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 *821into by individuáis, 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.
“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 *822the provisions of this act shall apply only to those bridges which have been built, or may hereafter be built by cooperation of the counties separated by said stream.”
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 *823as it ought to pay, not exceeding one-half of the full amount so expended.
“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 *824demurrer to the petition was sustained, and, the plaintiff electing to stand thereon, judgment was entered dismissing the action and for costs. Prom this judgment the plaintiff has taken error to this court.
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 *825without authority, because the amendment never had any force, can be said to have incorporated into the compilation of 1881 a void statute. We think not. The statute appears in the compilation exactly as it was passed, and the addition thereto of a void amendment made by the compiler, can not in our opinion, have the effect to make void that part of the statute to which the void amendment was attached. If this reasoning is correct, then a reference to section 88 of the Compiled Statutes of 1897 by the amendatory statute passed in 1899 was a reference pointing out a valid section of the statute then in full force, and the amendment of 1899 was not in any sense an amendment of a void or unconstitutional statute. The amendment of 1899 in express terms requires the cost of repairs to county bridges of the character of the one in question to be equally borne by each county. This being the case, the demurrer of the defendant should have been overruled.
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.