On Petition for a Rehearing.
Niblack, C. J.— The argument submitted in support of the petition for a rehearing in this case does not controvert the general legal propositions announced in the foregoing; *397opinion. It is only contended that those general propositions are not applicable to the facts presented in this case; that the application we have made of those propositions is in manifest opposition to the intention of the Legislature in enacting the section of the statute held to be valid in some respects and. invalid in others, and is, in its practical effect, new legislation and not judicial construction.
The controlling object which the Legislature evidently had in view in the enactment of the section was the keeping in repair a class of ditches and drains .which had been constructed by a system of taxation and upon the theory that they were in some one of several ways promotive of the public interest. E. S. 1881, section 4274. The proper township trustee, as a public officer, was required to use the general township fund in making, or causing to be made, the necessary repairs.
We thought at the former hearing, and, upon further consideration, still think, that so much of the section as enjoined this public duty upon the several township trustees of the State was separate and distinct from, and complete without, the provision which followed for the reimbursement of the general township fund, and might be enforced notwithstanding the invalidity of the provision for reimbursement.
If the act of March 8th, 1883, does not make adequate provision for the reimbursement of the townships on account of repairs on ditches and drains, it is still within the power of the Legislature to supply the omission, and we assume that it will do so. State v. Newton, 59 Ind. 173; Cooley Const. Lim. 177.
The petition for a rehearing is overruled.
Howk, J., dissents.