Arrow Club, Inc. v. Nebraska Liquor Control Commission

Decision Date30 October 1964
Docket NumberNo. 35803,35803
Citation131 N.W.2d 134,177 Neb. 686
PartiesARROW CLUB, INC., a Nebraska Corporation et al., Appellees, v. NEBRASKA LIQUOR CONTROL COMMISSION, an administrative agency of the State of Nebraska et al., Appellants.
CourtNebraska Supreme Court

Syllabus by the Court

1. The Legislature while in special session can transact no business except that for which it was called together.

2. The proclamation may state the purpose for which the Legislature is convened in broad, general terms or it may limit the consideration to a specified phase of a general subject. The Legislature is free to determine in what manner the purpose shall be accomplished, but it must confine itself to the matters submitted to it by the proclamation.

3. The Legislature while in special session may enact legislation relating to, germane to, and having a natural connection with the purpose for which it was convened.

4. The purpose or subject as stated in the proclamation is to be determined by an analysis and construction of the proclamation as in the case of any written instrument.

5. The presumption is always in favor of the constitutionality of legislation and an act should be held to be within the call if it can be done by any reasonable construction.

6. Where there is a direct conflict between a city ordinance and a state statute, the statute is the superior law.

7. A city ordinance is inconsistent with a statute if it is contradictory in the sense that the two legislative provisions cannot coexist.

Clarence A. H. Meyer, Atty. Gen., Robert R. Camp, Asst. Atty. Gen., Ralph D. Nelson, City Atty., Arlyss W. Spence, Asst. City Atty., Lincoln, for appellants.

Barney, Carter & Buchholz, Herbert M. Brugh, Lincoln, for appellees.

Heard before WHITE, C. J., MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ., and ROBERT L. SMITH, District Judge.

BOSLAUGH, Justice.

The plaintiff, Arrow Club, Inc., Anthony M. Alesio, and Eugene L. Cottier, brought this action to declare Legislative Bill 23 enacted by the Seventy-fourth (Extraordinary) Session of the Legislature of Nebraska, 1963, and ordinances Nos. 8261 and 8262 of the City of Lincoln, Nebraska, void and to enjoin their enforcement. The defendants are the Nebraska Liquor Control Commission, its members and secretary, the City of Lincoln, Nebraska, and its mayor.

The trial court found that sections 1, 2, and 4 of L.B. 23 and ordinances Nos. 8261 and 8262, as they relate to bottle clubs, were void and enjoined the defendants from enforcing them against the plaintiffs. The motions for new trial filed by the defendant were overruled and they have appealed.

The background for this litigation is found in legislation enacted by the Seventythird Session of the Legislature of Nebraska. In 1963 the Liquor Control Act was amended to provide for the licensing of bottle clubs and nonprofit corporations by the Nebraska Liquor Control Commission. Laws 1963, c. 310, p. 918. That act defined a nonprofit corporation as a corporation organized under the laws of the state, not for profit, which had been exempted from the payment of federal income taxes, as provided by section 501(c)(7) and (8), Internal Revenue Code of 1954. On October 14, 1963, the Governor of Nebraska issued a proclamation calling the Legislature to convene in extraordinary session for the purpose of considering legislation relating to certain subjects, one of which was as follows:

'6. To amend subdivision (21) of section 53-103, Revised Statutes Supplement, 1961, as amended by section 1, Legislative Bill 21, Seventy-third Session, Nebraska State Legislature, 1963, by including those nonprofit corporations which have been exempted from the payment of federal income taxes, as provided by section 501(c) (4), Internal Revenue Code of 1954, within the definition of a nonprofit corporation, thus redefining nonprofit corporations eligible for licensing for the sale of alcoholic liquors for consumption of the premises to include the above described corporations.'

At the special session, the definition of a nonprofit corporation as contained in the Liquor Control Act was amended to include corporations exempt from the payment of federal income taxes as provided by section 501(c)(4), (7), or (8), Internal Revenue Code of 1954. Laws 1963, Spec.Sess., c. 4, p. 66. By a separate bill, L.B. 23, certain provisions of the Liquor Control Act relating to bottle clubs were amended. Laws 1963, Spec.Sess., c. 5, p. 71. The trial court held that sections 1, 2, and 4 of L.B. 23 were void because they did not relate to a subject included in the proclamation which called the Legislature to convene in special session and, therefore, were in violation of Article IV, section 8, of the Constitution of Nebraska. This is the first question that is presented by this appeal.

Article IV, section 8, of the Constitution of Nebraska, provides as follows: 'The Governor may, on extraordinary occasions, convene the legislature by proclamation, stating therein the purpose for which they are convened, and the legislature shall enter upon no business except that for which they were called together.' Similar provisions are found in the constitutions of many other states.

It is well established that the legislature while in special session can transact no business except that for which it was called together. Chicago, B. & Q. R. R. Co. v. Wolfe, 61 Neb. 502, 86 N.W. 441. The proclamation may state the purpose for which the Legislature is convened in broad, general terms of it may limit the consideration to a specified phase of a general subject. The Legislature is free to determine in what manner the purpose shall be accomplished, but it must confine itself to the matters submitted to it by the proclamation.

In Commonwealth ex rel. Schnader v. Liveright, 308 Pa. 35, 161 A. 697, in construing a similar provision in the Constitution of Pennsylvania, the court said: 'This constitutional provision contemplates that there shall first exist in the executive mind a definite conception of the public emergency which demands an extraordinary session. His mental attitude or intention is expressed in his proclamation, the purpose of which is to inform the members of the Legislature of subjects for legislation, and to advise the public generally that objections may be presented, if desired. It is not only a guide or chart with respect to which the Legislature may act, but also a check restricting its actions so that rights may not be affected without notice. The proclamation may contain many or few subjects, according to the Governor's conception of the public need. While the subjects may be stated broadly or in general terms, the special business, as related to the general subject on which legislation is desired, should be designated by imposing qualifying matter or reduce or restrict. Although the subjects should be sufficient to evoke intelligent and responsive action from the Legislature, it is not necessary that they include all the methods of accomplishment. The guilding principle in sustaining legislation of a special session is that it be germane to, or within, the apparent scope of the subjects which have been designated as proper fields for legislation. In construing a call, the words of any portion thereof must be interpreted, not only as commonly and universally understood, but also as applicable to the subject intended to be affected by legislation.

'While the Legislature must confine itself to the matters submitted, it need not follow the views of the Governor or legislate in any particular way. Within the special business or designated subjects submitted, the Legislature cannot be restricted or dictated to by the Governor. It is a free agent, and the Governor, under the guise of definition, cannot direct or control its action.'

The Legislature while in special session may enact legislation relating to, germane to, and having a natural connection with the purpose for which it was convened. Blackford v. Judith Basin County, 109 Mont. 578, 98 P.2d 872, 126 A.L.R. 639. The purpose or subject as stated in the proclamation is to be determined by an analysis and construction of the proclamation as in the case of any written instrument. State ex rel. Nat. Conservation Exposition Co. v. Woollen, 128 Tenn. 456, 161 S.W. 1006, Ann.Cas.1915C, 465. The presumption is always in favor of the constitutionality of legislation, and an act should be held to be within the call if it can be done by any reasonable construction.

The legislation in question in this case, L.B. 23, relates to the regulation and operation of bottle clubs. It was enacted by the Legislature while convened in special session to consider amendments to the Liquor Control Act relating to the licensing of nonprofit corporations. Thus, the question is whether the rugulation and operation of bottle clubs relates to, is germane to, or has a natural connection with the definition of nonprofit corporations. The question is to be determined by the consideration and analysis of the provisions of the Liquor Control Act.

There is a fundamental difference between a nonprofit corporation license and a bottle club license under the Liquor Control Act. A bottle club license authorizes the storage and consumption of liquor upon the premises of the licensee by persons who have made their own purchase of liquor. Sections 53-103 and 53-123.08, R.S.Supp., 1963. A nonprofit corporation license is a retail license for the sale of alcoholic liquors, including beer. Sections 53-123 and 53-124, R.S.Supp., 1963. In view of this difference, we think the regulation and...

To continue reading

Request your trial
9 cases
  • State v. Furnas County Farms
    • United States
    • Nebraska Supreme Court
    • 8 Agosto 2003
    ...statute is the superior law.'" Herman v. Lee, 210 Neb. 563, 567, 316 N.W.2d 56, 59 (1982) (quoting Arrow Club, Inc. v. Nebraska Liquor Control Commission, 177 Neb. 686, 131 N.W.2d 134 (1964)). The touchstone of preemption analysis is legislative intent. "[T]he central question in a preempti......
  • Fantastic Plastic, Inc. v. City of Pittsburgh
    • United States
    • Pennsylvania Commonwealth Court
    • 22 Septiembre 1977
    ... ... that the City's bottle-club ordinance, directed at ... Plastic's operation, ... U.S.Const. amend. XXI. Where liquor is ... involved, this amendment has conferred on ... 1077, 96 L.Ed. 1366 ... (1952); Arrow Club, Inc. v. Nebraska Liquor Control ... ...
  • State v. Conover
    • United States
    • Nebraska Supreme Court
    • 30 Septiembre 2005
    ...to, germane to, and having a natural connection with the purpose for which it was convened. Arrow Club, Inc. v. Nebraska Liquor Control Commission, 177 Neb. 686, 131 N.W.2d 134 (1964). The purpose or subject as stated in the proclamation is to be determined by an analysis and construction o......
  • State ex rel. Douglas v. State Bd. of Equalization and Assessment
    • United States
    • Nebraska Supreme Court
    • 28 Diciembre 1979
    ...be accomplished, but it must confine itself to the matters submitted to it by the proclamation." Arrow Club, Inc. v. Nebraska Liquor Control Commission, 177 Neb. 686, 131 N.W.2d 134 (1964). Respondents contend that the preamble to LR 1 would cause it to fall within the second announced purp......
  • Request a trial to view additional results
2 provisions
  • Neb. Const. art. IV § IV-8 Special Sessions
    • United States
    • Constitution of the State of Nebraska 2022 Edition Article IV
    • 1 Enero 2022
    ...of the Legislature, were unconstitutional because not within Governor's call. Arrow Club, Inc. v. Nebraska Liquor Control Commission, 177 Neb. 686, 131 N.W.2d 134 Governor's call of special session of the Legislature was sufficient. State Securities Co. v. Ley, 177 Neb. 251, 128 N.W.2d 766 ......
  • Lincoln Mun. Code § 5.04.020 (2021) Definitions
    • United States
    • Nebraska-Lincoln Municipal Code 2021 Edition Title 5. Licenses and Regulations Chapter 5.04. Alcoholic Liquor
    • 1 Enero 2021
    ...clubs they are inconsistent with the Liquor Control Act and are, therefore, void. Arrow Club, Inc. v. Nebr. Liquor Control Commission, 177 Neb. 686, 131 N.W.2d 13421, 2012: Ord. 17484 § 1; April 5, 1999: Ord. 15454 §2; March 5, 1990: P.C. § 6undefined6.08.015: Ord. 14385 §6; May 12, 1986: O......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT