wrote a rather strong dissenting opinion in Austin in which he was joined by Justice Smith, and in which they expressed the same view now presented by the sheriff in the case at bar. The arguments advanced in the dissenting opinion in Austin state:
“If the percentage of commissions prescribed by the statutes was reasonable at that time [time of enactment], it has not been rendered unreasonable, so far as it relates to Lonoke County, by the subsequent special statute providing for the officers of that county to receive definite salaries to be paid out of the statutory commissions turned in to the treasurer.”
It was the view of the minority that the original commissions prescribed by the general statutes were determined to be reasonable by the legislature and should be exacted to cover the whole expenses incurred by the county in paying salaries and other things in the collection and handling of the taxes. The minority made the following pertinent observation:
“Absolute accuracy in adjusting the burdens of the expense of collecting and handling public funds is scarcely attainable, hence the determination of the lawmakers should not be disturbed in making those adjustments.”
A direct attack was made on the Austin decision in the 1944 case of Terry, County Judge v. Thornton, 207 Ark. 1019, 183 S.W. 2d 787. In that case under an initiated act, the voters of Clay County provided for salaries to county officials and provided for the charging and collection for the use and benefit of the county, the same fees, cost and commissions fixed by law for such services and provided for the payment of any surplus savings, brought about by the Act, into a sinking fund for the purpose of paying outstanding warrants with any balance or surplus to be paid into the general fund. The Act was attacked as a diversion of school funds in violation of Art. 16, § 11, of the Constitution and also Amendment No. 11 to the Constitution. The holding in the Austin case was directly attacked in Thornton and the contention of the appellants in Thornton is set out in the opinion as follows:
“Appellants contention is stated by them as follows: ‘There is no diversion of school funds in permitting an individual officer to collect out of school tax moneys his commissions for his services in handling the fund. Initiated Act No. 1 retains this recognized commission or fee basis as the standard of charge for the services rendered in collecting and handling the school funds. That part of the school funds which is deducted for the fees charged loses its identity as school tax money when it is collected by the officer. The fact that under the salary act a part of the fees may be taken from the officer and transferred to the county general fund does not constitute a diversion of school taxes. The case of County Board of Education v. Austin, 169 Ark. 436, 276 S.W. 2, is fundamentally unsound and should be overruled. The rule laid down by the Austin case has actually been disregarded in subsequent decisions of this court.”
This court in Thornton then reviewed the Austin decision pointing out that the decision in Austin was based on the 1898 case of Gray v. Matheny, 66 Ark. 36, 48 S.W. 678, and in Thornton we specifically reaffirmed out decision in Austin. We find no new reasons in the case at bar for now overturning our decision in Austin and Thornton.
We do not agree, however, with the chancellor’s holding that the sheriff must, in this case, apportion his salary to the sheriff’s office and to the collector’s office in proportion to the amount of fees and commissions collected in each. This would be proper in a case where the sheriff, under the fee system, had enough fees in each office, over and above the lawful expenses thereof, to receive the full $5,000 allowed by the Constitution. But in this case, it seems obvious that the lawful expenses of the sheriff’s office will exceed the total fees earned by that office. Since this is true, the sheriff would be entitled to receive and retain from his commissions as collector the full $5,000 to which he is entitled under the Constitution, or whatever portion thereof he cannot collect from his fees as sheriff. State v. Harmon, 190 Ark. 621, 80 S.W. 2d 619.
We do not agree with the appellants that the chancellor committed reversible error in not awarding a decree for money judgment against the sheriff. We shall not add length to this opinion by quoting testimony and analyzing the evidence but the evidence clearly shows that the county, including the school districts, obtained full service, value and benefits from all funds used by the sheriff. The sheriff simply had no idea what portion of his office expense, time and effort, was directed toward the collection of taxes as compared with law enforcement and other dudes of the sheriff’s office.
As was pointed out in National Surety Corp. v. Billingley, 205 Ark. 293, 168 S.W. 2d 427, while the courts should be zealous to protect, as far as possible, the taxpayers from loss occasioned by the improper diversion of public funds from one account to another by county officials, justice and equity do not require that the public should actually profit by any such wrongful acts. See also Independence County v. Thompson, 207 Ark. 1031, 184 S.W. 2d 63, and Starnes v. Sadler, 237 Ark. 325, 372 S.W. 2d 585.
The decree is modified as above set out, and as so modified, is affirmed.
Harris, C.J., and Byrd and Holt, JJ., dissent.