Jaksha v. State, 86-014

• Decision Date: 02 May 1986
• Docket Number: No. 86-014,86-014
• Citation: 222 Neb. 690,385 N.W.2d 922
• Parties: Edward A. JAKSHA, Plaintiff, v. STATE of Nebraska; Robert Kerrey, Governor of the State of Nebraska; and Donna Karnes, Tax Commissioner of the State of Nebraska, Defendants.
• Court: Nebraska Supreme Court

Page 922

385 N.W.2d 922

222 Neb. 690

Edward A. JAKSHA, Plaintiff, v. STATE of Nebraska; Robert Kerrey, Governor of the State of Nebraska; and Donna Karnes, Tax Commissioner of the State of Nebraska, Defendants.

No. 86-014.

Supreme Court of Nebraska.

May 2, 1986.

Syllabus by the Court

1. Constitutional Law. In construing provisions of a constitution, courts may examine debates and proceedings of a constitutional convention to determine the framers' intended meaning of words, phrases, or clauses of a constitution.

2. Constitutional Law. The Constitution as amended must be construed as a whole. Every clause in a constitution has been inserted for a useful purpose and should receive even broader and more liberal construction than statutes.

3. Constitutional Law. The purpose of the Governor's proclamation, calling a special session of the Legislature pursuant to Neb. Const. art. IV, § 8, is notice to the public regarding subjects to be considered at such legislative session and specification of the boundaries for the area of legislation which may be enacted during that special session of the Legislature.

4. Constitutional Law. Neb. Const. art. IV, § 8, as part of the power of the executive branch of government, permits the Governor to determine when an extraordinary occasion exists, necessitating convention of a special session of the Nebraska Legislature.

5. Constitutional Law. The subject matter restriction envisioned in Neb. Const. art. IV, § 8, empowers the Governor to set the boundaries of legislative action permissible at a special session of the Nebraska Legislature.

6. Constitutional Law. Under Neb. Const. art. IV, § 8, the Governor may, during the Legislature's special session convened pursuant to a gubernatorial proclamation, submit by an appropriate amended proclamation any additional subjects for valid legislation to be enacted at such special session of the Legislature.

Patrick W. Healey of Healey, Wieland, Kluender, Atwood & Jacobs, Lincoln, for plaintiff.

Robert M. Spire, Atty. Gen., and L. Jay Bartel, Lincoln, for defendants.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

Pursuant to leave granted by this court, see, Neb. Const. art. V, § 2, and Neb.Rev.Stat. § 24-204 (Reissue 1979), Edward A. Jaksha, a Nebraska citizen and taxpayer, has filed an original action to determine the constitutionality of 1985 Neb.Laws, L.B. 35, 89th Leg., 2d Spec.Sess., a revenue measure enacted on November 15, 1985. By L.B. 35, which amended Neb.Rev.Stat. § 77-2701.01 (Cum.Supp.1984), the Nebraska Legislature increased the rate of income tax, namely, from 19 percent to 20 percent, for every individual resident of Nebraska, effective for the tax year commencing January 1, 1985. See Neb.Rev.Stat. §§ 77-2715 (Cum.Supp.1984) (imposition of tax on income of a resident individual) and 77-2715.01 (Cum.Supp.1984) (rate of income tax determined by Legislature).

On October 15, 1985, as authorized by Neb. Const. art. IV, § 8, Governor Robert Kerrey issued a proclamation to convene an "extraordinary session" of the Nebraska Legislature on October 17, 1985, for the purpose of "considering and enacting legislation" relating to nine itemized and specific subjects, none of which involved or referred to an increase in the rate of income tax for individual residents of Nebraska.

In response to the Governor's proclamation, the Legislature convened in special session on October 17. On the first day of the special session, L.B. 10 was introduced: "A BILL FOR AN ACT relating to revenue and taxation; to amend section 77-2701.01, Revised Statutes Supplement, 1984; to change the income tax rate; to provide an operative date; to repeal the original section; and to declare an emergency." As reflected in L.B. 10, a resident individual's rate of income tax increased from 19 percent to 20 percent on January 1, 1985.

On inquiry by the introducer of L.B. 10, the State's Attorney General rendered an opinion raising doubt that L.B. 10's tax rate increase was within the purpose contained in the Governor's proclamation of October 15.

On November 6, 1985, while the Legislature was in the 10th day of the special session pursuant to the Governor's initial proclamation, the Governor issued an "AMENDED PROCLAMATION" which referred to convention of the Legislature in extraordinary session on October 17 and included the identical nine subjects contained in the initial proclamation but added a tenth subject or item: "10. Increase the Income Tax rate for 1985." After such amended proclamation, L.B. 35, substantially similar to L.B. 10, was introduced on November 6 and, after final reading on the 16th day of the special session, was passed with an emergency clause on November 15. L.B. 35 was signed by the Governor on November 15, amended § 77-2701.01, and increased every resident individual's rate of income tax from 19 percent to 20 percent for the tax year commencing on January 1, 1985.

As stated in the stipulation of the parties, the questions submitted for answer by this court are:

QUESTION NO. 1--Whether the "Amended Proclamation" issued by the Governor on November 6, 1985, was legally sufficient to allow the valid enactment of L.B. 35, passed on November 15, 1985, by the 89th Legislature, Second Special Session of 1985.

QUESTION NO. 2--In the event the answer to Question No. 1 is in the negative, whether L.B. 35 constituted valid legislative business under the scope of the "Proclamation" of the Governor issued on October 15, 1985.

Among sections of the Nebraska Constitution applicable in the present case are:

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 of the others, except as hereinafter expressly directed or permitted.

Neb. Const. art. II, § 1; and

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.

Neb. Const. art. IV, § 8.

Jaksha contends that after the Legislature has convened in special session in response to the Governor's proclamation calling such special session, Neb. Const. art. IV, § 8, does not empower the Governor to alter the proclamation by adding any subject not designated in the original, or initial, proclamation. Because the Governor's original, or initial, proclamation of October 15, 1985, did not refer to any rate for income taxation, Jaksha argues, any increase in the tax rate pursuant to the Governor's proclamation is outside the purpose of the special session and is, therefore, invalid. The State counters that Neb. Const. art. IV, § 8, does not preclude the Governor's amending a proclamation calling a special legislative session, adding matters for the Legislature's consideration, after a special legislative session has been commenced.

Neb. Const. art. IV, § 8, was adopted as a result of Nebraska's constitutional convention of 1875. In construing provisions of a constitution, courts may examine debates and proceedings of a constitutional convention to determine the framers' intended meaning of words, phrases, or clauses of a constitution. See Elmen v. State Board of Equalization and Assessment, 120 Neb. 141, 231 N.W. 772 (1930).

Although some committee reports and some minutes of Nebraska's 1875 constitutional convention are parts of the archives of the Nebraska State Historical Society, recorded debates of that convention are unavailable. The explanation for the missing record of debates is found in the "Preface" for volume 1 of Nebraska Constitutional Conventions, which relates an account by Mr. H.H. Wheeler, "formerly of the Supreme Court office":

"In the fall of 1889, some days after the death of Guy A. Brown, Clerk of the Nebraska Supreme Court, (which occurred Oct. 27th of that year), I went into the basement vault of the Clerk of the Supreme Court in the state capitol to get some articles belonging to me. On the stairway I met David C. Crawford, one of the state house janitors, [and his] helper named Henry, conveying a cracker box with a lot of papers in it upstairs. I instantly recognized the papers as the manuscript report of the debates in the constitutional convention of 1875. I told the janitors that they were very valuable papers and ought to be preserved. When I came up from the vaults a few minutes later I stepped into the office of the Secretary of State, and told Nelson McDowell, Chief Clerk, and O.C. Bell, Deputy Secretary of State, what I had seen; called their attention to the value of the papers, and that they properly belonged in the custody of the Secretary of State. I have never seen the debates since, although I have made diligent personal search for them in the state house, having an important law suit involving a constitutional question which the debates would have shed light upon. I have never found any one who has seen those manuscripts since that day."

1 Neb. Const.Convs. 7 (1906).

Sic transit gloria mundi [so passes away the glory of the world]--in a cracker box, somewhere. Consequently, we must apply other rules for construction of Neb. Const. art. IV, § 8.

Jaksha and the State refer to Tennant's Case, 3 Neb. 409 (1873), where this court construed the constitutional predecessor of Neb. Const. art. IV, § 8, and held that the Governor has the constitutional power to revoke a proclamation calling a special session of the Legislature before commencement of the special legislative session responsive to the proclamation for convention.

Because Tennant's Case, supra, involved the status of a Governor's proclamation before a special legislative session had convened, Tennant's Case has insignificant precedential value...