Carpenter v. State

• Citation: 179 Neb. 628,139 N.W.2d 541
• Decision Date: 25 January 1966
• Docket Number: No. 36208,36208
• Parties: Terry CARPENTER, Plaintiff, v. The STATE of Nebraska and Frank O. Marsh, as Secretary of State of the State of Nebraska, Defendants.
• Court: Supreme Court of Nebraska

Page 541

139 N.W.2d 541

179 Neb. 628

Terry CARPENTER, Plaintiff, v. The STATE of Nebraska and Frank O. Marsh, as Secretary of State of the State of Nebraska, Defendants.

No. 36208.

Supreme Court of Nebraska.

Jan. 25, 1966.

Syllabus by the Court

1. Constitutional provisions are not subject to rules of strict construction.

2. Where a constitutional amendment is duly and regularly adopted by the electorate with notice on the ballot as to two specific provisions of the amendment, the fact that one of the provisions is unconstitutional does not invalidate both, where the remaining provision is capable of enforcement alone, and is not dependent upon nor interwoven with the other, and can be operative with the void portions eliminated.

3. Each and every clause in a constitution has been inserted for some useful purpose, and the fact that the provision was an amendment rather than an original part of the constitution in no sense changes that principle.

4. Article III, section 5, of the Constitution of Nebraska, as amended in 1962, is a valid and subsisting part of the Constitution of the State of Nebraska, and in full force and effect, except the last sentence thereof, which sentence has been declared to be violative of the United States Constitution.

5. The provisions of Article III, section 5, of the Constitution of Nebraska, require any apportionment or reapportionment of legislative districts to be based solely on population.

6. L.B. 925, 75th Session of the Legislature of Nebraska (Laws 1965, c. 22, p. 171), does not constitute a delegation of power to the City of Beatrice to alter legislative boundaries, or deprive the city of its power of annexation.

7. L.B. 925, 75th Session of the Legislature of Nebraska, does not create any unconstitutional hindrance or impediment to the right of a qualified voter to exercise the elective franchise, and does not violate Article I, section 22, of the Constitution of Nebraska.

8. Boundaries of precincts, townships, and cities mentioned in section 2 of L.B. 925, 75th Session of the Legislature of Nebraska, unless specifically defined otherwise, refer to and mean boundaries as established by Nebraska law as of April 1, 1960.

Barney, Carter & Buchholz, Lincoln, for plaintiff.

Clarence A. H. Meyer, Atty. Gen., Lincoln, Cecil A. Johnson, Special Counsel, Omaha, for defendants.

Heard before WHITE, C. J., SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and HASTINGS, District Judge.

McCOWN, Justice.

This is an original action to test the validity of L.B. 925, 75th Session of the Legislature of Nebraska (Laws 1965, c. 22, p. 171), a legislative reapportionment act; and, as a necessary preliminary, to determine whether the 1962 amendment of Article III, section 5, Constitution of Nebraska, was entirely void, including its provisions with respect to following county lines in legislative redistricting.

A brief background may be appropriate. At the 1961 session of the Nebraska Legislature, L.B. 217 (Laws 1961, c. 246, p. 731) was passed providing for the submission to the electors of an amendment to Article III, section 5, of the Constitution of Nebraska. The amendment was adopted at the 1962 election.

Article III, section 5, of the Nebraska Constitution, as approved by the voters at the 1962 election provides: 'At the regular session of the Legislature held in the year ninetten hundred and thirty-five the Legislature shall by law determine the number of members to be elected and divide the state into legislative districts. In the creation of such districts, any county that contains population sufficient to entitle it to two or more members of the Legislature shall be divided into separate and distinct legislative districts, as nearly equal in population as may be and composed of contiguous and compact territory. After the creation of such districts, beginning in nineteen hundred and thirty-six and every two years thereafter, one member of the Legislature shall be elected from each such district. The basis of apportionment shall be the population excluding aliens, as shown by next preceding federal census. The Legislature may redistrict the state from time to time, not more often than once in ten years. In any such redistricting, county lines shall be followed whenever practicable, but other established lines may be followed at the discretion of the Legislature. In such redistricting, primary emphasis shall be placed on population and not less than twenty per cent nor more than thirty per cent weight shall be given to area.'

Insofar as is relevant here, the 1962 amendment added the following provisions to the former Article III, section 5, of the Nebraska Constitution: 'In any such redistricting, county lines shall be followed whenever practicable, but other established lines may be followed at the discretion of the Legislature. In such redistricting, primary emphasis shall be placed on population and not less than twenty per cent nor more than thirty per cent weight shall be given to area.' This portion constitutes the last two sentences of the section.

In 1964, the United States District Court for the District of Nebraska specifically held that: '* * * the portion of the 1962 amendment of Article III, section 5 of the Constitution of the State of Nebraska providing that not less than 20% nor more than 30% weight shall be given to area in the creation of Unicameral legislative districts * * *,' violated the requirements of the equal protection clause of the Fourteenth Amendment to the United States Constitution. League of Nebraska Municipalities v. Marsh, D.C., 232 F.Supp. 411.

Meanwhile, following the adoption of the 1962 constitutional amendment, the Nebraska Legislature passed two bills in the 1963 legislative session in an attempt to redistrict, and after the above decision, passed another redistricting bill early in the 1965 session. All of these abortive legislative bills were declared unconstitutional under the equal protection clause of the United States Constitution. Thereafter, L.B. 925 of the 1965 legislative session with which we are now concerned was passed. Under its provisions, in some districts a county which does not have population sufficient to entitle it to two or more members is divided. It should be pointed out here that the United States District Court in its ruling on the earlier 1965 redistricting bill stated its conclusion: '* * * that if county lines are to be followed a legislature of 49 or 50 districts is an impossibility as a constitutionally valid legislative reapportionment plan.' League of Nebraska Municipalities v. Marsh, 242 F.Supp. 357. In the case now before this court, no question is raised under the equal protection clause of the Fourteenth Amendment to the United States Constitution, nor is any issue raised as to whether county lines were followed whenever practicable. The major and basic issue here then is whether only county lines must be followed in the establishment of legislative districts in any county that does not contain population sufficient to entitle it to two or more members of the Legislature.

The plaintiff contends that because the provision dealing with area in the last sentence of the 1962 amendment has been declared unconstitutional, the entire amendment is void; and that under the former provisions of Article III, section 5, Constitution of Nebraska, county lines must be followed except as to any county entitled to two or more members of the Legislature. It is the plaintiff's position that, in the main, the general principles governing the construction of statutes apply also to construction of constitutions; and it is argued that the rules governing legislative enactments and their interpretation and validity should, therefore, be applied to construction and determination of the validity of a constitutional provision adopted by the people. While this general rule is well accepted, it is subject to a rather important exception that constitutional provisions should receive a broader and more liberal construction than statutes, since the power dealt with in the case of constitutional provisions is original and unlimited, and in the case of legislative enactments is limited. Consequently, constitutions are not subject to rules of strict construction. See 16 Am.Jur.2d, Constitutional Law, s. 62, p. 236.

Even in the absence of any such rule, it has long been held in this state, even as to legislative acts, that: 'If a portion of a legislative act is unconstitutional and it can be separated from other portions of the act and the latter enforced independent of the former, and it further appears that the unconstitutional part did not constitute such an inducement to the passage of the other parts of the law that they would not have been passed without it, the former may be rejected and the latter unheld.' Nelsen v. Tilley, 137 Neb. 327, 289 N.W. 388, 126 A.L.R. 729.

The same rule stated in slightly different fashion appears in the case of Terry Carpenter, Inc. v. Wood, 177 Neb. 515, 129 N.W.2d 475: 'When a legislative enactment in which such a declaration appears contains valid and...