Concurring. — I concur in the conclusion reached in this case, that Chap. 8497, Acts of 1921, is constitutional and valid, but only if the proviso in relation to counties having 100,000 population or more, is eliminated.
I regard that proviso as unconstitutional and invalid. All of the “enumei'ated eases” in Sec. 20, Art. Ill of the Constitution, whereby the legislature is prohibited from passing special or local laws, are of equal dignity.
The legislature cannot enact a valid law providing that “the punishment for the criihe of larceny shall be imprisonment not exceeding two years, or by fine not exceeding $1,000.00 or by both fine and imprisonment in all counties in the State; provided, that ‘in Counties having 100,000 population or more, ’ the punishment shall be by imprisonment not exceeding five years, or by a fine not exceeding $5,000.00, or by both fine and imprisonment.”
Neither could the legislature make a rule for “changing venue of civil and criminal cases” for part of the State, and a different rule “in counties of 100,000 population or over.”
*221The same is true with regard to “summoning and empaneling grand and petit juries” where expediency and convenience might suggest a different rule for sparsely settled counties than in, those more thickly pppulated.
If a classification based upon population may be constitutionally applied in the matter of “regulating the- fees of officers of the State and county, ’ ’ a similar classification would have to be sustained in an Act making the punishment of crime vary according to population, in the several counties of the State, and likewise with regard to all the “enumerated cases” in Sec. 20 of Art. Ill of the Constitution. It follows that so much of Sec. 1 of Chap. 8497 as provides “that in counties of One Hundred Thousand (100,000) population or over said officers shall receive from the net income the first Five Thousand ($5,000.00) Dollars; ninety (90%) per cent, of the next Two Thousand ($2,000.00) Dollars; thirty (30%) per cent, of the next Two Thousand Dollars; and then ten (10%) per cent, of the rest and residue thereof; Provided, further that in no event shall such officers be entitled to more than Seven Thousand Five Hundred ($7,500.00) Dollars per annum,” is unconstitutional and void.
As this may be eliminatéd without destroying the purpose of the Act, and as we cannot say that the legislature would not have passed it without this proviso, the rest of the Act is not affected, and remains valid and enforcable. •