(concurring specially) : I agree that a condition attached to the signature of a petitioner may not be ignored. The statute, however, does not recognize signatures on condition and all such signatures must be disregarded.
SUPPLEMENTAL OPINION.
The supplemental opinion of the court was delivered by
Porter, J.:Since the opinion was handed down, the defendant has presented a request that the judgment be modified *688and the trial court directed to overrule the demurrer to the petition and permit the defendant to file its answer denying that the cost of the proposed improvement will exceed $30,000 per mile. The direction to enter judgment in plaintiffs’ favor was upon the assumption that defendant conceded, not only for the purposes of the demurrer, but as a fact, that the cost of the improvement would be largely in excess of the amount of the limitation. The request for a modification should be granted unless a question of law suggested, but not passed upon, be determined in favor of plaintiffs. That question is, whether a petition for the creation of a road benefit district and the improvement of the road, with a limitation on the cost of the improvement, confers jurisdiction upon the board to order the improvement made? If the principle be followed that is declared in several of the cases cited in the opinion, holding that any condition not authorized by the statute attached to a signature to the petition renders that signature a nullity and in estimating the number of signers that signature should not be counted, then it follows that when the petition itself contains such a condition, it has not the force or effect of a petition.
Without further discussion or comment, the court is of the-opinion that a petition for such improvements is not rendered a nullity by reason of a condition therein limiting the cost of the improvement, and as already held, where the board of county commissioners accept and act upon a conditional petition, it must accept it as a whole and cannot ignore the condition and order the improvement made.
The cause will, therefore, be remanded with directions to overrule the demurrer and permit the defendant to answer.
Burch, and Marshall, JJ., dissenting.