularly where the court has once held the criminal statute void and of no effect because contrary to some provision of the fundamental law. That it is within the power of the courts of this country to declare a statute inoperative and void because contrary *529to the Constitution is well established, and such decisions are binding, not only upon the parties immediately involved,, but upon all departments of government; indeed, upon the state itself. An unconstitutional statute is absolutely void. It is, so to speak, as so much waste paper, and according to the uniform tenor of the authorities such a determination is conclusive on every one until reversed or overruled. People v. Briggs, 114 N. Y. 63 (20 N. E. 820); People v. Arensberg, 105 N. Y. 123 (11 N. E. 277, 59 Am. Rep. 483); People v. West, 106 N. Y. 293 (12 N. E. 610, 60 Am. Rep. 452); People v. Kibler, 106 N. Y. 321 (12 N. E. 795); Douglass v. Pike Co., supra. Such a statute may be vitalized or resuscitated by a decision overruling prior ones holding to the contrary, and this occurs although there be no reenactment by the Legislature. But, when once determined to be unconstitutional, the Legislature itself can not cure the defects in the law by declaring the act constitutional; nor has any other department of government any such power. As said, the decision is binding upon every.one save the court itself. If this ■ be true, it is little short of an absurdity to say that a decision finally upholding the statute as a valid exercise of legislative power should be given retroactive effect, and’ that acts done at a time when the statute had been declared void by the highest tribunal of the state must be punished because that court took a new view of the constitutional provision. £ln a criminal .case every one is conclusively presumed to know the law, but he is not expected to know the law better .than the courts, or to know what the law will be at somfe future day^ A decision holding a statute unconstitutional is the law until overruled or reversed, and that decision, as we have observed,' is binding upon every one. To hold that one may not do what an unconstitutional statute forbids him doing because the court may change its mind is to say that, although declared null and void by the only tribunal *530having that power,/ánch decision is of no effect, and can not be made a rule of human conduct because the court may change its /mind, is in effect to deprive the court of its power to annul a statute because of its unconstitutionality. As already intimated, there is a wide distinction between cases involving the validity and interpretation of statutes aná those which have to deal with the common or unwritten law, for the reason that the judicial construction of a statute is a part of the law itself. Exposition of a statute is a part of the statute. There is every r^kson, therefore, for holding that a decision holding a criminal statute constitutional, which had theretofore been ¡jield unconstitutional, should not be given retroactive effect. ¡Until the decision in the McCollum, case, cited in the majority opinion, the statute was absolutely of no effect. In State v. Fulton, 149 N. C. 485 (63 S. E. 146), it is . said: “The judicial interpretation of a statute becomes, as it were, a part of the statute, and, if that interpretation is afterward changed or modified, the defendant should be tried under the law as it had been declared to be at the time the alleged offense was committed simply because it was the law at the time. The defendant, it is true, had no vested right in a decision of this court, but it does not follow that we should reverse our decisions, and then declare that to be criminal which we had de/cided was not so at the time of the commission of the alleged offense.” Judge Cooley, in his work on Constitutional Limitations, says at page 188 of the third edition: “When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights can not be built up under it. Contracts which depend upon it for their consideration are void. It constitutes a protection to no one who had acted under it, and no one can be punished for having refused obedience to it before the decision was made.” I s.ee no good reason for not holding that this case comes within the provision of section 21, of article 1 *531of the Bill of Bights, which prohibits the passage of ex post facto laws. An. ex post facto law is one which makes an act innocent when done a crime. State v. Squires, 26 Iowa, 340. Strictly speaking, perhaps, this refers only to laws passed by the Legislature, but there is every reason for holding that it also applies to a change of judicial decisions. Decisions of courts construing statutes or declaring them unconstitutional are as much a part of. the law of the land as legislative enactments. They become a part of the body of the law itself, and are not merely the evidences thereof as are decisions relating to the unwritten or common law.
II. I am very clearly of the opinion that no other basis is needed for the conclusion, which every one desires to reach in this case, than the constitutional provision against cruel and unusual punishment. These terms had a. well-defined significance in England where there is no written Constitution; and in interpreting our written Constitution we are not only justified, but it is our duty, to look for the meaning of these terms as found in the decision of courts and the works of commentators published before tbe adoption of the Constitution. Sir William Blackstone, in treating of the nature of the laws of England' (volume 1, p. 46), said: “There is still a more unreasonable method than this, which is called making laws 'ex post facto,’ when after an uction, indifferent in itself,' is committed, the Legislature then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law. He had therefore no cause to abstain from it, and all punishment for not abstaining must of consequence be cruel and unjust.” Such legislation was regarded as invalid in England, where they have no Constitution, on the ground that the punishment was *532cruel and unjust. The article of the Constitution referred to does not relate to laws passed by the Legislature. The broad statement is that cruel and unusual punishment shall not be inflicted. Beading this in the light of the rule as stated by Blackstone, which is well fortified by authority, there seems to be no difficulty in holding that to punish defendant for acts which were innocent when done would be both cruel and unjust. Other reasons might be given, but I believe those already suggested are sound, and should rule the decision.
I think the majority do not give sufficient weight to the decisions of courts interpreting statutes or declaring them unconstitutional; and, in an endeavor to do justice, have announced rules which are" unsound in principle and not sustained by authority. The analogy between the defenses of insanity and infancy and the defense interposed here is not apparent.
I concur in reversal of the judgment for the reasons indicated.