*420On Petition foe a Rehearing.
Elliott, J.It is contended in the argument on the petition for a rehearing, that a gravel road when constructed becomes a county road, and,-therefore, that it must be paid for by the county. But this argument, will not bear investigation. All works in which the assistance of the right of eminent domain or the power of taxation is invoked are in their nature public, since these great attributes of sovereignty can be invoked only where the work is a public one. There may be public works and yet the public or governmental corporation not be required to pay the cost of making them. This is so in the case of streets, highways and sewers; but, although these things all belong to the public when completed, yet the cost of constructing them may be obtained by local assessments on the property benefited. Heick v. Voight, 110 Ind. 279, 284. The law upon this subject is now too firmly settled to be disturbed. It is evident, therefore, that the conclusion of counsel does not follow from their premises.
We did not decide, nor do we mean to decide, that payment can be exacted beyond’ the special benefits conferred upon the land. But we do hold, that to the extent of those benefits assessments may be made, and that making one assessment does not exhaust the power of the board. We base ©up conclusion upon the obvious purpose of the statute to compel the lands specially benefited to bear the burden, and not to suffer it to be borne by the county. There can, as we think, and as we have several times decided, be no doubt that the Legislature meant that the cost of constructing free gravel roads should be paid by the property specially benefited. If this is the intention of the Legislature, then it ought not to be rendered nugatory by holding that no machinery is provided for laying and collecting a second assessment; especially should this result be avoided where, as here, the express language of the statute fairly indicates what the machinery *421is. Nor is it in any sense judicial legislation to affirm that the Legislature intended that the proceedings in levying a see'ond assessment should be substantially the same as those provided for the original. If courts can discover the legislative intention they must give it effect, and in their exploration they must bear in mind the fixed principle» that where a principal power is conferred all necessary incidental powers are implied. We did no more in our former opinion than give effect to this settled principle.
Filed Oct. 18, 1887.It is not unknown to us, nor can it be to counsel, that the leading purpose of all our legislation upon the subject of free gravel roads is to compel the land benefited to pay the cost of constructing them. It is everywhere apparent that it was the intention that the property benefited should pay the expense, and that the county should not. With this knowledge so prominently and so plainly before us we can not adopt a line of decision which will utterly overthrow this great purpose. We must assert, as we have done, that this purpose can legally be effected, or we must hold that the Legislature has done a vain thing.
It was not necessary for us to discuss or decide specific questions which may possibly arise in the course of litigation respecting the power to levy a second assessment; all that it was necessary for us to decide was that such a power existed, and that the mode of its exercise is substantially the same as that provided for the original assessment. Beyond this our opinion does not go, nor does it assume to go further. It is possible that contingencies may arise in which the county can not. escape some loss, but we need not now decide anything upon that subject; it is enough for the present to affirm that there is a general power to make and enforce, in the proper case, a second assessment.
Petition overruled, at costs of the appellees.