The opinion of the court was delivered by
HortoN, C. J.:
The only question presented is, whether chapter 214, Laws of 1887, is constitutional. The court below held the act to be unconstitutional. We appreciate the well-settled doctrine of this court, as, also, of the supreme courts of nearly all the states, that no statute should be declared unconstitutional unless the infringement of the superior law is clear, beyond substantial doubt. (The State, ex rel., v. Robinson, 1 Kas. 17; Comm’rs of Leavenworth Co. v. Miller, 7 id. 479; The State, ex rel., v. Hunter, 38 id. 578; Ogden v. Saunders, 12 Wheat. 213.) “As between the will of the people expressed in the constitution, and that expressed in the statute, the former always prevails.” (The State, ex rel., v. Thoman, 10 Kas. 191.) “Constitutional limitations need not always be express. They are equally effective when they arise by implication.” (Prouty v. Stover, 11 Kas. 235.) “It would be a dangerous doctrine to announce, that any of the provisions of the constitution may be obeyed or disregarded at the mere will [158]*158or pleasure of the legislature, unless it is clear beyond all question that such was the intention of the framers of the instrument.” (Comm’rs of Sedgwick Co. v. Bailey, 13 Kas. 607.)
The first contention is, that chapter 214 is unconstitutional because it attempts to delegate legislative power to the petitioners, and confer upon them the absolute and arbitrary power to levy taxes and special assessments on the property of others. The petitioners named in the statute are authorized, absolutely and arbitrarily, to determine whether the improvement is necessary and shall be made. No discretion, exercise of judgment, or revisory or supervisory control is vested in the board of county commissioners, or any other tribunal or officer elected by or responsible to the people. When the petition is presented to the board of county commissioners demanding the improvement of a road, it is, in the language of the statute, “made the duty of such county commissioners to cause the same to be improved.” The county commissioners have no discretion to refuse the improvement. Here an important power, namely, that-of causing public improvements, and of levying general taxes on all of the people, in addition to special assessments on a portion of them, to pay for such improvements, is conferred directly upon a class of persons, many of whom may not be electors. The petitioners are authorized, absolutely and arbitrarily, to fix the boundaries of the taxing district; the nature, extent and cost of the improvement to be made; and no officer or tribunal of the people has any discretion in this respect. The boundaries of the taxing district are fixed by the “ terminal points mentioned in the petition.” “The points between which the improvements are to be made,” and “the kind of improvements,” are determined'by the petition.
Opposing counsel say that the board of county commissioners has, under the statute, discretion whether to make the improvement or not. They insist that the statute is directory only, not mandatory. Within the prior decisions of this court, we think otherwise. The statute reads:
“That whenever a majority of the resident landholders [159]*159within one-half mile on either side along the line of any regularly laid out road, within the terminal points mentioned in the petition, shall petition the board of county commissiouers of any county in this state for the improvement of any road as located, or any part thereof, it is hereby made the duty of such county commissioners to cause the same to be improved, as hereinafter provided.” (Laws of 1887, ch. 214, §1.)
It was decided in The State, ex rel., v. Faulkner, 20 Kas. 541, that
“Where a city of the third class has in fact a population of over 2,000 inhabitants, but such fact has never been legally ascertained by the city authorities, it is the legal duty of such city authorities to immediately and legally ascertain such fact, and then to take the necessary steps to organize as a city of the second class.”
Section 1, chapter 107, Laws of 1876, reads:
“ Whenever two-fifths ¡of the resident taxpayers of any county, or two-fifths of the resident taxpayers of any municipal township, shall petition in writing the board of county commissioners, or whenever two-fifths of the resident taxpayers of any incorporated city shall petition the mayor and council of such city, to submit to the qualified voters of such county, township or city a proposition to subscribe to the capital stock of, or to loan the credit of such county, township or city to, any railroad company constructing or proposing to construct a railroad through or into such county, township, or city, the county commissioners for such county or township, or the mayor and council for such city, shall cause an election to be held to determine whether such subscription or loan shall be made.”
That section was construed as being mandatory, not discretionary. If a sufficient petition is presented under that statute, it is the duty of the board of county commissioners to call an election. There is no discretion. (The State, ex rel., v. Comm’rs of Rush Co., 35 Kas. 150; The State, ex rel., v. Comm’rs of Reno Co., 38 id. 317; C. JK. & N.. JRly. Co. v. City of Manhattan, 45 id. 419; The State, ex rel., v. Comm’rs of Cloud Co., 39 id. 700.) These and many other decisions of this court hold that, where a legal duty is cast upon a board [160]*160of county commissioners, that duty may be enforced by mandamus, and such duty cannot be evaded upon the ground that the county officials have a discretion to act. The statute referred to makes it the duty of the county commissioners to cause the improvement to be made, if the petition required by § 1 of chapter 214 is presented and filed.
Section 1, article 2, of the constitution of the state, ordains that “The legislative power of this state shall be vested in a house of representatives and senate.”
Section 21, article 2, of the constitution, ordains that “The legislature may confer upon tribunals transacting the county business of the several counties such powers of local legislation and administration as it shall deem expedient.”
Section 5, article 12, of the constitution, ordains that “ Provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit shall be so restricted as to prevent the abuse of such power.”
The improvement in this case is not within any city, town, or village; therefore, so far as this case is concerned, under the constitution of the state, no power of legislation can be exercised excepting by the legislature itself, or some tribunal transacting.county business. The board of road commissioners authorized to be appointed under the provisions of said chapter 214, is nota county tribunal; therefore, under the constitution, these commissioners have no power of local legislation, and the legislature has no power, under the constitution, to delegate the road commissioners any legislative authority. (Cooley, Const. Lim., .§§ 117,191.) It was said by Chief Justice KiNGMAN, in Auditor of State v. Railroad Co., 6 Kas. 500, that
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The opinion of the court was delivered by
HortoN, C. J.:
The only question presented is, whether chapter 214, Laws of 1887, is constitutional. The court below held the act to be unconstitutional. We appreciate the well-settled doctrine of this court, as, also, of the supreme courts of nearly all the states, that no statute should be declared unconstitutional unless the infringement of the superior law is clear, beyond substantial doubt. (The State, ex rel., v. Robinson, 1 Kas. 17; Comm’rs of Leavenworth Co. v. Miller, 7 id. 479; The State, ex rel., v. Hunter, 38 id. 578; Ogden v. Saunders, 12 Wheat. 213.) “As between the will of the people expressed in the constitution, and that expressed in the statute, the former always prevails.” (The State, ex rel., v. Thoman, 10 Kas. 191.) “Constitutional limitations need not always be express. They are equally effective when they arise by implication.” (Prouty v. Stover, 11 Kas. 235.) “It would be a dangerous doctrine to announce, that any of the provisions of the constitution may be obeyed or disregarded at the mere will [158]*158or pleasure of the legislature, unless it is clear beyond all question that such was the intention of the framers of the instrument.” (Comm’rs of Sedgwick Co. v. Bailey, 13 Kas. 607.)
The first contention is, that chapter 214 is unconstitutional because it attempts to delegate legislative power to the petitioners, and confer upon them the absolute and arbitrary power to levy taxes and special assessments on the property of others. The petitioners named in the statute are authorized, absolutely and arbitrarily, to determine whether the improvement is necessary and shall be made. No discretion, exercise of judgment, or revisory or supervisory control is vested in the board of county commissioners, or any other tribunal or officer elected by or responsible to the people. When the petition is presented to the board of county commissioners demanding the improvement of a road, it is, in the language of the statute, “made the duty of such county commissioners to cause the same to be improved.” The county commissioners have no discretion to refuse the improvement. Here an important power, namely, that-of causing public improvements, and of levying general taxes on all of the people, in addition to special assessments on a portion of them, to pay for such improvements, is conferred directly upon a class of persons, many of whom may not be electors. The petitioners are authorized, absolutely and arbitrarily, to fix the boundaries of the taxing district; the nature, extent and cost of the improvement to be made; and no officer or tribunal of the people has any discretion in this respect. The boundaries of the taxing district are fixed by the “ terminal points mentioned in the petition.” “The points between which the improvements are to be made,” and “the kind of improvements,” are determined'by the petition.
Opposing counsel say that the board of county commissioners has, under the statute, discretion whether to make the improvement or not. They insist that the statute is directory only, not mandatory. Within the prior decisions of this court, we think otherwise. The statute reads:
“That whenever a majority of the resident landholders [159]*159within one-half mile on either side along the line of any regularly laid out road, within the terminal points mentioned in the petition, shall petition the board of county commissiouers of any county in this state for the improvement of any road as located, or any part thereof, it is hereby made the duty of such county commissioners to cause the same to be improved, as hereinafter provided.” (Laws of 1887, ch. 214, §1.)
It was decided in The State, ex rel., v. Faulkner, 20 Kas. 541, that
“Where a city of the third class has in fact a population of over 2,000 inhabitants, but such fact has never been legally ascertained by the city authorities, it is the legal duty of such city authorities to immediately and legally ascertain such fact, and then to take the necessary steps to organize as a city of the second class.”
Section 1, chapter 107, Laws of 1876, reads:
“ Whenever two-fifths ¡of the resident taxpayers of any county, or two-fifths of the resident taxpayers of any municipal township, shall petition in writing the board of county commissioners, or whenever two-fifths of the resident taxpayers of any incorporated city shall petition the mayor and council of such city, to submit to the qualified voters of such county, township or city a proposition to subscribe to the capital stock of, or to loan the credit of such county, township or city to, any railroad company constructing or proposing to construct a railroad through or into such county, township, or city, the county commissioners for such county or township, or the mayor and council for such city, shall cause an election to be held to determine whether such subscription or loan shall be made.”
That section was construed as being mandatory, not discretionary. If a sufficient petition is presented under that statute, it is the duty of the board of county commissioners to call an election. There is no discretion. (The State, ex rel., v. Comm’rs of Rush Co., 35 Kas. 150; The State, ex rel., v. Comm’rs of Reno Co., 38 id. 317; C. JK. & N.. JRly. Co. v. City of Manhattan, 45 id. 419; The State, ex rel., v. Comm’rs of Cloud Co., 39 id. 700.) These and many other decisions of this court hold that, where a legal duty is cast upon a board [160]*160of county commissioners, that duty may be enforced by mandamus, and such duty cannot be evaded upon the ground that the county officials have a discretion to act. The statute referred to makes it the duty of the county commissioners to cause the improvement to be made, if the petition required by § 1 of chapter 214 is presented and filed.
Section 1, article 2, of the constitution of the state, ordains that “The legislative power of this state shall be vested in a house of representatives and senate.”
Section 21, article 2, of the constitution, ordains that “The legislature may confer upon tribunals transacting the county business of the several counties such powers of local legislation and administration as it shall deem expedient.”
Section 5, article 12, of the constitution, ordains that “ Provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit shall be so restricted as to prevent the abuse of such power.”
The improvement in this case is not within any city, town, or village; therefore, so far as this case is concerned, under the constitution of the state, no power of legislation can be exercised excepting by the legislature itself, or some tribunal transacting.county business. The board of road commissioners authorized to be appointed under the provisions of said chapter 214, is nota county tribunal; therefore, under the constitution, these commissioners have no power of local legislation, and the legislature has no power, under the constitution, to delegate the road commissioners any legislative authority. (Cooley, Const. Lim., .§§ 117,191.) It was said by Chief Justice KiNGMAN, in Auditor of State v. Railroad Co., 6 Kas. 500, that
“Where the money is raised by taxation, an ascertainment of the value of the property is a necessary prerequisite, and therefore an incident to the power to tax. It would be competent for the legislature to appoint commissioners for this purpose, who should report directly to the legislature, who [161]*161could revise and correct such valuation. That the inconvenience of such a mode would preclude its adoption, is no argument against the power. The power exists, and is a legislative power, and shows conclusively that it cannot be a judicial power.”
The authorities from New York and some other states, referred to by counsel for defendants below, to the effect that taxation or assessment is judicial in its nature, are fully considered and negatived by this court in the case just cited.
We are therefore compelled to rule that, to some extent, the powers and duties of the road commissioners, under the provisions of said chapter 214, are legislative, and, as such •commissioners are neither the legislature nor a tribunal transacting business of any county in the state, the legislature could not confer upon them all of the powers attempted to be imposed by the provisions of said chapter. (People v. Parks, 58 Cal. 641; Thompson v. Schermerhorn, 6 N. Y. 92.)
If the legislature had established the road and cast the cost and expenses thereof upon the county, the statute might have been constitutional, within The State, ex rel., v. Comm’rs of Shawnee Co., 28 Kas. 431. If the legislature had conferred upon the board of county commissioners of Wyan-dotte county discretion to order the improvement, the control thereof, and the amount of expenditure therefor, the statute might be valid. (Const., art. 2, § 21.)
It is said, in answer to the objections against chapter 214, -that if it is unconstitutional the general road law of Kansas is also unconstitutional. Not so. Before a board of county commissioners of any county in this state is required to appoint viewers to locate, alter or vacate any public road or highway under the road law, one or more of the signers of the petition presented to the board must give a bond with sufficient securities, payable to the state for the use of the county, conditioned that the persons signing the bond shall pay into the treasury of the county the amount of all cost and •expense accruing in the location, alteration or vacation of the road in case the road is not finally established. (Gen. Stat. of [162]*1621889, ¶¶ 5474-5476.) After the viewers appointed under the road law to make a report in favor of or against the establishment, alteration or vacation of any road complete their work, the board of county commissioners is not compelled to establish, alter or vacate such road, unless it is satisfied that such establishment, alteration or vacation will be of public utility. (Gen. Stat. of 1889, ¶ 5479.) Under the road law, the board of county commissioners has full power to order or control the improvement. Under chapter 214, it has no discretion, no revisory or supervisory control of the improvement or its cost.
Again, it is said, against the objections suggested, that the free-turnpike law of Ohio and the gravel-road law of Indiana are similar in their provisions to said chapter 214. These statutes have been held constitutional by the Ohio and Indiana supreme courts. It is therefore said that chapter 214 should be declared constitutional. An examination of the statutes of Ohio and Indiana shows that they differ in important matters from the statute of Kansas. In most of the statutes of Ohio giving authority to pave, plank, gravel or macadamize a county road or any part thereof, the power so to do is conferred upon the board of county commissioners. Discretion is given to act, or not. (Supp. Rev. Stat. of Ohio [Swan & Saylor], 1868, p. 673; The State v. Warren Co., 17 Ohio St. 558.)
Under the act of 1867, to authorize county commissioners in that state to lay out and establish free turnpike roads, it is not stated by the provisions of the statute that the board of commissioners is compelled to act upon the presentation of the petition of a majority of the resident landholders. (Supp. Rev. Stat. of Ohio, 1868, ch. 83, p. 680, ¶ 63.) At least, no decision is referred to construing the statute to be mandatory. It is true, that the words “shall appoint” are used in that act, but these words are not as strong as the statute of this state, which prescribes that, when a majority of the resident landholders shall petition, “it is hereby made the duty of such county commissioners to cause the same [road] to be improved.”
[163]*163In the Indiana statute authorizing the construction of, grading, macadamizing or paving roads, the power to order the improvement is conferred upon the board of county commissioners. The commissioners are not compelled to construct or improve the road, even if the viewers report favorably, unless, in their opinion, public utility requires it. (Laws of Indiana, 1877, p. 82, cb. 47, §§ 1-6.)
Again, the Ohio and Indiana statutes differ from chapter 214 in that the assessment or taxation is to be upon the land and taxable property within the limits of the road established or improved. In Ohio, gates are permitted to be erected for the collection of tolls. (Supp. Rev. Stat. Ohio, 1868, pp. 673, 674, 680 — 686.) The statutes of Ohio and Indiana conform to the rule thus stated by Cooley in his Constitutional Limitations (page 497):
“Assessments for the opening, making, improving, or repairing of streets, the draining of swamps, and the like local works, have been generally made upon property with some reference to the supposed benefits which the property would receive therefrom. Instead, therefore, of making the assessment to include all the property of the municipal organization in which the improvement is made, a new and special taxing district is created, whose bounds are confined to the limits within which property receives a special and peculiar benefit in consequence of the improvement. Even within this district the assessment is sometimes made by some other standard than that of value, and it is evident that if it be just to create the taxing district with reference to special benefits, it would be equally just and proper to make the taxation within the district have reference to the benefit each parcel of property receives, rather than to its relative value.”
Under chapter 214, the improvement caused by a majority of the resident landholders of any special taxing district along the line of any regularly laid out county road is not to be paid for wholly by the property within the special taxing district created by them, but one-third of the cost of such ¿improvement must be paid out of the general fund of the county — that is, by the taxpayers generally — without any [164]*164control of such improvement or the cost thereof by the county tribunal or any other person or officer elected by the people of the county.
It is next contended that chapter 214 is unconstitutional because it permits the special assessments for the cost of improving roads to be made upon personal property within the taxing district, as well as upon the real estate situated therein. The statute provides that
“Upon the completion of any improvement hereunder, said commissioners shall meet at the office of the county clerk and apportion two-thirds of the cost thereof among the several tracts of land designated in the map filed as aforesaid, according to the benefits to the real and personal property within the limits shown by said map derived from such improvement.” (Ch. 214, § 8.)'
We do not think that personal property within the taxing district can be assessed, in the manner prescribed by the statute, for the cost of such local or special improvements as macadamizing or paving county roads. If the statute does not authorize the assessment to be charged upon the personal property benefited, but requires that special benefits to personal property shall be charged upon the real estate, then it is grossly unequal and absurd in its operation, because benefits to the personal property of an owner who has no real estate would either be charged upon the real estate of some other person who owns real estate, or would escape taxation entirely.
The free-turnpike law of Ohio (Supp. Rev. Stat. 1868, ch. 83, § 6, p. 686) provides :
“ That for the purpose of constructing free turnpike roads, authorized by this act, extra taxes may be levied as hereinafter provided, on all property, real and personal, within one mile on each side of said free turnpike road, except when any such free turnpike road, which has been macadamized or graveled, shall cross a free turnpike road which is either completed or in process of construction; then such lands and personal property as lie within one-half mile on either side of where such free turnpike roads cross each other shall be as[165]*165sessed and taxed in proportion to the benefit that may be derived by tbe owners of such lands and personal property from the construction and use of such free turnpike road/’
That statute, even if constitutional, limits the personal property to be taxed according to the benefits derived by the owner thereof from the construction and use of the road. Section 8, chapter 214, has no such limitation or qualification. Under said § 8, the personal property may be assessed or taxed for the special improvement, whether the owner thereof lives within the taxing district or not. To our minds, § 8 is unconstitutional, so far as relating to the special assessment of personal property. It is said that personal property was inserted for the purpose of embracing street railway companies and the personal property of such companies; but there is no qualification or limitation to the phrase “personal property.” It must include all personal property, whether the owner be a person living in the county or out of the county; living in the.state or out of the state. Such personal property, of course, may be subject to all taxes levied by the state, county, township or school district where it is found. But, under any fair or just construction of the constitution of the state, it cannot be made liable to additional or special assessments for the macadamizing or paving roads or highways at the special instance of resident landholders. (Elliott, Roads & St. 400; Cooley, Tax. 472; Higgins v. Ausmuss, 77 Mo. 351; City of Raleiqh v. Peace, 14 S. E. Rep. [N. C.] 521.)
[166]*166^LawsVf'iss?, invalid. [165]*165Under chapter 83 (Supp. Rev. Stat. 1868) of the Ohio Law, pp. 680 — 686, the petition of a majority of the freeholders of a taxing district cannot extend any part of the cost of constructing or improving the road over the county or over the taxpayers generally. The taxation or assessment for the improvement upon their petition must be confined wholly within the taxing district which they represent. Section 6 of said chapter 83 of the Ohio statute seems to be based upon the theory that a majority of the resident freeholders of any taxing district, by vote or petition, may subject the land [166]*166and personal property within such taxing district to the payment of the cost of improving a public road in such district, the special taxes or assessment to be levied in proportion to the benefits “ that may be derived by the owners of such lands and personal property from the construction and use of such road.” Chapter 214 gives a majority of the resident landholders of a special and small taxing district, established at their instance, the power to subject the laud and personal property within such district to two-thirds of the cost of improving any county road in the district, “according to the benefits to the land and personal property within such taxing district,” and in addition gives such resident landholders in such specific and small district the power to compel all the taxpayers of the county to pay one-third of such special taxes or assessment, without having any voice, either through their own votes or through the action of any county tribunal or other elected officer. Under the Ohio statute, the improvement and special assessments to pay the same are submitted to the discretion of the resident freeholders of the special taxing district, and no part of such special assessment can be imposed by the resident freeholders of a special taxing district upon the taxpayers of the whole county. By the statute of this state, one-third of the cost of such improvement is cast upon the taxpayers o,f the whole „ county, nolens volens, and the taxpayers of the county outside of the special taxing district have no discretion, voice or vote in the improvement or its cost. Even if the legislature has the power to confer an authority or discretion as to the execution of such a statute as chapter 214, it ought not to have the power, and we do not think it has the power, to confer an authority or discretion as to the execu-4 * tion of such a statute upon the resident landholders of a special and small taxing district, when other districts and other taxpayers are interested, and must bear a part of the burden of the improvement or special assessment. If discretion to make such improvement had been conferred upon the board of county commissioners, or if the improvement or its cost had been referred to all the landholders required to pay [167]*167any part of the burden of such improvement, the statute might be upheld, on the ground that the parties interested were given the power to decide whether the improvement should be made and the statute thus executed. But only a part interested have any authority. They can, under this statute, impose taxes or special assessments on other taxing districts and on the whole county, without any right of such other taxing districts to vote, or the county, as a whole, to have any voice in the proceedings.
There are other serious objections urged against the constitutionality of said chapter 214, but sufficient has already been said to show that it cannot have any operation. That similar proposed statutes may be used for unusual and extravagant county roads, see Graham v. Conger, 4 S. W. Rep. (Ky.) 329; Conger v. Graham, 11 id. (Ky.) 467; Washington Avenue, 69 Pa. St. 352; Seely v. Pittsburg, 82 id. 360.
If the facts of this ease had shown that Abbott had voluntarily invoked for his benefit the provisions of chapter 214, he would not have been entitled to an injunction. “A party cannot invite and encourage a wrong and then ask a court of equity to protect him from the consequences of such wrong.” (Stewart v. Comm’rs of Wyandotte Co., 45 Kas. 708; Comm’rs of Wyandotte Co. v. Hoag, 48 id. 413; Downs v. Comm’rs of Wyandotte Co., 48 id. 640.)
The judgment of the court of common pleas will be affirmed.
AlleN, J., concurring.