To PETITIONS FOR A REHEARING BY COUNSEL FOR APPELLEES
JUDGE LINDSAYDELIVERED THE FOLLOWING RESPONSE OF THE COURT:
By the petitions filed for a rehearing of the questions involved in this appeal the attention of the court is specially called to the eighth section of an act amending the charter of the city of Covington, approved March 9, 1868, which is insisted to be and remain in full force and effect, and to authorize the improvement of Madison Street with Nicolson pavement, independent of the provisions of the act of 1869.
This section is in these words: “ That the city council shall have full power and authority, in addition to the materials now permitted to be used by the city charter in the construction or repairs of streets, alleys, market - spaces, or other public places in said city, to cause the same to be constructed, repaired, or renewed with any material or materials in any manner the council may declare suitable and proper for the location to be so improved. The city council shall have power, without a petition from the owners or holders of *502property along the line of the street, space, or portion of street, alley, market - space, or other public place, to be altered, repaired, or renewed as aforesaid, to cause the same to be done in any manner it may deem proper, at the cost and expense of the owners of lots and parts of lots fronting or abutting on the same. The taking up of one sort of material and putting the same down again, with or without adding materials of the same kind, or of different kinds, in the same manner as the portion to be improved was theretofore made, or putting down the same materials in any other manner, shall be included in the term ‘ repairs’ ”
Giving to this statute the construction insisted upon by appellees — that of authorizing, in general terms, the use of any kind of material in the renewal of a street, including the right to renew with the Nicolson pavement — it becomes necessary to determine whether this right is abridged by the act of 1869, and, if so, to what extent.
The act of 1869 authorizes the city, upon the petition of the owners of a majority of the front feet to be taxed, to order, contract for, and procure the improvement or reimprovement set out in the petition by grading, curbing, and paving with Nicolson pavement, or with any other material, as may be petitioned for, at the cost of the lot-owners, and by the proviso permits the same kind of improvement to be made on North Madison Street by a unanimous vote of the council without petition.
These limitations as to the right to improve at the cost of the property-owner certainly conflict with the act of 1868, as construed by appellees, as to all the streets, etc., except North Madison. Being the latest expression of legislative will upon the subjects embraced, it would naturally be allowed to control; but in the second section it is enacted that this act is in addition to the powers theretofore conferred by the city charter and amendments, and it is declared that it shall not be con*503strued as repealing or in any way affecting the same as then in force. • .
If the literal import of this section be followed to its necessary consequences, it will result in the absurdity of holding the entire act of 1869 not only a work of supererogation, but an absolute nullity. Such a construction is wholly inadmissible.
The provisions of the latter act, making the right of the city to improve with Nicolson pavements at the cost of property-owners depend upon the fact that the improvement has been petitioned for in a given manner, has the effect of abridging the powers conferred by the act of 1868; and, as was held in the case of Hickman v. Littlepage, 2 Dana, 344, it must be deemed ex necessitate legis an abrogation of that act to that extent, notwithstanding it declares that it was not the intention of the. legislature to repeal or affect the laws in force at the date of its adoption.
It results therefore that the power of the council to improve the streets with Nicolson pavement at the cost of the property-owners without petition, claimed to exist by virtue of the act of 1868, is so far abridged by the act of 1869 as to apply only to North Madison. This being the case, that statute as amended is liable to the same constitutional objections as apply to the proviso in the act of 1869.
We do not regard it as necessary to refer at length to the other questions raised by the petitioners.
We have not decided that the proj>erty-owners can not be compelled to pay for that portion of the improvement made of stone or other material authorized to be used before the' passage of the acts of 1868 and 1869. Upon the contrary, the judgment of the circuit court is reversed solely because the property of the appellants was subjected to the payment of the cost of the construction of the Nicolson pavement.
Upon the return of the cause that court is expressly *504directed to take suck further steps as may be necessary and proper. In so far as any portion of the tax is prohibited by the constitution its collection can not be enforced, however proper in a moral point of view it might be for appellants to .pay it.
The petitions must be overruled.