(concurring in the opinion of Smith, J.)
As to the purpose of the law: Prior to the enforcement of this act, county officers were paid by fees which they were permitted to charge the public for the performance of their duties. Necessarily these fees were uniform throughout the state, as one citizen could not be charged more than another for the performance of the same public duty. The consequence was that a *179fee system which would support the offices in a small county afforded an exorbitant compensation to the officers in a large county. It was to remedy this evil more than any other that the act under review was passed.
In the opinion of the Legislature the services of the officers in the larger counties were not commensurate with the fees they were permitted to charge and collect. The policy is now, as it was before, to support the offices by fees charged to those demanding the services, and because the existing fee system affords but a meager support to the offices in the smaller counties, the fees were not reduced. The principal purpose of the act is to divert the excess in the larger counties over and above a fair compensation for services from the officers to the county general fund.
As to the unequal operation of the law: It should not be said that the services of an officer must be valued by the standard of fees alone. The larger duties of the offices are common to all the counties. They must be kept open for' business, requiring the officers’ time; the same reports must be made by all; the same system of bookkeeping must obtain in all; the trust imposed upon the officer is alike in kind, if not in degree. The multiplied fees in the larger counties principally entail more bookkeeping and for this the law in question undertakes to make compensation independently of the officers’ salaries. Of course there is increased responsibility and enhancement of the trust in the larger- counties, calling for increased attention and ability in office; but in the opinion of the Legislature the graded salary is a corresponding compensation.
The salaries are not so unequal under the law as to make unreasonable classification. The glaring inequalities enumerated by counsel are based upon a wrong construction of the statute; as for instance, the salary of the auditor in Auglaize county, estimated on a popualtion of 31,192, is $2,530, not $2,475, and of the auditor in Brown county, based on a population of 28,237, is $2,345, not $1,500, as stated by counsel. The salaries of the same officer in Allen (47,976) and Miami (43,105) are respectively $3,390 and $3,190; and so, correspondingly in all the *180other counties until the maximum of $6,000 under the law is reached.
In order that the officer may be compensated for each full thousand at the given rate in any fifteen thousand, it is not meant, as conceived by counsel, that the fifteen thousand must be full before he can be allowed the rate per full thousand. Under this interpretation of the law the salaries approach uniformity and equality in a remarkable degree.
As to the proposition that the act authorizes the board of county commissioners to fix the compensation of the officers when it fixes the aggregate to be paid his subordinates for assisting to perform the duties of his office: The Legislature takes absolute control and makes full and final disposition of the entire funds arising from fees in all .of the offices, and this it may do. It prescribes how much shall be paid therefrom to the officer; how much to deputies, assistants, bookkeepers and clerks, and transfers the residue, if any, to the county general fund.
Tn contemplation of the act, the fees no longer attach to the officer, but to the office, and to the extent they are not needed to support the office they are devoted to the. general good.
It can not be said that the officer is entitled to claim the fees as perquisites belonging to him by virtue of his office. The Legislature has always bestowed or denied them at pleasure. Nor can it be claimed in reason that it intended to make an appropriation to the officer as part of his compensation, when it authorized the board of county commissioners to fix the compensation, in the aggregate, of deputies, assistants, bookkeepers and clerks. The law expressly negatives such intent, when it makes it a crime for the officer, directly or indirectly to receive, or appropriate any part of the allowance to his own use and benefit. It would be an anomaly to charge an officer with a crime for receiving his own.
The law recognizes the necessity for an additional working force in some of the offices of some of the counties. The existence of the necessity and its extent are questions of fact local in their character, and should therefore be referred to some local tribunal for - determination.
. The Legislature has conferred upon the board of county commissioners in each county the power to judicially determine these *181questions. The selection of the tribunal must be left to its wisdom. If, under the law, an officer should make application to the board for assistance in the prescribed way, and be refused, then should he be physically unable himself to perform all the duties of the office because of their magnitude, the default would be not his, but that of the board. It must act with legal, not arbitrary, discretion, in the bestowal or refusal of the fund.
The public have a right to expect and demand a reasonable and proper regard, both by the officer and the board, for the amount of labor necessary to be performed in each office.
The aggregate sums allowed in the various counties-are not required, or expected, to be uniform. As is said by counsel, they should be governed by environments — cost of living, the prevailing wage and the like. It is to the interest of the officer, and the public as well, that the compensation should be no greater than the wages paid for like services in the particular community to be served, and this may be as variant as the judgment of the boards in the different counties. It must not be overlooked that the officer fixes the compensation of each particular employe, as well as the number of employes.. With that the board has nothing to do, save that it may limit the aggregate that may be thus expended. If not left to it, to whom should be left the determination of the amount? Manifestly the Legislature could not determine it. If left to the officer the tendency would be to expend the whole of the fee fund in this way, defeating the purpose of the law.
I am of the opinion, therefore, that the act does not violate either Section 20 or Section 26 of Article 11 of the Constitution, and the judgment should be affirmed.