CONCURRING OPINION Because of the importance of the subject and its impact upon the jurisprudence of this state, I feel the necessity of concurring in the majority opinion, and of giving some of the reasons which prompt such action.
In many of the authorities on the subject dealing with the effect of a decision which overrules a prior decision of a court of last resort, it has been said that even though the changed or new statement of the law is considered as "having always been the law," nevertheless, in each instance the court excepts vested interests from the general rule as being beyond that rule and thus protected. Vested interests include contract and property rights and also acts which are done in reliance on the announced opinion of the court of last resort. In Kent's Commentaries (14th Ed.). Vol. 1, pp. 475, 476, it is said:
"If a decision has been made upon solumn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it."
Is a right to have a vote counted a vested right? Did the people generally over a long period of time have the right, as a vested right, to consider that the vote on a proposed amendment would be counted under the law as then announced?
If the court in its opinion in the case of In re Todd (1935),208 Ind. 168, 193 N.E. 865, had intended that their opinion would disturb the basic law back to 1852, it would not have said that the amendment was adopted in 1932. The same amendment had been submitted *Page 224 to the people of the state on other occasions and each time it received more votes than were cast against it.
If uncertainty is to be removed from the basic law of our state we must not permit important and privileged acts, which were proper and in accord with the decisions of this court at the time of their commission, to become illegal and wrong as a result of a later decision of this court. Should not such acts, done in faithful reliance on our decisions, be saved as exceptions to the rule that a change in decision acts retrospectively as well as prospectively? Basic rights can thus be kept secure at all times and all uncertainty will be removed. In Ashford v. Prewitt (1893), 102 Ala. 264, 273, 14 So. 663, 665, it was said in regard to the effect of a decision:
"`That no injustice may be done to litigants who, under the influence of the decision made in the case of Prewitt v. Ashford, 90 Ala. 294, supra, have instituted proceedings to procure the legal title, we declare and hold that as to such cases the case of Prewitt v. Ashford operates as a rule of property.'"
The reference was to the right and power of the court to invest a litigant with title by decree of the court. It arose because the court reversed itself and ruled that it had no such right or power.
In some jurisdictions it has been held that an act done under sanction of the construction placed upon the criminal law will not be permitted to be used as a basis for criminal action so as to make that a crime which had been declared lawful under a prior decision. State v. Bell (1904), 136 N.C. 674, 49 S.E. 163;State v. Fulton (1908), 149 N.C. 485, 63 S.E. 145; State v.Longino (1915), 109 Miss. 125, 67 So. 902. The reasoning is that although the decision is retrospective in *Page 225 its effect, the law will be so construed that the prior decision controls the effect of the act.
The right to vote and to have the vote counted and tabulated and the returns made in accordance with the accepted law of the time, is to most of us just as sacred as the right of the contracting party, or the right of the person accused of crime, to have his matter determined under the law as announced at the time of the entering of the contract or the commission of the act which later was classified on the criminal side.
The evolution of the law on the subject-matter involved has been slow but steady. Its progress should not be unduly checked by the application of the maxim of the law that ignorance of the law is no excuse (ignorantia juris non excusat). The maxim performs a great and useful function in most instances. However, we should not permit it to blind our sense of reality. We must at all times evaluate the harm or the good that may flow from a rigid application of the fixed formula. From such viewpoint I can see that the broadening of the exception will do much to create certainty in the basic law, a thing to be desired. Reason and necessity seem to press for a slight enlargement of the exception to that rule. It was the creation and broadening of the exception that took contract rights, property rights and other important acts out of the operation of the general rule. Its development has not been uniform in all jurisdictions, even in the United States, but each time the exception was broadened, it was thought to be a forward step for the common good. Such action in the instant case will accomplish much that is good and almost indispensable, and on the other hand, no harm will flow to the law or its institutions as a result of such enlargement. Therefore, I join in the opinion of Judge Gilkison. *Page 226