dissenting.
I cannot concur in the opinion of the court in so far as it holds that a petition by the owners of abutting property is essential to confer power on the council to order the paving of an improvement district. The cases of Von Steen v. City of Beatrice, 36 Neb. 421, and State v. Birkhauser, 37 Neb. 521, are, it is true,, authority for that construction of the statute, but those eases were based entirely on an interpretation of the section of the charter involved as if it had beén drawn and enacted as an entirety and at a given moment. The history of the law’’ has been neglected, and in this instance a consideration of its history is essential to a correct construction. The germ of the section is found in section 41, chapter 8, General Statutes, being the act of March 28, 1873, incorporating cities of the first class, and framed so as to embrace Omaha alone. That section began as follows: “The council shall have power to open, extend, widen, grade, pave, or otherwise improve and keep in good repair any. street, avenue, or alley within the limits of the city.” This was followed by provisions for special assessments to defray the expense of such improvements, but the broad grant of power conferred by the language quoted was nowhere restricted. By chapter 17 of the Laws of 1881 a new charter was provided for cities of the first class, and section 41 of the act of 1873 was carried into it, somewhat amended, but not in respect to the matters here involved, as section 42. By chapter 12 of the Laws of 1883 many amendments were incorporated into section 42. The opening sentences remained the same,but the following rvas inserted in the body of the section:*69‘'The mayor and council of any city of the first class shall have power to pave, repave, or macadam any street or alley, or parts thereof, in the city, and for that purpose.to create suitable paving districts, which shall be consecutively numbered, such wort to be done under contract and under the superintendence of the board of public works of the city. Whenever the owners of lots or lands abutting upon the streets or alleys within any paving district representing a majority of feet front thereon shall petition the council to pave, repave, or macadam such streets or alleys, it shall be the duty of the mayor and council to pave, repave, or macadam the same.” (Session Laws 1883, p. 101, ch. 12, sec. 1.) By chapter 10 of the Laws of 1887 the class of metropolitan cities was created, and what was section 42 of the old charter formed the framework for section 69 of the new. In all respects material to this inquiry the two sections were the same. In 1891 (Session Laws, p. 82, ch. 7, .sec. 8) this section underwent .several amendments, those chiefly affecting the question before us being the substitution of “improvement districts” for “paving districts,” and the addition óf a clause whereby owners of three-fifths of the frontage on a street were permitted to petition for the paving of that street, the whole expense, including that of paving intersections, to be defrayed by local assessment.
I think this section of the metropolitan charter should be construed in the light of its entire history. While the act of 1887 created a new class of cities with a new name, it was in fact intended to be applied only to Omaha, and this had been true of the preceding acts relating to cities of the first class. No other city had to that time been embraced within the first class of cities. In adopting a new charter, adapted to the wants of a large and rapidly growing city, it was not intended to make an abrupt and •radical change in the constitution and political history of the city. A vast scheme of street improvements was then under way. It had been progressing for some years, and it promised to continue indefinitely. There can be *70no doubt that the legislature intended to continue the old law substantially in force with reference to such improvements, in order that there might be no bréale in continuity or method. For that reason section 42 of the old charter was preserved, with amendments going only to details. By repeated amendments that section had grown from a short paragraph until it covered pages and embraced some twenty-odd subdivisions and provisos. That process of piece-meal amendment had not only made it inordinately long, but had made it tautological, involved, and even ungrammatical. Unless it had been the deliberate purpose to retain it in such form that there could be no doubt of its identity with the old law, a simpler and clearer phraseology would have been adopted. Certainly it possessed no charm of literary style which commended it for preservation. Its preservation can only be accounted for on the theory that the legislature was so anxious to prevent a- disturbance in the course,of street improvement, that it would not incur the hazard of a new construction of the law by recasting its language.
If, then, the history of the law is open for consideration, I think the conclusion irresistible that it was the legislative intent to make three different provisions with regard to paving. In the first place, the council was given plenary power to pave any street. In the second place, the owners of the greater part of the frontage, by petition, might require the paving of any street. The language is in that case “it shall be the duty of the” council to pave. In the third place, on petition of the owners of three-fifths of the frontage, the street may be paved and the whole cost, including intersections, shall be defrayed by local assessment. Paving districts and improvement districts were devices introduced by amendment for convenience in fixing limits for the purpose of assessment, and form no just ground of distinguishing between power to create districts and power to pave them. Their creation is merely incidental to the power to pave. It is too dear to permit of argument that the laws of 1873 and *711881 grafted full power to pave without any petition. If so, when was it taken away? If by the provision of 1883, requiring the council to pave on petition, then the new language there used was sufficient to confer the limited power, or rather to impose the duty. The words granting the general power became at the best surplus-age, and why were they retained? They were not only retained, but, as if to show clearly that the provision for a petition was merely supplementary to the old power, they were in substance repeated just before the petition clause, and separated therefrom by one of the few periods which occur throughout the weary length of this monstrous section. By regarding the history of the amendment and construing it as only imposing an additional duty, effect can be given to every clause, while to give it the construction placed upon it by the court, is to impute to the legislature not only the useless retention of an obsolete clause, but its actual reduplication.