DISSENTING OPINION.
WOODSON, J.I dissent from the majority opinion delivered herein, generally and specially, for three reasons, to be presently and briefly stated.
(a) First, in my opinion the probate courts of the various counties of the State are county, and not State offices, as held in said opinion.
The office of probate judge from the organization of the State down to this time has been considered, treated and accepted as a county office, by the bench, bar and laity; and that fact has been questioned but once during that long period, nearly a century, and then this court in express terms held it to be a county office.
The case in which that ruling was made is the case of Henderson v. Koenig, 168 Mo. 357. It was first decided in Division No. One, by the unanimous court, but subsequently the case was transferred to Court in *307Banc, and after a careful consideration the divisional opinion, written by Sherwood, P. J., was adopted as the opinion of the Court in Banc, all concurring except Valliant, J., who was absent.
The court at that time was composed of Burgess, C. J.,- Sherwood, Robinson, Brace, Marshall, Valliant and Gantt, JJ. The ability and legal attainments of those jurists are well known, not only in this State, but are recognized by the legal profession throughout the United States.
The opinion of Sherwood, P. J., in that case shows careful consideration; exhaustive, investigation and great learning, leaving nothing new to be said upon the subject.
■ The universal acceptation, by the bench and bar, that said office is a county office, for such a length of time, and reinforced by the masterly opinion in the Henderson case, should alone arrest the attention of this or any other court before ruling to the contrary.
But independent of that, let us see what the effect of the ruling in the case at bar must inevitably lead to, if followed.
My learned associates hold that a county office is one whose territorial jurisdiction is coextensive with the county for which it is created, and through which “the county performs its usual political functions, its functions of government.”
This is the test, according to my colleagues, by which a county office is to be determined; and according to that test, they say that the probate court is not a county but a State office, because the functions of government are not transacted thereby or therein, but is designed to administer the estates of deceased persons, minors, etc., and is therefore a judicial or a State office.
I have been taught, and have believed, from infancy up to this time, that the judiciary was a part of the government, both State and National. The people *308of this State attached such importance to this subject, that they devoted the entire article 3 of the Constitution to it. ■ It is there solemnly declared, by a sovereign people, that the powers of government are divided into three distinct departments, namely, the legislative, executive and judicial; and it is also provided that each shall be confined to a separate magistracy, and that no person, charged with the exercise of the powers belonging to one of those departments, shall exercise any power belonging to either of the others, except in the' instances in the Constitution expressly directed or permitted.
It seems to me that this ruling of my associates practically eliminates the judicial clause of this article from the Constitution. But independent of that, if they have stated the true test, by which a county office is differentiated from a State office, then what will become of the offices of the clerks of the probate courts, the clerks of the circuit court, the recorders of deeds, the justice of the peace and the sheriffs of the various counties? Are they not county offices? If I remember correctly, this court has repeatedly held that they are not State offices, yet none of them perform any more governmental functions .than do the probate-courts.
If the probate courts are State offices, then by parity of reasoning, it must be held that the offices just mentioned are also State offices. Such an announcement would be no more novel than startling in character. Yet if the former is true, then the latter proposition must necessarily be true also. In my opinion neither is true.
(b) The second reason for my dissent is: The opinion holds that the respondent is estopped from questioning the constitutionality of section 10695, Revised Statutes 1900, fixing and regulating the fees to be taxed and collected 'by the probate courts of certain counties in the State, of which Buchanan is one, for *309the 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 Ms 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. 681.]
*310I have repeatedly pointed ont 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, l. 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 ease 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 n'ot 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 estoppel to bridge the case over that yawning and otherwise impassable chasm.
*311My 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, l. 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 eompensa- ' tion for his services, or a sum, say, equal to one-half *312of 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' uecessarily 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 *313section 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 *314.gets the benefit of the fees mentioned in the proviso of section 10695. [McKechnie’s Com. Magna Charta Charts, 457-463; 2 Stubbs, Const. History, 633; 3 Lingard History of England, 53-4.]
The English people in the thirteenth century no more thought of procuring original or judicial process without paying the reasonable costs thereof, than do the citizens of this State and nation think of doing so in the twentieth century; but the intention of both the Magna Charta and section 19 of the Bills of Rights, is that revenues for State and municipal purposes shall not be levied in any form or under any guise, upon the administration of justice, and that those who have to resort to the courts of justice, and especially the widows and orphans whose estates are under the jurisdiction and control of the probate courts, shall not be •compelled to pay more for the justice there administered to them, than reasonable fees for the services performed for them by the officers of the court. The Illinois Constitution in express terms provides for payment of “reasonable compensation for services rendered” by such officers; and when we consider our Constitution in the light of precedents and the history of our administration of justice, it must be held that it necessarily implies what the Illinois Constitution provides for in express terms, namely, that reasonable fees may be taxed in each case as compensation for the services performed therein by the court officers. If that authority is not necessarily implied in our Constitution, then clearly all systems of fees in judicial proceedings are unauthorized and are absolutely null ■and void. But even under section 10 of the Bill of Rights, the Legislature has no right, power or authority to authorize the taxation and collection of unreasonable or excessive fees for any purpose, and a statute which authorizes such taxation is clearly unconstitutional, null and void, and amounts to a sale of .justice.
*315The enactment of said section 1069'5' was a legislative determination that the fees of the probate judges, in the counties mentioned therein, are excessive and unreasonable, and it shobld have reduced the amount of the fees authorized by previous acts to be collected instead of maintaining them, and providing as it does, for the payment of the excess over the sum, $3000', into the treasury of Buchanan county for the use of the genera] revenue fund.
Had the latter been done, the statute would have been constitutional, but as it is if is clearly unconstitutional, null and void, -in that it makes the litigants and estates in those courts pay more than the cost of performing those duties, and consequently amounts to a sale of justice, just as much as did the payment of the excessive fees in England amount to such a sale. It clearly violates said section 10 of the Bill of Rights.
The question was asked during oral argument of the cause, What would be done with the excessive fees .which have been collected by the respondent? The answer to that question rests with the Legislature and not with the courts. If it had enacted a valid law, reducing the fees to a sum which was reasonable, he would not have collected them, and consequently no such question could have arisen.
In- passing, however, it might be suggested that if the fees collected by respondent are unreasonable and constitute more than reasonable compensation for the services performed by the officers of the court, perhaps the excess would be illegal and non-collectible. To illustrate, suppose the Legislature should by statute increase the fees of the probate judges of the counties mentioned ten or twenty fold, and require that all sums above $3000 should be paid into the county treasury for general revenue purposes, would the courts hesitate to declare such a statute void or violative of said section 10 of the Bill of Rights? Clearly *316not. There is no difference in principle between the case at bar and the case supposed; the difference is one of degree and not of principle.
I am, therefore, of the opinion that the judgment of the circuit court should be affirmed.