dissenting.
Originally I concurred in the result announced by Mr. Chief Justice Burke’s opinion herein. As then situated I had not had time to examine either the record, the abstract of the record, or the briefs before announcement of the decision. Later, upon such examination, I realized my error, and am now convinced that the disposition made was wrong.
The question involved in the present case is whether the General Assembly has abolished, and has the power to abolish, the compensation provided in the form of fees for public trustees in counties of the third class. The court opinion answers this question in the affirmative. I think this is error.
Section 8 of article XIY in' the Constitution of Colorado is as follows (italics below being mine): “There shall be elected in each county [certain named officers including] one treasurer, who shall be collector of taxes * * *; and such officers shall he paid such salary or compensation, either from the fees, perquisites and emoluments of their respective offices, or from the general county fund, as may be provided by law. * # * ”
Section 12 of said article XIY reads thus: “The general assembly shall provide for the election or appointment of such other county * * * officers as public convenience may require * *
Section 15 of said article XIY is as follows: “For the purpose of providing for and regulating the compensa*348tion of county * * * officers, the general assembly shall, by law, classify the several counties of the state according to population, and shall grade and fix the compensation of the officers within the respective classes according to the population thereof. Such law shall establish scales of fees to be charged and collected by such of the county * * * officers as may be designated therein, for services to be performed by them, respectively, and where salaries are provided, the same shall be payable only out of the fees actually collected in all cases where, fees are prescribed. All fees, perquisites and emoluments above the amount of such salaries, shall be paid into the county treasury.”
The public trustee is clearly one of the " other county officers” under section 12. Walsh v. People ex rel., 72 Colo. 406, 211 Pac. 646; People ex rel. v. Sabin, 75 Colo. 545, 227 Pac. 565. The public trustee’s duties are prescribed by the legislature and not by the Constitution. He is a separate, officer from the county’s “treasurer, who shall be collector of taxes,” whose duties are plainly indicated by those time-honored titles, though not specifically defined, and do not include the duties of a public trustee. Compare People ex rel. v. Lothrop, etc., 3 Colo. 428, 463, which involved the office of county assessor.
If the office of public trustee had been a statutory state office, instead of a county office, the legislature might well have provided that the office should be without any compensation whatever, whether salary, fees, perquisites or emoluments of any other kind. Such is the case with numerous state offices, for instance those of members of examining boards, governing boards of educational or other state institutions, and commissions of various sorts. The Constitution does not require provision to be made for their compensation, as the above quoted provisions do in the case of county officers.
County officers are thus in a different class. With reference to them the Constitution invariably speaks in *349terms of official compensation. So far as I can recall, no county officer has ever been deprived of compensation until the Act of 1933 attempted to do so in the case of the public trustees in third class counties of Colorado, including the plaintiff in error Young in Park county.
The above, quoted constitutional provisions are all in the article entitled “Counties.” Thereunder all county officers are obviously to receive compensation. If fees are provided, then those fees are payable as compensation to the officer for the services rendered; and the officer has a right to retain all the fees unless a limit is set by fixing a salary. The county of Park, defendant in error here, is one where the fees received are normally of exceedingly small amount; the aggregate collected in the year 1935, the period here in question, was only $124.65. Had the amount of fees each year been larger, the General Assembly could, and doubtless would, have .fixed a salary, or maximum limit, beyond which the fees would belong to the county treasury in accordance with the constitutional provision. Fixing a salary or not is a matter of discretion for the General Assembly.
The Amendment of 1933, S. L. ’33, chapter 152, pages 789, 790, undertook to retain the public trustee’s fees exactly as previously established by statute, uniformly the same in all counties; also to continue the $5,000 salary in counties of the first class and the $3,600 salary in counties of the second class; but it provided that “in all other counties the public trustee, shall receive no salary other than that which he receives as county treasurer of such county.” It will be noted that the act affirmatively provides for fees to be paid to the public trustees in these smaller counties, as well as in those of the first and second classes, for the services rendered by them, and nowhere does it say that the fees in a third class county shall not be compensation for the officers. On the contrary, the act establishes the fees as compensation for the officer. “Such public trustees # * # *350shall be entitled to receive as fees for snch services the following sums and no other fee or perquisite whatever, viz: * * V’ S. L. ’94, page 51, §3; C. L. ’21, page 1385, §5047. This part of the law has not been changed by the 1933 Act, ’35 C. S. A., vol. 2, page 546, §56. No language could be clearer than that just quoted.
Inasmuch as it is purely discretionary for the. General Assembly to fix a salary as the maximum limit of fees to be received and retained by the officers, and since that body has seen fit deliberately to abrogate the. salary, or maximum limit, in counties of the third class, it is obvious that the fees remain as compensation for official services, without a salary limitation, and cannot now be properly taken away from the public trustee by this court, in the face of the statutory language to which I have referred. The General Assembly could, of course, lower or raise the prescribed fees in its discretion, but it cannot lawfully abolish them altogether, nor can it lawfully divert them from the officer who earns them.
Believing as I do, I withdraw my previous concurrence in the result announced by Mr. Chief Justice Burke’s opinion, and now respectfully dissent.