(Concurring Specially in the result).
In the decision that 21 O.S. (1961) § 382 does not terminate automatically the tenure of an officer who violates its prohibitions, and in the reasoning supportive thereof in the opinion of the court, I concur fully. An, entirely different problem is raised by the petitioner’s invocation of Article Two, Section Six of our Constitution. This eloquent paraphrase of the promise exacted by the barons of England from King John in Chapter 40 of Magna Charta, “To no one will we sell, to no one will we refuse or delay, right or justice”, conveys to me, as an original proposition, a broader scope and a more commanding imperative than my brethren find in it, a reading' confirmed, I think, by the course of interpretation followed by this court in expounding the constitutional provision.
In the past, this court has accorded a sweeping recognition to the high aim and the unequivocal imperative of this provision. It has declared the provision to be “self-executing”, and “sufficient, in the absence of statute, to disqualify a judge on ac-. count of bias or prejudice”. State ex rel. Smith v. Brown, 24 Okl. 433, 103 P. 762 (opinion by Mr. Justice Robert L. Williams, himself a member of the Constitutional Con-, vention). Compare, Mayes v. Pitchford, 26 Okl. 129, 109 P. 821, in which this court approved the opinion of the Criminal Court of Appeals in Ex Parte Hudson, 3 Okl.Cr. 393, 106 P. 540, 107 P. 735. (“The clear meaning of this provision is to prohibit the trial of any cause by a judge or juror who are prejudiced against either party to the cause. Prohibitive clauses of a constitution are ahvays self-executing and require no legislative provisions for their enforcement.”) (Emphasis supplied.) The provision has been applied to trial judges, through use of this Court’s superintending control to compel them to disqualify themselves in proper *422cases when they have declined to do so voluntarily. Boxley v. Wright, 84 Old. 45, 202 P. 306; State ex rel. Garrett v. Freeman, 102 Okl. 291, 229 P. 296; State ex rel. Wilcox v. Bird, 179 Okl. 594, 67 P.2d 966; State ex rel. Larecy v. Sullivan, 207 Okl. 128, 248 P.2d 239. It has been applied to members of this court’s own bench. State ex rel. Short, Attorney General v. Martin, 125 Old. 24, 256 P. 681. The court has found occasion for its application where a judge’s conduct had given each party to the litigation ground to fear that he had sold himself to the other, Boxley v. Wright, supra ; where there wa.s reason to suspect the subjection of the judge to the claims of personal and political obligations toward a party and his attorney, State ex rel. Larecy v. Sullivan, supra; where the judge was under financial obligation to lawyers in the case, State ex rel. Garrett v. Freeman, supra; where business and professional relations between the judge and one party and the latter’s lawyer threw doubt upon the judge’s impartiality, State ex rel. Wilcox v. Bird, 179 Old. 594, 67 P.2d 966. The court has said that there is ground for disqualification if the result of sitting in judgment would be to “weaken the confidence of the public in the integrity of the court”, State ex rel. Garrett v. Freeman, supra. It has said that “whatever the conduct” of the judge “may have appeared to be, or whatever his real intentions may have actually been”, he is disqualified if his acts “were of such character as to give rise to doubt on the part of the parties to the suits as to whether he would render a just decision, and such as gave rise on the part of the public to a belief that he had accepted a bribe”. Boxley v. Wright, supra. Throughout, the court’s object in the application of this constitutional provision has been not only an administration ensuring that justice has been done, but, also, public confidence that it has been done.
I can conceive of no conduct more specifically within the condemnation of this provision than that confessed to by Nelson S. Corn. Regardless of whether influence, malice, or specific bribery actually might be brought to bear in the particular case, what litigant, knowing the facts, would feel safe in entrusting his cause to the-rulings of Mr. Justice Corn? What confidence could the public have in the integrity of a judgment reached by his decisive vote? Politically and monetarily be subjected himself to another. He held himself at the beck and call of an unseen manipulator. Nothing more antithetical to the concept of ordered justice under law can be imagined. Nothing could flout more arrogantly the command that justice shall not be sold, denied, delayed or prejudiced. Without question Nelson S. Corn became disqualified to sit in judgment from the very day that he entered into his disgraceful bargain, and this disqualification continued so long as the bargain continued in effect. Under the facts before us, this was until he left the bench at the close of his last term. He owed the duty, in each case, to refuse to sit, regardless of public knowledge of his disqualification. Moses v. Julian, 45 N.H. 52.
This court has ruled that judicial action taken by a constitutionally disqualified judge is a nullity. State ex rel. Garrett v. Freeman, supra, and cf. State ex rel. Short, Attorney General v. Martin, supra, 125 Okl. at 29, 256 P. at 685. This view prevails in other jurisdictions. Watson v. Payne, 94 Vt. 299, 111 A. 462 and authorities cited therein; Giometti v. Etienne, 219 Cal. 687, 28 P.2d 913 (review of intermediate court granted by necessary concurrence of a judge statutorily disqualified by relationship to counsel, apparently overlooked, held void); Gaer v. Bank of Baker, 111 Mont. 204, 107 P.2d 877 (order authorizing ad-ministratrix to borrow from bank made by judge who turned out to be stockholder, officer, and director of bank, held void under statute prescribing disqualification for interest) ; Templeton v. Giddings, 12 S.W. 851 (Tex.) (judgment entered on note which had been assigned as collateral to secure debt owed by assignor firm of which judge was a member held void under constitution disqualifying judge for “interest”; judgment therefore could not support a title based on purchase at execution sale there*423under) ; Postal Mut. Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482 (judgment fixing attorneys’ fees for firm of which judge’s son was member held void) ; Williams v. Sinclair-Prairie Oil Co., 135 S.W. 2d 211 (Tex.Civ.App.) (entry of judgment by judge formerly counsel in case, apparently overlooked until after judgment on appeal, held void); Lee v. British-American Mortgage Co., 51 Tex.Civ.App. 272, 115 S.W. 320 (trial judge interested, and formerly of counsel in case, no objection raised, judgment held void).
In all these cases, and in others which might be cited, the disqualifying factors were insignificant compared with the enormity revealed by the record before us. If ever there could be conduct creative of “.doubt on the part of the public, which would tend to lessen its faith and trust in the integrity of the courts”, Boxley v. Wright, suprá, and “to weaken the confidence of the public in the integrity of the court”, State ex rel. Garrett v. Freeman, supra, the conduct before us is of that character.
Nothing can more encourage those disposed to make justice a matter of bargain and sale than to hold that, if they maintain with sufficient secrecy the corrupt agreement, they may get judgments secure against attack, except upon proof that there was corrupt motivation in the particular decision. In the interest of justice, of integrity, of public confidence in the due administration of justice, it should be the law that no man so deaf to the obligations of a judge as to put his vote at the command of another should be permitted to effectuate judgments outlasting the revelation of his infamy. We cannot be more deaf to the call of concern for probity than administrative adjudicators are permitted to be. Cf. Berkshire Employees’ Association, etc. v. National Labor Relations Board, 121 F.2d 235 (3d Cir.).
The “shambles” consideration, of course, argues persuasively against carrying the constitutional command to its logical terminus. However, the shambles need not be so sanguinary as argument urged they must be. In the first place, a large share of the decisions in which Mr. Justice Corn cast the fifth vote represent merely compliance with a custom once followed in this court to let judgment be entered on the vote of any five members, without the express participation of the other four justices, when no question of the correctness of the decision was raised by any one. There is no reason to consider these decisions suspect. Only if a judgment was carried by Mr. Justice Corn’s fifth vote, against a dissent, was that vote truly decisive, calling for application of the principle of disqualification. In this way, the area of the shambles would be reduced substantially.
In the second place, the “shambles” approach, with its emphasis upon the protection of those innocently trusting the legitimacy of decisions fair on the face, essentially is an appeal to the principle underlying the rule which safeguards those acting in reliance upon the apparently authoritative acts of putative public officers and employees. It always has been the rule that the de facto principle protects only those who change position believing in the supposedly de jure character of the .officer or the employee. State v. Carroll, 38 Conn. 449; Herkimer v. Keeler, 109 Iowa 680, 81 N.W. 178; Heyland v. Wayne Independent Sch. Dist., 231 Iowa 1310, 4 N.W.2d 278; Carpenter v. Clark, 217 Mich. 63, 185 N.W. 868; State ex rel. Cosgrove v. Perkins; 139 Mo. 106, 40 S.W. 650; Alleger v. School Dist. No. 16, (Mo.App.) 142 S.W.2d 660; Oliver v. Mayor etc. of Jersey City, 63 N.J.L. 634, 44 A. 709, 48 L.R.A. 412; Vestry of St. Luke’s Church v. Mathews, 4 Desaus. Eq. (S.C.) 578, 6 Am.Dec. 519; Manning v. Harlan, (Tex.Civ.App.) 122 S.W.2d 704; Gambill v. City of Denton, (Tex.Civ.App.) 215 S.W.2d 389; Tooele County v. DeLaMare, 90 Utah 23, 39 P.2d 1051. In such a case, the language of the court in City of Lawrence v. MacDonald, 318 Mass. 520, 62 N.E.2d 850, 161 A.L.R. 955, 956, is apt:
“ * * * Reason and practical considerations of justice alike require that when in the trial of a cause the question *424arises whether a person who was not the holder of an office de jure was an officer de facto, at least the burden of going forward with evidence of that fact, if not indeed the true burden of proof itself, should rest upon the party asserting the fact.”
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»* * * jf respondents desired to make this contention (and it does not appear that they desired so to do), it was at least incumbent upon them to go forward with the necessary evidence, and it may well be that the actual burden of proof was itpon them.”
Supportive of the same view are Sandlin v. Dowdell, 143 Ala. 518, 39 S. 279, 5 Ann. Cas. 459; Daugherty v. Garner, 169 Ark. 368, 275 S.W. 706; Buck v. Hawley & Hoops, 129 Iowa 406, 105 N.W. 688; Goulding v. Clark, 34 N.H. 148; Hughes v. Long, 119 N.C. 52, 25 S.E. 743; Biencourt v. Parker, 27 Tex. 558; McMillan v. Forsythe, 47 Utah 571, 154 P. 959; Tooele County v. DeLaMare, supra.
It does not seem an intolerably heavy burden to require one claiming reliance upon a contested decision carried by the vote of a judge confessedly an intellectual bondserv-ant to a cynically corrupt master to show, at least prima facie, that neither he, nor one in whose shoes legally he must stand, was charged with notice of the judge’s disqualifying subservience.
Tested by this principle, the stipulation submitted in this case does not carry the respondent’s burden. While it affirms that the respondent did not know of the corrupt agreement between Corn and his familiar spirit, it is silent concerning whether she had reason to inquire thereabout, a condition which, under our statute, 25 O.S. (1961) § 13, and by the common law, is as effective a source of notice as is knowledge. And the stipulation is completely silent as to the status of the petitioner’s brother, Victor C. Johnson. With whatever notice he possessed, she, too, is charged, at least as to that portion of the estate coming to her through him, if not as to all. Therefore, it seems to me, the requirements specified in City of Lawrence v. MacDonald, supra, have not been met.
In line with these principles, it would have been my view that the judgment, under the terms of the stipulation, should be for the petitioner, with the remedial steps to be determined by further consideration' on the part of the court, as provided by the stipulation. But, since a clear majority of my brethren are convinced that the prophylactic of holding Mr. Justice Corn generally disqualified to sit in judgment can not be sufficiently diluted by the de facto principle to obviate the likelihood of the destruction of much clean tissue along with that which truly was infected, I yield to their opinion respecting the ruling properly to be entered. I content myself with this indication, for such use as it may have, of what would have been my judgment as to the applicable law, uncorrected by the collective wisdom of the court. As I see it, the only practical difference between the two positions concerns the burden of producing evidence upon the various issues of extrinsic fraud which may arise out of decisive participation in judgment by one whose disqualification is held in secrecy at the time of decision. I am not willing, upon this narrow ground, to stand adamantly in opposition to the views of able colleagues. Therefore, I concur in the result, but not in all the views expressed in the opinion or in the syllabi.
I have been authorized to state that SAMUEL T. ALLEN, Special Justice concurs in the views herein expressed.