(dissenting): In my opinion a proper disposition has not been made of this appeal. Very briefly stated, my reasons for dissent are as follows:
The act under which this township waterworks system was installed was first enacted in 1935 and has been subsequently amended and now appears as G. S. Supp. 1945, 80-1601 et seq. In its general aspects the act provides for certain preliminary proceedings authorizing the township board to issue revenue bonds to cover the costs of constructing water mains in the township, the bonds to be retired from the revenue derived from the sale of water therefrom. These bonds are issued without any vote of the taxpayers of the county and it is clear from the statute that the bonds are to be paid from proceeds of the sale of water and not as the result of taxation. As originally drawn, the act contained no provision whatever for a tax levy to pay for anything connected with the construction or maintenance of a waterworks system in any way whatever. Prior to 1937 the board of township trustees was authorized to contract with any school district, rural high-school district or with the board of county commissioners for the sale of xoater for school and county purposes. (G. S. 1935, 80-1605.) In 1937 the section was amended by adding the following proviso:
“Provided, That any township in which a water system is established under the provisions of this act is hereby authorized and empowered to obligate the *581township to pay a reasonable price as rental for the installation and maintenance of fire hydrants or plugs, and to pay a reasonable price for the water used for fire fighting or other emergency purposes, and such contract may extend for a period of years not longer than the period for which the revenue or additional revenue bonds were issued. For the purpose of raising funds to pay for such rental of fire hydrants and water used, said township board is hereby authorized and empowered to levy annually, a tax sufficient to raise the amount' necessary. The levy herein authorized shall be in addition to all other levies authorized or limited by law.” (Laws 1937, ch. 379, § 2. Italics supplied.)
It will be observed that the only obligation a township may assume under the proviso is to pay a reasonable price as rental for the installation and maintenance of fire hydrants or plugs and to pay a reasonable price for water used for fire fighting or other emergency purposes, and to levy a tax sufficient to pay the amount necessary therefor.
The record in this case clearly discloses that the township board has levied a tax which will raise an amount much larger than is necessary to pay for the installation and maintenance of fire hydrants or plugs and to pay a reasonable price for the water used for fire fighting or other emergency purposes. In order to meet some so-called fire underwriter requirement as to the size of hydrants, the township put in larger mains than were otherwise authorized or required as well as water towers and other equipment, a large portion of the cost of which it now seeks to pay for out of a tax levied for the ostensible purpose of paying hydrant rental.
I do not believe the legislature ever intended by the exception or proviso written into the statute that a water plant could be constructed by using proceeds of revenue bonds issued without an election, which bonds were to be paid from proceeds of the sale of water, and that thereafter the township board was at liberty to levy a tax to pay a substantial part of the cost of the entire improvement under the guise that the tax was to pay “a reasonable price as rental for the installation and maintenance of fire hydrants or plugs, and to pay a reasonable price for the water used for fire fighting or other emergency purposes.” The levy made would produce a sum far in excess of an amount needed to pay a reasonable price as rental for fire hydrants or for water used for fire fighting. The appellants paid a sum which the evidence disclosed fully covered a reasonable cost, and paid the'excess under protest. I believe they should have had judgment.
I am authorized to say that Mr. Justice Wedell and Mr. Justice Hoch concur in the views herein expressed.