2 CIR 57 (1972). Affirmed. 189 Neb. 754, 205 N.W.2d 110 (1973).



Unincorporated Association, |
Plaintiffs, |
Defendant. |

Entered May 31, 1972


This is an action by an individual and a labor organization jointly as plaintiffs for an order "that the action (termination of the employment of the individual plaintiff Richard Kiernan, an engineer) taken by State Engineer and Director of the Department of Road, Thomas D. Doyle, be reversed, rescinded and revoked; that the plaintiff Richard Kiernan be reinstated without any loss in pay; and for such other orders as are necessary to protect the members of the plaintiff Association from further threat and harassment and to further guaranty and protect the rights granted to the employees of the defendant by the statutes of the State of Nebraska." The defendant by the Attorney General of the State of Nebraska raises by special appearance, special demurrer, and answer important questions concerning the relationship of the State of Nebraska and this Court under Chapter 48, Article 8 R.R.S. Neb. and the Constitution of the State of Nebraska. We must decide these questions as pleaded by the answer. The words of the answer quoted are set forth in italics as a heading of each arabic numbered section hereinafter.

1. The Defendant states the purported service of summons pursuant to Section 48-813, R.R.S. 1943, does not provide for proper service and summons as to this Defendant, for the reason Section 48-813 does not comply with the requirements of Article V, Section 22 of the Constitution of the State of Nebraska, which constitutional provision is not self-executing.

This Court has in previous rulings and orders ruled that service of process can be obtained on this Defendant in accordance with Section 48-813, R.R.S. 1943, Section 24-319(2), R.S. Supp. 1969, and Section 24-321, R.R.S. 1943. If these rulings are correct then Section 48-813, R.R.S. 1943, is unconstitutional since it violates Article III, Section 14 of the Constitution of the State of Nebraska, which provides in part:

"......And no law shall be amended unless the new act contain the section or sections as amended and the section or sections so amended shall be repealed....."

This Court has ruled that service can be obtained on Defendant by reference to Section 24-319(2), R.S. Supp. 1969, and that the Plaintiffs have complied with the provisions of this statute. The Defendant states the Plaintiffs have failed to present this claim to the Legislature and they have failed to allege that the claim was presented to the Legislature and the action of the Legislature on this claim.

The point made by the first italicized paragraph above was thoroughly discussed by our Order of October 20, 1971, in case no. 53, in which the parties and the allegations of the petition and responsive pleading are the same as they are here. Exactly the same contention was made by the same defendant in this case no. 57, in which by Findings and Order of December 9, 1971, we affirmed and readopted the Opinion of October 20, 1971, and commented further upon our reasons for disagreeing with this contention of the defendant. Now in its post-trial brief the defendant urges us to reconsider yet a third time our previous holdings and points to evidence educed at the trial that the plaintiffs' claim never has been submitted to the Legislature.

Without repeating the extensive analysis of argument and authorities set forth in our Order of October 20, 1971, we here briefly characterize the argument to be that §48-813's provision for "summons issued and served as summonses are issued and served in the District Courts," is insufficient to provide for service of summons on the State of Nebraska because:

a. A general incorporation of manner of service in district courts is not compliance with that requirement of Article 5, Section 22 of the Constitution that the Legislature provide by law in what manner suit shall be brought against the State;

b. Section 48-813 amends sections 24-319(2) and 24-321; and

c. Section 24-321 provides for a method of service of summons in action of the type described in section 24-319(2), which latter statute in turn provides that the claims upon which such actions are based must first be submitted to the Legislature.

On reconsideration, we still think that paragraph a. above is fully answered by our previous Opinion above referred to on the subject. Regardless of whether Gentry vs. State, 174 Neb. 515, 118 N.W.2d 643 (1962) and similar opinions cited by the defendant require us to construe strictly the statutory provisions re the form of the notice or summons, the person who serves it, and the person to whom it is handed, those cases do not provide a rule of construction for the provision of 48-813's phrase "by summons issued and served as summonses are issued and served in the district courts." The construction of the latter is governed by §48-823, which provides:

"The provisions of section 48-801 to 48-823 and all grants of....jurisdiction herein made to the Court of Industrial Relations shall be liberally construed to effectuate the public policy enunciated in section 48-802,...."

Throughout sections 48-801 to 48-823 are wholly unambiguous manifest evidence of the legislative intent to subject the State o Nebraska to the jurisdiction of this Court. In Sun Insurance Co. vs. Aetna Ins. Co., 169 Neb. 94, 98 N.W.2d 692 (1959) page 107, the court held:

"In 50 Am. Jr. Statutes §393, p. 417, it is said: 'As in the case of all statutes, the primary rule of construction of remedial statutes is to ascertain, declare, and give effect to the intention of the Legislature, as gathered from the language used. In the interpretation of remedial statutes, however, especial effort is made to avoid a technical construction of the language used, and to give it a fair construction so as to promote justice in interest of the public good. The purpose of the act should be taken into consideration. The construction should be one which would be consistent with, and promote, preserve, and effect, the object of the statute, so as effectually to meet the beneficial end in view, and not one which would defeat the manifest purpose or design of the state. ....A remedial statute should be construed so as to afford all the relief in the power of the court which the language of the act indicates that the Legislature intended to grant.'"

See also City of Lincoln v. Neb. Workmen's Comp. Court, 133 Neb. 225, 274 N.W. 576 (1937).

The defendant's additional reasons as set forth in b. (respecting amendment) and c. (respecting presentation of claim to the Legislature) above seem fully answered by the holding of the Supreme Court in Department of Banking v. Foe, 136 Neb. 422, 286 N.W.264, 123 ALR 894 (1939) as follows:

"[4] Defendant contends that Chapter 58, Laws 1925, is amendatory, in that it amends, by addition and by reference to it in terms, the general garnishment laws. The title to said chapter 58 is as follows: 'An Act to provide for garnishment of officers and employees of the state of Nebraska or any county, township, municipal corporation, municipally owned corporation, or school district.' Section 1 of the act in part provides: 'That all provisions, requirements, conditions and exemptions, of the garnishment laws of the State of Nebraska, shall apply to all state, county, municipal, municipally owned corporation, township, and school district officers and employees, to the same extent and effect as such laws apply under the existing statutes of the State of Nebraska to officers and employees of private corporation.'

"This court held in State ex rel. Baughn v. Ure, 91 Neb. 31, 135 N.W.224: 'The mere fact that an act of the Legislature adopts the provisions of prior acts by reference thereto does not render the new act amendatory of the acts to which reference is made if in other respects it is a complete act in itself.' The above holding was quoted in the case of Sheridan County v. Hand, 114 Neb. 813, 210 N.W.273.

"[5] The act in question, as shown by the title, discloses conclusively that it purports to be an independent, separate and new act, covering the entire subject to which it relates, and, as it is not amendatory, it does not run counter to section 14, art. III of the Constitution, providing: 'no law shall be amended unless the new act contain the section or sections as amended and the section or sections so amended shall be repealed.' See, also, State ex. rel. Crosby v. Moorhead, 100 Neb. 298, 159 N.W.412, and Richardson v. Kildown, 116 Neb. 648, 218 N.W.429. In the latter case it was held: 'Where a legislative act, though complete in itself, refers to another act for the procedure to be taken, the latter act, pro tanto, becomes a part of the former to the same extent as though actually incorporated therein.'"

Further reference can be made if necessary to all the cases in 10A Neb. Digest 27, statute §51. Of those cases Toronto Pipeline Co. v. Cammerland Pipeline Co., 107 Neb. 201, 92 N.W.2d, 554 (1958) seems to be especially dispositive of the defendant's argument concerning the supposed necessity for application to the Legislature.

2. Defendant states that the Court has no jurisdiction over the Defendant.

The Defendant is not an employer as defined by Section 48-801(4), R.S.Supp. 1969, which provides:

"(4) Employer shall mean any political or governmental subdivision of the State of Nebraska, any municipal corporation, or any public power district or public power and irrigation district. It shall also include any public utility as defined in Sections 48-801 to 48-823;

The Defendant is in fact the sovereign (sic). The Defendant is not a political or governmental subdivision of the State of Nebraska, or municipal corporation or public power district or public power and irrigation district or public utility.

The Plaintiff, Kiernan, is not an employee as defined in Section 48-801 (5), R.S.Supp. 1969, which provides:

"(5) Employee shall include any person employed by any employer as defined in sections 48-801 to 48-823;"

The heart of the defendant's argument is that an executive department is not a "political or governmental subdivision" within the meaning of 48-801(4) definition of "employer". The defendant's brief makes the flat statement without argument, reasoning, citation of authority, or logical analysis. Section 81-101 provides, ".....for the purpose of aiding the Governor in the execution and administration of the laws, the executive and administrative work shall be divided into the following departments:......(4)Department of Roads;....". In State v. Chase, 147 Neb. 785, 25 N.W.2d 1,11 (1946) the Supreme Court said, "'The term "head of a department" means, in this connection, the secretary in charge of a great division of the executive branch of the Government,...." Eidenmiller v. State et al, 120 Neb. 430, 233 N.W.447 (1930) was a suit against the Department of Public Works, in which the Supreme Court said, "The effect of the decision (in Nebraska National Guard v. Morgan, 112 Neb. 432, 199 N.W. 557) is to hold that the injured employee was an employee of the State through its agency, the Nebraska National Guard.....We are of the opinion that this suit was begun....in effect, as a suit against the State, the defendant here being what is sometimes called a "direct agency" of the State, carrying on, in the language of the Legislature, the 'executive and administrative work' of the state duly assigned to this particular department." In State v. Kastle, 120 Neb.758, 235 N.W.458 (1931) the Supreme Court said, "The Department of Trade and Commerce is an executive and administrative branch of the state government....there was only one 'person or agency' that could legally direct a banker to accept a deposit in an insolvent state bank....--that was the Guaranty Fund Commission." It appears to us that, in view of the Courts' previous decisions characterizing executive departments as branches, agencies, and great divisions as distinguished from lesser divisions of government, the Legislature adopted in §48-801(4) the most all-inclusive term it could, so that the phrase "any political or government subdivision" includes but manifestly is not limited to executive departments.

3. Defendant states that Sections 48-801, et. seq. R.R.S. 1943, and as amended in R.S. Supp. 1969, are unconstitutional as to this Defendant, in that they violate Article IV, Section 1 of the Constitution of the State of Nebraska, which provides in part:

".....Subject to the provisions of this Constitution, the heads of the various executive or civil departments shall have power to appoint and remove all subordinate employees in their respective departments."

The department of Roads is an executive department of government as stated in Section 81-101, R.R.S. 1943, which provides in part:

"The civil administration of the laws of the state is vested in the Governor. For the purpose of aiding the Governor in the execution and administration of the laws, the executive and administrative work shall be divided into the following departments:.....(4) Department of Roads;....."

Defendant states Sections 48-801, et. seq. R.R.S. 1943, and the amendments thereto in R.S. Supp. 1969, are unconstitutional as to this Defendant since they violate the powers of the executive granted by Article IV, Section 1 of the Constitution of the State of Nebraska, and violate the express statutory powers of the State Engineer granted by Section 81-701.02, R.R.S. 1943, which provides in part:

"The State Engineer, for the Department of Roads, shall:


"(5) Employ all engineers, assistants, clerks, agents, and other employees required for the proper transaction of the business of his office or of the department and fix their titles, determine their duties and compensation, and discharge them in his discretion; and...."

In State v. Young, 154 Neb. 588, 48 N.W.2d 677, (1951) the Supreme Court held:

"The lodging of the supreme executive power in the Governor by the Constitution reposes in the Governor the power to remove executive officers and employees o the government appointed by him, except as limited by the Constitution itself." (emphasis supplied)

We find in subsequent opinions of the Supreme Court no problem with this statement of the law. But other sentences from the same opinion may imply that there is only one such limitation in the Constitution, and so we cannot rely on only the last quoted proposition without analysis of what follows: that is the further dicta:

"The only limitation placed upon the executive power of the Governor in connection with the removal of executive officers and employees appointed by him is Article IV Section 12, of the Constitution, which provides: 'The Governor shall have power to remove any officer, whom he may appoint, in case of incompetency, neglect of duty, or malfeasance in office, and he may declare his office vacant, and fill the same as herein provided in other cases of vacancy."


"As to all officers and employees in the executive department appointed by the Governor who do not fall within the class designated by Article IV, of the Constitution, Section 12, they are removable at the will of the Governor by virtue of the grant of the supreme executive power to him by Article IV, Section 6 of the Constitution."

The Young case itself was an action in quo warranto to remove a member of the liquor commission; the Court held only that Article IV, Section 12 applied to such an officer as the liquor commissioner, and that the provisions of said Article IV Section 12 had been compiled with in that case. Not only was it not necessary to a decision in that case that other articles of the Constitution be examined for their applicability, but there was no argument or inference from the evidence that any provision of the Constitution other than Article IV Section 12 should be examined. Furthermore, since the case did not involve an officer or employee "who do not fall within the class designated by Article IV, Section 12," it was not necessary, nor did the Court presume, to examine the Constitution for limitations, if any, on or explanations of the Court's phrase, "they are removable at the will of the Governor." In State v. Obbink, 172 Neb. 242, 109 N.W.2d 288 (1961) an action in quo warranto to remove the Director of Aeronautics the court said:

"In State ex rel. Beck v. Young, supra, it was said: 'the power of the Governor to remove an executive officer or employee appointed by him for a definite term, is found in Article IV, Section 12 of the Constitution.' ....In the light of this analysis of the Constitution and the statutes creating the office of director of aeronautics and the facts as disclosed by the pleadings, it must be said that the Governor, without hearing or notice of hearing, had the right and power to dismiss the respondent, unless for some other reason he was deprived of that right and power."

The Court then did examine other reasons and provisions of statute and constitution, although they are not applicable here. Wittler v. Baumgartner, 180 Neb. 446, 144 N.W.2d 62 (1966) was an action for declaratory judgment of the unconstitutionality of the act creating the power grid system. In holding that the statutory provisions for appointment of officials of the power district was unconstitutional the Court said:

"In State ex rel. Beck v. Young, 154 Neb. 588, 48 N.W.2d 677, this court said: '....the power of appointment and removal is in the Governor except as limited by Article IV, Section 12, of the Constitution, and the legislative or judicial branches may not properly trench upon the executive power thus granted.'

"The appointment power here involved is executive or administrative in character. The power of the legislature to consent or confirm executive appointments is also executive or administrative rather than a legislative function. But the Constitution itself transgresses the division of powers provision contained in it and, so far as it does, the separate departments have the power constitutionally granted. State ex rel. Johnson v. Hagemeister, 161 Neb. 475, 73 N.W.2d 625; State ex rel. Horne v. Holcomb, 46 Neb. 88, 64 N.W.437.

"In state ex rel. Hensley v. Plasters, 74 Neb. 652, 105 N.W. 1092, 3 LRANS 887, we said: '.....The legislature, however, cannot itself fill the office. It cannot elect or appoint the officer. (Constitution Article V, Section 10; State ex rel. Clark v. Stanley, 66 N.C. 59, 8 Am. Rep. 488; State ex rel. Horne v. Holcomb, 46 Neb. 88, 64 N.W.437.....'"

It seems to us clear that the Supreme Court in subsequent cases was fully aware of the earlier language in its opinion in Beck v. Young, but in an appropriate case clearly considered provisions of the Constitution other than Article IV, Section 12 in determining the limits on the appointive and removal powers which it equated in so far as their derivation was Article IV, Section 6. The following are such provisions of the Constitution:

Article I, Section 4 "....No religious test shall be required as a qualification for office,........." See Meyerkorth v. State, 173 Neb. 889, 115 N.W.2d 585.

Article I, Section 5 "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty;......."

Article XV, Section 13 "No person shall be denied employment because of membership in or affiliation with...a labor organization;.......Section 15. This article is self-executing and shall supersede all provisions that conflict therewith; legislation may be enacted to facilitate its operation but no law shall limit or restrict the provisions hereof."

Article XV, Section 9 "Laws may be enacted providing for the investigation, submission and determination of controversies between employers and employees in any business or vocation affected with a public interest, and for the prevention of unfair business practices and unconscionable gains in any business or vocation affecting the public welfare. An industrial commission may be created for the purpose of administering such laws, and appeals shall lie to the Supreme court from the final orders and judgments of such commission."

The Court of Industrial Relations Act provides:

Section 48-801(2) "Governmental service shall mean all services performed under employment by the State of Nebraska, any political or governmental subdivision thereof, any municipal corporation, or any public power district or public power and irrigation district" (By LB 15 certain exceptions were deleted.)

Section 48-802 "To make operative the provisions of Section 9 Article XV, of the Constitution of Nebraska, the public policy of the State of Nebraska is hereby declared to be as follows:.....that governmental service....is clothed with a vital public interest and to protect the same it is necessary that the relations between the employers and employees in such industry be regulated by the State of Nebraska to the extent and in the manner hereinafter provided."

Section 48-823 "The provisions of Section 48-801 to 48-823....shall be liberally construed to effectuate the public policy enunciated in Section 48-802."

These last quoted provisions persuade us that the Legislature intended to and did exercise the power given it by Article XV, Section 9 to limit the Article IV Section 1 power to remove subordinate employees.

Although we have referred to many provisions of the Constitution as support for our belief the Supreme Court in the Young Case did not foreclose limitations other than Article II, Section 12, on the firing power, nevertheless, our holding here is limited to this: a State of Nebraska civil department head's power to remove subordinate employees under Article IV, Section 1 of the Constitution of the State of Nebraska and under §81-701(2) R.S. Neb. is subject to Article XV, Sections 13 and 15, and Article XV, Section 9, and the relevant laws enacted pursuant thereto.

4. Sections 48-801, et. seq. R.R.S. 1943, and the amendments thereto in R.S. Supp. 1969, are unconstitutional for the reason the powers granted to this commission are the powers of a court and therefore violate Article V, Section 1 of the constitution of the State of Nebraska.

Article V, section 1 is:

"....The judicial power of the state shall be vested in a supreme court, district courts, county courts, justices of the peace, and such other courts inferior to the Supreme court as may be created by law; but other courts may be substituted by law for justices of the peace within such districts, and with such additional civil and criminal jurisdiction, as may be provided by law."

The defendant has not explained to us why we are not at least an "other court inferior to the Supreme Court and established by law." Nevertheless we adhere to our Opinion as to general constitutionality of the Court of Industrial Relations Statutes filed May 13, 1968, in the Metropolitan Utilities District cases, numbers 21 and 22 that this court is established under Article XV, Section 9, which empowers the legislature to create a tribunal uniquely endowed with a combination of judicial, legislative, and executive powers. Therefore a debate over the scope of Article V, Section 1 cannot concern the Court of Industrial Relations.

5. Defendant states that Sections 48-801, et. seq. R.R.S. 1943, and the amendments thereto in R.S. Supp. 1969, are unconstitutional since they violate Article III, Section 14 of the Constitution of the State of Nebraska because in affect they amend Section 81-701.02, R.R.S. 1943.

Article III, Section 14 relating to legislative bills in relevant part is as follows:

"....And no law shall be amended unless the new act contain the sections or section as amended and the section or sections so amended shall be re-appealed....."

Section 81-701.02 R.S. Neb. insofar as relied on by the defendant at this point in its argument is, "the State Engineer....shall....employ all engineers....and discharge them in his discretion;...." As pointed out above in section 3 of these Findings, Section 81-701.02 R.R.S. Neb. would be constitutional were it not construed as being limited by Article XV, Sections 13 and 15 and Article XV, Section 9. "Statutes must be so construed if possible as to render them constitutional." State v. Reeder, 188 Neb. 121, 195 N.W.2d 509 (1972).

In Dwyer v. Omaha-Douglas Public Building Commission, 188 Neb. 30, 48, 195 N.W.2d 236 (1972) the court held:

"Appellee contends the act (authorizing a city-county building) is unconstitutional because it amends sections 23-119 R.R.S. 1943 (pertaining to taxation by counties), and 23, 120 R.S. Supp., 1971 (pertaining to erection of courthouses by counties) without repealing those sections, and therefore it violates Article III, Section 14.

"Insofar as this contention pertains to section 23-119, R.R.S. 1943, we have decided that point by what has been said on the main appeal. If, as we hold here, the one-half mill levy is not a county levy then section 23-119 R.R.S. 1943, has not been amended and Article III, Section 14, has not been amended and Article III, Section 14, does not apply.

"The same may be said of section 23-120 R.S. Supp., 1971, which provides: 'the county board shall erect or otherwise provide suitable courthouse....' etc., ....Section 23-120 R.S.Supp. 1971 is not amended by LB 1003. The provisions of LB 1003 are not mandatory. The county may act under section 23-120 R.S. Supp. 1971 or it may 'otherwise provide' by availing itself of the provisions of the act which is a complete and independent act in itself. The act does not amend section 23-120 R.S. Supp. 1971. In any event, Article III, Section 14, does not apply. See Parking Authority v. City of Omaha, supra."

Likewise here section 81-701.02 R.S. Neb. does not amend nor is it amended by section 48-801 or any of the subsequent sections of Chapter 48, Article 8. The latter merely fills up the limitations which the Constitution carves out of the discharge power given by section 81-701.02 R.S. 1943.

6. Defendant states there is a defect of parties Plaintiff since the Plaintiff, Association, has not been recognized.

Defendant states Plaintiff Association has no standing to sue prior to recognition, except to attempt to gain recognition.

The Defendant states it has never refused to recognize the Plaintiff, Association.

In IBEW vs. Hastings, Case No. 17, Opinion Overruling Motion to Dismiss, filed February 12, 1964, we held:

"The statute (§48-801 [7] - Definition of Labor Organization) does not require that a labor organization allege that it has been organized by any formal process or designated to act for employees by any specific means. Although plaintiff's petition alleges representation of a majority of defendant's employees, majority representation is not necessary to confer jurisdiction on the court, although the statutory employee participation and purpose are."

In the same case Findings and Order entered May 5, 1967, we said:

".....this court cannot....certify the plaintiff as a 'bargaining agent' as those phrases are used in Federal Labor Law or as the National Labor Relations board can compel an employer subject to its jurisdiction....."

In Sidney, Case No. 58, Findings and Order Overruling Special Appearance, entered December 2, 1971, and in Holdrege, Case No. 39, Findings and Order entered March 30, 1971, the Court expressed its disagreement with a contention similar to that made by the defendant here, although in the Holdrege and Sidney cases the Teacher Professional Negotiation Act was also involved. We can discover no basis for a distinction, and we have received no argument written or oral with respect to this contention last set out above in italics. It is our understanding that the Sidney case now is on appeal, and so we may get some further insight from the Supreme Court. In the meantime we hold that recognition by an employer is not a jurisdictional prerequisite to a labor organization's bringing an action in this Court against the employer.

7. The Defendant states that this is a multiple member court and the Legislature did not provide the membership necessary to preside over and decide an industrial dispute, therefore it is mandatory that this Court adopt necessary rules and regulations pursuant to the Administrative Procedures Act, Chapter 84, Article 9 of the statutes of the State of Nebraska, and this Court has not done so and is therefore unable to act in accordance with law.

This Court is an administrative agency established pursuant to Article XV, Section 9 of the Constitution of the State of Nebraska and Chapter 48, Article 8 of the statutes of the State of Nebraska. As an administrative agency, this Court is authorized and required to adopt rules and regulations in accordance with the Administrative Procedures Act, Chapter 84, Article 9 of the statutes of the State of Nebraska and the Court has not done so and is therefore unable to act in accordance with the law.

There is no evidence or citation of authority or development of argument as to the relevancy of the number of judges to the necessity of following the Administrative Procedure act. We have pointed out in section 4 above of these Findings that the Legislature, as it constitutionally can, has vested this court with judicial power; it follows that this court is within the express exception to the Administrative Procedure Act. No claim is or can be made that the rules of this court which have been on file in the office of this court since the court's inception do not afford due process of law.

8. The Defendant states that Sections 81-1301 through 81-1319, R.S.Supp. 1969, and the amendments thereto enacted by the First Session of the Eighty-Second Legislature are unconstitutional in that they violate Article II, Section 1, Article IV, Section 1 and Article III, Section 14 of the Constitution of the State of Nebraska.

The Defendant states that Section 81-1301 through 81-1319, R.S. Supp. 1969, and the amendments thereto enacted by the First Session of the Eighty-Second Legislature are unconstitutional since they violate the 14th Amendment of the Constitution of the United States and article I, Section 1 of the Constitution of the State of Nebraska because they deny certain State Employees equal protection of the laws.

The Defendant states that Section 81-1301 through 81-1319, R.S. Supp. 1969, and the amendments thereto enacted by the First Session of the Eighty-Second Legislature are unconstitutional since they violate Article III, Section 18, in that they are special laws.

In brief the defendant is arguing that the State Personnel act is contrary to the State Constitutional provisions for Distribution of Powers, for the legislature's establishing executive departments such as the Department of Roads, for setting out statutes amended in the amending statute, for the equal protection of persons, and for withdrawing from the legislature authority to pass local or special laws in certain fields of the law.

Although section 81-1317 effective July 22, 1967, and providing, "Section 81-1301 to 81-1317 shall be known and may be cited as the State Personnel Office Act," was repealed effective May 28, 1971, the remaining portions of Chapter 81, Article 13 may be at least characterized for the purposes of this section of our Findings in this case as an act by which a State Personnel service or system under a newly created executive department to be known as the Department of Personnel headed by a director of personnel was established. The department was created by the 1967 Legislature, and amendments to the act were adopted by the 1971 Legislature.

The defendant devotes no part of its written brief or oral argument respecting constitutionality expressly to this act. It is clear from the defendant's arguments herein above considered, that the defendant desires from the Court in this case a declaratory judgment that a department head has an untrammeled and unlimited right to remove a subordinate employee. Likewise this act seems to be relevant to the plaintiffs' prayer for an order "to further guarantee and protect the rights granted to the employees of the defendant by the statutes of the State of Nebraska." Furthermore the individual plaintiff Kiernan pleads that his dismissal was in violation of section IX,(5) of the Rules and Regulations issued pursuant to section IX,(5) of the Rules and Regulations issued pursuant to sections 81-1301 to 1317 providing for written statement of cause and its presentation 14 days prior to effective date of dismissal and contrary to notices respecting political activity which notices were issued pursuant to section 81-1315. Therefore, it seems appropriate for us to consider here the constitutionality of the State Personnel act.

We hold that for the reasoning set out in sections 3 and 5 of these Findings is likewise applicable to the constitutionality of Sections 81-1301 through 81-1319; and that the latter sections are not unconstitutional. See also Sommerville v. Johnson, 149 Neb. 167, 30 N.W.2d 577 (1948), holding that the Merit System act is constitutional.

9. Defendant denies each and every allegation of the Plaintiffs' Amended Petition.

The Defendant states there has been no harassment in any way of Plaintiff Association or Plaintiff Kiernan.

The evidence conclusively is that the plaintiff Kiernan was an organizer of and a dominant force in the plaintiff labor organization. There is some evidence about Mr. Doyle's restrictions of the Association's use of bulletin boards and the cafeteria from which a trier of fact could infer that Mr. Doyle in the Spring of 1971 was not completely neutral concerning the then early development and growth of the Association. There is evidence that in the course of one conversation with Mr. Kiernan in the Spring of 1971 Mr. Doyle mentioned the Association and later made the statement "you are skating on thin ice."

In June 1971 the plaintiffs requested a deduction of union dues from paychecks, and the defendant, though it ultimately granted the request, did not do so for a month. This delay was not unreasonable or indicative of anti-union animus, because the request was made only a few days before payday and therefore could not be implemented sooner than the defendant did.

In November 1971 Mr. Doyle indicated that supervisors should not belong to the Association, and within the following month most of the supervisors resigned from the Association. From these facts and some inexplicit testimony of two supervisors, the plaintiff argues that the inferences are that the supervisors resigned from the Association in fear for their jobs, and that these facts and that inference show anti-union animus two months after Kiernan's termination. This Court and the Nebraska Supreme Court have held that supervisors may not be included in an appropriate bargaining unit when one of the parties objects to such inclusion (City of Grand Island v. American Federation of State, County, and Municipal Employees, AFL-CIO, et al., 186 Neb. 711, 185 N.W.2d 860). Questions as to the extent an employer legally may regulate its supervisors' union activity has not been decided by this Court and the pleadings and evidence are insufficient to allow us to decide it here. If the supervisors or the Association desire decisions respecting supervisory membership in unions the issues must be raised much more directly and explicitly than they have been in this action; likewise the employer should raise such issues in this court rather than resort to threats of termination. Consequently, we find no anti-union animus in Mr. Doyle's expression of opinion relative to his supervisors' membership in the Association.

The evidence does overwhelmingly give rise to the impression that Mr. Doyle's and Mr. Kiernan's personalities interreacted abrasively. We do not analyze this evidence in detail nor reach a conclusion as to "fault," because interpreted most favorably to Mr. Kiernan it could only support the further inference that Mr. Doyle's letter purporting to remove Mr. Kiernan from his employment was motivated by anti-Kiernan animus rather than by anti-labor organization animus. It is clear that Mr. Kiernan gave no indication that he was acting or speaking for the Association when he did any of the things Mr. Doyle found offensive.

Under the evidence in this case which is distinguishable from the evidence disclosed by our Findings in Mid-Plains Nebraska Vocational Technical School, Case No. 33, entered August 9, 1971, the plaintiffs here have not convinced us as triers of the fact that the firing of Kiernan or the other activities of the defendant as shown by the evidence were motivated by anti-union sentiment.

As triers of fact we find only that Mr. Doyle did not deny Mr. Kiernan employment because of the latter's membership in or affiliation with the Association. Cf Article XV, Sections 13 and 15, Constitution of Nebraska and §48-837 R.S. Neb.

10. Summary and Conclusion.

The prayer of the amended petition quoted verbatim in the first sentence of these Findings is summarized:

a. That the plaintiff Kiernan be reinstated without loss of pay;

b. That the defendant be ordered not to threaten and harass the plaintiff Association;

c. That the rights of the defendant's employees or at least of the plaintiff Association's members with reference to controversial employment terminations be declared.

It follows from our finding in section 9 above and our Findings and Order of March 7, 1972, in Schmeiding v. City of Lincoln, Case No. 60, that the portions of the prayer last above paraphrased as a. and b. must be denied. In the Schmeiding case we held that "a uniquely personal termination of employment does not constitute an 'industrial dispute,'" and that there must exist an "industrial dispute" if this court is to have jurisdiction.'

All our findings herein constitute a declaration in accordance with that portion of the prayer paraphrased above as c. The "strong public policy reasons" mentioned in Judge Gradwohl's reasoning in the Schmeiding case for requiring a controversy concerning "a purely individual termination of employment entirely unrelated to any collective or concerted employee activity or agreement" to be litigated in "other existing tribunals" are highlighted by the testimony in this case. the most emotional, perhaps in the minds of certain individuals the most important, issue here concerned the interpretation of certain remarks of Mr. Kiernan about the qualifications for holding the job of State Engineer. The respective interpretations contended for required detailed examination of conflicting testimony respecting minutiae of words, context, and tone of voice, and of practices in the engineering profession and in the State Department of Roads. The testimony concerning these matters were first given four months after the occurrence. It seems clear to us that wherever a detailed evaluation and decision of such matters is desired, they most effectively and fairly can be recorded and considered initially in accordance with the appropriate personnel act with the appellate review provided by such act if the importance of the questions warrants.


1. That insofar as the plaintiffs' prayer is for a determination that the defendant denied to either of the plaintiffs rights under Article XV, Section 13 of the Constitution of Nebraska and Section 48-837 R.S.Neb., judgment be and it hereby is entered for the defendant.

2. That insofar as the prayer is for reinstatement of Richard Kiernan in that employment which he held September 7, 1971, for the State of Nebraska the action be and it hereby is dismissed.

3. That the rights of employees of the State Department of Roads concerning controversial employment termination be and they hereby are declared in accordance with these findings.

Judge Henatsch did not participate in the trial or decision of this case, and Judge Gradwohl did not participate in the entry of the Findings and Order.