in excess of" the sums which they are, under the law, entitled to retain as their lawful compensation. In order to determine when there is an "excess of" any sums which county officers are entitled to retain as compensation, Chapter 14502, Acts of 1929, supra, provides that each county official, receiving compensation wholly or partly in fees or commissions or both, must semi-annually make to the county commissioners a sworn itemized statement of all fees and commissions collected, and an itemized statement of all expenditures of their respective officers.

Complainants below, all of whom were tax collectors of the smaller counties of the State, contend by their instant suit that since under the provisions of Chapter 11954, Acts of 1927, it is provided that county officials not receiving a net annual income of five thousand dollars per annum, shall not be required to turn over any portion of their fees or commissions to the "Special County Fund" which the *Page 93 Act provides shall be made up of excess compensation paid to county officers through fees, salaries and commissions received by them, that they are entitled to have paid over to them by the Comptroller, fees earned by them as tax collectors, during their tenure of office, although not collected until afterwards, because of provisions of law which postpone such collections until redemptions from tax sales are made. See Chapter 14572, Acts of 1929, and Chapter 15798, Acts of 1931, which changed the previous law on this subject.

The court below sustained the contention of complainants as above stated by overruling the Comptroller's motion to dismiss the bill. It is the conclusion of this court that there was no error in such decree.

Under the applicable statutes which govern this controversy, it is expressly provided that if the fees and commissions earned by tax collectors and other county officers do not result in a "net income" to the incumbents of the offices, or at least five thousand dollars per annum "all the net income from such office not to exceed Five Thousand ($5,000.00) Dollars" shall be retained by the county officer "as his yearly compensation." Section 1, Chapter 11954, Acts of 1927.

The bill of complaint in this case alleges, and that allegation is admitted to be true by the Comptroller's motion to dismiss, that for neither of the years 1929, 1930, 1931 or 1932, during which periods complainants held the office of tax collector in small counties, and conducted the tax sales therein as provided by law, and earned the fees and commissions prescribed by law for conducting such tax sales, did the amount of fees and commissions earned by them during any of the said years of their tenure of office, amount to a "net income" of five thousand dollars annually. *Page 94

Such being the admitted facts of the case, and it appearing that under the terms of the statutes, the complainants below as tax collectors were entitled to retain up to a net income of five thousand dollars, all the fees and commissions of their offices accruing to them as "net income" as that term is defined by Section 2 of Chapter 11954, Acts of 1927,supra, it appears that until the complainants shall have received their net income in full, the complainants are entitled to the fees and commissions collected on tax redemptions since their retirement from office, the payment of which was merely postponed until the actual redemption was made, and that therefore the Court below properly restrained the Comptroller from treating the moneys of the complainants as being moneys for which warrants should be drawn by the Comptroller in favor of others, as the bill alleges he (the Comptroller) had announced his intention to do.

The duty to report all fees, salaries and commissions received by county officers is an appropriate incident for determining whether or not, under the law, any county officer has during any year received more than the "net income" which the law entitles him to retain as his compensation. But under the applicable statutes, where the total "net income" of a county officer never reaches the minimum "net income" permitted to be retained as the officer's annual compensation, the entire "net income" for the year is allowed to the officer, and cannot be taken away from him on the theory applied in Martin v. Karel, Sheriff, 106 Fla. 363, 143 Sou. Rep. 317, where it was said that when fees and commissions have been earned by a tax collector "in excess of" the minimum allowed by law such fees and commissions should, insofar as any excess is concerned, be deemed to have been earned by the office, rather than individually by the occupant thereof. *Page 95

The foregoing statement represents the views entertained in this case by Mr. Chief Justice DAVIS, Mr. Justice TERRELL and Mr. Justice BUFORD, who are of the opinion that the decree appealed from should be affirmed. Mr. Justice WHITFIELD, Mr. Justice ELLIS and Mr. Justice BROWN are of the opinion that the decree appealed from should be reversed for the reasons set forth in the separate opinions which they have prepared and filed this date, which will be published in connection with this opinion.

In view of an equal division of the six Justices of the Supreme Court, as to whether the decree appealed from in this case should be affirmed or reversed, the decree will stand affirmed on the authority of State v. McClung, 47 Fla. 224, 37 Sou. Rep. 51.

Affirmed.

DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.^*

^* The above opinion was prepared by a circuit judge during the absence of Judge ELLIS because of illness.

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