(dissenting) : I can not agree that a curative act is outside the purview of the constitution or that it forms an exception to the general rule. It is not a question of classification. It is the merest and plainest question of obedience to the supreme law commanding that “the legislature shall pass no special act conferring corporate powers.” (Const. Art. 12, § 1.) That the proviso is special and authorizes the city to proceed with improvements otherwise impossible can not be questioned. When the convention framed this section and the people ratified it, if they meant that the legislature should pass no special act conferring corporate powers except curative acts there was no reason or excuse for not saying so. That it was not said is sufficient ground for our refusing to add such an exception.
Beginning with Atchison v. Bartholow, 4 Kan. 124, a most thorough and convincing decision, it has been' uniformly held that the provision in question is binding upon the legislature, abundant reasons being given in this and other decisions for its adoption and enforcement. (National Bank v. City of Iola, 9 Kan. 689; Gilmore v. Norton, 10 Kan. 491; City of Council Grove, 20 Kan. 619; The State, ex rel., v. Lawrence Bridge Co., 22 Kan. 438; Gray v. Crockett, 30 Kan. 138, 1 Pac. 50; City of Topeka v. Gillett, 32 Kan. 431, 4 Pac. 800; The State v. Downs, 60 Kan. 788, 57 Pac. 962; Davenport v. Ham, 72 Kan. 179, 83 Pac. 398.) Never until the de*216cisión in Leavenworth v. Water Co., 69 Kan. 82, 76 Pac. 451, was any attempt made to distinguish between curative and other acts, and the only subsequent instances are those found in Cole v. Dorr, 80 Kan. 251, 101 Pac. 1016, and The State v. Pauley, 83 Kan. 456, 112 Pac. 141. In the Leavenworth case the present question did not arise because the act’ was general in form and in terms. In the Pauley case no such question was involved, the act there referring only to counties which, as repeatedly held by this court, are not corporations but only quasi corporations, and therefore not within article 12 of the constitution. In Cole v. Dorr, the act in terms covered all cities of the first class which had theretofore adopted a commission form of government by a majority vote of the electors voting. It does not appear in the opinion whether more than one city was in fact affected or not, but assuming that only one was affected it is plain to be seen that the decision turned on the question of classification based not on the condition in one city but on present as distinguished from future conditions regardless of the number of municipalities involved. The opinion on which the decision is based, State ex rel. v. Brown, 97 Minn. 402, 106 N. W. 477, was founded entirely on the question of classification, that opinion expressly stating that “the only serious question is whether the basis of classification is proper and reasonable.” (p. 405.)
It is familiar doctrine that the legislature may cure that which it could have originally done, but it is equally familiar that it can not by a curative act do that which it had no power to do in the first instance.
“That the legislature can do indirectly what it can not do directly seems too preposterous for argument.” (Heacock v. Sullivan, 70 Kan. 750, 754, 79 Pac. 659.)
“It is not competent for the legislature by a curative act to validate proceedings which were originally void for want of jurisdiction.” (The State v. Cipra, 71 Kan. 714, 715, 81 Pac. 488.)
*217In the Town of Enterprise et al. v. State, ex rel., 29 Fla. 128, 10 South. 740, it was held that the legislature could not by a curative act validate the incorporation of a town, for the reason that the constitution forbade the creation of a municipal corporation by special act, quoting (p. 148) and following Stange et al. v. City of Dubuque, 62 Iowa, 803, 17 N. W. 518, where it was said:
“As the legislature could not by special act, have authorized the city of Dubuque to pass the ordinance in question, it follows that it can not, after the passage of the ordinance, legalize it by special act. The legislature can not do indirectly what it is inhibited from doing directly." (p. 305.)
In Rutten v. Paterson, 73 N. J. Law, 467, 64 Atl. 573, a New Jersey statute passed to validate the proceedings of the commissioners previously appointed to. divide cities into wards and to confirm their actions was held violative of the constitutional provision forbidding special and local acts regulating the internal affairs of cities. The decision was by Pitney, J., who said:
“It is therefore but reasonable to consider the' qct of 1906 as applying to Paterson alone, as counsel admits to be the case. This being so, it seems to me to "necessarily result that the act is a special and local law within the constitutional interdict. I do not at all question the constitutional power of the legislature to pass validating acts in this class of cases. I have no doubt they might validate anything that they might authorize, and have no doubt of their power to oblige the mayor to appoint commissioners for the purpose of dividing the city into wards, even without any petition. But the legislative power to validate defective proceedings does not extend to authorize them to employ a validating. act as a means of regulating the internal affairs of cities, if such act be special and local." (p. 476.)
In Williams v. Boynton, 147 N. Y. 426, 42 N. E. 184, an act to validate an illegal and unauthorized resolution of a board of supervisors locating or changing a county seat was held to be a local act in violation of a *218constitutional provision prohibiting the passing' of a local law in cases of locating or changing the county seat, ancfas an attempt to do indirectly what could not be done directly by the legislature. The supreme court of Wisconsin, in Cawker v. Central V. P. Co., 140 Wis. 25, 121 N. W. 888, in accordance with a long line of prior decisions struck down an act purporting to validate certain classes of paving contracts theretofore made by “any municipal corporation of the first class” (p. 28), which in fact applied only to Milwaukee, as a special law amending its charter in violation of the constitution forbidding the enactment of any special law to amend the charter of a city.
One of the decisions relied upon by the Minnesota court in the Brown case (97 Minn. 402, 422, 106 N. W. 477) is Read v. Plattsmouth, 107 U. S. 568. A very slight examination of the latter discloses that a very different question' from the one now under consideration was involved. A city, without authority, ’issued bonds for a high-school building. The bonds were sold and the proceeds applied. The legislature legalized .the proceedings of the city by a special act and by another validated the tax levy and the bonds. The constitutional provision was exactly the same as ours. In an’ action on overdue coupons the plaintiff proved that he bought them for full value without notice of any informality in their issue. There was no evidence offered in their defense and the court instructed a verdict for the defendant. The plaintiff excepted and assigned error upon the ruling. The real question was, whether a bona fide purchaser for value could be defeated in an action without any evidence, simply because of the- validating acts. It was said in the opinion:
“It is not a special act conferring corporate power; it is merely a special act taking away from the corporation the power to interpose an unconscionable defence against a just claim, and to avoid an obligation to pay an equivalent for public benefits, which it has continued to enjoy.” (p. 577.)
*219T-his decision, thereforé, affords no support for the rule under consideration. '
Cole v. Dorr, 80 Kan. 251, 259, 101 Pac. 1016, refers to Mason v. Spencer, County Clerk, 35 Kan. 512, 11 Pac. 402, as having settled the question.. The question settled by the Mason case was this: An act provided that in any case when sewers had been theretofore constructed in any cities of the first class, by order1 of the mayor and council and not fully paid for .the mayor and council should from time to time have authority to levy taxes to pay for them. Among the other complaints was one that the act conferred corporate powers' upon cértain cities only in violation of section 1 of article 12 of the constitution, but the court said:-
“In the present case, however, the act is not only general in its form and general in its terms, but it is made to apply to an entire class of cities, and a- class as broad and general as any class for which any of the general laws for cities of the first class are enacted. It applies to all cities of the first class, and the time given for its operation is not limited; and any city of the first class coming within its terms may act under it, or not, as it chooses.” (p. 519.)
A careful examination of the three cases in which the rule has been applied will demonstrate that neither involved the exact question now presented. Such examination will also disclose that the basis for the rule thus announced and applied was in each case one of classification and not one of exception by reason of curative nature from the ban upon special acts conferring corporate power. No one will pretend that the legislature could, by a special act, have empowered this one city to proceed with the pavement upon a void petition and no one can deny that by giving eifect to the proviso in question the legislature is by judicial construction enabled to do indirectly precisely what • it could not do directly. Curative-acts are often necessary, and upon a mere question of classification I would be reluctant to regard them unfavorably. But here is a statute whose *220title and purport do not indicate the place or purpose of this provision slipped in at the close, a provision which is the clearest possible conference of corporate power upon one city and one only. It probably escaped notice except by the draftsman of the bill, but it flies squarely into the teeth of section 1 of article 12 of the constitution and is as void as if of more pretentious length and of unconcealed location.
Dangerously loose notions regarding constitutional obligations seem to be entertained by many, some even manifesting impatience with the constitution itself and asserting that it is out of fashion and insufficient for modern needs, This makes it more than usually important that the courts yield and require willing and ready obedience to the supreme will of the people as expressed in that instrument.
Mr. Justice Smith concurs in this dissent.