It is suggested upon rehearing that the court, in holding that the act in question could not apply to other counties until they not only reached the population requirement, but also procured an amendment to section 96 of the Constitution, is unsound; that the act deals with a salary, and not costs, charges of courts, fees, commissions, or allowances for public officers, and the court overlooked the case of Brandon v. Askew, 172 Ala. 167, 54 So. 605, where it was held that section 96 of the Constitution did not apply to salaries as distinguished from the items therein enumerated. True, such was the holding in that case, but the question there was which of two salaries Askew was entitled to collect, and did not involve a change from fees, commissions or charges to a salary. It is also true that the act here deals only with the fixation of a salary, but in order for it to apply to counties other than Jefferson, or perhaps Montgomery, when it reaches the population limit, it would necessarily change the compensation of the sheriff from fees, commissions, or charges to salaries, which cannot be done under section 96 of the Constitution, or subdivision 24 of section 104, except by a general law applicable to all.
To adopt the movant's contention would, in effect, render the Jefferson and Montgomery county amendments useless, in so far as applicable to section 96 and subdivision 24 of section 104 of the Constitution. In other words, notwithstanding the sheriffs of the state are upon a fee system, a law changing said system to a salary as to any one of them does not offend these constitutional provisions, which do not apply to salaries. They do not apply to salaries, but they do apply to a regulation or change in charges, commissions, etc., of public officers in counties less than the whole, although the change is from fees to a salary.
I am therefore still convinced that the original majority opinion is correct in holding that the act in question is a local one, and dissent from the holding of the majority upon rehearing.
SAYRE, J., concurs. *Page 78