(dissenting): The court holds that the act is invalid for the reason that the classification upon which applicability of the statute is based ■ does not rest upon any real and genuine distinction; that the classification has no reasonable and substantial relation to the subject matter involved and therefore contravenes article 2, section 17, of the state constitution which requires that “all laws of a general nature shall have a uniform operation.” Being unable to join in that view, I shall state briefly the reasons for my dissent. Inasmuch as the majority opinion does not treat any of the other asserted grounds of unconstitutionality, I shall not discuss them or express any opinion concerning them.
I am mindful of the fact that article 2, section 17, as amended in 1906 clothes the courts with the power, and the duty—when the issue is properly raised—of determining whether enactments of the legislature are repugnant to the requirements therein stated. I do not understand, however, that this means that courts are to substitute their opinion for that of the legislature on issues of public policy. Nor do I mean to say that the majority opinion implies such a proposition. But I do say that we should be zealous to avoid infringing upon the legislative prerogative. The test is not whether we consider a classification adopted by the legislature to be wise or prudent, or whether we think a better one could have been established. A statute attacked on the grounds here discussed should not be invalidated unless we can say with confidence that no real, no substantial basis for the classification can be said to exist.
In the first place, the instant act, as I construe it, applies not only to road benefit districts in counties which had theretofore adopted the county unit system but to all counties which might thereafter adopt such system. And the majority opinion is written upon the premise of that construction. It was stipulated that there are twenty-five counties in the state which are operating under the county-unit system and that in at least eleven of the twenty-five counties benefit-district roads had then been constructed.
The bare question, therefore, is presented of whether we can con*256fidently say that there was no real or substantial basis whatever for the legislature to make the act available in counties which have the county-unit system and not available in counties which do not operate under that system. I am unable so to assert. As I see it there is at least one very important distinction between the two classes of counties which bears a substantial relation to the subject matter involved in the act. That distinction is that in counties which have adopted the county unit system the cost of construction and maintenance of all roads, bridges and culverts is paid by the county by uniform levy upon all property in the county, and an increase in the maximum county levy is specifically provided for on that account. ’(G. S. 1935, 68-516.) This is not true in counties which do not operate under the county-unit system. The result—as it bears on the instant issue—is that landowners in road benefit districts in county-unit counties help pay—and equally—not only for their own roads but for all roads in the county. They must pay this increased county levy on top of the special tax payments they have made under the benefit-district levy. This is an extra burden—a sort of double taxation—which benefit-district taxpayers do not have in counties not operating under the county-unit system. It seems to me, therefore, that a classification which makes the partial relief afforded by the act available in the county-unit counties and not in the others is not without substance. We might or might not have favored this classification if we had been members of the legislature, but I cannot agree that it is an arbitrary or capricious one.
It is said in the majority opinion that through no fault of their own landowners in benefit districts in counties not under the county-unit system may be unable to secure adoption of the system in their county and that therefore they are discriminated against. But argument of this same nature might be made even if the act were made available to all counties regardless of what system they operate under. It would still be true that before the partial refunds could be made to benefit-district landowners there must be a petition for such action signed by more than fifty-one percent of the voters of the county. In'some counties such a majority could be secured and in others it could not. This kind of a result is incident, in many cases, to democracy’s majority rule. Perfect equality of taxation has never been achieved and lack of such perfection cannot be regarded as alone sufficient to condemn a taxing statute. Indeed, under all *257of the road-benefit-district statutes inequalities more pronounced than the one here discussed have in countless cases existed, and yet the constitutionality of such statutes has been upheld. For instance, take the normal case of a benefit district extending back one mile on each side of the highway—in such a situation the landowner who resides near the edge of the district and uses the parallel road a mile from the improved highway pays benefit-district taxes on his land while his neighbor residing just across the road, but outside the district, pays none. Yet both use the same roads, and have exactly the same travel benefits. That sort of thing cannot be entirely avoided and courts as well as legislatures must be realistic.
Our statutes have progressively recognized the common interest-of all taxpayers in the improvement of all the highways, and that recognition is background for these statutes which seek to provide a partial refund to those upon whom—whether personally favorable or not to the improvements—a special burden has been imposed under the outmoded benefit-district system. In the instant case a majority of the voters of Allen county, proceeding regularly under the statute, have petitioned the county commissioners to make a levy to partially correct what they evidently regard as an injustice resulting from the old system. I find insufficient the reason assigned for striking down the statute enacted for the purpose of enabling them, and the taxpayers of other counties, to do it.
Wedell, J., joins in the above dissent.