(dissenting).
I respectfully dissent.
I.
The Tennessee obscenity statutes incorporated in Section 39-3001, T.C.A., et seq., as they existed at the time the indictment was returned in this case, were declared unconstitutional and void by this Court in 1974 in Art Theater Guild, Inc. v. State ex rel. Rhodes, 510 S.W.2d 258 (Tenn.1974).1 In plain terms this decision was given both retroactive and prospective application.
Since the convictions in these eases were obtained pursuant to guilty pleas while the old obscenity law was in effect, first consideration must be directed to the validity of a conviction under an act subsequently declared unconstitutional. I regard this as *902the threshold issue and one of controlling significance. This issue was not addressed by the Court of Criminal Appeals, and the opinion of my colleagues only gives it a broad brush treatment.
It is a general rule of law that “an unconstitutional statute is not a law, does not of itself confer any rights, duties, or obligations, and is ‘in legal contemplation, as inoperative as though it had never been passed.’ ” State for Use and Benefit of Lawrence County v. Hobbs, 194 Tenn. 323, 250 S.W.2d 549 (1952) quoted with approval in O’Brien v. Rutherford County, 199 Tenn. 642, 288 S.W.2d 708, 710 (1956).
The late Justice Chambliss, speaking for the Court in Henry County v. Standard Oil Co., 167 Tenn. 485, 71 S.W.2d 683 (1934) declared:
It is well settled that an unconstitutional act is not a law, and imposes no obligations and confers no right of recovery. It is “inoperative as though it had never been passed.” 167 Tenn. at 486, 71 S.W.2d at 684.
In 16 Am.Jur.2d, Constitutional Law, Section 177 (1964) the rule is stated thusly:
The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
In In re Boyd, 189 F.Supp. 113 (M.D.Tenn.1959) Judge Miller, now serving on the Sixth Circuit bench, held that where a “statute itself is void it must necessarily follow that all proceedings under the statute are also void, including the indictment, the conviction, and the sentence imposed by the court.” 189 F.Supp. at 116.
I would hold that the convictions of the petitioners were void ab initio and that the resulting punishments were invalid as a matter of law.
II.
I next address the insistence of the State, and the holding of the Court of Criminal Appeals, that there may be no appeal from a plea of guilty. With this general proposition of law I find no fault.
It is undoubtedly the law that a plea of guilty, understandingly and voluntarily entered into on the advice of counsel, constitutes an admission of all facts alleged and a waiver of all non-jurisdictional and procedural defects and constitutional infirmities, in any prior state of the proceeding. Shepard v. Henderson, 1 Tenn.Cr.App. 694, 449 S.W.2d 726 (1969).
But this general rule of law cannot operate to validate a guilty-plea conviction under an unconstitutional act.
In 21 Am.Jur.2d, Criminal Law, Section 495 (1965), it is said:
An accused, by pleading guilty, waives all defenses other than that the accusatory pleading charges no offense, that is, he admits only the acts well-pleaded in the charge, and is not precluded from claiming that such facts do not constitute a crime. (Emphasis supplied).
Nor is it an unyielding rule that a plea of guilty precludes an appeal.
For the general proposition that “no appeal lies from a plea of guilty”, the majority opinion cites McInturff v. State, 207 Tenn. 102, 338 S.W.2d 561 (1960). We agree that this case stands as authority for the proposition that “no one can appeal either in a criminal or a civil case from a verdict on a plea of guilty or a judgment based upon confession of liability.” 338 S.W.2d at 563. But this rule presupposes a valid conviction.
Also cited is Ray v. State, 224 Tenn. 164, 451 S.W.2d 854 (1970). There the court was dealing only with the right to a new trial after a voluntary, knowledgeable and competently-counselled guilty plea and where *903there was no question as to the constitutional basis for defendant’s conviction.
Lastly, reliance was placed upon Washington v. Tollett, 4 Tenn.Crim.App. 296, 470 S.W.2d 841 (1971), a juvenile case which, in my view, has no relevance to this controversy-
These cases simply do not address the precise issue under consideration. We are cited to no Tennessee case having a direct bearing. Many reiterate the proposition that a plea of guilty, understandingly and voluntarily made, on the advice of counsel, constitutes an admission of all facts alleged and a waiver of all non-jurisdictional and procedural defects and constitutional infirmities, if any, in any prior stage of the proceeding. See, e. g., State v. Cook, 479 S.W.2d 823 (Tenn.Crim.App.1972). That this is a sound rule of law there can be no doubt; however, a conviction under an unconstitutional penal statute is neither “non-jurisdictional” nor “procedural” nor is it a “constitutional infirmit[y] ... in any prior stage of the proceeding.”
I agree that federal authorities, for the most part, are not appropriate since many of them arise under the Tucker Act, 28 U.S.C. Section 1346(a)(1), which specifically authorizes repayment of a “penalty claimed to have been collected without authority . under the internal-revenue laws.” See, e. g., DeCecco v. United States, 485 F.2d 372 (1st Cir. 1973). Federal cases, however, are pertinent to the extent of their rationale and reasoning.
In United States v. Puncsak, 146 F.Supp. 523, 16 Alaska 527 (1956), it is asserted that the general rule is that a defendant’s plea of guilty does not preclude him from later asserting that the admitted facts do not constitute a crime.
We are cited to Aired v. Henderson, 406 F.2d 743 (6th Cir. 1969) for the proposition that there can be no appeal from a guilty-plea conviction. There the court was deal-mg with a defendant who voluntarily pleaded guilty to murder in return for a ninety-nine (99) year sentence in order to escape the electric chair. The question of the constitutionality of the statute under; which he was indicted was not at issue.
I would hold that a plea of guilty, knowingly and voluntarily made, constitutes an admission of all facts alleged in the indictment and is a waiver of all non-jurisdictional and procedural defects and constitutional infirmities in any prior stage of the proceeding; but that such a plea does not preclude a subsequent insistence that such facts do not constitute a crime or that the statutory predicate of the indictment is unconstitutional and void; nor does a plea of guilty preclude an appeal under such circumstances. A conviction under an unconstitutional act is wholly void and it may be challenged at any stage of the proceeding 2 and is subject to appellate review.
III.
Lastly there remains for consideration the matter of the remission of the fine. Since (1) petitioners were convicted under a void statute, after their motion for a continuance was improvidently overruled and at a time when all concerned knew of the impending decision as to the constitutionality of the statute; (2) their conviction was void ab initio and the resulting punishments were invalid; and (3) they had the right to seek appellate review, it follows as a matter of fundamental fairness that they are entitled to be made whole financially.
In this connection, we point out that this is the only avenue of relief open to them. Direct suit does not lie against the State under the present status of our law relating to sovereign immunity.
In disposing of a case involving an analogous factual situation, i. e., applicable statute subsequently held unconstitutional, the Illinois Court of Appeals, in the recent case *904of People v. Weintraub, 20 Ill.App.3d 1090, 313 N.E.2d 606 (1974) said:
Holding that a law is unconstitutional is quite different from holding that a defendant has not received constitutional treatment under a law. In the latter case the law is still there. He may be guilty, though certain of his rights may have been overridden. But, if the law is unconstitutional, there is no law and there can be no question about proper procedures for protecting his rights under the law because in theory his rights have never been threatened or affected, and he should be placed in the position he occupied before he was arrested. 313 N.E.2d at 608.
We are impressed with the reasoning of the court in United States v. Lewis, 342 F.Supp. 833 (E.D.La.1972) which involved the remission of a fine paid under an unconstitutional law. The court said:
The Fifth Amendment prohibition against the taking of one’s property without due process of law demands no less then the full restitution of a fine that was levied pursuant to a conviction based on an unconstitutional law. Fairness and equity compel this result, and a citizen has the right to expect as much from his government, notwithstanding the fact that the government and the court were proceeding in good faith at the time of prosecution. 342 F.Supp. at 836.
This Court has broad and inherent equitable powers. Among the considerations this Court must keep foremost in mind in exercising its appellate function are:
To give a healthy tone to the practice of the lower courts, and the general jurisprudence of the State.
sfc * * * * #
[and to make] our jurisprudence . more consonant to the essential requirements of perfect justice. Section 1377, note 17, Gibson’s Suits in Chancery (5th ed.)
Perfect justice, a healthy tone to our jurisprudence, and basic concepts of equity and fairness demand that we remedy the manifest injustice of acquiescing in a retention of a fine in a case wherein this very court has determined the statutory basis to be wholly and utterly void.
The State owes an obligation to “tote square”. The conclusion the majority reaches sacrifices justice upon the altar of procedural technicalities, and condones unjust enrichment under a void law, contrary to the dignity of the state and to the detriment of the essential requirements of perfect justice.
. Actually this case only struck down § 39-3007, T.C.A., but since this section contained the definition of obscene materials a declaration of its unconstitutionality left the remaining sections bereft of any criteria, and, therefore, this effectively invalidated the entire act. Sections 39-3001 to 39-3008 were repealed by Ch. 510 of the Public Acts of 1974 and were replaced by § 39-3010 — 39-3022 (Ch. 510, Tenn. Public Acts 1974; Adj.S.).
. As a general rule a constitutional question may be raised at any time. Veach v. State, 491 S.W.2d 81 (Tenn.1973).