dissenting: I think the validity of the statute may be fairly and reasonably sustained. It is a general law, enacted more than six years ago, which may become effective in any county where its operation is invoked. It makes provision for the special improvement of county roads, and provides that the greater part of the expense shall be assessed against property specially benefited by the improvement. Statutes providing for improvements of this character, like the paving of streets and alleys, the building *168of turnpike or macadam roads, and the draining of swamp or low lands, are not uncommon, and, while they differ in detail, they all rest upon the principle that property specially benefited may be justly assessed to the extent of the benefit. The road law in question provides that two-thirds of the expense of the improvement shall be borne by the owners of the property within one-half a mile on either side of the road to be improved, and the remaining one-third of the cost is to be paid by the county out of the general fund. While the owners of property within the taxing district fixed by the legislature are specially benefited, the public uses and has the benefit of the improved road, and no one denies the justice and equity of placing a portion of the cost of the improvement upon the county. Where streets of a city are paved, or walks built, the burden of preparing for the work and improving the areas formed by the intersections and crossings-of the streets is usually placed upon the public or city at large, and the remaining expense of the improvement is charged to the abutting lot owners. The fact that a, portion of the improvement is required to be paid for by the city has - never been urged as a ground of invalidity against the statute authorizing it, but generally the contention has been that a greater part or the whole of the expense should be paid out of the general funds of the city. The principal objection to-this road law is, that there is a delegation of legislative power to persons other than the boards of county commissioners that is violative of § 21 of article 2 of the state constitution. In behalf of Abbott, it is claimed that at the mere will or discretion of a few landholders the improvement to be made is. determined upon, the taxing district fixed, the assessment levied, and a large bill of expense charged upon the county,, without the order or consent of the county commissioners.
The statute provides that the proceedings for the improvement of a road shall be initiated by the petitioners; but they-merely petition the county commissioners, and do not grant-their own request nor order the improvement to be made. That duty devolves .upon the county board. It causes the-*169road to be improved upon the request of the petitioners; and I hardly think that any action which is to be taken by the petitioners can be regarded as the exercise of legislative power. It is the usual mode for initiating proceedings of this character; and the fact that the petition must be acted upon, and that the improvement results in an expense against the county, is not a ground of invalidity. The night herd law is brought into operation in a", township by a petition of a majority of its electors, and by the terms of the statute the duty of the county commissioners of making the order when the petition is presented is mandatory. (Gen. Stat. of 1889, ¶ 6688.) This statute has been held to be constitutional and valid. (Noffzigger v. McAllister, 12 Kas. 315.) The opening or vacation of a highway under the general road law is initiated upon the petition of 12 householders, and such petition, like that provided for in this law, must specify the place of beginning, the intermediate points, if any, and the terminals of the road. When a legal petition is presented, it is the imperative duty of the commissioners to appoint viewers and set the machinery in motion for the establishment or vacation of the road. The action taken by the petitioners has never been treated as an exercise of legislative power. In such a case final action is to be taken by the commissioners, who are vested with the duty and discretion of determining the necessity and utility of the proposed road or alteration. This discretion is not to be exercised, however, until after the survey, view and viewers’ report are made. The width of such a road is arbitrarily determined by the viewers at the time of establishing the same; the giving of this power to the viewers has never been held to invalidate the law, and the omission of this duty by the viewers does not invalidate the road. (Gen. Stat. of 1889, ¶ 5501; Willis v. Sproule, 13 Kas. 257.)
Under the act providing for the appointment of metropolitan police, the executive council is required to appoint commissioners whenever 200 bona fide householders of the city petition therefor. When the petition is presented, the duty of the executive council to appoint is obligatory. Although the *170validity of the act was challenged, it has been sustained. The act of the petitioners was not regarded as an exercise of legislative power, and it was held that this provision did not contravene the constitution by delegating legislative power to the executive council. (The State, ex rel., v. Hunter, 38 Kas. 578.)
No legislative power is exercised by any of the parties outside of the county commissioners, and, indeed, most of the power exercised by them in improving roads is judicial or quasi judicial, and some of it is executive or administrative in character. (Willis v. Sproule, supra; Fulkerson v. Comm’rs of Harper Co., 31 Kas. 126.) Under the statute in question, the taxing or assessment district is prescribed by the legislature itself, and the limits placed at a distance of one-half a mile on either side of the improved road, and the rule or measure making the assessment and providing for the expense is fixed by the act itself. In my view, however, the board of county commissioners is vested with discretion in the granting of a petition and in the ordering of an improvement. They are first to determine the sufficiency of the petition, that is, whether the terminal points of the proposed district are named, the character of the improvements described, the time for which assessments to pay for the improvement is named, and whether a majority of the resident landholders within one-half a mile on either side of the road to be improved have signed the petition. If the petition is found to be sufficient, they are to cause a survey of the proposed road to be made, and a careful estimate of the cost of the improvement, together with specifications for the improvement, and a map showing the tracts of land within one-half a mile on either side of the proposed improvement; and when all these things have been done, it is then provided that the board shall appoint road commissioners to conduct the improvement of the road.
In § 1 it is provided that they shall cause the road to be improved, and in § 4 of the act it is provided that, upon the completion of certain acts, they shall appoint three commissioners. While this language is mandatory in character, it is to be considered and construed in connection with the other *171statutes defining the powers and duties of county commissioners. The powers of a county as a body politic are exercised by the county commissioners, and, under chapter 25 of the General Statutes, they are intrusted with the management of the business and concerns of the county, and to that end may perform many acts for which no special provision is made by law. (Comm’rs of Neosho Co. v. Leahy, 24 Kas. 54.) They are to provide the funds for the transaction of public business, and are vested with great discretion in expending the same. They are acquainted with the condition of the highways and bridges in the county, and know just what funds have been provided and can be devoted to such purposes. These things are not likely to have been overlooked by the legislature in enacting the road law; as it provided that one-third of the expense of improving the roads was to be paid by the county, it certainly had in mind that the board was limited as to the amount of moneys which could be applied to such purpose. Only a certain per cent, can be levied for current expenses by the county board, and it was certainly not intended that the board should go beyond the means on hand in ordering improvements. In fact, it is unlawful for the board to contract debts and issue evidences of indebtedness for these purposes beyond the amount on hand or which can be provided by the current levy. With these provisions aud limitations in mind, the legislature clearly did not intend that the county commissioners should order improvements made and county expenses incurred except when in their judgment the improvement was necessary and the public funds would justify the expenditure. Although the language of the statute is imperative in form, it will be observed that no negative or prohibitive words are used. In the matter of making such improvements, and especially those which entail expense upon the county or municipality, the officers through whom they are to be made are usually held to have a large discretion as to what, if any, improvements shall be made. (Elliott, Roads & St. 410.) And so it has been held that, in the absence of words of positive prohibition, statutes directing the mode of proceeding by *172public officers are directory, and not to be regarded as essential to the validity of the proceedings themselves. (People v. Allen, 6 Wend. 487; People v. Holley, 12 id. 481; People v. Cook, 14 Barb. 290; Cooley, Const, Lim. 75.)
In order to sustain the statute and carry out the purpose of the legislature, language such as that employed in the road law may be properly regarded as discretionary. The language of a statute should always control in determining its meaning, but we should not so rigidly construe its words as to defeat the manifest intention of the legislature. Reading the statute in connection with others relating to duties of county commissioners, I think the clause which provides that, upon the presentation of a petition for the improvement of a county road, it is made their duty as commissioners to cause it to be improved may be fairly interpreted as meaning that power is vested in them to make such improvements. The duty to receive a petition, to determine whether it should be allowed, and to make the improvement if allowed, is placed on them rather than on other officers or tribunals that might have been intrusted with the duty. It was no more than to say that the commissioners were authorized to act. These officers are charged with the business of making the improvements if any shall be made, and a prerequisite to any action by them is the petition of the landholders. The petition is addressed to them; their judgment and discretion are invoked by it, and if they deem it advisable the improvement will be ordered and the work proceed. The statutes abound in cases where language of an imperative character is treated as directory and discretionary; and where a statute is fairly open to two interpretations, one of which will uphold it, and the other strike it down and defeat the purpose of the legislature, the former should control. The object of the legislature should not be defeated by a too rigid and strict adherence to the letter of the law when its object is manifest.
In the state of Ohio, statutes substantially similar to ours' were enacted. They were subject to most of the objections- and criticisms which have been urged against ours, and some-*173of them are equally imperative in the language devolving the duty of appointment and action upon the county commissioners. (Supp. Rev. Stat. Ohio, 1868, p. 680.) These statutes appear to stand as valid, and the decisions of the supreme court of Ohio answer most of the objections that have been presented against the Kansas statute. (Turnpike Road v. Sandusky Co., 1 Ohio St. 149; Reeves v. Treas. of Wood Co., 8 id. 333; The State v. Comm’rs of Warren Co., 17 id. 558.) If our statute is to be treated as a grant of authority, then, under numerous rulings, it would not deprive the commissioners of discretionary power, nor can they be compelled to act by mandamus. (Elliott, Roads & St. 341, and cases cited.) There is no room for the exercise of discretionary power where the county commissioners are required to call an election for the voting of railroad bonds, and hence I do not regard the case cited to be a controlling authority. Under one of our statutes providing for drainage of swamps, bottoms, and other low lands, a part of the expense may be apportioned against the county by the township officers, and the county commissioners have no voice or discretion in approving the measure or allowing the claim. (Gen. Stat. of 1889, ¶¶ 2624 — 2638.) In Sargent v. Burch, 26 Kas. 581, the validity of this statute, so far as it imposed the expense and burden upon the county, was considered and upheld. It is true that some of the details of the improvement are committed to persons designated by the county commissioners, but their duties are prescribed by the statute, which furnishes the rule and guide for carrying out the legislative will. They are mere ministerial agents who exercise no legislative power, and the provisions directing them are not obnoxious to the constitutional restriction against the delegation of legislative power. It is no more a delegation of legislative power than where commissioners are appointed by the county board to superintend and control the building of bridges,-nor where the board appoints a superintendent of the county asylum, and I think the validity of these acts stands unquestioned.
One other objection is made, and that is to the plan of *174assessment. The statute in effect provides for the assessment of both real and personal property within the prescribed limits, according to the benefits derived from the improvements. This plan has been adopted in Ohio, as is shown by the statute quoted in the prevailing opinion. It belongs to the legislature to determine what the rule of apportionment shall be, and, where not restrained by the constitution, the legislature has a discretion coextensive with the broad domain of legislative power. It is true that no scheme of assessment which has yet been devised will in all cases do absolute and exact justice; and where the rule provided produces reasonable equality, and does not transgress any constitutional restriction, it must stand. (Newman v. City of Emporia, 41 Kas. 585; 2 Dill. Mun. Corp., §761.)
In my opinion the statute is valid, and the judgment of the district court should be reversed.