ORLEANS EDUCATION ASSOCIATION, AN UNINCORPORATION ASSOCIATION, APPELLEE,
THE SCHOOL DISTRICT OF ORLEANS, IN THE COUNTY OF HARLAN, IN THE STATE OF NEBRASKA,
ALSO KNOW AS SCHOOL DISTRICT NO. R-3 OF HARLAN COUNTY, NEBRASKA, ALSO KNOWN AS
THE ORLEANS PUBLIC SCHOOLS, A POLITICAL SUBDIVISION, APPELLANT.
193 Neb. 675, 229 N.W.2d 172
Filed May 8, 1975. No. 89658
Estoppel. When a
party gives a reason for his conduct and decision touching anything involved
in a controversy, he cannot, after litigation has begun, change his ground and
put his conduct upon another and different consideration.
Constitutional Law: Labor and Labor Relations: Legislaturel
The power of the Legislature to create a body with appropriate powers
to deal with the labor relations of governmental entities and departments does
not depend upon the grant of power given by Article XV, section 9, of the
Nebraska Constitution, but exists by virtue of the general grant of
legislative power under Article III, section 1.
Constitutional Law: Legislature.
The Legislature has plenary legislative authority except as limited by
the state and federal Constitutions.
Constitutional Law: Labor and Labor Relations: Administrative Law:
Statutes. Where the
Legislature delegates to an administrative body authority to settle labor
relation disputes, the delegation is valid if the statute making the
delegation establishes a sufficient basic standard - a definite and certain
policy and rule of action for the guidance of the agency created to administer
the law. The standards set forth
in section 48-818, R.R.S. 1943, meet the above criterium.
5. Constitutional Law: Court of Industrial Relations: Statutes. The jurisdiction of the Court of Industrial Relations is limited to what are clearly legislative concerns and the quasi-judicial powers which it exercises are merely incidental thereto. Section 48-818, R.R.S. 1943, does not delegate judicial powers to an administrative body in violation of Article II, section 1, or Article V, section 1, of the Nebraska Constitution.
-----: -----: -----.
The authority given to the Court of Industrial Relations to establish
rates of pay and conditions of employment in accordance with the standards
prescribed by section 48-818, R.R.S. 1943, does not constitute the delegation
of legislative authority to act in violation of Article III, section 1, or
Article VIII, section 6, of the Nebraska Constitution.
-----: -----: -----.
The act creating the Court of Industrial Relations is not amendatory of
section 79-810, R.R.S. 1943, granting budget-making authority to school
districts and hence does not violate Article III, section 14, of the Nebraska
from the Court of Industrial Relations. Affirmed.
Person, Dier & Person and Thomas J. Monaghan, for appellant.
L. Kessner of Crosby, Guenzel, Davis, Kessner & Kuester, for appellee.
before WHITE, C.J., BOSLAUGH,
is an appeal from an order of the Court of Industrial Relations by which it
set the rate of pay and certain other benefits for teachers employed by the
defendant, School District of Orleans, and by which it denied other relief
prayed for by the plaintiff, Orleans Education Association, on behalf of its
members. The school district
appeals to this court pursuant to the provisions of section 48-812, R.R.S.
1943, and on appeal makes the following claims:
(1) The plaintiff has no standing to sue because it had not, prior to
suit, exhausted the remedies available to it under the Nebraska Teachers'
Professional Negotiations Act, section 79-1287 et seq., R.R.S. 1943.
This contention is founded upon the fact that before negotiation the
plaintiff had not complied with the provisions of section 25-314, R.R.S. 1943
(2) The Nebraska Teachers' Professional Negotiations Act and section
48-818, R.R.S. 1943, are unconstitutional because they delegate legislative
authority to an administrative agency in violation of Article II, section 1,
of the Nebraska Constitution, pertaining to the separation of powers, and
delegate the authority to tax to an administrative agency contrary to the
requirements of Article VIII, section 1, of the Nebraska Constitution.
(3) The Nebraska Teachers' Professional Negotiations Act is
unconstitutional because it delegates legislative power to an administrative
agency without providing sufficiently definite standards to guide the exercise
of that power in violation of Article II, section 1, and Article III, section
1, of the Nebraska Constitution. (4)
Section 48-818, R.R.S. 1943, is amendatory of section 79-810, R.R.S. 1943, and
since it makes no mention of the amended statute it violates the requirements
of Article III, section 14, of the Nebraska Constitution, and is
unconstitutional. This contention
is founded upon the premise that section 48-818, R.R.S. 1943, which authorizes
the Court of Industrial Relations to set pay rates, in effect transfers
budget-making authority from the school district, as provided by section
79-810, R.R.S. 1943, to the Court of Industrial Relations.
(5) The order prescribing the rate of pay and other benefits is not
sustained by the evidence.
first assignment may be dealt with rather summarily.
The first assignment may be dealt with rather summarily.
The defendant argues that since the plaintiff had not complied with
section 25-314, R.R.S. 1943, which requires the filing with the Secretary of
State of a certificate naming a resident agent before the unincorporated
agency is authorized to do business, its attempt to negotiate and the
rejection of that attempt by the school district were legally nugatory.
Plaintiff did, however, file the certificate before this action was
commenced but after the school district had refused to recognize the plaintiff
as the negotiating agent for its members.
The record establishes that the defendant's refusal to recognize the
plaintiff as negotiating agent was not grounded on plaintiff's noncompliance
with section 25-314, R.R.S. 1943. The
defendant gave two specific reasons for its refusal to recognize the
plaintiff. Neither reason was
related to plaintiff's compliance with section 25-314, R.R.S. 1943.
The reasons were such that it is clear defendant would not have
recognized the plaintiff even if it had been in compliance with section
25-314, R.R.S. 1943. The defendant
school district cannot be heard to say at this late date that it would have
recognized the plaintiff had there been compliance with the statute in
question. The record indicates
otherwise. When a party gives a
reason for his conduct and decision touching anything involved in a
controversy, he cannot, after litigation has begun, change his ground and put
his conduct upon another and different consideration.
Boettcher v. Goethe, 165
next three assignments are somewhat interrelated and will be considered
together. Does the Nebraska
Teachers' Professional Negotiations Act and section 48-818, R.R.S. 1943,
unconstitutionally delegate legislative power to an administrative body, the
Court of Industrial Relations, contrary to Article II, section 1, of the
Nebraska Constitution? If it does
delegate such power, is the power limited by sufficiently definite legislative
guidelines? Do these statutes
delegate the power to tax to an administrative body contrary to Article VIII,
section 1, of the Nebraska Constitution?
raising these questions the defendant relies to a considerable degree upon the
dissenting opinions in School Dist. of Seward Education Assn. v. School Dist.
of Seward, 188 Neb. 772, 199 N.W.2d 752, which dissents noted questions not
raised by the parties in that case and therefore not directly dealt with in
the majority opinion. We must
accordingly examine the merits of the issues raised in the dissenting
II, section 1, of the Nebraska Constitution, is as follows:
"The powers of the government of this state are divided into three
distinct departments, the Legislative, Executive and Judicial, and no person
or collection of persons being one of these departments, shall exercise any
power properly belonging to either or the others, except as hereinafter
expressly directed or permitted."
III, section 1, of the Nebraska Constitution, insofar as it is necessary to
quote it, states: "...the legislative authority of the state shall be
vested in a Legislature consisting of one chamber."
VIII, section 1, of the Nebraska Constitution, reads in part as follows:
"The necessary revenue of the state and its governmental
subdivisions shall be raised by taxation in such manner as the Legislature may
the provisions of our Constitution the Legislature is authorized to delegate
taxing power to municipal corporations. Art.
VIII, § 6,
It is necessary to ask ourselves just what authority the statute in question delegates and whether the above constitutional provisions are violated in some manner not determined either expressly or by necessary implication by our opinion in School dist. of Seward Education Assn. v. School Dist. of Seward, supra. Most of the possible contentions are answered in the majority opinion in School Dist. of Seward Education Assn. v. School dist. of Seward, supra. Only those claims raised by the minority of this court in the dissents and now relied upon by the defendant require consideration. Most of the members of this court who authored or joined in those dissents or indicated that the matters noted there might have merit if properly raised, now, after further consideration, believe otherwise.
The first claim is that Article XV, section 9, of the Nebraska Constitution, does not contemplate or authorize the creation of a body to deal with the labor relations of governmental entities. Judge Newton, in his dissent, pointed out reasons for so believing as did the regulation of public utilities. However, this does not answer the question of whether the Legislature otherwise has power to devise methods for dealing with the labor relations of governmental entities and departments. We conclude that the power of the Legislature to create a body with appropriate powers to deal with the labor relations of governmental entities is not, for reasons we develop later, dependent upon the grant of power given by Article XV, section 9, of the Nebraska Constitution. That proposition is implicitly recognized in the majority opinion in the Seward case as well as in the two dissents. The majority opinion, consistently with a well-recognized principle, stated: "The Legislature has plenary power and control over school districts, including provision for the appointment or election of governing bodies thereof. Consequently, it may provide limitations on any authority to be exercised by a school board. If the Legislature has such complete control over public school districts, it follows, by the enactment of L.B. 15, Laws 1969, chapter 407, page 1405, it was exercising that control." The act referred to in that statement is the act by which section 48-810, R.R.S. 1943, was amended to require the exhaustion of the provisions of the Nebraska Teachers' Professional Negotiations Act as a condition precedent to invocation of jurisdiction of the Court of Industrial Relations in cases involving persons and activities subject to the provisions of the Nebraska Teachers' Professional Negotiations Act. In his dissent Judge Newton said: "Public or governmental business has never been a subject of the police power. Such an exercise of power is unnecessary because this type of business is subject to direct legislative control at all times and in all respects without resort to the extraordinary remedy provided by the police power." That dissent then goes on to note that Article XV, section 9, does not authorize the legislation in question. The writer of this opinion in his dissent said: "There would, however, seem to be no question that the Legislature may enact independently of Article XV, section 9, labor legislation applicable to public employees, but in so doing the provisions of Article II on the separation of powers must be observed." The latter statement, implying that the separation of powers provision of the Constitution or Article V, section 1, granting judicial power to the courts was somehow violated, is, I now believe, clearly mistaken.
Legislature has plenary legislative authority except as limited by the state
and federal Constitutions. Dwyer
next question to be answered is whether there is any merit to the contention
that section 48-818, R.R.S. 1943, is void because it delegates legislative
power to an administrative agency without prescribing adequate guidelines
governing the exercise of that power. The
contention itself contains the assumption that the type of legislative
delegation here being considered requires the statutory statement of
guidelines to make it valid. The
validity of that assumption requires examination.
The rule is usually stated in this way:
"In the grant of power to an administrative agency to legislate,
such power must be limited to the expressed purpose and administered in
accordance with standards prescribed in the legislative act."
Terry Carpenter, Inc. v. Nebraska Liquor Control Com., 175
labor relations legislation we are here considering goes further, of course,
than the mere setting of salaries of teachers.
That act has a much broader public purpose which is set forth in
section 48-802, R.R.S. 1943. When
the legislative delegation is of this type, it is usually held that the
statement of standards is required. 16
C.J.S., Constitutional Law, § 138, notes 99.5, 99.10, 99.15, pp. 629, 630.
Section 48-818, R.R.S. 1943, provides in part as follows: "In making such findings and order or orders, the Court of Industrial Relations shall establish rates of pay and conditions of employment which are comparable to the prevalent wage rates paid and conditions of employment maintained for the same or similar work of workers exhibiting like or similar skills under the same or similar working conditions. In establishing wage rates the court shall take into consideration the overall compensation presently received by the employees, having regard not only to wages for time actually worked but also to wages for time not worked, including vacations, holidays, and other excused time, and all benefits received, including insurance and pensions, and the continuity and stability of employment enjoyed by the employees." In cases involving the validity of the delegation of power to settle labor relations disputes, it has been held: "'It is only necessary that the statute establish a sufficient basic standard-a definite and certain policy and rule of action for the guidance of the agency created to administer the law.'" State ex rel. Van Riper v. Traffic Tel. Workers' Federation, 2 N.J. 335, 66 A.2d 616, 9 A.L.R. 2d 854. See, also Fairview Hospital Assn. v. Public Building Service Union, 241 Minn 523, 64 N.W.2d 16. In the first-cited case, the New Jersey court held that the statute was unconstitutional because no standards at all were prescribed. However, it pointed to the statutes of a number of other states as containing standards apparently sufficient. One of the statutes referred to was "Nebraska Laws 1947, Bill 537, Chapter 178, § 18." This is section 48-818, R.R.S. 1943. In the second-cited case, the Minnesota court held the statute of that state to be constitutional. The statutory standards prescribed in the Minnesota act were far less precise than those contained in section 48-818, R.R.S. 1943. In Pittsburgh Plate Glass Co. v. National Labor Relations Board, 313 U.S. 146, 61 S. Ct. 908, 85 L. Ed. 1251, the United States Supreme Court held that section 9(b) of the National Labor Relations Act, which provides that the board "shall decide in each case whether, in order to insure the employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purpose of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof," supplies adequate standards for administrative action and does not unconstitutionally delegate legislative power. We hold that the standard contained in section 48-818, R.R.S. 1943, is clearly sufficient and the statute is constitutional.
court pointed out in School Dist. of Seward Education Assn. v. School Dist. of
Seward, supra, that the act creating the Court of Industrial Relations
grants that body a combination of administrative, legislative, and judicial
powers. Those granted by section
48-818, R.R.S. 1943, require the receipt of evidence and the determination of
facts. Such powers are
quasi-judicial. The contention
that the statute violates the constitutional prohibition against the
delegation of judicial authority to nonjudicial bodies, however, is not well
founded because, as we held in School Dis. of Seward Education Assn. v. School
Dist. of Seward, supra, the Court of Industrial Relations is an
administrative body. The function
it exercises is a legislative one; its quasi-judicial powers are purely
act creating the Court of Industrial Relations creates rights and jurisdiction
unknown at common law. Mabry, op.
cit. It does not take from any
court jurisdiction granted to it by the Constitution, Art. V, § 1, Nebraska
Constitution, which, of course, the Legislature could not constitutionally do.
State ex rel. Wright v. Barney, 133
We now turn to the contention that section 48-818, R.R.S. 1943, delegates to the Court of Industrial Relations the authority to tax. It is patent that the statute does not grant to that court the authority to levy or assess a tax. The defendant's argument is that the order setting salaries and other benefits affect the power of the school district to determine its own budget under section 79-810, R.R.S. 1943, and this is the legal equivalent of taxing authority. It cannot be denied that the orders of the court ultimately have budgetary and tax effects, but is this the equivalent of a delegation of the legislative taxing power? It is patent that if such delegation constitutes the power to tax within the meaning of the Constitution, then there would, as a practical matter, be no way legislation of this type could be effectively implemented for it is obviously impossible for the Legislature to perform this task itself.
The defendant relies primarily upon implications from the opinion of this court in Carlberg v. Metcalfe, 120 Neb. 481, 234 N.W.87. In that case the Legislature authorized the creation of a municipal university in cities of the metropolitan class when approved by a vote of the people. The act delegated to the governing body of the city the duty to levy the necessary tax. The act gave the board of regents of the municipal university the power to certify to the city council the amount of money necessary to run the university. It was argued in that case that the power granted the regents was an unconstitutional delegation to them of the power to tax. The opinion does not indicate what, if any, control the city council had over the budget, or whether the council could determine the amount of the levy, and hence restrict the budget power of the regents. The court skirted answering the question directly and cited authorities for the proposition that: "'Of course, if the people of a local district have in any way consented to the delegation..., they cannot contest the validity of the delegation of power.'" The defendant argues that the Carlberg opinion clearly implied that the power given to the regents to determine the budget was unconstitutional. Even if that is the implication of the holding, it does not apply here.
defendant cites no cases directly in point.
We find several sources which lead us to the conclusion that the
defendant's contention is not well taken.
In Anderson v. Tiemann, 182 Neb. 393, 155 N.W.2d 322, it was contended
that the authority delegated to the State Board of Equalization and Assessment
to set tax rates, and to the Tax Commissioner to adopt rules and regulations
was an illegal delegation of the taxing power and legislative authority.
In that case we said: "The
plaintiffs' contentions with respect to unconstitutional delegation of
legislative power extend also to the provisions of L.B. 377 which require the
State Board of Equalization and Assessment to set the rate of tax on or before
November 15 of each year for the taxable year beginning during the subsequent
calendar year. Section 15 of L.B.
377, in at least five subsections, explicitly sets out the computations to be
made by the state board, the method and manner in which the computations shall
be adjusted and determined, and the specific standards to be used in setting
the rate of tax. The discussion as
to delegation of legislative authority to the Tax Commissioner and the rules
set out above also apply with respect to the delegation of authority to the
State Board of Equalization and Assessment.
L.B. 377 constitutes a valid and lawful delegation of authority to the
State Board of Equalization and Assessment and does not violate the
Constitution of Nebraska nor the
administrative functions affect in greater or lesser degree the budget-making
or taxing power but are not held to be invalid delegations.
In Wilkinson v. Lord, 85 Neb. 136, 122 N.W. 699, a statute, directing
the county superintendent to furnish to the county clerk the data to make a
free high school levy when the school refused to do so, was held not to be a
violation of Article IX, section 6, of the Nebraska Constitution (the
predecessor of Article VIII, section 6). Other
examples of valid delegation of authority which affect the taxing power, but
not unconstitutionally so, are found elsewhere.
See, 16 C.J.S., Constitutional Law, § 138 (16), (17), (20), p. 614 et
seq. (determining the amount and validity of claims against the government,
issuance of bonds by the administrative authority, and setting salaries of
public employees); Sommers v. Patton, 399 Ill. 540, 78 N.E.2d 313 (statute
authorizing trustees of a pension fund to certify to the taxing authority the
amounts estimated to be required for the fund to meet its obligations).
contention that the act establishing the Court of Industrial Relations amends
section 79-810, R.R.S. 1943, and hence violates Article III, section 14, of
the Nebraska Constitution, is wholly without merit.
assignment that the findings of the Court of Industrial Relations are not
supported by the evidence is nowhere discussed or argued in the brief.
We therefore take no note of it. See
Rule 8 a 2 (3), Revised Rules of the Supreme Court, 1974,
J., concurs in the result.
find it necessary to disagree with the opinion of Clinton, J.
In the case of School Dist. of Seward Education Assn. v. School Dist.
of Seward, 188 Neb. 772, 199 N.W.2d 752, the question of the constitutionality
of the act creating and defining the powers of the Court of Industrial
Relations was not raised by the parties and the majority opinion ignored that
question. For the first time we
are now obliged to meet the constitutional questions.
will not reiterate my dissent in the Seward case.
It will suffice to point out that the Constitutional Convention of 1920
in adopting Article XV, section 9, Constitution of Nebraska, clearly intended
to exempt the state and its political subdivisions from the operations of the
Court of Industrial Relations. The
Constitution is restrictive and whenever a constitutional provision is adopted
dealing with legislative powers, it is evidence that it is intended to
restrict the broad plenary powers vested in the Legislature.
Otherwise it would be meaningless.
I agree with Judge Clinton that the Legislature already had the
authority to create an industrial commission prior to the adoption of Article
XV, § 9. Why then was it adopted?
Why was authority over state and political subdivisions deleted?
His opinion defeats the clear will of the people of Nebraska.
must not be given a construction which will defeat obvious will of people.
State ex rel. Hennepin County Bar Assn. v. Amdahl, 264
respect to constitutional interpretation, court should endeavor to place
itself in position of framers of constitution and ascertain what was meant at
provision cannot mean one thing at time of its adoption and another thing
subsequently when public sentiments have undergone change.
Walver v. Wayne Circuit Judge, 2
of constitutional convention and people who ratified that which convention
framed is primary guideline in construing constitution.
White v. Anderson, 155
Constitution should not be construed as to defeat the obvious intent of its
framers, if another interpretation may be adopted equally in accordance with
the words and sense which will carry out the intent.***
construing the Constitution, intent must be gathered from both the letter and
the spirit of the document, and the polestar is the intention of the makers
and adopters." Grantz v.
specific constitutional provision must be given effect as against a general
clause. Ridgeway v. Catlett, 238
The foregoing sets out a few well-recognized rules of constitutional interpretation and all are applicable to the present situation.
well-recognized rule should be considered.
"The doctrine is established that legislative authority may be
limited by constitutional restrictions which are impliedly imposed.
Restrictins in a constitution as to legislation are equally effective
whether they arise by implication or are stated in express terms; and such
restrictions may be found either in the language employed or in the evident
purpose which was in view and the circumstances and historical events which
led to the enactment of the particular provision as a part of the organic
law." 16 Am. Jur. 2d,
Constitutional Law, § 230, p. 480.
is apparent that the delegates to the Constitutional Convention of 1919-1920
intended that the state and its political subdivisions should not fall within
the jurisdiction of the Court of Industrial Relations.
Under such circumstances there is definitely an implied restriction on
the constitutional power of the Legislature to ignore the restriction so
effected at the convention. It is
true that the Legislature speaks for the people of the State of Nebraska but
only within the confines of the state Constitution and in this instance, its
power has been restricted at a constitutional convention which was likewise
representative of the people of Nebraska and the constitutional provisions
then framed were adopted by vote of the people of Nebraska.
By what authority does the Legislature ignore such a situation?
court apparently has undertaken a legislative or constitutional function on
Newton, in his dissent, accuses this court of undertaking a legislative or
constitutional function on policy grounds.
This assertion is so serious that it cannot go unanswered.
No reason existed for elaborating in the majority opinion the
fundamental nature of the power of the Legislature to enact laws beyond the
statement of the general principle as set forth in Dwyer v. Omaha-Douglas
Public Building Commission, supra.
Judge Newton cites and relies upon text authority, 16 Am. Jur. 2d, Constitutional Law, § 230, p. 480, in support of a doctrine of limitation by implication of the authority of the state Legislature to enact laws. An examination of the cases cited in the text footnotes reveals that they do not support the broad brush treatment which Judge Newton would apply and have no application at all to the particular question we are considering. The dissent fails to call attention to a portion of the text statement on which it relies and which omitted portion reads as follows: "Legislative power is deemed curtailed by implied limitations only in cases where it is clear that a construction of the constitutional provisions involved requires such restrictions. Restraints upon legislative powers are not to be lightly inferred. The implied restriction must be one that is clearly implied." 16 Am. Jur. 2d, Constitutional Law, § 230, p. 481.
dissent contends that, because the Constitution authorized the Legislature to
create an industrial commission for the purpose of dealing with certain labor
relations problems, that constitutional provision restricts the Legislature from
ever after entrusting to that same commission, later created by it, authority to
deal with, in such manner as the Legislature shall direct, the labor relations
of governmental subdivisions. Such a
construction is contrary to the fundamental nature of the state legislative
power under our system of government. The
position which the dissent takes is but an application of the maxim "expressio
unius est exclusio alterius." That
maxim has no application to the state legislative powers.
The doctrine against restriction by implication of the legislative powers
of state Legislatures rests upon a fundamental difference in the nature of the
federal legislative power and that of the states.
The federal Constitution is a grant of power.
The state Constitutions are restrictions on powers.
The state Legislatures have plenary legislative power except as is
expressly denied them by the Constitutions or as is expressly reserved to the
people themselves. In State ex rel.
Meyer v. County of Lancaster, 173 Neb. 195, 113 N.W.2dd 63, Judge Spencer
discusses this fundamental. In that
case this court was called upon to construe the provisions of the constitutional
amendment then recently adopted which authorized the Legislature to authorize
counties and cities to issue revenue bonds for industrial development.
Art. XV, § 16, Nebraska Constitution (repealed 1972).
This article had been adopted by the voters to avoid the constitutional
restriction against lending the credit of the state or its subdivisions to
private persons or corporations. An
earlier industrial development act had been declared unconstitutional by this
court for that reason. Article XV,
section 16, of the Nebraska Constitution, was in part as follows:
"Sec. 16. Notwithstanding
any other provision in the Constitution, the Legislature may authorize any
county, incorporated city or village, including cities operating under home rule
charters, to acquire, own, develop, and lease real and personal property
to manufacturing and industrial enterprises and to issue revenue bonds for the
purpose of defraying the cost of acquiring and developing such property by
construction, purchase, or otherwise."
(Emphasis supplied.) When,
pursuant to this constitutional amendment, the Legislature enacted the enabling
statutes, it authorized the municipalities not only to "own, develop, and
lease real ...property," but also to sell the property acquired and owned.
It was argued that the Legislature could not authorize the sale of the
property by the municipality because the constitutional provision merely
authorized the municipality to "own, develop, and lease."
This contention was rejected by this court.
Judge Spencer, writing for the court, said: "Contention No. 4 raises
the point that the amendment did not specifically mention the power to sell, so
that L.B. 159 exceeds the authority granted by the amendment.
We should not lose sight of the fact that the Constitution is not a grant
but rather is a restriction on legislative power, and the Legislature may
legislate upon any subject not inhibited by the Constitution.
Swanson v. State, 132
said in State v. Sheldon, 78 Neb. 552, 111 N.W.372: 'In the construction of a
governmental system upon the American plan, the broad outlines are furnished by
the constitution, but all the details necessary to carry the powers of
government into effect are provided by the action of the legislature.
The provisions of the constitution, while in one sense creative, also
limit and define the powers to be exercised by the various departments of the
government; but, except so far as its authority is limited or defined by the
constitution, the legislature of the state is as fully vested with governmental
powers as the British parliament. See
a discussion of this subject in State v. Nelson, 34 Neb. 169.'
the right of the Legislature to grant the power of sale of property to a
municipality has not been inhibited by the Constitution, and there is no merit
to plaintiff's fourth contention."
State ex rel. Sayre v. Moore, 40 Neb. 854, 59 N.W. 755, this court quoted from
Cooley, Constitutional Limitations (4th Ed.), p. 210:
"When a law of congress is assailed as void, we look into the
national constitution to see if the grant of specified powers is broad enough to
embrace it; but when a state law is attacked on the same ground, it is
presumably valid in any case, and this presumption is a conclusive one, unless
in the constitution of the United States, or of the state, we are unable to
discover that it is prohibited. We
look in the constitution of the United States for grants of legislative power,
but in the constitution of the state to ascertain if any limitations have been
imposed upon the complete powers with which the legislative department of the
state is vested in its creation. ...the state legislation is not prohibited.
The law-making power of the state recognizes no restraints, and is bound
by none, except such as are imposed by the constitution."
principles we have enunciated above are generally followed.
Particularly well-considered opinions include Earhart v. Frohmiller, 65
Ariz. 221, 178 P.2d 436; and Penrod v. Crowley, 82 Idaho 511, 356 P.2d 73.