63 Neb. 813 | Neb. | 1902
Lead Opinion
The facts out of which this litigation arose can not he more clearly or more concisely stated than in the manner in which they are set forth in the petition, of which the following is a copy: “That the plaintiff and defendant are corporations organized by virtue of the laws of Nebraska. That in the year 1890 a public wagon bridge was constructed across the Platte river at a point where the said river forms a boundary line between said counties. That the said bridge was constructed with funds furnished by sale of precinct bonds issued by the commissioners of Cass county for the precinct of Louisville, a precinct of said Cass county. Said bridge was not jointly constructed by the parties hereto nor did defendant do anything whatever towards building said bridge. That immediately after the completion of said bridge, and from thence hitherto said bridge has formed a part of the public highways in said counties, has been constantly used by the public and at each end of said bridge a public road connects with said bridge. That in the spring and summer of 1900 the said bridge from constant use theretofore became and was in a dangerous condition; was out of repair. That the said county of Cass on the 1st day of May, 1900, requested the defendant to enter into a joint contract with the plaintiff for the purpose of repairing said bridge arid having said bridge so repaired as to be safe for travel. That defendant by its commissioners on the first day of May, 1900, refused to enter into said contract, and refused to repair said bridge or any part thereof, or to do, or cause to be done any act or thing for the purpose of repairing any part of said bridge. Whereupon plaintiff caused J. R. Sheely & Co., bridge contractors, to repair said bridge and put it in a safe condition for travel and said contractor did forthwith cause said bridge to be repaired, completing said work and furnishing material for such repairing, Aug. 31, 1900. That plaintiff on the 4th day of September, A. D. 1900, paid said contractor for such work and material, the sum
It is objected, in the first instance, that the petition is fatally defective because of omitting to allege that the contract for making the repairs, for one-half the expense of which recovery is sought, was let to the lowest bidder. We think that, if the law required it to be so let, the allegation that the repairs were procured to be made by contract, although, perhaps, too indefinite, is, as against a demurrer, a sufficient averment of a valid contract, which presupposes a letting upon competition by bidders. The
“Sec. 87. Bridges over streams which divide counties, and bridges over steams on roads on county lines, shall be built and repaired at the equal expense of such counties; Provided, That for the building and maintaining of bridges over streams near county lines, in which both are equally interested, the expense of building and maintaining any such bridges shall be borne equally by both counties.
“Sec. 88. For the purpose of building or keeping in repair such bridge or bridges, it shall be lawful for the county boards of snch adjoining counties to enter into joint contracts; and such contracts may be enforced in law or equity, against them jointly, the same as if entered into by individuals, and they may be proceeded against, jointly, by any parties interested in such bridge or bridges, for any neglect of duty in reference to such bridge or bridges, or for any damages growing out of such neglect; Provided, That if either of such counties shall refuse to enter into contracts to carry out the provisions of this section, for the repair of any such bridge, it shall be lawful for the other of said counties to enter into such contract for all needful repairs, and recover by suit from the county so in default such proportion of the costs of making such repairs as it ought to pay, not exceeding one-half of the full amount so expended. (Amended 1881, ch. 77; 1899, ch. 57.)
“Sec. 89. If the county board of either of such counties, after reasonable notice in writing from the county board of any other such county, shall neglect or refuse to build or repair any such bridge, when any contract or agreement has been made in regard to the same, it shall be lawful for the board so giving notice to build or repair the same, and to recover, by suit, one-half (or such amount as shall have been agreed upon) of the expense of so building or repairing such bridge, with costs of suit and interest from the
In 1879 the legislature enacted a statute' entitled “An act to amend chapter 47 of the Revised Statutes of 1866, entitled ‘Roads.’ ” In 1881 the legislature authorized the preparation and publication of the work subsequently known as the “Compiled Statutes,” of which biennial editions have since been issued. By this act of authorization the public acts of the legislature, including the Revised Statutes, were required to “be compiled, arranged and put into chapters, with appropriate heads and titles, and with reference to decisions of the supreme court.” This requirement was obeyed, and in all the series of editions of the Compiled Statutes the act first above mentioned has been designated as “Chapter 78 — Roads.” This heading or title is therefore an authorized conventional substitute for the title of the act itself, find consequently this court has held that a legislative intent to amend an act in such cases is sufficiently expressed by reciting the chapter and heading in the compilation.
In 1881 the legislature passed and the governor approved a measure entitled “A bill for an act to amend section 88, of an act to amend chapter 47, of the Revised Statutes of 1866, entitled ‘Roads,’ approved March 1st, 1879.” This measure did not include a clause expressly repealing the section mentioned, and was therefore void, but in the first and subsequent editions of the Compiled Statutes, until that of 1899, the section, in the form attempted to be given to it by the supposed act of 1881, was substituted for the valid section 88 of chapter 78. In 1899, an act was passed entitled “An act to amend section 88, chapter 78, Compiled Statutes of Nebraska of 1897, and to repeal said original section.” It is argued by counsel for defendant in error that this last act is an attempt to amend the void measure of 1881, and that it is therefore itself void. For the reason already given, this contention can not be upheld. The supposed act of 1881 and the above-mentioned error in the publication of the Compiled Statutes were each and both
For these reasons, it is recommended that the judgment of the district court be reversed and the cause remanded for further.proceedings in accordance herewith.
Concurrence Opinion
concurring.
By an act approved March 1, 1879, the legislature provided a complete code of laws relating to roads and bridges in this state. Sections 87, 88 and 89 of the act related to bridges over streams which divide counties, and are in the following language:
“Sec. 87. Bridges over streams which divide counties, and bridges over streams on roads on county lines, shall be built and repaired at the equal expense of such counties ; Provided, That for the building and maintaining of bridges, over streams near county lines, in which both are equally interested, the expense of building and maintaining any such bridges shall be borne equally by both counties.
“Sec. 88. For the purpose of building or keeping in repair such bridge or bridges, it shall be lawful for the county boards of such adjoining counties to enter into joint contractsand such contracts may be enforced, in law or equity, against them jointly, the same as if entered
“Sec. 89. If the county board of either of such counties, after reasonable notice in writing from the county board of any other such county, shall neglect or refuse to build or repair any such bridge, when any contract or agreement has been made in regard to the same, it shall be lawful for. the board so giving notice to build or repair the. same, and to recover, by suit, one-half (or such amount as shall have been agreed upon) of the expense of so building or repairing such bridge, with cost of suit and interest from the time of the completion thereof, from the county so neglecting or refusing.”
By an act approved March 1, 1881, the legislature attempted to amend section 88 of the foregoing act. The amendatory act is in the following language:
“Section 1. That section eighty-eight (88) of an act entitled ‘An act to amend chapter forty-seven (47) of the Revised Statutes of 1866, entitled “Roads”’ approved March 1, 1879, be amended to read as follows: Sec. 88. For the purpose of building or keeping in repair such bridge or bridges, it shall be lawful for the county boards of such adjoining counties to enter into joint contracts; and such contracts may be enforced in law’ or equity against them, jointly, the same as if entered into by individuals, and they may be proceeded against jointly by any parties interested in such bridge or bridges, for any neglect of duty in reference to such bridge or bridges, or for any damages growing out of such neglect. Provided, That if either of said counties shall refuse to enter into a contract to carry out the provisions of this section for the repair of any such bridge, it shall be lawful for the other of said counties to enter into such contract for all needful repairs and recover by suit from the county so in default, such proportion of the cost of making such repairs as it ought to pay, not exceeding one-half of the full amount so expended. But
It will be noticed that this amendatory act is fatally defective, for the reason that the original section attempted to be amended is not repealed. Notwithstanding the ineffectual character of the amendatory act, it was carried forward into the Compiled Statutes of 1881 as section 88' of chapter 78, entitled “Roads.” It will be noticed 'that section 88, as attempted to be amended, is in the precise words of section 88 of the Session Laws of 1879, down to the word “provided” in the amendatory act. So that the Compiled Statutes of 1881, and all subsequent compilations of the statute, down to, and including the Compiled Statutes of 1897, contained the original section 88 of the law's of 1879, and in addition to the original section the attempted amendment of 1881, the amendment being the proviso following the word “neglect” in the original section. By an act approved April 1, 1899, section 88 of chapter 78, Compiled Statutes, of Nebraska, 1897, was amended, the act being in the following form:
“Section 1. That section 88, chapter 78, Compiled Statutes of Nebraska of 1897, be amended so as to read as follows : Sec. 88. For the purpose of building or keeping in repair such bridge or bridges, it shall be lawful for the county boards of such adjoining counties to enter into joint contract; and such contracts may be enforced in laAV or equity, against them jointly, the same as if entered into by indiAlduals, and they may be proceeded against jointly, by any parties interested in such bridge or bridges, for any neglect of duty in reference to such bridge or bridges, or for any damages growing out of such neglect; Provided, That if either of such counties shall refuse to enter into contracts to carry out the provisions of this section, for the repair of any such bridge, it shall be lawfful for the other of said counties to enter into such contract for all needful repairs, and recover by suit from the county so in default such proportion of the cost of making such repairs
“Section 2. That section eighty-eight (88), chapter 78, Compiled Statutes of Nebraska of 1897, be and the same is hereby repealed.”
Plainly and undeniably the object of this last amendment was to make both counties liable for the repair of bridges over streams which divide the counties. We have in the above statement undertaken to give a history of this statute, and will now proceed to examine the facts in the case drawing the statute in question.
Cass and Sarpy counties are divided by the Platte river. In the year 1890 a bridge was erected across the river at or near the town of Louisville, in Cass county. The money for erecting the bridge was derived from the sale of bonds by the county of Cass for the precinct of Louisville. There was no agreement between the two counties concerning the building of this bridge, and Sarpy county did not contribute anything toward its erection. After the erection of the bridge, and from that time to the present, said bridge has formed a part of the public highways in said counties, and has bc-en constantly used by the public, each end of the bridge being connected with a public road. In the year 1900 the bridge had become out of repair from constant use, and Cass county, about May T, of that year, requested the county of Sarpy to enter into a joint contract for the purpose of having the bridge repaired and made safe for travel. The county commissioners of Sarpy couutv refused to enter into any contract relating to the repair of the bridge, and refused to repair the same or any part thereof, and thereupon the county of .Cass caused the bridge to be repaired at a cost of $5,283.86. September 7, 1900, the plaintiff filed with the county clerk of Sarpy county an itemized statement of the work done and material furnished, duly verified, and claiming from said county, one-half the expenditure, or $2,641.93. This bill was rejected by the commissioners of Sarpy county, and this action is brought to enforce its payment. A general
It is insisted that the amendment of section 88 made by the legislature of 1899 is invalid, for the reason that it sought to amend a void statute, and that the amendment had nothing to operate on. We were at first inclined to this view of the case, but further examination and consideration has led us to the conclusion that such a contention can not be supported. The amendment attempted to be made to section 88 is concededly invalid, for the reason that the requirement of our constitution was not observed, in that the section Avhich it sought to amend was not repealed. The cases holding to these doctrines are so well understood by the profession that reference to them is unnecessary. By chapter 79 of the act of 1881, Guy A. BroAvn was authorized to compile all the public acts then in force in this state, and to arrange said statutes into chapters, with appropriate heads and titles, and with reference to decisions of the supreme court. Under the authority of this act, Mr.'Brown proceeded to compile the statutes, and the result of his work is Avhat is known as the “Compiled Statutes of 1881.” The act of 1879, first above - referred to, appeared in the Compiled Statutes of 1881 as chapter 78 of that compilation, under the head of “Roads.” Section 88 of the act of 1879 appeared in full in the compilation as amended by the act of 1881. As before stated, the amendment attempted by the act of 1881 was the addition of a proviso to the original section, the original section as enacted in 1879 appearing word for Avord in the Compiled Statutes; but added thereto was the amendment in the way of a proviso. If Mr. Brown, in compiling the laws, had omitted this void proviso, Ave would then have had the law of 1879 word for Avord as it was enacted originally, and the question is whether the addition of an attempted amendment which was wholly ineffectual to change or modify the law, made by the compiler wholly
By the Court: For reasons stated in the foregoing opinions, it is ordered that the judgment of the district court be reversed, and the cause remanded for further proceedings in accordance therewith.
ReverseI) and remanded.