dissenting.
The language of section 1, ch. 215, Laws 1919, seems to be plain in its requirements when considered in connection with the entire scope of paving legislation. Section 1 reads:
“Wherever any paving district is created along or adjacent to any state institution or the state fair ground, the officers having in charge state institutions, or the fair grounds, are hereby authorized and empowered to sign petitions in the name of the state, to create paving districts.”
It is said in the opinion of the majority that to interpret the .act according to the plain meaning of its words is to impute to the legislature “the doing of a futile and unnecessary thing.” If the act stood alone and was disconnected from any other statute on the same subject the observation would doubtless be true. But the act does not stand alone and when it is considered in connection with all of the legislation on the same subject it is neither futile nor meaningless.
The majority opinion invokes the rule of pari materia, but under that beneficent, rule it destroys section 1, ch. 215, Laws 1919. The ;©pinion interprets the .act literally, destroys its real intent, and causes a legislative act to appear ridiculous. Ordinarily the rule is otherwise employed. I submit that a reasonable application of the rule would preserve and give meaning to a meritorious act. Under the rule of pari materia the act seems, simply to mean that, wherever the installation of a paving district is contemplated by local authorities which is “along or adjacent to any state institution,” the officers having in charge such institutions are authorized and empowered to sign petitions “in the name of the state, to create paving districts.” They *525are not authorized by this or any statute to sign petitions to “grade and pave’ any paving district. That is the main question at issue.
The main opinion observes that the power of the county board to create a paving district “is in no wise dependent upon a petition of the property owners.” That is true only as it affects private owners of abutting property or private owners of property situate within the district zone to be affected. But it is not true as affecting, “officers having in charge state institutions.” They are not excused. Nor are they, by virtue of official position, property owners in the ordinary and usual sense, nor in the sense of any paving statute. For these reasons, among others, and on this theory, in part, section 1, ch. 215, Laws 1919, was enacted. In this sense it should be given full force and effect in the comprehensive scheme of legislation as relating to paving districts. The outcome of the individual case is as nothing compared to an unsound interpretation placed upon an act of the legislature.
Clearly the legislature realized that the county board, having only limited jurisdiction and restricted powers, would be reluctant to make a move toward the creation of a paving district, which would be the beginning of an expensive and pretentious project, unless the creation of such district had first received the sanction of the state officers who are authorized and empowered thereunto by the act. Certainly the county board was entitled to know the attitude of the state officers toward the proposed undertaking before doing anything looking to the installation of an expensive system of paving. .The legislature therefore wisely provided that the county board should be so informed by affirmative action of the state officers. The act does not make it compulsory upon the designated state off ficers to sign petitions to create paving districts unless the contemplated project meets with their approval. In that event to sign becomes an official duty. Strict compliance with its every requirement on the part of the designated officers is necessary to confer jurisdiction. Failure *526to perform a statutory duty so plainly imposed should he held to be a fatal jurisdictional defect. That private property shall not be taken or damaged for public use without just compensation is a fundamental law of the land.
A paving law as it relates to highways in the open country, notwithstanding they may be almost a public necessity, very often imposes a grievous burden upon private owners of abutting property. Words need not be multiplied to establish the fact that in some districts, and certainly in the present case, the burden far exceeds the benefit derived by the individual owner. Those who are benefited the most are strangers to the title. Needless to say the paving does not contribute to productivity and it adds but a small sum to the value of the land as compared with the assessment. The law should therefore be strictly construed in all its parts to the end that it is not made a destructive force in the hands of the taxing power.
The omission to comply with the provision under discussion is not technical. It is vital as affecting jurisdiction. When public officers waive performance or for any reason fail to perform a duty imposed by a general scheme of legislation and which is necessary to confer jurisdiction it is as though the law had never been enacted. The petition required by statute having been omitted, it follows that the county board was without jurisdiction to act in the premises.
It is elementary that when a legislative act is obscure or even meaningless when standing alone, resort may propeiiy be had to other parts of the law on the same subject to determine its meaning, to the end that the legislative purpose may not fail. Evidently the legislature did not consider the act futile nor unnecessary. The act forms an essential part of a comprehensive scheme of public enterprise.
It is aptly pointed out in plaintiff’s brief that the filing of petitions by state officers “to create paving districts” is not a mere formal ceremony, but is the performance of a useful office, in that such petitions stimulate local officers *527to action and satisfy them that there is a demand for the contemplated improvement in the community to be affected. It is also pointed out that, under the facts and the law, the county board would not and could not lawfully create a paving district until after the state signified its assent by its officers in the manner prescribed by the act.
Hurford v. City of Omaha, 4 Neb. 336, is a case that has to do with the assessment and collection of a tax for the improvement of streets. At page 353 we said: “Hence the statute must be strictly construed, for it has been said that every statutory authority in derogation of the common law to divest the title of one, and transfer it to another, must be strictly pursued, or the title will not pass. In Creighton v. Manson, 27 Cal. 613, it is said that ‘when summary proceedings are authorized by statute, the effect of which is to divest or affect rights of property, the statute must be strictly construed, and the power conferred must be exercised precisely as given; any departure vitiates the whole proceeding.’ Stucker v. Kelly, 7 Hill (N. Y.) 25.” The Hurford opinion concludes: “This rule of law is so well established upon principle, and authority, that it is unnecessary to cite authorities in support of it.”
Under the rule of pari materia section 1, ch. 215, Laws 1919, should be held to be operative. If so held, the county board, as we have seen, was without jurisdiction to engage in the paving enterprise under discussion because the signing of a petition by the state officers for the creation of a paving district, under the decisions, is a condition precedent to jurisdiction. City of Enid v. Gensman, 76 Okla. 90, and cases cited.
Defendants argue that plaintiffs cannot be heard to complain because they did not file objections within the time prescribed by the statute. In the absence of jurisdiction that objection does not apply when the proceedings upon which the assessment is based are void. Morrow v. Barber Asphalt Paving Co., 27 Okla. 247. To the same effect is Southern Surety Co., v. Jay, 178 Pac. (Okla.) 95. In Winfrey v. Linger, 89 Mo. 159, it was held *528that where a tax bill is void the property owner is not required to file objections to the assessment. To the same effect is Richter v. Merrill, 84 Mo. 150. In Steinmuller v. City of Kansas City, 3 Kan. App. 45, it was held that, when the proceedings are void upon which a special assessment is levied to pay the cost of grading city streets, the owner is not required.to bripg his action within the time limited by statute ,to defeat the collection of the assessment.
. There is no authority in any paving or other statute authorizing officers in charge of state institutions to sign petitions to “grade and pave” highways. This is apparent from an examination of chapter 152, Laws 1917, which provides that, in counties having any cities of the class involved here, petitions to “grade and pave” highways shall be presented to the county board which “shall be. signed by the owners of a majority of the property chargeable with the cost of the improvement or part thereof.” Section 2 of the same chapter provides that, “If there be any real estate in such district belonging to any cemetery corporation or association, school district or other municipal or quasi-municipal corporation, it shall be the duty of the cemetery board, school board or other proper officers to provide for the payment of any such special assessments against such real estate on account of such improvements.” But there is no provision that such association, school district or quasi-municipal corporation shall be authorized to sign a petition to “grade and pave” any highway. If the legislature had intended that state institutions should sign such petitions to “grade and pave” highways it would, by a parity of reasoning, also have provided that cemetery corporations, school districts and other municipal and quasi-municipal corporations should sign such petitions. But the legislature having made no such provision the court should take the law as it finds it. The court has no right to impose a duty or to confer a privilege, within the legislative domain, that was not imposed or conferred by the legislature.
*529The constitutional division of governmental powers must be respected and obeyed. The judicial branch of government must not presume to supply, a link that it conceives to be missing in a legislative chain. Notwithstanding the ease and facility with which it may be done grave danger lies in that direction. The judiciary must be content to remain within its time-honored constitutional province. That the court shall not legislate is a constitutional inhibition that is of course everywhere recognized.
It is conceded that there are about 3,000 acres of land in the paving district and of this the state owns 900 acres. Plaintiffs insist that it is unjust to permit the state, with its immense acreage in the district, by its petition to “grade and pave,” to force upon the private owners therein so costly an improvement, and that in this respect the private owner, who is not on equal terms with the state, might be financially ruined while the state with its vast resources would not feel the burden. The argument is sound and doubtless was in the legislative mind when the present system of paving laws was enacted. Hence, permission to sign was not given the state.
In the present case the object of the proceeding is to subject private property to a public use. On this point a distinguished jurist said that the statutory authority to do so must be strictly pursued; that the rule is fundamental and imperative and. all of its substantial requirements must be regarded as a condition precedent to the validity of an assessment. 1 Cooley, Taxation (3d ed.) 464; Batty v. City of Hastings, 63 Neb. 26; Casey v. Burt County, 59 Neb. 624; McCaffrey v. City of Omaha, 91 Neb. 184; Hutchinson v. City of Omaha, 52 Neb. 345; Harmon v. City of Omaha, 53 Neb. 164; Wiese v. City of South Omaha, 85 Neb. 844; Morse v. City of Omaha, 67 Neb. 426.
While I insist that the officers having in charge state institutions are without authority under the law to sign a petition to “grade and pave” a district, yet a minor feature may be noticed. It is not of controlling importance, but is mentioned here merely to show that the board of state of*530ficers by a resolution authorized the chairman to sign a petition merely to create a paving district. The board in its resolution correctly interpreted its authority, but the chairman signed a petition to “grade and pave” highways. Evidently he was badly advised in the premises.
Edmund Burke in a speech in parliament denouncing a certain oppressive tax levy against the American Colonies gave to the world this expression: “The power to tax is the power to destroy.” In modern civilization that age-old proverb is exemplified in many ways. To place a grievous and unreasonable burden upon the owner’s property by an act of the legislature, where the burden greatly exceeds the benefit, is to deprive him of his property without due process of law. And that was done in this case. It is a polite form of forfeiture of private property for public use. To appropriate the owner’s land without the clear, explicit and unmistakable sanction of the law, in the guise of taxation, is anarchy, because the result is the same as taking the title by force and giving it to another. The court is always driven far afield when it departs from the application of well-recognized and familiar rules in the construction of statutes. The same result follows the wrong application of a righteous rule.
For the reasons stated herein, I respectfully dissent from the decision of the majority of the court.