concurring.
I agree with the result reached by the opinion of the court in this case, and I have no quarrel with the rationale incorporated in the court’s opinion. I perceive, however, in this instance, we find a nuance which does not seem to be a part of the ratio decidendi of the persuasive authority from our sister jurisdictions.
It is very clear that, in the case of amen-datory legislation, if the new statute is declared unconstitutional, the effect of that declaration is to treat the new statute as though it had not been adopted. This approach reaches even to striking the enactment clause of the new statute, and the effect is to reinstate the prior statute. In addition to the cases and the annotations cited in the majority opinion, I would call attention to Clark County, By and Through Bd. of City Comm’rs v. City of Las Vegas, By and Through Bd. of City Comm’rs, 97 Nev. 260, 628 P.2d 1120 (1981); Clark v. State, 287 A.2d 660 (Del.1972), appeal dismissed, cert, denied, 409 U.S. 812, 93 S.Ct. 139, 34 L.Ed.2d 67 (1972); Henderson v. Antonacci, 62 So.2d 5 (Fla. 1952); State v. Greenburg, 187 Neb. 149, 187 N.W.2d 751 (1971); State v. Clark, 367 N.W.2d 168 (N.D.1985); State ex rel. Thornton v. Wannamaker, 248 S.C. 421, 150 S.E.2d 607 (1966); State ex rel. Dieringer v. Bachman, 131 W.Va. 562, 48 S.E.2d 420 (1948).1 None of these cases, however, address the instance in which an entire codification, such as our workers’ compensation act, is purportedly repealed and amended and re-enacted. This is the nuance I conclude should be addressed.
Succinctly, the question is: Conceding that, when an amendment to a statute is declared unconstitutional and that declaration of unconstitutionality serves to strike the enacting clause, should the same result *1128ensue when the repealing clause is much broader and extends to a number of other statutory provisions? Obviously, the striking of the repealing clause in toto would lead to legal chaos but, perhaps, the situation could be saved by the concept of implied repeal. In my view, however, it makes far better sense to simply say the repealing clause will be held to have been stricken only as to the specific statutory section, the constitutionality of which is in issue and, as to the other statutes, the repealing clause would be valid so there would remain in the statutes only the new provisions. All of the justifications for the proposition that an earlier statute is reinstated when a succeeding amending statute is declared unconstitutional are pertinent and applicable to the situation presented by this case. There is no reason to attribute any different intent to a legislature under these circumstances than is to be attributed in the facts of the cases from our other states that hold the legislature would intend to maintain the prior version of the statute.
Consequently, I am entirely satisfied with the result reached in the majority opinion. The earlier version of the statute relating to actions against co-employees must be applied from the date of the purported repeal and its replacement by the unconstitutional enactment to the effective date of the newest version of the statute.
. For the proposition that, when an amended statute is declared unconstitutional the statute as worded prior to the amendment is re-enacted, see the authorities cited in Annotation, Previous Statute as Affected by Attempted but Unconstitutional Amendment, 66 A.L.R. 1483 (1930).