County of Cass v. County of Sarpy
Decision Date | 06 February 1902 |
Docket Number | 12,183 |
Citation | 89 N.W. 291,63 Neb. 813 |
Parties | COUNTY OF CASS v. COUNTY OF SARPY. [*] |
Court | Nebraska Supreme Court |
ERROR from the district court for Sarpy county. Tried below before BAKER, J. Reversed.
REVERSED AND REMANDED.
Jesse L. Root, for plaintiff in error.
William R. Patrick and Wright & Stout, contra.
John M Stewart and M. D. King, amici curiae.
OPINION
The facts out of which this litigation arose can not be 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: A general demurrer to this petition was sustained, and, the plaintiff electing to stand thereon, judgment was rendered dismissing the action and for costs. The plaintiff seeks to reverse the judgment by proceedings in error.
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 only questions of law involved in the case, are with respect to the validity and construction of sections 87, 88 and 89 of chapter 78, Compiled Statutes, entitled "Roads." These sections are as follows:
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, and 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 wholly ineffectual for any purpose, and the act of 1899, having an appropriate title and being otherwise in due form, is the first and only amendment of section 88 of the act of 1879. It can not be inferred that the legislature were ignorant of the invalidity of the attempted amendment of 1881, and supposed that they were amending a measure to which they made no reference, rather than the "original section," which they accurately described. The act of 1899 made no alteration in the act of 1879, except to add to section 88 thereof the proviso above quoted. The discussion is thus narrowed to the single inquiry, what was the legislative intent in enacting this proviso? Or, in other words, what is its true construction and effect? What change in the law did it accomplish? That it is to be given some force, if possible, can not be gainsaid. The case has been elaborately briefed and...
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