Dissenting Opinion.
McCabe, J.I concur in the dissenting opinion of Judge Jordan for many of the reasons given by bim for holding so much of the fee and salary law of 1895 unconstitutional, as relates to the compensation of county officers.
I concur in the said opinion, especially that the question raised by the particular objection now urged against the part of the act mentioned, was not considered and not decided in Henderson, Aud., v. State, ex rel., 137 Ind. 552. But I do not agree with him in all the reasons assigned by him for holding that part of the act unconstitutional.
All must agree that local or special legislation on the subject of fees or salaries is prohibited by section 22, of article 4, of the constitution, except that such legislation may be made local and special in order to *206“grade the compensation of officers in proportion to the population and necessary services required.” It is not denied that the part of the act in question is local and special.
Now if it does not grade the compensation of officers in proportion to the population and necessary services required, then it falls clearly under the condemnation of the provision of the section of the constitution mentioned against local legislation. The fees which the act provides for the services of the various officers of the county are to be taxes collected and paid into the county treasury as the property of the county; it then gives to each officer a stated salary to be paid out of such fees. But if the fees collected are insufficient to pay the salary of each officer it provides he is to have no more compensation. Two reasons exist why such a statute does not gradé the compensation according to population and necessary services required.
' First. This court judicially knows that the population and services required in each county will be constantly on the change, either by increase or decrease, but the act fixes the compensation at one grade, with no possibility of it going up or down with the increase or decrease of population or services required. And when such population and services required do so change, it is obvious that the act will not grade compensation in proportion to population and necessary, services required.
If the ordinary and necessarily expected future events will bring a statute in conflict with a constitutional provision, it is undoubtedly unconstitutional in the start.
Second. If the fees collected by a given officer are insufficient to pay the salary provided for him he gets no more salary than the fees collected by him. The act declares that the salary provided is graded in propor*207tión to population and necessary services required. That is, he is to have no more of his stipulated salary than sufficient to equal the amount of fees collected by him. But it may be urged that limiting his salary to the amount of fees earned by him is an accurate and exact method of grading his compensation in proportion to services actually performed. But that leaves out of consideration an indispensable element required by the constitutional provision in question to enter into the gradation of the compensation of such officers, namely, population. Moreover it would be a flat repudiation of the declaration made in the 21st section of the act, that the salaries provided are graded in proportion to population and necessary services required. '
Again it is a well known fact that large amounts of fees taxed in the various county offices are not collectable because the parties against whom they are taxed are insolvent, worthless and unable to, and do not pay. This court may take judicial cognizance of that fact. It cannot be said that such fees have not been earned by the officer taxing them. Because they are never collected and never paid into the treasury, and there is not enough of those that have been collected to make the amount of salary fixed by the act, such officers salary is cut down thereby below the amount fixed by the gradation thereof in proportion to population and necessary services required. It cannot be said that such deficiency or decrease arises from or is caused by a decrease in the services required or performed. The services have been performed in such case and not paid for and no provision is made for their payment.
There seems to be absolutely no escape from the conclusion that in that case, compensation is not graded by the act in proportion to population and *208necessary services required. For in that case the the salary provided for is not paid, and necessary services required and performed are not paid for at all.
Therefore, the act does not grade compensation according to population and necessary services required; and being local and special, and failing to so grade the compensation, the act as to county officers falls within the inhibition of the constitutional provision against local and special legislation, and does not fall within the exception to that provision, and, therefore, is, in my opinion, unconstitutional and void.