I am unable to bring myself in accord with the views of the majority in holding that the requirement for the payment into the county treasury, for the benefit of the general revenue fund, of the statutory fees for collecting the school fund is unconstitutional as a diversion of funds, within the prohibition of 11, art. 16, of the Constitution.
The general statutes of the State provide for the paint to the tax collector and county treasurer of commission out of the school funds, as well as other public funds, for the collection and handling of taxes. Crawford Moses' Digest, 4594, 10071. The validity of those sections has never been questioned, though it has always been the practice under those statutes for the county to share its proportion of the expenses of collecting and handling the funds. There is no reason why the school fund should not bear those expenses, the same as any other fund. Now, if those statutes were valid at the time they were enacted, they are not affected by the statute fixing the salaries of officers in Lonoke County. If the percentage of commissions prescribed by the statutes was reasonable at that time, it has not been rendered unreasonable, so far as it relates to Lonoke County, *Page 446 by the subsequent special statute providing for the officers of that county to receive definite salaries to be paid out of the statutory commissions turned in to the treasurer. The general statute constitutes a legislative determination that the commissions prescribed therein are reasonable and just contributions from the various funds towards the expenses of collecting and handling those funds. There are other expenses to which the county is subjected in the collection and handling of the taxes other than the commissions of the collector and treasurer. Hence the provision for putting the officers on salaries and turning the fees into the treasury should be upheld as a determination that the original commissions prescribed by the general statutes are reasonable, and that they should be exacted to cover the whole expenses incurred by the county in paying salaries and other things in the collection and handling of the taxes. Absolute accuracy in adjusting the burdens of the expense of collecting and handling public funds is scarcely attainable, hence the determination of the law-makers should not be disturbed in making those adjustments.
The constitutional restriction that "no moneys received from a tax levied for one purpose shall be used for any other purpose" (art. 16, 11) was not intended to hamper the Legislature in prescribing the means whereby the public funds should be collected and handled. The general statutes prescribing the commissions in Lonoke County, which, under the special statutes in operation in Lonoke County, are paid into the general revenue funds, do not constitute a diversion of funds within the meaning of the constitutional provision just referred to, for, as we have already seen, this is merely a method providing for the payment of expenses of collecting and handling the funds. The fact that the amount of commissions thus separated from the funds may be in excess of the salaries of the officers does not put the provision in conflict with the constitutional inhibition against using *Page 447 funds for one purpose which arises from taxes levied for another purpose.
The majority rely upon the opinion of this court in Gray v. Matheny, 66 Ark. 36, but I think that all that was said in the opinion on the subject is clearly dictum and is not binding upon us except to the extent of its persuasiveness. There were two of those cases on this subject decided on the same day, Independence County v. Young, 66 Ark. 30, and Gray v. Matheny, supra. The first case involved the validity of the statute fixing the salary of the county clerk of Independence County, and the other involved the validity of the same statute fixing the salary of the county treasurer of that county. In both cases it was contended that the statute fixed the salaries of those two officers so low that it practically established the offices, and that, for that reason it was unconstitutional. This court refused to accept that view, and held that the act was valid. The statute contained a provision similar to the one now before us to the effect that the fees provided under general statutes should be collected and turned into the treasurer, and the salaries paid out of the funds thus raised; and in Gray v. Matheny it was decided that that portion of the statute which fixed the salary of the treasurer was separable from the other parts of the statute and was valid, even though another part was invalid. It was therefore unnecessary for the court to decide whether the part of the statute disposing of the surplus fees was valid or not. That case related to a controversy between the county and the treasurer concerning the amount of his fees, and the question of misappropriation of school funds was in no wise involved. I think that the dictum in Gray v. Matheny was erroneous, and I am unwilling to follow it, but, in the present case, I believe that the statute is valid. I am further of the opinion that, if the statute is invalid, to the extent indicated in the majority opinion, the apportionment of the expenses should, in accordance with the contention of appellant, be made upon the basis of all *Page 448 commissions collected from all sources, including improvement taxes as well as all other funds. If the Legislature has the power to provide for the payment out of any funds collected, including improvement district taxes, of the expenses of collecting and handling those funds, then all the funds collected should be taken into consideration in apportioning the expenses. I fail to see any reason why improvement taxes should be excluded from that consideration, if the Legislature has the power to provide for the payment of the collector's fees out of those funds when collected. It is true that assessments in local improvement districts are not taxes within the meaning of the Constitution, but that affords no reason why the commission on the collection thereof should not be considered in the apportionment of the expenses among the various funds collected. In other words, there is no distinction as to the character of funds, so far as concerns the basis of the apportionment.
SMITH, J., concurs.