concurring.
I am in accord with the judgment of affirmance of the majority.
The cause presents constitutional issues. Beneath those issues and motivating this litigation and the result which plaintiff seeks is a financial issue. That issue is clearly stated by plaintiff in his assignments of error and argued by written brief and oral presentation at the bar of the court.
Plaintiff contends the courts should take judicial notice of the fact that the larger the population, the greater the responsibility of county officers; that the emoluments of office cannot be made greater for public officials in the less populous counties than in the more populous: *691counties; that what may be done under an act is material in determining its constitutionality; and that if the act in question may cause sheriffs in the less populous counties to receive more compensation than those in the more populous counties, it is invalid.
For the majority to hold, as it does, that the statutory allowance for boarding occupants of county jails is not salary within the meaning of section 23-1101, R. S. 1943, is to state the obvious, but not to answer the contention. Plaintiff does not contend that the allowance for the boarding of prisoners is a part of his statutory salary. It is his contention that the profits which he makes from the boarding of prisoners is an emolument of his office, over, above, and in addition to his salary, which he has a right to keep and which the Legislature cannot take from him constitutionally, save and unless it also is taken from all sheriffs. Plaintiff’s contention is based on that premise. The premise is not sound.
The record clearly discloses the basis of this financial issue. Plaintiff was sheriff of Douglas County from 1939 to 1947. The Douglas County jail houses federal, state, county, and city prisoners. During the above period plaintiff made a profit averaging approximately $11,000 a year from the feeding of prisonérs. It appears from the record that the plaintiff received 15^ a meal for feeding county and city prisoners; 75 ^ a day for feeding state prisoners, with the exception of two years when the Legislature cut his allowance to 45^ a day; and one dollar a day for feeding federal prisoners. For the three years shown plaintiff received approximately $5,000 a year for feeding federal prisoners. Plaintiff’s costs for the feeding of prisoners over the eight-year period averaged about 42.5 percent of the gross amounts received for that purpose. His profits averaged about 57.5 percent of the amount received for that purpose. It is these profits which the plaintiff seeks to retain.
The first question to be determined is whether or not the plaintiff had the right to keep and retain these *692profits under the law as it existed prior to the enactment of the legislation here assailed. The question of the constitutionality of the act in question, insofar as this contention is concerned, does not arise unless and until it is determined that plaintiff had the right to these profits as a part of the emoluments and perquisites of his office as sheriff and in addition to his salary. I would answer that first question. Plaintiff presents it. The majority neither considers nor decides it.
For the purpose of fixing salaries, counties of this state are classified using the base of population. § 23-1101, R. S. 1943. Plaintiff does not question the validity of this classification, but argues that such a classification is held reasonable because it is assumed “that no situation can possibly arise whereby the officers in the less populous counties can receive more compensation than those in the more populous counties.”
A public officer in this state must perform all the duties of his office for the compensation allowed by law. Johnson v. Johnson, 141 Neb. 239, 3 N. W. 2d 414. The salary of a sheriff is fixed by statute, on an annual basis, to be paid monthly. §§ 23-1102 to 23-1110, R. S. 1943. The sheriff has been on a salary basis since 1907. The sheriff has charge of the county jail and of the prisoners in the same. §§ 23-1703 and 47-105, R. S. 1943. If he elects to do so he may act as jailer, and if not, the jailer must be a deputy appointed by the sheriff. § 47-115, R. S. 1943. • It is clearly the intention of the Legislature that the duty of caring for prisoners shall be that of the sheriff or his deputy. That duty is expressed in section 47-111, C. S. Supp., 1941, and as amended by chapter 86, Laws 1943, as appearing in sections 47-113 and 47-113.01, R. S. 1943.
Section 33-120, C. S. Supp., 1941, fixing the fees of a sheriff, provided for an allowance of 75<f; a day for boarding all prisoners in all counties where there is an average of less than 50 prisoners per day, and 45^ per day where there is an average of more than 50 prisoners *693per day. It is also provided that the sheriff should make a quarterly report to the county board of fees collected and earned, “except mileage collected or earned,” and shall “pay all fees earned to the county treasurer.” These provisions were retained in section 33-117, R. S. 1943. These provisions negative any legislative intent that the sheriff should make a personal profit out of the feeding of prisoners. This conclusion is strengthened by the provisions of sections 29-1002 and 29-1004, R. S. 1943, that, subject to certain conditions, it is the “cost of keeping and maintaining any prisoner” which shall be paid by the county or state.
We held pursuant to these provisions in the original 1907 act: “A sheriff is required to report all fees earned by him by virtue of his office, which are not especially excepted from his report by statute. His salary is in lieu of fees” (State ex rel. Antelope County v. Miller, 98 Neb. 179, 152 N. W. 326), mileage being excepted (Red Willow County v. Peterson, 91 Neb. 750, 137 N. W. 987).
In Dunkel v. Hall County, 89 Neb. 585, 131 N. W. 973, a case dealing with jailer’s fees, we said arguendo: “It is contended by defendant that under these provisions of the statute it was the intention of the legislature that the amount fixed as a salary ‘for their services’' was intended to cover any and all services performed by such sheriff, and that all fees earned by him should belong to the county; and that if plaintiff were allowed the $1.50 a day as jailer’s fees he would be required,, under the terms of section 5, supra, to pay it over to the county treasurer. If that be a correct construction of section 5, then the sheriff would, have to turn over all money collected by him for the 50 cents a day for boarding each prisoner, notwithstanding the fact that he had been obliged to previously advance his private-funds in the payment for the provisions necessary for the furnishing of such board — expenditures which might eat up a very considerable portion of the salary allowed. *694the sheriff for his services. We are unable to so construe this, statute.”
That statement goes no further than to say that the sheriff is not required to bear the cost of food for prisoners out of his own salary without receiving restitution. The statement does not say that the sheriff is entitled to retain profits made from the feeding of prisoners. Again, the exception contained in the act as to mileage alone negatives that conclusion.
This review clearly demonstrates that the sheriff has no statutory right to keep and retain these profits and that they are to be accounted for and paid to the county.
The question' here presented has been considered and determined in a number of states where the sheriff is on a salary, as he is in Nebraska, and not on a fee basis. Their decisions sustain these conclusions. The county jail is not furnished to the sheriff as a place in which to conduct a private business. The sheriff receives and cares for prisoners in his official capacity and not in his individual capacity. He receives the fees for boarding prisoners because he is an official of the county. The theory of an allowance for the board of prisoners is that such payment shall be sufficient to reimburse him for actual expenses; it is intended to prevent both an extravagant overfeeding and a niggardly underfeeding of the prisoners. It was not enacted for the purpose of adding a perquisite to the sheriff’s office, nor was it intended that the sheriff should receive a private personal profit out of the feeding of prisoners and at the expense of the prisoners, the county or the state. It is against public policy for a public official to be so placed that in the performance of a public duty a conflict may arise between his personal financial interest and his public duty, or so that he may be required to choose between personal interest and public duty. So long as he retains public office, private interest must yield to public duty. That conflict arises when a personal priyate profit is made from the performance of *695a public duty. To hold otherwise would be to say that the sheriff has, not a fixed and definite salary, but a very indefinite salary. The money received by a sheriff for the care and feeding of prisoners in excess of what was actually expended by him for those purposes belongs not to the sheriff but to the county. Freeholders of Hudson v. Kaiser, 75 N. J. L. 9, 69 A. 25; Bowman v. Harford County, 166 Md. 296, 171 A. 48; Kommers v. Palagi, 111 Mont. 293, 108 P. 2d 208; Howell v. City of Ashland, 239 Ky. 349, 39 S. W. 2d 468; Holland, Jailer, v. Fayette County, 240 Ky. 37, 41 S. W. 2d 651, and cases there cited; Adams v. Maricopa County, 16 Ariz. 418, 145 P. 884; Kohler v. Powell, 115 Ohio St. 418, 154 N. E. 340.
I would so answer plaintiff by basing the decision as to this contention upon the first question, and not upon the second question which it presents.
I am authorized to state that Paine and Wenke, JJ., concur in this opinion.