concurring in the result.
I concur in the result reached by the majority in this case. I believe, however, that our earlier decisions which prompt us to find that the amendments contained in 1983 Neb. Laws, L.B. 18, are procedural and not substantive were wrong when they *663were decided and have not improved in any manner with the passage of time. I would have affirmed on the basis that the amendments to Neb. Rev. Stat. § 48-125 (Supp. 1983), having been adopted after the cause of action herein arose, had no application to the instant case, just as the Workmen’s Compensation Court found.
As noted by the majority opinion, our decision in Western Newspaper Union v. Dee, 108 Neb. 303, 187 N.W. 919 (1922), did indeed determine that an amendment to the Nebraska workmen’s compensation law, enacted after the injury and providing for the payment of attorney fees, applied to cases arising before the act was amended. A reading, however, of the Western Newspaper Union case and the cases which preceded it, and upon which it relied, makes interesting reading and causes one to question the correctness of the decision. Western Newspaper Union relied, as its authority, on the cases of Reed v. American Bonding Co., 102 Neb. 113, 166 N.W. 196 (1918), and Johnson v. St. Paul Fire & Marine Ins. Co., 104 Neb. 831, 178 N.W. 926 (1920), neither of which had anything to do with workmen’s compensation. Rather, both cases dealt with the relationship between a contract of insurance and a general statute which provided that if one sued upon a policy of insurance and recovered, one was entitled to additionally recover an attorney fee. In upholding the right of the plaintiff to recover an attorney fee, this court in Reed said at 116, 166 N.W. at 197: “The reasons advanced for this contention on the part of the defendant, and the manner in which they are presented in this brief, might well cause us to hesitate if the question was an open one.” That is to say, even in 1918, we had some question as to whether the granting of a fee not previously allowed was merely procedural or was, in fact, substantive in nature and therefore had no retroactive application. In opting for the procedural view the court relied upon two earlier decisions, Nye-Schneider-Fowler Co. v. Bridges, Hoye & Co., modified 98 Neb. 863, 155 N.W. 235 (1915), and Ward v. Bankers Life Co., 99 Neb. 812, 157 N.W. 1017 (1916). Neither of these cases, however, offers any support for the position taken.
In Nye-Schneider-Fowler Co., supra, we did indeed permit *664the payment of the fee. In doing so, however, we had some difficulty, saying at 867,155 N.W. at 236-37:
If the question that we are considering was now presented for the first time, we would hesitate to say that this statute does not create and add to the contract a legal liability which would not exist under the contract prior to the enactment of this statute. The fact that the attorney’s fee is to be taxed as costs in the case is not of itself decisive of the question. It was uniformly held under the act of 1873 that attorney’s fees provided for by that act were not a part of the judgment proper, but were to be taxed as costs in the case, and yet, after the repeal of that act, attorney’s fees were not allowed in actions upon contracts entered into while the act was- in force. The fact that the allowance of attorney’s fees and taxing them as costs in the case depended upon there being an express provision in the contract for such allowance would not change the nature of the allowance, and if they were properly considered as costs in the case, and ought to be regarded as a part of the remedy and not as adding any legal liability, the reasoning would apparently be the same, whether or not the contract provided for such costs. If the new statute adds an additional burden to the contracting parties that without the statute would not exist, it has generally been considered that such statute could not be applied to a contract entered into before its enactment.
The court concluded, however, that by reason of an earlier decision of this court in Security Co. v. Eyer, 36 Neb. 507, 54 N.W. 838 (1893), attorney fees in states where they are allowed by the court to the successful party are in the nature of costs and are taxed and treated as such. Therefore, the allowance of such fees, the court concluded, was procedural and not substantive. Unfortunately, both the authority for that position and the rationale of the case leave much to be desired. Moreover, this court in the Nye-Schneider-Fowler Co. case, while recognizing that earlier decisions of the court held to the contrary, resolved that conflict by simply saying at 868,155 N.W. at 237:
If these decisions are inconsistent with White v. Rourke, 11 Neb. 519, and Bond v. Dolby, 17 Neb. 491, and other *665cases following them, we do not feel at liberty to disregard the later cases, and must therefore hold that attorney’s fees under this statute, as being a part of the costs of the litigation, relate to the remedy, and that it was the intention of the legislature that this statute providing for attorney’s fees in such cases should apply, in all actions upon such contracts, whether the contract was made before or after the enactment of the statute.
(Emphasis supplied.) In effect, then, we now rely upon the earlier cases which earlier relied upon the later cases.
In both White v. Rourke, 11 Neb. 519, 9 N.W. 689 (1881), and Bond v. Dolby, 17 Neb. 491, 23 N.W. 351 (1885), statutes were enacted which authorized the payment of fees. After the causes of action arose, the statutes were repealed. In permitting the payment of the fees, this court in both White and Bond held that it was the law that applied at the time the contract was enacted, and not the law as it existed when the cause of action arose, which controls. The rule announced in Western Newspaper Union v. Dee, 108 Neb. 303, 187 N.W. 919 (1922), reaffirmed in Solomon v. A. W. Farney, Inc., 136 Neb. 338,286 N.W. 254 (1939), and once again reaffirmed in this case, is based upon nothing more than an unsupported statement to the effect that “it’s always been that way,” even if it has not.
The difficulty we have in declaring the amendments to § 48-125 as being procedural rather than substantive should be obvious. It is generally considered in the law that a substantive right is one which creates a right or remedy that did not previously exist and which, but for the creation of the substantive right, would not entitle one to recover. See, 40 Words and Phrases Substantive (perm. ed. 1964 & Supp. 1984); Black’s Law Dictionary (5th ed. 1979). A procedural right, on the other hand, is considered to simply be the method by which an already existing right is exercised. In view of the fact that neither the attorney fees nor the penalties were available to the employee prior to the enactment of L.B. 18, it is difficult to see how they could be procedural and not substantive. It is for that reason that I would have agreed with the decision of the Workmen’s Compensation Court that the act, being substantive in nature, had no application to an accident which occurred *666prior to the enactment of the law.