dissenting:
■ I do not concur in the foregoing opinion. Section 9 of article 10 of the constitution of 1870 does not prohibit the county treasurer of Cook county from receiving fees, nor is. the General Assembly prohibited by the constitution from fixing fees to be collected by that officer. On the contrary, section 12 of article 10 provides in express terms that the General Assembly shall, by general law, provide for and regulate the fees of. State, county and township officers. The plain meaning and intent of said section 9 is that the county treasurer of Cook county is to collect and receive all fees that may be fixed by the General Assembly pertaining to his office, which in his case are fixed by section 23 of the Fees and Salaries act and other acts, and retain all such fees up to the amount of his salary fixed by law, and, as is further provided in said section 9, all fees, perquisites and emoluments of every kind above the amount of said salary shall belong to the county. By said section 9 a similar provision is made as to the compensation of clerks of all the courts of record of Cook county.
In the case of People v. Gaulter, 149 Ill. 39, we held that by section 9 of article 10 of the constitution all the fees™, perquisites and emoluments of the clerks of courts of record in Cook county above the amount of their salaries as fixed by law are required to be paid into the county treasury, and any increase in taxable costs did not increase the salaries of such clerks, and therefore that the act of 1893 increasing the amount of costs to be paid to such clerks did not violate the provision of the constitution which prohibits any increase in the fees, salary or compensation of certain officers during their terms of office, as such officers’ fees are not thereby increased. Section 10 of article 10 of the constitution contains provisions similar to the provisions of section 9 of article 10 as to paying the compensation of the county officers therein named out of the fees of their offices, and requiring that all fees or allowances by them received in excess of their compensation shall be paid into the county treasury. In the .case of Coles County v. Messer, 195 Ill. 540, it was said, on page 545' of the opinion: “The often repeated provision of the constitution relating to the. fees of county officers is found in section 10 of article 10, which provides that the county board shall fix the compensation of all county officers; * * * that in all cases where fees are provided for, said compensation shall be paid only out of and shall in no instance exceed the fees actually collected, and that all fees or allowances received by such officers in excess of their said compensation shall be paid into the county treasury.” To the same effect is County of LaSalle v. Milligan, 143 Ill. 321.
Section 21 of the Inheritance Tax law, fixing a fee or commission for the county treasurer, is no different from other laws which fix fees for the treasurer and other county officers. These officers are entitled.to retain their fees up to the amount of their respective salaries or compensation and have no other fund from which such compensation can be paid. All such fees received by them in excess of their compensation are paid into the county treasury and become the funds of the county. This being true, section 21 of the Inheritance Tax law is, in my opinion, constitutional, and the county treasurers of the several counties in the State are entitled to retain the two per cent provided for, if necessary to make up their salaries or compensation; if not, then it should be turned over to the county. It should be treated the same as all other fees and earnings of the office. The words, “in addition to his salary or fees now allowed by law,” at the end of section 21, add nothing to that section. Of course, a fee or commission allowed by any law would be in addition to fees provided by other laws, and the section would have the same meaning if the language above quoted were omitted or entirely disregarded.
The only theory upon which the bill of appellant is sustained, as held in the foregoing opinion, is, that if the fees or commission of two per cent to be retained by the county treasurer under section 21 of the Inheritance Tax law is taken out of the amount of inheritance tax collected the deficiency will have to be supplied by other taxes, and that the tax-payer therefore has an interest and may maintain a suit in equity to prevent this deficiency in the funds of the State raised by taxation. The complainant in his bill alleges that he is a resident and tax-payer of Cook county, and it is apparent that if the result of declaring section 21 of the Inheritance Tax law unconstitutional will be that the county loses these fees, then whatever appellant gains as a payer of State taxes he will lose as a payer of county taxes, and the only theory upon which the bill can be sustained fails. Section 21 of the Inheritance Tax law how in force was the same as section 20 of the act of 1895 to tax gifts, legacies and inheritances, and ever since the enactment of that law the provisions of this section have been recognized as valid. While it is true that in the case of People v. Raymond, 188 Ill. 454, the only question before the court was whether the moneys collected by the county treasurer on account of inheritance taxes should be paid to the State Treasurer at the time provided in the Inheritance Tax law, or should be paid at the time provided for settlements between the county treasurers and the State Treasurer, as provided by the general Revenue law, in the opinion in .that case, on page 457, the court said: “No right or interest exists in the county treasurer to the money so collected save and except the commissions allowed by law, so that the right to retain the money does not exist in the county treasurer, but it is his duty to see that it, with reasonable expedition, reaches the official to whom it is to be finally paid.” Again, on page 458, it is said: “Having no interest in the funds so collected save his commissions, and owing the duty of seeing that the money shall reach the proper and official custodian with reasonable expedition, there is no right in the county treasurer to retain moneys a greater length of time than is reasonably required for its transmission to the State Treasurer.” From the foregoing language it would seem that the right of the county treasurer to retain the fees provided by section 20 of the law then in force, which is the same as section 21 of the present law, as one of the earnings of his office, was fully recognized, and the opinion in that case is entirely in accord' with numerous other decisions of this court as to the disposition of the fees of county officers over and above the amount necessary to pay their salaries or compensation.
Section 9 of article xo of the constitution further provides how the number of deputies and assistants of the county officers mentioned in that section shall be determined, and also provides that their compensation shall be fixed by the county board. The reasonableness and necessity of such provision are apparent from the facts of this case. While the county treasurer must take any additional duties imposed by law cum onere, the efficient, administration of his office, and'a compliance with the provisions of the Inheritance Tax law where the amount of tax collected is as large as shown by the bill of complainant, require the employment of assistants, and they must be paid from the county funds. It was not the purpose of the law to enforce the collection of a State tax at the expense of the county.
Furthermore, I do not think that the complainant has the right to maintain this suit. While it is true that the aid of a court of equity may be invoked to prevent an illegal and unauthorized expenditure of public funds or disposition of public property, a suit in equity will not lie when there is an adequate’ remedy at law. The suit is brought on behalf of all tax-payers of the county, and, in effect, it was sought to obtain a judgment by means of a decree. There is an adequate remedy at law in this case and proper officers to bring an action at law by which the rights and interests of all the tax-payers will be fully protected. • I think that the rule laid down in County of Cook v. Davis, 143 Ill. 151, applies to this case and that the demurrer to the bill should have been sustained.