(concurring in the conclusion, but dissenting from some of the views expressed). — I concur in the conclusion reached, and think that the judgment appealed from should be affirmed, not upon the ground upon which the majority opinion affirms it, but upon the ground that the proceedings in the matter of organizing the irrigation district in question substantially comply with the provisions of act of March 6, 1899) entitled “An act to provide for the organization and government of irrigation districts and to- provide for the acquisition of water and other property and for the distribution of water thereby for irrigation purposes, and for other and. similar purposes,” found in acts of 1899, page 408. The suggestion in the majority opinion that that act is void, so far as the provisions thereof relate to taxation, to my mind, is incorrect. It is true that the assessment provided therein is to be made per acreage; but that does not preclude the assessment being on the principle of benefits received. The first proviso of the second section of said act (Laws 1899, p. 409) expressly provides that no “lands which will not, in the judgment of said board, be benefited by irrigation by said system be included within such district.” It is difficult to conceive that one acre irrigated from the same system is benefited more than another acre irrigated therefrom. Under the said original act, hill land, and lands not susceptible of cultivation, are to be excluded from the district, and from taxation. This act is not open to the constitutional objection decided in Village of Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. Rep. 187, 43 L. ed. 443, so far as the provisions relating to assessments for *329taxation are concerned. Under the late decisions of the supreme court of the United States, the rule laid down in Village of Norwood v. Baker, supra, has been largely modified, if not overruled in effect, and under the decisions of that court the original act of March 6, 1899, supra, is not unconstitutional. For the foregoing reasons, I am of the opinion that the judgment of the lower court should he. affirmed.
It is impossible for me to give my assent to thé conclusion reached by my associates that the amendatory act of March 18, 1901, the title to which is set forth in the majority opinion, and in the syllabus, is constitutional and valid, and does not contravene the provisions of section 16, article 3, of our state constitution. This provision of the constitution not only provides that the title to an act shall express the subject thereof, but it provides that no act shall relate to more than one subject. My associates very cleverty, ingeniously, and obligingly make a title for the said amendatory act, which is found in the body of the majority opinion, as follows, to wit, An act relating “to the reclamation and irrigation of desert or arid land.” Now, take the title to said amendatory act, and no such subject is expressed in the title. Under the provisions of the constitution, the title is a part of the act, and is indispensable. The subject must be expressed in the title. It need not be named in detail, and the title need not index the act. But it must express the subject. The purview of the act is limited, however, by the title, as all respectable authority holds. If the title expresses a subject which is a branch of a general subject, the legislature is confined to that branch of the general subject named in the title, and cannot legislate upon other branches of the same general subject in the act. In my opinion the general subject of the amendatory act under discussion, and which my associates hold to be “the reclamation and irrigation of desert or arid land,” is not found in the title to said act. It will be noted that the title consists of quoting titles to two former acts and adding some new matter. The title of the first act amended expresses one subject relating solely to the organization, government, and *330powers of irrigation districts. The general subject of reclaiming arid lands by irrigation is not mentioned in said title. There is nothing in the said title that shows that the legislature intended to enact rules for the irrigation of lands outside of irrigation districts. The purview of that act, as shown by the title, is limited to irrigation districts. So the general subject of “the reclamation and irrigation of desert or-arid land” is not found in the title to the act of March 6, 1899, as set forth in the title to the amendatory act under consideration. Take the next subdivision of the title to this amendatory act, which is as 'follows: “And to amend section 9 of chapter 1 and section 16 of chapter 2 of an act entitled £An act to provide for a state engineer, defining his duties, and regulating his compensation, and to provide for the acceptance by the state of Idaho from the United States of certain lands, and to provide for the reclamation, occupation and disposal of the same’ ” — and we nowhere find the general subject, “the reclamation and irrigation of desert or arid land,” mentioned at all, except so far as it relates to the reclamation and irrigation — of what? The answer is palpable — the lands so accepted by the state of Idaho from the United States under the provisions of what is popularly known as the “Carey Act.” It takes a vast stretch of the imagination of a trained lawyer to see any proper connection between the creation of irrigation districts and the act of the state in accepting the benefits of the Carey act, and a still greater stretch of imagination to see the proper connection between the creation of a state office and the acceptance of a donation to the state, or the creation out of certain territory of the state of a municipal corporation charged with governmental powers, including the power of taxation, like that of the Pioneer Irrigation District. This second subdivision expresses two distinct subjects of legislation, namely, the creation of an office and the acceptance of a conditional grant from the general government. There is no question but what the legislature could, under an act entitled “An act to create the office of state engineer,” provide the duties of the office and fix the compensation of the incumbent *331of such office; as those are matters that are properly connected with the subject of the act — the creation of the office. But I deny that any respectable authority can be found to the effect that, under the title of “An act to provide for a state engineer, defining his duties and regulating his compensation,” the legislature can accept a grant of lands from the general government, and make regulations whereby such lands may be entered and reclaimed by private individuals. If these matters are not distinct, but properly connected, it is unnecessary to say anything about the acceptance of said grant, etc., in the title to the original act of March 2, 1899. Now, suppose that title had consisted of the following only, which is now a part of it, to wit, “An act to provide for a state engineer, defining Ms duties, and regulating Ms compensation,” and the legislature had provided, as it did, in the body of the act, for the acceptance of lands from the UMted States government under the Carey act, and for the acquisition and reclamation of such lands by private individuals; would it be contended, even with the liberality of the majority, that such acceptance of land, and its acquisition and reclamation, has any proper connection with the creation of the office of state engineer? Is it necessary to have a state engineer in order to accept the benefits of the Carey act, or that we accept the benefits of the Carey act in order that we may have a state engineer? Where is any connection, proper or improper, between the acceptance of lands under the Carey act and the salary of the state engineer, or his duties with relation to the Pioneer Irrigation District? It may be obtuseness, but I am unable to see any connection between these matters. It is safe to say that no part of the lands embraced in the municipality defendant, the Pioneer Irrigation District, was acquired under or by reason of any provision in the Carey act. Take the remaining part of this remarkable title, viz., “and to provide for the acquisition of right of way for the construction of canals or reservoirs or other irrigation works over or upon the lands of the state of Idaho,” and the general title which this court has manufactured, “the reclamation and ir*332rigation of desert or arid land,” is not mentioned. And it is hard to conceive any proper connection between the other three subjects named in the title to this amendatory act — viz., the creation and government of irrigation districts, the creation of the office of state engineer, and the acceptance of a grant of lands by the state from the United States — and the granting of a right of way for canals over lands owned by the state. Now, if irrigation districts were confined to lands ceded to the state under the Carey act, and the duties of the state engineer were confined to irrigation districts, and the state owned no land except within organized irrigation districts, there would then ¡be some slight grounds for contending that these subjects are connected; but, as it is, there is no ground whatever for such contention.
I have endeavored to show the error committed by my associates in making a subject for the title to the act under consideration, and to show that the four distinct subjects set forth in the title to the amendatory act under consideration have no proper connection, within the meaning and purview of the constitutional provision under consideration, without making this opinion too long, and have felt impelled to refrain from citing and commenting upon authority in the interest of brevity. The very wording of the constitution — “Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title” — is sufficient, without citation of other authority, to show that the conclusions reached by my associates in regard to the act of March 18, 1901, and the title thereof, are erroneous. In my humble opinion this court has no power or authority to make a title for any legislative enactment, nor can it, by taking three branches of what might have been one general subject, put them together, and, by construction, make that general subject. Of course, it is disagreeable to have to decide that any act of the legislature' is violative of our constitution; yet the duty of doing so, in the proper case, cannot be rightfully dodged. It is no discredit to the legislative department, or any member thereof, to hold that it has made a mistake. As a rule the *333members are not lawyers, and not versed in tbe construction of constitutional provisions, and on this account mistakes are made, but we all owe our first duty to the constitution, and no department of government should take a step which, in effect at least, nullifies any of its provisions.