(dissenting in part, concurring in part): I dissent as to the conclusion reached that chapter 120 of the Laws of 1925 is constitutional.
This act has defects similar in many respects to those held unconstitutional in the, cases of Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, and Railroad Co. v. Abilene, 78 Kan. 820, 98 Pac. 224. In the act now before the court no tribunal is provided to determine if the improvement is necessary and shall be made. A majority of the property owners in a district sign a petition. *58They pass this in to the governing body of the city. No method is provided whereby the minority can file a protest or have a hearing upon the necessity or advisability of extending the water main. The governing body of the city is not a proper tribunal to represent people residing outside its limits. Granting, that the legislature might so authorize it, in this instance the statute does not in any manner provide that the governing body represents the minority owners in the district. The act does not attempt to authorize the city officials to determine whether the making of the improvement is necessary to the welfare of the people residing in the district to which the main is to be extended or whether it is to their best interests or advantage. It merely provides that the city officials shall determine whether it is to the best interests of the city. It might be highly advantageous to the city but of no benefit to the minority owner.
Then, too, the law makes the petition a contract which “shall pass with the property and be binding upon the heirs and assigns of owners of property affected.” Clearly it delegates to a majority of the owners in a district the power to make a contract running with the land under which the lands of a minority owner might be sold for taxes. This is done without providing any proper tribunal to determine the necessity or advisability of the improvement and without providing any hearing or right of remonstrance for the minority. The statute under consideration is a badly bungled piece of legislation. In my judgment it violates section 1 of article 2 of the Kansas constitution.
However, I concur in the result. The plaintiffs are not entitled to an injunction in view of the state of the record. They did not act promptly. They permitted the city to dig the trench and lay the main. They stood idly by when they should have snapped into action. The situation called for quick, prompt action. Now, since the city has incurred the expense and built the improvement, plaintiffs are too late to invoke the strong arm of equity to relieve them from the special assessments. This conclusion is based on Sleeper v. Bullen, 6 Kan. 300; Ritchie v. South Topeka, 38 Kan. 368, 16 Pac. 332; Stewart v. Comm’rs of Wyandotte Co., 45 Kan. 708, 26 Pac. 683; Railroad Co. v. Leavenworth County, 89 Kan. 72, 130 Pac. 855; Freeman v. Scherer, 97 Kan. 184, 154 Pac. 1019.
In view of the foregoing authorities, the conduct of the plaintiffs in this case was such as to create an estoppel against the remedy they are now seeking, and the judgment should be affirmed.