The plaintiff is the sheriff of Douglas county. He filed with the county clerk a claim against the county for feeding prisoners confined within the county jail from February 6, 1913, to February 28,1913 — 3,045 days, at 50 cents a day, making a total of $1,522.50, upon which he credited for gas and water $42.43, leaving a net claim of $1,480.07. The claim was rejected by the board of county commissioners. Shortly afterwards he filed a petition in the district court based upon the same claim and for the samé amount. The defendant answered, pleading that chapter 53, laws 1907, purporting to amend section 5, ch. 28, Comp. St. 1905, was void; that it violated section 11, art. Ill of the constitution ; that a portion of said chapter 53 had been declared unconstitutional by the supreme court, and that said portion was a material inducement to the adoption of the remainder, and that the legislature would not have passed the law had the part rejected not.been included therein; that the sheriff’s fees are fixed by section 5, ch. 28, Comp. St. 1905; that the meals furnished by the sheriff were not *700worth to exceed 7% cents a meal; that defendant lias equipped a new jail with all the modern conveniences, and that the only expense incurred and service rendered by the plaintiff had been in the supplying, preparing and serving food to the prisoners, using the rooms and equipment of the defendant. After a trial, the district court found in favor of the plaintiff for the whole amount claimed, less a small deduction for the use of defendant’s kitchen and appliances. Defendant appeals and assigns as error, first, that the court erred in holding that section 1, ch. 53, laws 1907, fixed the fees for feeding prisoners in Douglas county; second, that the plaintiff’s petition did not state a cause of action; third, that the court erred in excluding evidence of the nature, quality, quantity and cost of the meals furnished, and in rendering judgment in the absence of such evidence.
Previous to April, 1907, the statute governing the compensation of sheriffs for feeding prisoners was as follows': “For boarding prisoners per day, not exceeding seventy-five cents per day, nor more than $3.50' per week when the prisoners are confined more than six days.” Section 5, ch. 28, Comp. St. 1905. The legislature of 1907 passed an act amending the foregoing section so as to read as follows: “Section 5. (Sheriff.) Serving capias with commitment or bail bond and return, one dollar. * * * For boarding prisoners, fifty cents per day; provided, that in counties having by the last preceding national or state census a population in excess of one hundred thousand (100,000) the sheriff shall receive for boarding prisoners, including jail supplies, thirty-nine cents per prisoner per day until January 1,1908, and it shall be the duty of the board of county commissioners to advertise on or before December 1, 1907, and annually thereafter, for proposals for furnishing meals to prisoners in the county jail according to specifications set forth in said advertisement, and on or before the first day of January in each year to contract with the lowest and best bidder for feeding prisoners in the county jail.” The validity of the provisions authorizing the board of county commissioners to contract with the lowest bidder *701for feeding prisoners in the county jail was assailed in the case of State v. McShane, 93 Neb. 46, for the reason that such a provision was not within the title either of the original or the amendatory act, and was not germane to tbe subject of either. This view was taken by the court, and it was said in the opinion: “A careful reading of the amendatory act satisfies us that, after eliminating the unconstitutional portion of it, the remainder of the act is complete in itself, and capable of enforcement.” In McShane v. State, 93 Neb. 54, which was argued and submitted with State v. McShane, 93 Neb. 46, it appeared that the sheriff filed a claim with the state auditor for the board of a state prisoner for four days, at 50 cents a day. The state auditor allowed the claim to the extent of 19 cents a day which was the amount fixed in a contract between the county board of Douglas county and the firm which then held the contract for feeding the prisoners. The district-court also held that this amount was all that plaintiff was entitled to, but its judgment was reversed by this court, which held that the question in the case was identical with the one determined in McShane v. State, 93 Neb. 46, and that the sheriff “was clearly entitled to the compensation mentioned in that part of chapter 53 remaining in force, by which it is declared that the sheriff shall receive the sum of 50 cents a day for furnishing meals to such prisoners.” The correctness of our decision in the latter case is now directly challenged.
A stipulation was filed in McShane v. State, 93 Neb. 54, that the question in the two cases was identical, and the opinions came down at the same time. Appellant now argues that, on account of this stipulation, the opinion in the latter case must have been rendered under a misapprehension of the question involved, and that, since Douglas county was not a party to the suit, it is not bound by the decision. Of course, the county, not being a party to the suit, is not bound by the judgment, but it is equally bound with all other persons by the principles of law announced. But, in the brief of the county of Douglas in tbe former case, it was argued that “That clause is: ‘For boarding *702prisoners 50 cents per day.’ * * " * And the provision for competitive bids are complete only when taken together, and must stand or fall together, as the provision for competitive bids in counties to which it applies was the efficient and moving cause for the enactment of the amendment, and particularly that portion which fixed the amount for smaller counties.” The factthat the legislature of 1907 at the same session enacted chapter 54, laws 1907, which provides salaries for sheriffs in full compensation for their services, in lieu of the fees previously received, was also set forth as a reason for the legislation, and it was said that it was not intended that sheriffs would make a profit by the feeding of prisoners; that it was rumored that in Douglas county the sheriff was making a large profit under the price of 35 cents a day, which had been fixed by the county commissioners under the former statute, and that the object of both of these statutes was to place the office of sheriff upon a definite salary basis, and to provide that the amount paid him for feeding the prisoners should be as nearly as possible the actual cost thereof. It is said also: “The amount would not have been fixed at 50 cents unless the first proviso was also enacted, because the prisoners were then being fed in the counties the proviso applied to for 39 cents a dayand that the first clause and the first proviso was each an inducement for enacting the other, and both must stand or fall together. Speaking of Mr. McShane, it is said: “He does not want the law to stand a,s it was prior to the amendment of 1907, under which the amount to be paid to the sheriff' for feeding prisoners was determined by the county commissioners. He only wants that part of the amendment which provides that the amount to be paid for feeding prisoners shall be determined by the county commissioners, by competitive bids submitted to it, declared void.”
These excerpts from the brief clearly show that the questions raised in this case were expressly raised and decided in the former case, and that, if any relief is to come, it must come through the legislature. The legislature has been in *703session since the decision in the former cases, and has taken no steps to change the rule of the decisions.
We are not inclined to interfere with their prerogative. For these reasons, the judgment of the district court is-
Affirmed.
Fawcett, J., dissents.