dissenting in part. Though the majority’s opinion is well written and well researched, I find it disturbing that the majority has chosen to overrule Dermott Special School District v. Brown, 253 Ark. 222, 45 S.W.2d 204 (1972), which was decided just ten years and one month ago. This is one of those areas of the law in which the doctrine of stare decisis should particularly apply. Presently, fifty-one counties have organized their financial arrangements in reliance upon our decision in Dermott. Stability in the law is especially important in such circumstances. Making today’s ruling apply prospectively, to a future date, arbitrarily selected and based upon no constitutional or statutory provision, does not remedy the instability resulting from today’s decision.
Furthermore, neither party to this litigation requested that Dermott be overruled, and, therefore, neither party briefed the dispositive point in the case, as the majority has decided it. Hence, without the aid of briefs or oral argument on the point and without having been requested to so act, this court overrules itself and reverses the trial court who, like the parties to this litigation, properly relied upon Dermott. Generally, we attempt to avoid reversing a prior decision of the court, even when the issue is squarely presented, but today the majority has decided, sua sponte, to do so.
Also, the manner in which the majority rules raises problems that even the majority admits the judiciary is not equipped to solve. In effect, we are digging up snakes for the legislature to kill or getting into a “briar thicket.” The majority admits that there may be counties so small that the offices of sheriff and collector are inextricably intertwined so that those counties may constitutionally apply the collector’s commissions from school taxes to pay the expenses of the sheriff’s office, and it also admits that we cannot draw a line as to which counties are that small and which are that large. Presumably, the legislature will have to draw this line. However, whenever the legislature does so, it can become our duty to review the legislature’s decision. Thus, we today invite a task for which we admit that we áre not equipped. Since the majority admits that we are not equipped to draw this line, no guidance is given the legislature as to what is permissible. Since the majority overrules rather than distinguishes Dermott, it presumably is deciding that Chicot County is so large that, there, the sheriff and ex-officio collector may not apply the collector’s commissions to the expenses of the sheriff’s office. Otherwise, Dermott would be distinguished due to the size of the county, rather than overruled outright. The record here reflects that the population of Chicot County is approximately 17,000, as opposed to 94,000 in Sebastian County. Nothing in the record reflects the accounting practices of the office of sheriff and collector in Chicot County, so I see no basis for the decision today that the Chicot County sheriff may not apply the collector’s commissions to the expenses of the sheriff.
None of the cases relied upon by the majority for the proposition that the sheriff/collector’s office constitutes two distinct and separate offices held that the constitution mandated that the accounting and fiscal arrangement of the sheriff/collector also is distinct and separate. McCabe, Ex Parte, 33 Ark. 396 (1878), and Falconer v. Shores, 37 Ark. 386 (1881), held that a separate bond must be posted for each office. Crowell v. Barham, 57 Ark. 195, 21 S.W. 33 (1893) held that a deputy sheriff, who was not also a deputy collector, could not conduct a valid tax sale. Contrary to the suggestion in the majority’s opinion, in Dermott we recognized those cases and distinctly stated that the office of sheriff and the office of collector are two distinct offices. However, none of those cases dealt with the issue here which is whether the constitution mandates separate accounting for the expenses and fees of the two functions of the office of sheriff/collector. More on point is the holding in State v. Landers, 183 Ark. 1138, 40 S.W.2d 432 (1931) which is cited by the majority without discussion. The trial court in Landers, reasoning much like the majority here, held that since the offices of sheriff and collector are separate and distinct, the holder thereof was entitled to two salaries. However, we reversed and held that the officeholder was entitled to only one salary, thereby intimating that, in fiscal matters, the constitution does not mandate that the two offices be held distinct. As we said in Dermott, it is merely an extension of the same logic to say that the expenses may be treated as one office. The majority cites no authority for the proposition that the constitution mandates that the two functions be treated as separate and distinct offices for fiscal purposes.
The situation here and in Dermott is unlike that in County Board of Education v. Austin, 169 Ark. 436, 276 S.W. 2 (1925), and Terry, County Judge v. Thornton, 207 Ark. 1019, 183 S.W.2d 787 (1944). In those cases excess fees and commissions were paid into a general county fund. Here, there is no excess, because the expenses of the office of sheriff/collector for the year in question exceed the total fees and commissions collected by the two functions. Here, unlike Austin and Terry, the same officer who is charged with the duty of collecting the taxes also has the right to charge commissions as provided by the legislature and apply those collections to the expenses of his office.
I agree with the majority that Act 123 of 1975 is unconstitutional. However, I disagree with that part of the opinion which overrules Dermott. Therefore, I would affirm the trial court in all respects.
Adkisson, C. J., joins this dissent, except he would hold Act 123 constitutional.