*541Dissenting opinion by
JUDGE GUPPY.The object of this suit was to enjoin the county treasurer and sheriff of Mason county from paying to the defendants, out of the county levy for the year 1898, certain claims allowed them by the Mason Fiscal Court for guarding toll gates on the Maysville and Lexington and Mays-ville and Mt. Sterling turnpikes, under an order of the judge of the Mason Circuit Coufrt, made pursuant to section 5 of the act of May 20, 1897. The circuit court sustained a demurrer to the petition, and dismissed the same, and from that judgment this appeal is prosecuted. The judgment appealed from was affirmed by the majority of this court. I can not agree with the majority opinion in this case, and the question therein involved is of so much importance that I feel it to be my duty to file this, my dissenting opinion.
The following are the agreed facts in this case:
“The parties plaintiff and defendant hereto come, and for the purpose of the demurrer herein, and for consideration upon a hearing of same, consent and agree to the fob lowing statements of facts relating to the matters set up in the petition herein to wit:
“First. It is agreed that the act entitled 'An act to prevent lynching and injury to and destruction of real and personal property in this Commonwealth, at the hands of mobs, or other riotous assemblages or persons, and to prevent the posting and circulation of threatening letters and to prescribe penalties for the enforcement of its provisions,’ commonly called the 'Martin Law,’ was regularly and duly passed by the Legislature of Kentucky, and approved by the Governor, and became a law on the 20th day of May, 1897, and same is made part hereof, and referred to as if fully set out herein.
*542“Second. That 'the Maysville & Lexington Turnpike Road Company was incorporated under the laws of the State of Kentucky on the 29th day of January, 1829, and before the year 1856. The said charter is made part hereof, as if fully herein set out. And that said company has not accepted the provisions of the Constitution of Kentucky passed on the 28th 'day of September, 1891, as provided in section 190 of said Constitution. That the Maysville & Mt. Sterling Turnpike Company was incorporated under the laws of the State of Kentucky on the 29th day of January, 1836, and before the year 1856. The charter of said company is new referred to and made part hereof as if fully set out herein. And that the last-named company has not accepted the provisions of the said Constitution according to section 190 of same.
“That the information upon which the circuit judge, James P. Harbeson, acted in directing the sheriff to appoint and station the guards under which the claims in the petition recited were contracted and allowed was as follows, to wit:
“ ‘For order November 29, 1897, for gates and keepers, Nos. 2 & 3, M. & L. T. P. R. Co.:
“ ‘Affiant W. W. Baldwin states: That he is the president and superintendent of the Maysville & Lexington Turnpike Road Company, a corporation created, organized, and existing under the laws of the State of Kentucky, and has been so for the last twenty-five years past. That said company owns and operates a turnpike road from Majcsville, Mason county, Ky., to the south line of said county, a distance of about 16% miles in said county; The same turnpike road extends through Fleming, Nicholas, Bourbon, and Fayette counties. That on that portion of said turnpike road so owned and operated by said com*543pany in Mason county there are three tollgates, located as follows, to wit, one at the top of hill, adjacent and back of Maysville, and about one mile from that city; another located about 300 feet north of the bridge over North Fork, and on the east side of the said turnpike road, and about three miles south of the town of Washington; and the other one mile south of the town of May slick, and on the east side of said pike, being known, respectively, as tollgates No. 1, No. 2, and No. 3.
He states that he has information that causes him to believe, and that he actually believes, that two or more persons have banded and confederated together, or are about to do so, for the purpose of injuring and destroying tollgates No. 2 and No. 3 on the said turnpike road in Mason county, Ky., and for 'the purpose of intimidating and preventing the keeper of said tollgates from collecting toll thereat. He states that Mike Young is .keeper of tollgate No. 2, and has been for about thirteen years past, and has been during all of said time collecting tolls thereat for said company at said gate, and that John H. Cogan is the keeper of tollgate No. 3, and has been for about fifteen years last- past collecting tolls thereat during all said time, and for said company.
Affiant states further that on the night of September 2, 1897, according to his information, at about midnight, a band of about twenty-five men came to tollgate No. 2 that was being then, and theretofore had been, kept by said Mike Young, and where he was living, and cut down and removed the pole, and threatened said Mike Young that if he should thereafter continue there, and collect toll from persons traveling said turnpike road, they would do him great bodily harm, and would hang him. *544He states that this was the second occasion on which said tollgate had been so visited by tollgate raiders; the other occasion being on the 17th of August, 1S97.
Affiant states that shortly preceding the 2nd of September, 1S97, three guards, properly armed, were stationed and located at said tollgate to protect said tollgate keeper at said gate, and said guards were removed on the 30th of August, 1897, and after, they were so removed said tollgate was AÚsited as above stated. He says that said guards were furnished by the judge of said Mason county, and that since said 2d of September, 1897, said gate has been guarded by three armed guards furnished by said county, the said county judge refusing to furnish guards any further.
Affiant further states that on the same night of September 2, 1897, at about 2 o’clock in the morning, a band of about twenty-five men came to tollgate No. 3, that was being then and had been theretofore kept by said John H. Cogan, where he was living, and broke open the front door of same, and cut down and removed the pole, and threatened said Cogan and his wife that if they thereafter continued to reside there, and collect toll from persons traveling on said turnpike road, they would burn said tollgate, and thrash his wife and daughter, and kill him; and that was the second occasion on which said tollgate had been visited by turnpike raiders, the other occasion being on August 17, 1897.
Affiant states that within the past three weeks he has received communications threatening to cut down and remove all of the tollgates in Mason county, above referred to, if he did not cease to collect toll thereat. Affiant states further that he is credibly informed, and he verily believes, that *545it is true that on the night of Saturday, November 27, 1897, an armed band of rioters and turnpike raiders visited the tollgates upon the Maysville and Mt. Sterling Turnpike Road Company’s turnpike near Lewisburg, in Mason county, Ky., known as the “Williams Gate,” and threatened to cut down the pole thereat, and intimidated the toll gatherers, and warned them not to collect any more toll at said gate; and said toll gatherers are no longer collecting toll at said gate because of said threats. He says that within the past two weeks turnpike raiders have 'destroyed gates in various other counties in this Commonwealth, and are still destroying them, and affiant is informed and believes that there is in this State and county an organized body of turnpike raiders, whose purpose is to destroy all tollgates in this Commonwealth, and to prevent the collection of any toll on any turnpike therein; and he says he believes from credible information and actual experience thát, unless protection is immediately given, there will not be left by said mob a single tollgate in this county or State by January 1, 1898, and he believes, as aforestated, that, if said gates are not protected by guards located thereat, same will be raided, injured, and destroyed, and said tollgate keepers intimidated, and prevented from collecting tolls thereat. He states that said tollgate keepers are alarmed by said threats, and that unless they are protected, that they will abandon said gates, and cease collecting toll thereat. He therefore asks for at least ten guards to be stationed at tollgates No. 2 and No. 3, five at each gate, and kept there for at least thirty days, or until there is no longer any necessity to so guard and protect said gates. [Signed] W. W. Baldwin.
“ ‘Subscribed and sworn to before me by W. W. Bald*546win this - day of November, 1897, and I further certify that my commission expires 13th day of January, 1900. [Signed], Charles B. Pearce, Jr., Notary Public.’
“ ‘Affiant John H. Cogan states: That he is a resident of Mason county, Kentucky, and has been such for many years; that he is fifty-seven years of age, and is keeper of tollgate No. 3 on the Maysville and Lexington Turnpike road running'through said county, which is located and situated on said turnpike road, in said county, about one m'ile south of Mayslick, the tollgate being situated on the east side of the said turnpike road, and near the residence of Michael Burke. He states that he has been the keeper of said gate for the past fifteen years, and resides in the tollgate house and upon the tollgate premises situated at said tollgate.
Affiant states further that on the night of September 2, 1897, at about 2 o’clock in the morning a band of about twenty-five men came to the tollgate that was being then, and had theretofore been, 'kept by him, and where be was living, and broke open the front door of same, and cut down and removed the pole, and threatened affiant and his wife that if they should thereafter continue to reside there and collect toll from persons traveling on said turnpike road, they would burn said tollgate down, and that they woulj switch his wife and daughter,, and would kill him. He states that this is the second occasion on which said tollgate has been visited by tollgate raiders, the other occasion being on the 17th' of August, 1897.
He states that in the past month or two he has received on divers and sundry occasions anonymous communications, threatening harm to himself and family *547should he continue to reside at said tollgate, and collect toll thereat. He states that on Saturday night, November 20, 1897, he was warned and threatened not to collect any more toll at his gate, and again on the night of Saturday, November 27, 1897, he was again threatened and warned by three men who came through his gate, that he must collect no more toll thereat, and that, if affiant did not obey said threats and warning, the turnpike raiders would visit affiant and his gate within the coming week, and would- burn the damned tollhouse, and affiant with it, and that then affiant would have to quit collecting toll.
He states that he believes, and that he has reasonable grounds to believe, that more than two persons have banded and confederated themselves together, and are about to do so, for the purpose of injuring and destroying said tollgate and said tollgate house, and the personal property therein situated belonging to him, and also for the purpose of intimidating and preventing him from collecting toll; and unless said tollgate house and gate and himself are protected by a guard of ten discreet, able-bodied men between twenty-one and fifty years of age, properly armed, that said persons so banded and confederated together will injure and destroy said tollgate house and tollgate and his property therein situated, and will intimidate and prevent him from collecting tolls thereat and carrying on his lawful occupation. He therefore asks the circuit judge of this district to order the sheriff of Mason county to summons a posse of ten discreet, able-bodied men between twenty-one and fifty years of age, and to place them at said tollgate, armed with guns and ammunition, in order to protect said tollgate and tollgate house and his personal prop*548erty therein situated, and also to protect him in the carrying out of his lawful occupation, and him and his family from the harm threatened them at the hands of these and other turnpike raiders.
his
[Signed] John H. X Cogan.
mark
“ ‘Attest; Chas. B. Pearce.
“ ‘Subscribed and sworn to by John H. Cogan this 29th day of -, 1897. My commission expires January 13th, 1900. [Signed] C. B. Pearce, Jr., Notary Public.’
“ ‘Affiant Michael Young states: That he is a resident of Mason county, Ky., and has been a resident of said county all his lifetime; that he is forty years of age, and is keeper of tollgate No. 2 on the Maysville & Lexington turnpike road, which runs through said county, and which tollgate is located and situated on the east side of said turnpike road in the said county near the point where the said turnpike road crosses the North Fork. He states that he has been keeper of said tollgate thirteen years, and resides in the tollgate house and upon the tollgate premises located and situated at said point.
Affiant states further that on the night of" September 2, 1897, at about midnight, a band of ’ about twenty-five men came to the tollgate that was then and theretofore had been ,kept by him, and where he- was living, and cut down and removed the pole, and threatened affiant that if he should thereafter continue to stay there, and collect tolls from the persons traveling on said turnpike road, they would do him great bodily harm, and would hang him. He states that this is the second occasion on which said tollgate has been so visited by tollgate raiders, the other occasion being on the 17th of August, 1897.
He says that shortly preceding the 2d of Sep*549tember, -1897, three guards, properly armed, were stationed and located at said tollgate to protect same and himself, and said guards were removed on the 30th of August, 1897, and after they were so removed said tollgate was visited as above stated.
He states that subsequent to the -last mentioned date he has been threatened and warned not to collect toll further at said gate, but that armed guards have been maintained at said gate at the expense of the Maysville & Lexington Turnpike Company since September 2,1897, in order to protect the affiant in his lawful business. He states that on Sunday, November 28, 1897, three persons, who affiant learned and believes live in the Lewisburg precinct, came to affiant’s gate, and warned and threatened affiant, and ordered him to cease collecting toll thereat, and said to affiant: 'You heard what we did last night, didn’t you? [referring to the raiding of the Williams’ gate on the Mt. Sterling turnpike and the Helena gate on the Helena pike] If you don’t quit collecting toll, we will come around here some of these nights, and do you worse than we did over there.’
He states that he believes, and that he has reasonable grounds to believe, that more than two persons have banded and confederated themselves together, and are about to do so, for the purpose of injuring and destroying said tollgate and tollgate house and the personal property therein situated, which belongs to him, and also for the purpose of intimidating and' preventing him from collecting tolls, and that, unless said tollgate house and gate and himself are protected by a guard of ten discreet, able-bodied men between twenty-one and fifty years of age, properly armed, that said persons so banded and confederated together will injure *550and destroy said tollgate iiouse and tollgate and his property therein situated, and will intimidate and prevent him from collecting tolls thereat, and carrying on his lawful occupation. He therefore asks the circuit judge of this district to order the sheriff of Mason county to summons a posse of ten discreet, able-bodied men between twenty-one and fifty' years of age, and to place them at said tollgate, armed with guns and ammunition, in order to protect said tollgate house and tollgate and his personal property therein situated, and also to protect him in the carrying out of his lawful occupation, and him and his family from the harm threatened him. [Signed]
MIKE YOUNG.
“ ‘Subscribed and sworn to by Michael Young,this-day of November, 1897. My commission expires Jan. IB, 1900. [Signed] Charles B, Pearce, Jr., Notary Public/
“That upbn this information the said judge made the following order:
“‘To the Sheriff of Mason County: You are hereby directed and.ordered to summons a posse of ten able-bodied, discreet men between the ages of twenty-one and fifty years,, and place five of them at tollgate No. 2 on the Maysville & Lexington turnpike road near the bridge over the North Fork, and five of them at the tollgate No. 3 on said road, on the east side thereof, and near the residence of Michael Burke, the- same now kept by John Cogan. You will arm these men with guns and proper ammunition, and keep said men at said respective tollgates for the term of thirty days, or until the further order of this court, for the purpose' of protecting said tollgates from injury at the hands of any and all persons whatever. [Signed] Jas. P. Harbeson, J. of M. C. 0/
“And afterwards, and before the expiration of the thirty *551days upon the affidavit of W. W. Baldwin, containing substantially similar information as the foregoing affidavits contained the said judge renewed the said order, and continued said guards at said gates for the term of thirty days, and all of said guards' for which said claims are presented and allowed herein, so far as the Maysville & Lexington Turnpike Road Company is concerned, were ordered upon similar information and by similar orders at said gates Nos. 2 and 8, and gate No. 1, and the bridge of said company over the North Fork of the Licking river. That the information lodged with the said judge, and the orders made by him, for gates and gate keepers upon the Maysville & Mt. Sterling Turnpike Road Company’s pike, for which the claims recited in the petition were given and allowed, were made upon similar information, and were similar orders; and the renewals thereof were upon similar information, and were similar to the renewal order hereinbefore set out.
‘It is further agreed that the claims allowed by the fiscal court for guards to the various defendants herein, or their' assignors, were- properly and duly presented to F. P. O’Donnell, County Attorney of Mason county. Ky., and by Mm reported favorably to the fiscal court of Mason county, at its April term, 1898; and that the said claims were referred to a committee, who examined the same, and afterwards reported to said court the said claims, and the said claims were taken up by the court seriatim, and examined, and passed upon and allowed, and ordered to be paid; and that the said claims are fully set out in the records of said court made at said term, and that the records of said court at said term further disclose that these claims were allowed along with the miscellaneous claims of the county; that the records of *552s>aid court show that Esquire John J. Perrine moved that the general claim fund be fixed at twenty cents on each one hundred dollars of equalized property in Mason county, and Esquire Rice moved that the general fund be fixed at fifteen cents on each one hundred dollars, and that no part of this fund be used for paying the guard claims allowed by said court, which last motion, upon a vote, was declared lost, and the original motion of Esquire Perrine upon a. vote was carried, and the levy for the general claim fund fixed at twenty cents oh each one hundred dollars.
“L. W. Galbraith & E. L. Worthington.
“Attys. for Plaintiffs.
“L. W. Robertson & W. EL Wadsworth,
“For Defendants.”
It will be seen from the foregoing that the question involved is the constitutionality of so much of the act approved May 20, 1897, as requires the circuit judge, upon the affidavit of one or more credible persons, to order the sheriff to order guards for the purpose indicated in the affidavit, and also requiring the fiscal court of the county in which the guards are to serve to pay the expenses thereof.
It is contended for appellant that the act, in so far . as it requires the circuit judge to make the order desired, is unconstitutional, and therefore void. It will be seen from the act that the failure of the county judge, the circuit judge, or the sheriff to discharge any of the duties required shall work a forfeiture of his office, and that he shall be fined not exceeding $500. It is a fundamental principle of organic law, both State and national, that no man shall be deprived of life, liberty, or property without due process of law; and it will be seen from the fore*553going act in question that there is no provision made for the trial or investigation of the truth of the affidavit upon which the circuit judge is required to act but arbitrary power is given to any credible person to make affidavit, and then, under heavy penalties, the officers are required to comply with the requisitions of the 'act, and afford the relief demanded by the party making the affidavit. It will also be seen that the fiscal court of the county is not allowed any opportunity to investigate or determine as to the truth of the statement made in the affidavit, but is absolutely required to make an appropriation of money to pay for the same, and thus impose a burden upon the taxpayers of the county without any evidence whatever that any taxpayer is responsible for any danger, or has any intention to aid, encourage, or abet the crime or offense which it is assumed is about to be perpetrated. If such an act is not in violation of both the State and Federal Constitutions, it is difficult to conceive of any act that would violate either Constitution. It may be well doubted whether, under our form of government, such duty, if it can be constitutionally required of any person,, can be required of the circuit judge. The litigation over the question of payment of the guards ordered would most likely have to be tried in the circuit court before the judge who had issuefd the order for the guards, and while the fact of having issued the order would not necessarily prevent the judge from passing upon the propriety of the payment thereof in the event of litigation coming before him, yet it would leave the judge in a very delicate position to hold that the claim of the guards was illegal or invalid when he in fact had ordered that they should perform the services then in controversy.
*554It is also insisted for appellant that the levy made by tbe fiscal court of Mason county for the payment of tbe guards in question is null and void under and by tbe provisions of section 180 of tbe Constitution. That portion of tbe Constitution applicable to sucb levy reads as follows: “Every act enacted by tbe General Assembly, and every ordinance and resolution passed by any county, city, town, or municipal board or local legislative body, levying a tax, shall specify distinctly tbe purpose for wbicb said tax is levied.” Now, we have a special act of tbe Legislature requiring a levy for a special purpose, and yet in the case at bar such levy for tbe special purpose aforesaid is not specified or identified. If tbe provision of tbe Constitution, supra, has no application to sucb levy as tbe one in question, I am utterly unable to see that it can have any application to any levy or appropriation whatever, and therefore becomes a dead letter. Moreover, I think tbe provision was intended for the benefit of taxpayers, and is a sound and useful provision. It was intended in part to prevent reckless or illegal appropriations and levying of taxes, and to require tbe power so levying tbe same to show specifically what taxes and for what purposes tbe levy is made, to tbe end that the taxpayers may be able to enjoin and prevent tbe collection of unconstitutional taxes, as well as to bold tbe authorities responsible for reckless and wasteful appropriations and levy of taxes; and it should be strictly enforced.
It is agreed in this case that tbe corporations for whose benefit the guards were appointed bad not accepted tbe provisions of tbe present Constitution, and, I think, by section 190 of tbe Constitution, were absolutely prohibited from availing themselves of tbe provisions of tbe act in question; and for that reason, if for no other, tbe order *555of the circuit judge was void and the action of the fiscal court in like manner null' and void. Section 190 of the Constitution reads as follows: “No corporation in existence at the time of the adoption of this Constitution shall have the benefit of future legislation without first filing in the office of the Secretary of State an acceptance of the provisions of this Constitution.” It is clear that the act under consideration was, in part, at least, enacted for the benefit of corporations in general. It is also clear that the act in question was passed after the adoption of the new Constitution, and therefore falls within the provisions of section 190; and, if section 190 does not preclude such corporations as those named in the case at bar from the benefit of such legislation, it seems to me that the section supra is a dead letter, and of no effect. It is well known that a number of corporations were in existence at the time of the adoption of the present Constitution, and many of such corporations claimed to have vested rights which could not be at all affected by the Constitution, or by any future legislation; and much litigation has arisen, as we all know, based upon such claims, some of which has been sustained by this court. It is well known as part of the history of this country that at this very time quite a number of corporations are claiming to have and exercise rights that are higher and above the Constitution of the State, .and above all the acts of the General Assembly passed in pursuance thereof, and are refusing to pay county and municipal taxes levied and imposed by the laws of the State, unquestionably enacted pursuant to and under the requirements of the present Constitution; and yet, if the majority opinion in this case is to remain the law, then a number of the corporations in the State may impose this expense and tax *556upon the several counties in which they may be situated for the purpose of having- their property guarded, and yet refuse to pay any part of that same tax, and escape payment not only of that, but of all other taxes levied for county and municipal purposes. It seems to me that such construction of the law as given by the majority opinion is utterly indefensible from any legal standpoint, and is also unjust and inequitable as between the corporation and the taxpayers' of the county or municipality.
It must be conceded that it is desirable and just that all persons resident of the State, and enjoying any of the benefits of our form of government, should be obedient to the provisions of the Constitution and laws enacted thereunder, and to promote such a state of affairs was doubtless one of the main objects ,of section 190, supra. It will not do to say that the object of the Constitution was to prevent the Legislature from making specific amendments to the charter of any such corporation, because, •under the Constitution, there can be no such local legislation. It therefore follows that unless such corporations are denied the benefits of the general law passed after the adoption of the Constitution', then they are entitled to the full benefits of the law enacted, the Constitution to the contrary notwithstanding.
It seems to me that the majority- opinion entirely nullifies sections 180 and 190 of the Constitution. In the case at bar the taxpayers of Mason county are required to pay the expenses of guards for these corporations, neither one of which has accepted the provisions of the Constitution. Not only so, but the citizens are required to pay a tax imposed without ever having a chance to make any defense, or to show that the credible person making the affidavit was misinformed, or that no such fact existed; and, *557besides, it may well be doubted whether any act requiring the fiscal court to levy the tax upon the taxpayers for the protection of the person or property from apprehended danger could, in any state of case be valid. The imposition of this tax upon the people of the county can not be equitable or just, even if lawful, except upon the assumption that the people were at fault, or, in other words, morally responsible, for the apprehended danger of destruction of the property, which assumption is without any foundation, so far as this record shows. I. therefore conclude that the act requiring the judge to make the order for the guard and the levy of taxes by the fiscal court are each and all in violation of the Constitution of the State and of the United States, and therefore void; and also that, independently of any question of law or the validity of the act, the same is inequitable and unfair, because it imposes burdens upon the taxpayers to prevent an assumed injury with which the citizen has no connection, and neither aids, countenances, nor abets. It was well known at the time of the adoption of the new Constitution that some corporations were claiming to be vested with certain valuable rights and privileges that were irrevocable. Among these rights was the right of exemption from taxation for county and municipal purposes, and also exemption from State taxation exceeding a specified amount. These or similar contentions it was feared had been sustained by this court, as well as by the Supreme Court of the nation.
It has been supposed that equality before the law was indispensably necessary to the existence of a republican government. In fact, there can be no republican government if some persons can with impunity defy some of the laws of the land, while *558other persons must obey them all. The purpose and intent of section 190, supra, was as far as possible to invite and promote equality before the law, and to bring all persons into obedience to the law. It said to those corporations which claimed rights and privileges which were above the law that, “Unless you accept this Constitution as the supreme law of the land, you shall not have the benefit of future legislation.” Could anything be more fair? The section also said to the other corporations and natural persons that, “If it be impossible to require these favored classes to obey the Constitution and laws which you are required to obey, we will see that such corporations shall not have the benefit of any future legislation; and this will, to some extent, at least, place all persons upon an equality before the law.” But now, when section 190, containing that provision, comes before the court for the first time, it is held to have no application to this new law, now being enforced.
If some persons or corporations can with impunity defy and violate some laws which they do not approve, it necessarily follows that other persons will contemn and disregard laws inimical to their interest or taste.
It is vain to say that the act of 1897 under consideration is an act to prevent or punish crime. The law was ample for that purpose before. If any man had committed a crime, or was about to do so, the law provided ample means to prevent or punish. Inasmuch as the two companies who caused this enormous expense to be imposed upon the taxpayers of Mason county have refused to accept the provisions of the present Constitution, it is fair to presume that they are exempt from county taxation, or a.t least claim *559or enjoy rights or privileges denied to the people generally.
For the reasons given, and others not necessary to mention, I respectfully dissent from the majority opinion in this case.
JUDGE WHITE concurring.