The opinion
Mr. Justice Craig, dissenting:
I dissent for the reasons heretofore expressed by me in the dissenting opinion in Jones v. O’Connell, 266 Ill. 443 , and for the further reason that it has been overlooked that county treasurers of the counties of this State are by law allowed a commission, when acting as county collectors, on certain moneys collected and paid over by them, the amount of such commission depending upon the classification of the county. In counties of the second class, which includes the county of Lake, the county treasurer, when acting as county collector, is allowed a commission of two per cent on all moneys collected by him and paid over to the proper officer, except moneys collected for incorporated cities, villages and other municipalities in counties under township organization, upon which he is allowed a commission of one per cent. (Hurd’s Stat. 1913, chap. 53, sec. 21.) Appellant was therefore entitled to a commission of two per cent on all State taxes collected by him and paid over to the State Treasurer. The provision in the Inheritance Tax law allowing the county treasurer to retain as a commission or fee for collecting each inheritance tax two per cent of that particular State tax is merely declaratory of the law already in force, as provided by section 21 of the Fees and Salaries act. In fact, if section 21 had been entirely omitted from the Inheritance Tax law, could any reason be given why appellant, as county treasurer, could not retain two per cent from all inheritance taxes collected by him under section 21 of the Fees and Salaries act? If the provision of the Inheritance Tax law in question is unconstitutional, as held in the above opinion on the authority of Jones v. O’ Connell, supra, then the similar provision of section 21 of the Fees and Salaries act is also unconstitutional. The inheritance tax collected by the county treasurer was a State tax, the same as other State taxes collected by the county treasurer and paid over to the State Treasurer under the Revenue law. Under the plain provisions of section 10 of article 10 of the constitution of 1870, appellant, as a county officer, had the right to collect the fees in question and apply them on his compensation as fixed by the county board, and it was his duty to pay over any balance to the county, as held in numerous decisions of this court from the adoption of the constitution of 1870 down to the present time. (Kilgore v. People, 76 Ill. 548 ; Broadwell v. People, id. 554 ; Cooper v. People, 85 id. 417; People v. Foster, 133 id. 496; County of Mason v. Drainage Comrs. 140 id. 539; County of LaSalle v. Milligan, 143 id. 321; Carroll County v. Durham, 219 id. 64; Spring Creek Drainage District v. Elgin, Joliet and Eastern Railway Co. 249 id. 260; People v. Witzeman, ante, p. 508.) It follows that the county had the right to sue for and recover such balance.
I think the judgment of the circuit court should be affirmed.