I dissent. I concur in that part of the opinion of Mr. Justice Henshaw which holds that the legislature has the power to classify by population the townships within any given class of counties, in order to regulate the compensation of the officers of such townships.

But I cannot agree to the proposition that the law in question violates the constitutional requirement that the compensation shall be regulated in proportion to duties.

The power of the courts to declare an act of the legislature unconstitutional requires the utmost delicacy in its exercise, and is never to be exerted except when the conflict between the statute and the constitution is palpable and incapable of reconciliation, and where there is a reasonable doubt whether the act is repugnant to the constitution the court should not pronounce it unconstitutional. (Stockton etc. Co. v. Stockton, 41 Cal. 159 ; Borlamd v. Hildreth, 26 Cal. 161 ; People v. Sassovich, 29 Cal. 480 ; Brooks v. Hyde, 37 Cal. 375 ; University v. Bernard, 57 Cal. 613 ; People v. Hayne, 83 Cal. 111 . ) “In passing upon the constitutionality of the statute, we are not required to imagine some possible contingency in which its provisions may conflict with the constitution, but we should determine whether in its general scope it is within the province of the law-making power.” (Woodward v. Fruitvale, 99 Cal. 562 .)

It will be conceded that the legislature, in fixing the compensation of officers, is not required to provide a specific compensation for every specific service. It may provide specific compensation for certain services, and require other services for which no specific compensation is provided, it being then presumed that the legislature intended that the whole of the service should be performed in consideration of the compensation provided for the particular service for which a fee is given. It is also competent for the legislature, after a salary or fee is once fixed and the officer has entered upon his term, to provide additional duties which he must perform without any additional compensation. In none of these eases can it be held that the compensation is not in proportion to duties.

It is apparently conceded that a law for the compensation of township officers would be valid if, for all the townships in a class of counties, it provided that each justice should receive three dollars for each criminal case, not exceeding a fixed sum in any one month, and that for the excess of services in any month he should receive nothing. It was so held in Green v. Fresno, 95- Cal. 332. The invalidity of this particular statute is said to lie in the fact that the maximum is larger in the larger townships than in the smaller class. This, it is said, makes it possible that two justices, in townships of different classes, may, in some one or more months of the term, each dispose of fifty criminal cases, for which duty one would receive thirty dollars less than the other, and therefore the compensation of either, as compared with the other, would not he in the same proportion to the duty required, and the law would not be uniform in operation.

It is perfectly obvious that it is impossible for the legislature to devise a scheme of compensation which, if judged by the possibilities of any one month, or by exceptional cases, would be either in proportion to duty or of uniform operation. A few illustrations will .demonstrate this proposition. If the law provided that justices in each of the townships should receive the fees provided by law, not exceeding one hundred dollars in any one month, or that each should receive a certain fixed sum as a salary, or that each should receive whatever amounts he should earn, at three dollars for each criminal case, or a fixed sum for each hour occupied in official duty, in either case it would be subject to the same contingencies. One justice might have a preliminary examination, or a case of criminal libel, which would occupy a month, while during the same month another would have fifty petty misdemeanors to which the defendants would plead guilty. The first would obtain three dollars for his month’s work and the other one hundred and fifty dollars, if there were no. limit, or, if there was a limit of one hundred and forty dollars, one would receive the full maximum, while the other would get but the paltry three dollars. One would be occupied continuously for a month, while the fifty pleas of guilty would require but a few hours. So, if the compensation were so much per hour, the capacity of men to dispatch business being unequal, one man might dispose of an important ease in two weeks, while another would require a month for the same work. The public service would be the same, but the more capable man would receive only one half as much as his inefficient colleague. In the case of a salary the service would vary, while the salary would remain the same. The conclusion is inevitable that some other standard must be applied, and greater liberty allowed to the legislature.

If a month is taken as a convenient division of time by which to apportion the compensation allowed, the scale need not be so nicely adjusted that in each month the compensation will be in exact proportion to the duty performed in that month. The amount is not so fixed on any theory that the duty to be performed will not vary either in amount or cost of performance from month to month. On the contrary, the legislature is presumed to take a year, or an entire term, and to consider the total service likely to be required for such year or term, and to give such compensation for the year or term as it believes sufficient. The division into monthly payments is merely for convenience, and has no just relation to the value of the services performed for any particular month. So, also, in the case of fees, they are not fixed on the theory that each fee represents the reasonable value or cost of the named service in any single instance, or even the average cost or value, but because it is believed that for an entire term the fees allowed will provide a reasonable compensation for all official services required.

The court has no right to say that the validity of a law for the compensation of officers must depend upon the possibility, or even the certainty, that there will be special instances in which it will operate unequally. The legislature cannot take these special and unusual cases into account so as to legislate especially for them. It can act only with reference to usual and ordinary conditions and general averages. The court, in determining the validity of legislative action on this subject, instead of searching for possible or actual instances of inequality or lack of uniformity, should rather inquire if it may not be true that in the long run and in the average of cases there will be substantial uniformity of operation. The legislature, instead of considering the possible effect of the plan for a possible month, should, and doubtless did, consider the average conditions for an average year or term. Many contingencies may be supposed different from that supposed in the prevailing opinion. For instance, it may be that in each class of townships there would be in some months less, and in some months more, than the maximum allowed for the class; that the average amount received for the year in the larger class would be twelve hundred dollars, and in the smaller class nine hundred dollars, and that in the months when the number of cases exceeded the maximum, the total excess in the larger townships would be one hundred and twenty cases, and in the smaller ninety cases. Neither would receive any specific compensation for these extra duties, but the amount of such service required would bear the same proportion to the compensation received in the one case as in the other, and the compensation, therefore, would be in proportion to duties, and the law would be of uniform operation. It cannot be said that this is an impossible condition, and, as the court cannot declare a law unconstitutional unless the repugnancy is clearly apparent, I think it is clear that in this case the act of the legislature should be declared valid.

In 1883 the legislature, in pursuance of section 5 of article XI of the constitution, endeavored to fix the compensation of officers in proportion to duties. At nearly every session since that time there has been either an entire new law on the subject enacted, or a revision or amendment of many of its sections. It has been the general understanding of both the legislators and of the courts that such legislation as that here involved was valid, and up to this time it has not been questioned. It is true that this long-continued acquiescence does not remove any substantial" objection, but it should at least-require careful consideration before deciding such provisions invalid, and where, as in this case, it can only be declared invalid by supposing unusual and exceptional cases, it is the plain duty of the court to give the legislature the benefit of the doubt and presume the conditions are such as would justify the legislation in question. The effect of this decision will be to declare a large part of the present County Government Act invalid, as far as it affects township officers.

If the principle of the prevailing opinion is carried out to its logical conclusion, it will apply with equal force to the laws regulating the compensation of county officers in the different classes of counties. For it must be admitted that the power to classify counties for that purpose, though given by a specific declaration to that effect, is of no greater force, with respect to the different classes of counties, than is the power to classify townships, with respect to the different classes of townships. Both are equally subject to other constitutional restrictions and must be exercised accordingly. Laws passed to regulate the compensation of county officers in two or more classes of counties must fix the compensation as nearly in proportion to duties and be as uniform in operation as laws providing for the compensation of township officers in two or more classes of townships. Therefore, if a township law of this nature is to be declared invalid whenever it can be demonstrated or reasonably supposed that an officer of one class may not, or does not, receive as much compensation for some particular month, or for some particular duty, as the same officer of another class for a like amount of service, then, by the same principle, it must be held that a law fixing the compensation of the county officers of two or more classes of counties is unconstitutional if it does not give to an officer of one of the classes the same compensation for a particular time, or specified duty, as it gives to the same officer of another class of counties for substantially the same service. An examination of the provisions for the compensation of the county officers in the several classes of counties will disclose many inequalities of this character, and upon the principle here established the provisions of the County Government Law as to compensation of many of the officers would be declared unconstitutional.

For these reasons I am of the opinion that the law is constitutional.

Rehearing denied.

17 Am. St. Rep. 211 .