concurring.
To hold as contended for by plaintiff would be to hold that the filing of the transcript is what gives the district court jurisdiction. I think that ought to have been the law, but it is not; and the fact that this method of taking an appeal to the district court stands alone in our statutes cuts no figure, as it is clearly within the power of the legislature to provide a different course of procedure in one class of cases from that provided in others. Now, what is the meaning of section 213, which, after providing that the appellant shall within 20 days execute a bond to the city, conditioned for the faithful prosecution of the appeal, and file the bond with the city clerk, and that it shall be the duty of the city clerk to prepare a transcript, further provides: "It shall be the duty of the claimant or appellant to file a petition in the district court as in the commencement of an action within thirty days from date of the order or award appealed from, and he shall also file such transcript before answer day?” (The italics are mine.) To my mind, it is clear that by this statute the filing of the petition is the commencement of the action in the district court; or, if you choose to put it in another way, the institution of the appeal in that court. If the legislature had intended that the filing of the transcript should constitute the institution of the appeal in the district court, it would have reversed the order of filing the petition and transcript, and would have provided within what time after the filing of the transcript the petition should be filed. If the filing of the petition is not the commencement of the appellate proceeding in the district *491court, then how are you going to determine when the transcript should be filed? The statute says it must be filed before answer day. What fixes the answer day? The petition, of course, as there is nothing to answer until a petition is filed.
The provision in section-213 mads: “It shall be the duty of the claimant or appellant to file a" petition,” etc. To my mind that is the same as if it had read: “The claimant or appellant shall file a petition in the district court,” etc. In other words, where the statute says it shall be the duty of the appellant to do a certain thing, it is the same as if it liad said, he shall do that thing.
It is urged that section 116 is the one which permits an appeal. It does permit appeals but it does not prescribe the procedure. Section 212 also permits appeals, but it too fails to prescribe the procedure. Then comes section 213 and prescribes the procedure under both sections. It provides: “Whenever the right of appeal is conferred by this act, the procedure unless otherwise provided shall be substantially as follows.” The words, “unless otherwise provided.,” must in reason be held to mean, unless otherwise provided in this act.
I dislike very much to prevent a hearing of this case upon its merits, and would be glad if I could see my way clear to sustain plaintiff’s contention, but it cannot be done without distinctly and definitely amending section 213. This we have no right to do.