(dissenting). I agree to all that part of the opinion which holds that appellant is entitled to the salary prescribed by statute. The Legislature has not discriminated against him, but has, in unqualified language, fixed his salary at the same amount as that received by other circuit judges in the State. My opinion, however, is that that part of the statute which provides for payment of a portion of the salary out of the county treasury is valid. There is nothing in the Constitution which prohibits it. Circuit judges and prosecuting attorneys are undoubtedly officers of the State. Griffin v. Rhoton, 85 Ark. 89. But they serve in local subdivisions, the boundaries of which are fixed by the Legislature in order to conform to the necessities of judicial administration in the localities. I find nothing in the Constitution which prevents the Legislature from making all the salaries of circuit judges and prosecuting attorneys payable by the counties composing the districts. This is not violative of the clause of the Constitution requiring uniformity in taxation, for the Legislature is presumed to have regard for that clause in prescribing the boundaries of the districts and the payment of salaries. In other words, though the circuit judges are officers of the State, the expenses of their salaries, like other expenses of maintaining the courts, may be imposed upon the counties. There is nothing in the Constitution which defines county expenses, and the definition is left largely to the Legislature. In the exercise of that power, the lawmakers have seen fit to impose all the expenses of maintaining the courts and enforcing the criminal laws of the State upon the counties in which the courts are held. The power of the Legislature in that respect has never been challenged.
The majority base their opinion upon a decision of the Supreme Court of Tennessee which was rendered by a divided court.
The Georgia case cited in the opinion has no force, because it is based upon a provision of tbe Constitution whicb provides that the payment of salaries of judges shall be made out of the State treasury. No such provision is found in the Constitution of this State.
I think the dissenting opinion of Chief Justice Nicholson of the Tennessee 'Supreme Court expresses the sounder view and meets my approval. He says:
“The Constitution does not define what are county purposes, but it recognizes county, as political divisions of the territory of the State, essential in Republican Government ; and the duties imposed on them aré a part of the proper and necessary burden which the citizens must assume in the process of self-government. The expenses of securing a proper administration of justice, civilly and criminally, are incurred by the counties, and taxes imposed therefor. The relation between the State Government and the county government is so intimate that the distinction between State purposes and county purposes- can not_ be defined with accuracy, except in the cases in which it is done by the Legislature. Courthouses are county purposes, and yet they are essential to State purposes in the administration of justice. The law treats the administration of justice by the circuit judges and chancellors as a State purpose, in some respects, and as a county purpose in other respects. The State pays the expenses of criminal prosecution in one class of cases, and the counties in another. The administration of justice by the justices of the peace in their civil districts and in the county courts is a county purpose, but it is no less a State purpose as part of the machinery of self-government. The establishment of courts, civil and criminal, in the several counties, is not less a county than a State purpose. There is nothing in the Constitution nor in the nature and character of the relation between the county and the State which forbids the Legislature to declare the establishment and maintenance of the necessary courts in a county, a county purpose, and as such to authorize the imposition of taxes to pay the expense thereof.”
The Supreme Court of Missouri, in an early case, decided that it was within the power of the Legislature to impose part of the salaries of the St. Louis judges upon the county, and that the provisions of the Constitution with respect to taxation were not violated thereby. Hamilton v. St. Louis County Court, 15 Mo. 1.
The Virginia Court of Appeals, in Holliday v. Auditor, 77 Va. 425, held that the salary of a judge of the chancery court of the city of Richmond was payable out of the city treasury under a statute which provided that “the judges of the city and corporation courts of this Commonwealth shall be paid out of the treasuries of their respective corporations,” rather than out of the State treasury under the statute which provided that “salaries of all the judges should be paid quarterly out of the treasury of the State. ’ ’
I think the Legislature possessed the power to pass this statute imposing a portion of the salary of the circuit judge on the counties of Garland and Montgomery composing the circuit. It is presumed that the Legislature inquired into the conditions there and considered that a proper adjustment of the burdens of taxation. For that reason, I think the circuit court was correct in refusing to award the writ of mandamus compelling the Auditor of State to issue a warrant to appellant.