On Rehearing.
Ellis, J.In February, 1923, the Attorney General obtained an alternative writ of mandamus directed to W. Roger Watkins as Clerk of the Circuit Court for Hillsborough County, to require him to render to the Board of County Commissioners for that county a sworn statement showing in detail the expenses of his office, fees and commissions collected, and the gr$ss and net income thereof for the year ending December 31, 1922, under the provisions of Chapter 8497, Laws of Florida, 1921.
The return challenged the constitutionality of the Act.
In an opinion delivered by Mr. Justice Browne this court in April, 1923, held the act to be invalid and denied a peremptory writ. The decision was by a divided court; Mr. Justice Whitfield and Mr. Justice West dissenting.
The Attorney General applied in May, 1923, for a rehearing, which was granted.
Between the date ,jthe opinion was filed and the date when the petition for a rehearing was filed the Legislature, by Chapter 9280, approved May 7th of that year, enacted a law providing that henceforth the Supreme Court should consist of six justices instead of five, and that when the act became effective the Governor should appoint an addi*416tional justice to hold office until the election and qualification of his successor at the ensuing general election. Following that act of the Legislature the Governor appointed Hon. Glenn Terrell, on the 15th day of May, 1923, to be Justice of the Supreme Court.
It was urged by the Attorney General that as this court had recently upheld the constitutionality of Chapter 8497, referring presumably to the case of State v. Shepard, 84 Fla. 206, 93 South, Rep. 667, and that as the newly appointed justice had not heard the argument in the instant case a rehearing should be granted that he might participate in the decision involving the constitutionality of the Act.
It was considered by this court that as the constitutionality of an act of the Legislature was involved in the instant case it was consistent with the spirit of our institutions and in harmony with the course ever pursued by this court, to endeavor to have-, the fullest discussion possible before the entire court upon a constitutional question, which always involves the power of a coordinate branch of the government and is a question which when presented to the Supreme Court should be met with even meticulous care and considered in the light of all available information, that the petition for a rehearing should be granted.
It is unnecessary for this court to deny the charge sometimes made that the court is too ready to declare an act of the Legislature to be repugnant to the constitution, because the record of the court, the history of such litigation and the number of acts held to be invalid in comparison with the number actually passed by the Legislature completely expose the inaccuracy of such assertions.
It may be as well at this point to call attention to the fact that this Court did not in the case referred to> above, viz.: State ex rel. Buford, Attorney General v. Shepard, *417decided Chapter 8497 Acts of 1921, to be constitutional. Much was said by the learned writer of the opinion in support of its validity, but what the Court decided was that the peremptory writ should be awarded, not because the act was valid, all acts of the Legislature are presumed to be valid until the CQntrary is shown beyond a reasonable doubt by one whose interests are affected by the alleged invalid provisions, but because the respondent was not within the classification based on population “mice- he is an officer in á county of less than 100,000 population, and he camnot contest the validity of that classification when it does not invalidate the classification he is in(italics mine.)
As to the validity of the Act, in so far as it related to the classification in which the respondent was placed, this Court said, speaking through Mr. Justice WHITFIELD: “In prescribing compensation for county officers from fees collected by them, classifications may be based on the total receipts having reference to the amount of business done in a county, the fees collected being uniform. Such a classification is manifestly just, reasonable and practical in view of the subject. The fees to be collected are uniform in every county of the State; the amounts allowed by the statute to be retained by the officers are general as to an appropriate classification when predicated upon the volume of collections, made, and are uniform throughout the State wherever such classification exists. The classification- contained in the two provisos in Section 1, Chapter 8497, is based upon population and, on the showing made, it may not have a reasonable relation to the business done or to the volume of fees collected, which indicate that the classification may be arbitrary, since it has no relation to the amount and responsibility *418of services for which the campensation is intended to be prescribed ancl fixed.” (Italics mine).
In this decision Messrs. Justice TAYLOR, ELLIS and WEST concurred.
The official report of the Florida Supreme Court decisions does not show that the writer participated in this decision. That is an error as the writer did participate ,in the decision and the fact is shown by the records on ■file in this Court and the report of the decision in the Southern Reporter, Yol. 93, p. 667.
So what the Court decided in the Shepard case was that the Legislature had power in prescribing compensation for county officers from fees collected by them, to make classifications of such officers based on the total receipts of fees collected by them, the same having reference to the amount of business done, and the fees collected being uniform. That the respondent, Shepard, not being in the classification defined by the second proviso of the section, was not affected by such proviso and could not question its validity. The effect of the invalidity of such proviso upon the entire Act was not considered.
In the instant ease Watkins, the Clerk of the Circuit Court for Hillsborough county, is within the second proviso of Section 1 of the Act and therefore may raise the question of its validity and the resultant effect of such invalidity upon the entire Act. So this Court held in the first opinion in the instant case, speaking through Mr. Justice BROWNE.
It would be a work of supererogation to review the reasoning of that opinion. It is clear, cogent, forceful and in perfect harmony with the dictum in the Shepard case, in so far as it is there intimated that a classification based on population for the purpose of prescribing compensation for county officials is arbitrary, since it has no rela*419tion. to the amount and responsibility of services for which compensation is intended to' be prescribed and fixed.
The Court held that as the second proviso of the Act was invalid for the reason given it destroyed the validity of the entire section, beca,use it was the evident purpose of the Legislature, as indisputably shown by that section, to limit the compensation of county officials to $6,000.00 per year, except in counties having 100,000 or more population, but as to officers in such counties the compensation should be limited to $7,500.00 per year. That purpose was destroyed, that intention of the Legislature annulled when the second proviso was eliminated. Eliminating Section 1, nothing remains in the Act to which the other sections are applicable.
Secion 4 of the Act provides that it “shall be the duty of each and every such officer, to pay on or before the first of each month of January hereafter, into the General Revenue Fund of their respective counties, all moneys in excess of the sums to which they are under the provisions of this Act entitled.”
Section 2 defines the term “net income” to mean the “residue of the income from such office after deducting all reasonable expenditure for the salaries of clerks and assistants and necessary expenditures for the proper operation of said office.”
Section 3 requires the officers to make quarterly statements showing in detail the expenses of the office, the fees and commissions collected, and the gross and net income thereof, and provides for exceptions to be taken, on such report by the Board of County Commissioners. But the purpose of that section was to provide a means for ascertaining the compensation to which the officers would be entitled under Section 1 and the amount to be paid over under the provisions of Section 4. But with Section 1 *420eliminated from the Act the compensation of. the county officials is not' fixed at any definite net sum. Sections 2, 3 and 4, therefore, become meaningless, inoperative and void in view of the purpose and subject of the Act as expressed in the title.
The opinion by Mr. Justice Browne was concurred in by Mr. Chief Justice Taylor and the writer; Messrs. Justices Whitfield and West dissenting. The opinion was filed on April 23, 1923.
On the 2nd day of May, 1923, the Governor approved an Act entitled: “An Act to fix and determine the compensation and remuneration of all County Officials in the State of Florida now paid in whole or in part by fees, salary or commissions or by one or more of said methods of payment; to require reports by said officials; to provide for the duty of the Board of County Commissioners in reference thereto; to provide for the distribution of moneys collected hereunder, and to provide for the auditing of the ¿ceounts of said offices.”
This Act was a complete revision of the entire subject, even preserving the sectioning of the first Act, Chapter 8497, supra, resting the compensation of county officials upon the basis of the amount of business done as shown by the fees collected and limiting the amount of income to six thousand dollars per year.
It is contended by the Attorney General that Section 5 of Chapter 8497, which provides that if any section of the Act be held inoperative or void, or should its application to any official be held inoperative or void, the same shall not effect the legality or the applicability of the balance thereof, renders the remainder of section 1, after eliminating the second proviso; valid and operative.
There is no doubt that such provisions in a statute are valid but with restrictions. They cannot serve to vest *421legislative power in the courts. The law making function of a State is in the legislative branch of the government and cannot be delegated to the judicial branch. The effect of such provisions in a statute is merely to affirm the rule which has ever been applied by this court independently of such provisions. The rule is: that part of a statute may be unconstitutional and void without affecting the validity of other parts, if they are not dependent upon each other. That is to say, if the valid portions are capable of being executed without the invalid part in accordance with the purpose of the legislature. See Hart v. Bostwick, 14 Fla. 162; Bucky v. Willard, 16 Fla. 330; State ex rel. Attorney General v. Dillon, 32 Fla. 545, 14 South. Rep. 383, 22 L. R. A. 124; State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. Rep. 929; State ex rel. Clarkson v. Phillips, 70 Fla. 340, 70 South. Rep. 367, Ann. Cas. 1918A 138; Lainhart v. Catts, 73 Fla. 735, 75 South. Rep. 47; Ex parte Wells, 21 Fla. 280.
But if an invalid section or part of a statute is of such import that the other sections or parts without it would cause results not contemplated or desired by the legislature then the entire statute must be held inoperative. See State v. Patterson, 50 Fla. 127, 39 South. Rep. 398, 7 Ann. Cas. 272; Hayes v. Walker, 54 Fla. 163, 44 South. Rep. 747; State ex rel. West v. Hilburn, 70 Fla. 55, 69 South. Rep. 784; State ex rel. Buford v. Spencer, 81 Fla. 211, 87 South. Rep. 634.
To hold that Section 5 of the act extends the rule, as announced above, is to affirm that the legislature may delegate to the courts the power to declare which of two propositions, interdependent yet inconsistent, embraced in one rule, shall be the law. Such power is legislative.
In interpreting a statute the legislative intention is the primary consideration. See Tyles v. Hyde, 60 Fla. 389, *42252 South. Rep. 968; State ex rel. Johnson v. Patterson, 67 Fla. 499, 65 South. Rep. 659; State ex rel. Triay v. Burr, 79 Fla. 290, 84 South. Rep. 61.
But it is sought by the authority of Section 5 to do more than enforce one alternative proposition. It is desired to enlarge one of such propositions so that it will embrace a class excluded by its provisions.
The proposition is embraced in Section 1 of the act, which shows the sole purpose and intention of the legislature to be the regulation of compensation for the services of county officers upon a commission or percentage bases, and such compensation to be determined by the class., in which the particular officer may be placed. The classification was held to be unreasonable, arbitrary and invalid. It cannot be maintained that the court has the power to eliminate the classification and enforce the statute as applicable to all county officers, without classification. Such was not the purpose to which the legislative mind was directed when the proposition was under consideration and it is impossible for any one to say that the valid portion of the act, if any part of it is valid, would have been enacted without the obnoxious proviso in the first section.
Section 1 prescribes two separate rules of compensation for the services of county officials. As said by counsel for the respondent: ‘ ‘ One rule is just as much the legislative will as the other.” The officials in one class are affected by one rule while the officials in the other class are affected by a different rule. For this court to announce the legislative purpose to have been that all county officials should be affected in the matter of their fees or compensation by the first rule because the second rule is void is to impose the judicial will upon that of the legislative.
But taking the other angle of the proposition, and asserting that the first rule applies only to such counties as have *423a population less than that prescribed by the obnoxious rule, is to announce the validity of a rule in the matter of the regulation of the fees of county officials which is not of uniform operation throughout the State because the rule would not be operative in counties having one hundred thousand population or more. See State ex rel. Board of Com’rs of Benton County v. Boice, 140 Ind. 506, 39 N. E. Rep. 64, 40 N. E. Rep. 113; Bray v. Hudson County, 50 N. J. L. 82, 11 Atl. Rep. 135; Township of Lodi v. State, 51 N. J. L. 402, 18 Atl. Rep. 749; Davis v. Clark, 106 Pa. St. 377.
It is urged by the Attorney General, with whom is associated Mr. T. M. Shackleford, Jr., that the respondent, Watkins, was not an official of a county having one hundred thousand population, or more, but on the contrary the petition alleged and the respondent admitted that the Federal census of 1920 showed the population of Hillsborough County to be less than one hundred thousand and no census had since been taken. That in all questions of population the census is conclusive and controlling and no admission to the contrary can be considered.
From this fact, which it is said the court overlooked, it is argued upon the authority of the Shepard case, supra, and other authorities that the respondent cannot raise the constitutional question because he is not in the class affected by the void proviso.
The petition for a writ of mandamus alleged the fact in the following language: “That Hillsborough County, Florida, according to the last Federal census taken in the year 1920, had a population of 87,901, and no official census has been taken since, and your petitioner contends that the result of the said official census is controlling, although your petitioner is informed and believes that *424said county lias and had in and during- the year 1922 a population exceeding 100,000.”
The return of the respondent met the allegation in the following language: “First. .This respondent admits that-on January 1st, 1922, he was and at all times since has been and now is Clerk of the Circuit Court of Hillsborough County, Florida, and he admits that said County, according to the last Federal census taken in the year 1920, had a population of 87,901, and that no official census has been taken since; and further admits that Hillsborough County has and had in and during the year 1922 a population exceeding 100,000, and in connection with a bond issue in the year 1922 the County Commissioners of said County stated and represented, as an inducement to bond buyers to purchase the said bonds, that the population of the said County in the year 1922 was 1.10,000.”
Yet this court issued the alternative writ. In that state of case the Attorney General moved for a peremptory writ.
The point urged by counsel for the State was considered by this court, however, and by a majority of the court definitely held that from the'pleadings it appeared that the County of Hillsborough had a population of one hundred thousand or more. Mr. Justice Whitfield, in his dissenting opinion, in which dissent Mr. Justice West concurred, although it does not appear that he concurred in the opinion, definitely presented the point. • So it was not overlooked by this court, but, on the other hand, considered and decided adversely to the contention of counsel, which is that the official census is controlling and no admissions in the pleadings can be taken contrary to the fact as shown by the official census.
This ground of the petition for a rehearing, therefore, is not based, as all grounds in such petitions should be, *425on a fact overlooked by tlie court, but it rests upon the assertion that the court erred in the rule of law applied.
It is true that' the courts will take judicial notice of the contents of the official census reports, in so’ far as they show the population of the different subdivisions of the State. 7 Ency. of Evidence, p. 986.
This court has also held that a fact which the law does not allow to be proved is not admitted by a demurrer to a pleading alleging or averring such a fact. See Byrne Realty Co. v. South Florida Farms Co., 81 Fla. 805, 89 South. Rep. 318; Amos v. Dunn, 84 Fla. 285, 94 South. Rep. 615.
In the latter case it was said that the point in pleading was well established in this State that allegations of fact not susceptible of proof are not admitted by a demurrer to a pleading in which such allegations appear.
The last Federal census was taken in 1920. The act under consideration was passed in 1921 and prescribes no rule by which the population of counties may be ascertained that they may be classed in the second proviso. If it was the purpose of the Legislature that the classification should be fixed only by the Federal or State census, then no, county, other than the county of Duval with a population shown to be one hundred thousand, could be placed in the class designated by the second proviso until the next census a decade thereafter, although, many counties in this rapidly growing State might within that time acquire such a population and thus be in fact within the letter of the proviso.
It was considered that as the purpose of the act was that it should at all times in the future apply to conditions as they might exist, any county might come at any time within the class defined by the second proviso. Such seemed to be the meaning of the language of the opinion *426in the Shepard case which was as follows: “Chapter 8497 operates uniformly throughout the State upon all similar conditions as classified in the act, and all of its provisions will be applicable to every county of the State as the conditions therein develop as contemplated by the law. The law is ‘general and of uniform operation throughout the State since the conditions on which the law operates may develop in all the counties. As similar conditions are developed in all the counties of the State, the law will uniformly operate in each and all of them.”
Similar language was used in the case of State ex rel. Buford, Attorney General, v. Daniel et ad., 87 Fla. 270, 99 South. Rep. 804, in which the court had under consideration Chapter 9274 Laws of Florida 1923 entitled “An Act creating a county welfare board for each county having a population of over one hundred thousand,” etc. The first section of which provided that “There is hereby created a county welfare board in each county of Florida having a population of over one hundred thousand according to the last Federal census.” The objection that the act was local and obnoxious to the provisions of Sections 20 and 21 of Article III of the Constitution was met by the statement that the law was “potentially applicable throughout the State, in that any county may acquire a population of over 100,000, though only one county may now be in that class. The provision ‘according to the last Federal census’ is progressive and has reference to each Federal census as it occurs.”
It is not at all clear by what process of reasoning legislative acts may be upheld which deal with cases enumerated in Section 20 of Article III of the Constiution by legislation which is admittedly local and special in its application at the time of the enactment and continues so for a decade at a time until all the counties of the *427State acquire the population which entitles them to enjoy the benefits of the legislation.
So it was considered that the allegation in the petition,' admitted by the return, that Hillsborough County had in 1922 a population greater than one hundred thousand was not the ££ allegation of a fact not susceptible of proof. ’1
In the view we take of the ease however this point is not material because the respondent, Mr. Watkins, is affected by the provisions of the Act whether he is an official in a county having a hundred thousand population or not. He is Clerk of the Circuit Court for Hillsborough county and it is proposed by the Act to ££regulate the fees” of such office by changing the compensation from the fees prescribed by law to a net income not to exceed a certain sum and a commission on the remainder, the total to be received not to exceed a certain maximum sum. His compensation as Clerk of the Court is affected by this rule, which he urges is not of uniform operation throughout the State in that at least one county is exempt from the rule and there is no schedule by which the “net income” of the offices in all the counties to which the rule applies may be determined. In two or more counties the gross income from the office of clerk may be approximately the same but the net income be widely different, depending upon the whim, caprice or judgment of the different occupants of the offices in expending the gross income in salaries of assistants.
-In such ease, although the same services practically were rendered and the same volume of business done, the compensation received would be different in one case from Tiat of another.
A person affected by the provisions of an act in person 01 'sroperty may raise the question of its validity. See 6 R. C. L. 89; Jones v. Black, 48 Ala. 540; Hooker v. Burr, *428194 U. S. 415, 48 L. Ed. 1046, 24 Sup. Ct. Rep. 706; 8 Cyc. 787; 12 C. J. 763; Savage v. Jones, 225 U. S. 501, 56 L. Ed. 1182, 32 Sup. Ct. Rep. 715.
The respondent, as Clerk of the Circuit Court, to which office he had been elected, was under the statute as it existed before the passage of Chapter 8497 Laws of Florida 1921, entitled to receive as his compensation for the services rendered by him in that office, certain fees, which in the course of a year amounted to a certain sum of money. The Act of which he complains will, if enforced, take from him a portion of such fees and require him to make certain reports of the gross income of the office expenses incurred in paying assistants and pay over to the county the excess of net income over a certain sum.
The office of Clerk of the Circuit Court is a constitutional county office and the term of office is four years. The powers, duties and compensation are required to be fixed by law. Article VIII, Section 6, Constitution.
The Legislature is inhibited from regulating the fees of any county officer except by statutes that are general and of uniform operation throughout the State. Article III, Sections 20 and 21, Constitution.
The difference in meaning between the words “compensation” and “fees” is that the latter is one phase of the former’s meaning. When it is decided to fix a county officer’s compensation by fees the Act must be general and of uniform operation.
It is a general principle that when an office with a fixed salary has been created and a person duly appointed and, qualified and who has entered upon the discharge of hif duties, he is entitled during his incumbency to be paid tie salary prescribed by statute. The right is in the nature of a contract right. Where no other remedy to enforce pay*429ment is provided by statute the right may be enforced by mandamus. 29 Cyc. 1429.
While an office is not property, yet the right.to office is a substantial right and may be enforced by the proper remedy. Blaekstone says offices are a right to exercise a public or private employment and to take the fees and emoluments thereunto belonging. See 1 Sharswood’s Blackstone’s Commentaries, bottom page 420-421.
A statute, therefore, which purports to regulate the fees of county officers, incumbents of such offices as are created by the Constitution, the compensation being already fixed by la/w upon a fee system, is a statute affecting the rights of such officers who have been duly appointed or elected and qualified and who have entered upon the discharge of their duties.
The respondent’s rights being affected by the provisions of the act, in so far as it relates to counties of less than one hundred thousand population, he may raise the question that the second proviso of Section 1 invalidates the entire act, although he may not be in the class designated by the proviso. See State ex rel. Clarkson v. Phillips, 70 Fla. 340, 70 South. Rep. 367; Stinson v. State, 63 Fla. 42, 58 South. Rep. 722.
In so far as the Shepard case, supra, is not in harmony with this doctrine the same is overruled.
It is also the opinion of the majority of this court that the so-called “second proviso” to Section 1 of Chapter 8497, supra, relating to counties of one hundred thousand population ,or over, is not a “proviso” within the meaning of that term as defined by this court. It does not perform the function of limiting or restraining the language employed by the legislature. It excepts nothings from the enacting clause of the act. See Southern Bell Telephone & Telegraph Co. v. D’Alembert, 39 Fla. 25, 21 South. Rep. *430570; State ex rel. McQuaid v. Commissioners of Duval County, 23 Fla. 483, 3 South. Rep. 193; State ex rel. Moodie v. Bryan, 50 Fla. 293, text 392, 39 South. Rep. 929.
Upon the contrary the act being one to fix and determine the compensation and remuneration of all county officials, not by abolishing the fee system and prescribing a definite compensation, but by retaining the fee system and limiting the rights of the county officials to the fees of their offices, should be general and of uniform operation throughout the State, and the so-called proviso merely provides a different rule under which officers in counties of one hundred thousand population may be compensated and remunerated by the method prescribed. The court taking judicial notice of the contents of the Federal census of 1920 knows that there is one county in the State to which the rule first prescribed does not apply and to which the second does apply. A law which excepts one county from its operation is as much a local law as if it excepted all but one.
The act was designed to accomplish one single object, both the valid and invalid portions contribute to that end which cannot be accomplished unless all parts of the act function in harmony. If one part of it therefore is void the end desired cannot be accomplished, so the entire act must fail. See Darby v. City of Wilmnigton, 76 N. C. 133; 6 R. C. L. 127; State ex rel. Boyd v. Deal, 24 Fla. 293, 4 South. Rep. 899.
In one respect, at least, the act, Chapter 8497 supra, is not unlike Chapter 7334 Acts of 1917, entitled “An Act Fixing the Compensation of all County Officials Now Paid in Whole or in Part on the Basis of Fees or Commissions, ’ ’ which this court in State ex rel. Buford v. Spencer, 81 Fla. 211, 87 South. Rep. 634, held to be invalid. In that opinion it was pointed out that the phrase “net income” was uncertain in meaning, but assuming it to mean the “res*431idue after deducting from the gross income, the compensation of the deputies, clerks or assistants” the act vested in the county commissioners the power to “fix the number and compensation of such deputies, clerks or assistants”; thus practically enabling the county commissioners to raise or lower the compensation of county officers instead of its being fixed by law as required by the constitution.
Giving to the phrase “net income” as used in Chapter 8497, supra, the same meaning, the county officials, themselves, fixing the number and compensation of their own deputies, clerks and assistants, would have the power in smaller counties, at least, to regulate their own compensation within limitations and in other counties to prevent any excess being paid into the General Revenue Fund of their respective counties. The definition of “net income,” as given by Section 2 of the act, adds little, if anything, to the certainty of the rule under which the county officials were to be compensated. The term “reasonable” is, itself, capable of no definition that would render the rule, for ascertaining what surplus should be paid into the General Fund, certain in all the counties and make it operate uniformly throughout the State.
The conclusion of three members of the Court, Mr. Chief Justice Taylor and Messrs. Justices Ellis and Browne, is that the respondent may question the validity of the act; that the so-called second proviso in Section 1 is void; that it is in fact not a proviso, but a separate and independent rule forming part of a method for the compensation of county officials based on fees and the commissions thereon, and the creation of a surplus fund from the income of the offices to be paid into the general fund of the respective counties; that the act neither in its entirety nor with the so-called “proviso” eliminated operates uniformly throughout the State; that it is local in its purpose and applica*432tion when considered either with or without the proviso; that it violates the mandate of the 20th and 21st Sections of Article III of the Constitution, and that Chapter 9270, Laws of Florida, 1923, is a complete revision of the entire subject.
The court, however, is equally divided on the question of the unconstitutionality of Chapter 8497, supra, and the effect of Chapter 9270, supra. Messrs. Justices Whitfield, West and Terrell being of the opinion that the second proviso of Chapter 8497, supra, is a legal classification by population, that the act is a valid general law and is not repealed by Chapter 9270, supra, which amends and continues in force the former act.
After several conferences by the Justices of this Court, there appears to be no likelihood of an agreement by a majority of the Court upon the proposition that Chapter 8497 is invalid. The first decision of this Court in this case, filed April 28, 1923, is therefore recalled and a peremptory writ of mandamus is, therefore, hereby awarded.
Browne, J.-Believing the act to be unconstitutional, I dissent from judgment awarding a peremptory' writ of mandamus.
Whitfield, J.In State ex rel. Buford v. Shepard, 84 Fla. 206, text 220, 93 South. Rep. 667, this court in passing upon the constitutionality of Chapter 8497, Acts of 1921, held that “the provisions of the act”, except the proviso to Section 1, which was not involved in the case, “are reasonable, complete and appropriate regulations * not shown to be violative of- organic law; ’ ’ and that ‘ ‘ If the proviso to Section 1 is based On an arbitrary and unreasonable classification it does not, in view of Section 5 of the Act, render invalid the other portions of the Act.” Page 219.
*433Section 5 of the Act is as follows: “Should any Section of this Act be held inoperative or void, or should its application to any official be held inoperative or void, the same shall not affect the legality or applicability of the balance of the Act.”
The main opinion states the rule to be: “that part of a statute may be unconstitutional and void without affecting the validity of other parts, if they are not dependent upon each other. That is to say, if the valid portions are capable of being executed without the invalid part in accordance with the purpose of the legislature.” In this case the purpose of the Legislature is expressed in the act and does not need to be developed from implications. That expressed purpose is that if any section of the act “be held inoperative or void or should its application to any official be held inoperative or void, the same shall not affect the legality or applicability of the balance” of the act. The elimination of the proviso to section one, if it be invalid, would not “cause results not contemplated or desired by the legislature” because the statute itself expressly provides that if a part of the act be held invalid or inoperative “the same shall not affect the legality or applicability of the balance” of the Act.
This shows the legislative intent that valid portions of the Act shall be enforced even though that wordd eliminate one of the classifications of the Act and place the officers of that class in another class, the law being capable of enforcement with the second and third provisos to Section 1 eliminated. This does not “delegate to the courts the power to declare which of two propositions * shall be the law.” The statute itself in effect provides that such of its provisions as are valid “would have been adopted even if the legislature had been advised of the invalidity of part” of the Act (Hill v. Wallace, 259 U. S. 44, text *43471, 42 Sup. Ct. Rep. 453) and also that the valid portions of the Act shall be enforced and that the valid provisions shall be applicable to the entire subject of the enactment. The legislature has in the Act itself declared that it intends its valid portions to be the law on the subject that is covered by the Act. See Board of Trade of City of Chicago v. Olsen, 262 U. S. 1, text 42, 43 Sup. Ct. Rep. 470; keller v. Potomac Electric Power Co., 261 U. S. 428, 43 Sup. Ct. Rep. 445; 63 Fla. 337; 31 Fla. 340; 73 Fla. 735.
The proviso to Section 1 of the Act is obviously sever-able and- its elimination if illegal, would leave the remainder of the Act complete and enforceable. See 179 U. S. 472; 70 Fla. 340; 53 L. R. A. 837.
Chapter 8497 is a general law. See State ex rel. Buford v. Daniel, 87 Fla. 270, 99 South. Rep. 804; Ex Parte Wells, 21 Fla. 280; Collier v. Cassady, 63 Fla. 390, 57 South. Rep. 617.
The classification of the proviso to Section 1 of Chapter 8497 of “counties of One Hundred Thousand (100,000) population or over,” clearly relates to the population as shown by an official census. See In re Sewer Assessment for City of Passaic, 54 N. J. L. 156, 23 Atl. Rep. 517; Lewis v. Lackawanna County, 200 Pa. 590, 50 Atl. Rep. 162. The respondent in this case is not in the 100,-000 population class since Hillsborough County has 87,901 as shown bjr the last official census; and the allegation of the alternative writ that the “petitioner is informed and believes that said county has * a population exceeding 100,000” does not establish the fact for the purposes of the statutory classification, even though the respondent by his return “admits that Hillsborough county has * a population exceeding 100,000.” The records of the *435official census and not pleadings control. The proviso in Section 1, Chapter 8497, is not invalid.
An Act of the Legislature relating to counties of a certain class, general in its terms and founded upon a proper and legitimate basis of classification, is general and not special legislation, though, but a single county is embraced within the class affected by the legislation. Givens v. County of Hillsborough, 46 Fla. 502, 35 South. Rep. 88.
Classifications of counties for governmental purposes based upon population is permissible in enacting general laws. State ex rel. Buford v. Daniel, 87 Fla. 270, 99 South. Rep. 804.
Classifications based upon population in regulating the compensation of officers are proper and legal. See Stone v. Wilson, (Ky.) 39 S. W. Rep. 49; State ex rel. Anderson v. Sullivan, 72 Minn. 126, 75 N. W. Rep. 8; Douglas County v. Frank, 60 Neb. 327, 83 N. W. Rep. 74; Freeholders of Hudson County v. Clarke, 65 N. J. L. 271, 47 Atl. Rep. 478.
Many statutes of this State classify the counties by population for the purpose of fixing the fees and compensation of county officers. Chapter 7886, Acts of 1919, fixes the fees of sheriffs according to whether a county has more or less than a population of 40,000. Chapter 9254 and following Acts of 1923 fix the compensation of county commissioners according to classifications of counties by population. See also Chapter 8498, Acts of 1921; Chapter 7333 Acts of 1919; Chapters 7877, 7879, 7881, 7882, 7883, 7884, 7885 Acts of 1919.
It is a well settled rule that when a repealing Act reenacts substantially the provisions of the Act repealed, the latter is construed not to be thereby destroyed or interrupted in its operation. Forbes v. Board of Health of Escambia County, 27 Fla. 189, 9 South. Rep. 446, 26 Am. *436St. Rep. 63; Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, 25 South. Rep. 338, 79 Am. St. Rep. 149; 36 Cyc. 1084; 26 Am. & Eng. Enc. Law (2nd ed.) 758; 25 R. C. L. 934.
The second proviso in Chapter 8497 Acts of 1921 is a legal classification by population, the Act is a valid general law and it is not repealed, but is amended and continued in force by Chapter 9270, Acts of 1923.
Terrell, J., concurs.