Klosterman v. Marsh, 36361

• Decision Date: 01 July 1966
• Docket Number: No. 36361,36361
• Citation: 143 N.W.2d 744,180 Neb. 506
• Parties: John C. KLOSTERMAN, Appellee, v. Frank MARSH, as Secretary of State of the State of Nebraska, Appellant.
• Court: Nebraska Supreme Court

Page 744

143 N.W.2d 744

180 Neb. 506

John C. KLOSTERMAN, Appellee, v. Frank MARSH, as Secretary of State of the State of Nebraska, Appellant.

No. 36361.

Supreme Court of Nebraska.

July 1, 1966.

Syllabus by the Court

1. Under Nebraska constitutional provisions vesting the legislative power of the state in the Legislature but reserving to the people the right of initiative and referendum, the Legislature, on the one hand and the electorate on the other, are co-ordinate legislative bodies, and there is no superiority of power between the two. In the absence of specific constitutional restraint, either may amend or repeal the enactments of the other.

2. An 'act of the Legislature' under Article III, section 3, of the Constitution of Nebraska, means a particular legislative bill which has been passed by the Legislature and becomes law either by the necessary passage of time for veto, or by the signature of the Governor.

3. Constitutional provisions with respect to the right of initiative and referendum reserved to the people should be construed to make effective the powers reserved.

4. The initiative and referendum provisions of the Constitution of Nebraska reserve to the people the right to act in the capacity of legislators. The presumption should be in favor of the validity and legality of their acts.

5. Signatures on a referendum petition obtained after the act sought to be referred was passed are not rendered invalid merely because they were obtained before the adjournment of the legislative session at which the act was passed.

6. Under the facts shown, the title and text of an act set out in a referendum petition were sufficient.

Clarence A. H. Meyer, Atty. Gen., Gerald S. Vitamvas, Deputy Atty. Gen., Lincoln, for appellant.

Bernard S. Gradwohl, Lincoln, for appellee.

Heard before CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ., and COLWELL, District Judge.

McCOWN, Justice.

This is an action to enjoin the Secretary of State from permitting L.B. 797 of the 1965 Legislature, the Income Tax Act, Laws 1965, chapter 465, page 1476, to be placed on the ballot was referred to the electorate for approval or rejection at the 1966 general election. The district court enjoined the Secretary of State from certifying the title and text of L.B. 797 to the election officials or in any other manner causing the same to be referred to the electorate. This appeal followed.

On June 22, 1965, the 75th Session of the Nebraska Legislature passed L.B. 797 providing for Nebraska's first state income tax. It became law on July 1, 1965, without the signature of the Governor. On July 23, 1965, a form of referendum petition to be used for circulation was filed with the Secretary of State to refer L.B. 797 to the electors of the state for their approval or rejection. Four days later, on July 27, 1965, L.B. 932, Laws 1965, chapter 467, page 1509, was introduced on first reading. On August 5, 1965, L.B. 932 was amended to provide that it was to amend section 1(1) of L.B. 797. On August 16, 1965, L.B. 932 was passed by the Legislature. The Legislature adjourned sine die on August 17, 1965. On August 18, 1965, L.B. 932 was approved by the Governor. L.B. 932 was not included in or made a part of the referendum petition against L.B. 797.

On September 29, 1965, a referendum petition and the required affidavit as to persons contributing money or other things of value in connection with the referendum petition were filed, and on November 15, 1965, additional certificates and a supplemental statement were filed. On December 13, 1965, the Secretary of State certified that sufficient signatures had been properly filed in accordance with Article III, section 3, of the Constitution of Nebraska, and section 32--704, R.R.S.1943, to refer L.B. 797 to the electors of the state. The Secretary of State found 82,132 valid signatures which were more than the 5 percent requirement of the Constitution of Nebraska (28,905), and also more than the 10 percent required to suspend the taking effect of such act and showed the required distribution among counties.

A number of the petition signers actually signed petitions on or before August 17, 1965. It is conceded that if these signatures obtained prior to August 17, 1965 are invalid as a class there would be an insufficient number of counties having a 5 percent total to meet the constitutional requirements.

L.B. 932 changed a part of subsection (1) of section 1 of L.B. 797 by deleting a portion of a sentence which provided, in effect, that the income of a cooperative should be considered its net income before any payments obligated or paid as dividends or patronage refunds. It substituted for the deleted part a provision which permitted deduction of patronage dividends, as specified, in determining the net income of a cooperative. This constituted the entire effect of L.B. 932. The evidence introduced by the plaintiff showed that there were 369 cooperatives headquartered in Nebraska, and more than 278,600 members of the Nebraska cooperatives, and that the annual business transacted by cooperatives in Nebraska is very substantial.

The right of the people to exercise the initiative and referendum is specifically reserved to them in Article III, section 1, of the Constitution of Nebraska, in part: 'The people reserve for themselves, however, the power to propose laws, and amendments to the constitution, and to enact or reject the same at the polls, independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act, item, section, or part of any act passed by the Legislature.'

Article III, section 3, of the Constitution of Nebraska, specifically applies to the referendum. 'The second power reserved is the referendum which may be invoked, by petition, against any act or part of an act of the Legislature, except those making appropriations for the expense of the state government or a state institution existing at the time of the passage of such act. Petitions invoking the referendum shall be signed by not less than five per cent of the electors of the state, distributed as required for initiative petitions, and filed in the office of the Secretary of State within ninety days after the Legislature at which the act sought to be referred was passed shall have adjourned sine die or for more than ninety days. Such petition shall set out the title of the act against which the referendum is invoked, and in addition thereto, when only a portion of the act is sought to be referred, the number of the section or sections or portion of sections of the act designating such portion. When the referendum is thus invoked, the Secretary of State shall refer the same to be electors for approval or rejection at the first general election to be held not less than thirty days after the filing of such petition.

'When the referendum is invoked, as to any act or part of act, other than emergency acts or those for the immediate preservation of the public peace, health or safety, by petition signed by not less than ten per cent of the electors of the state, distributed as aforesaid, it shall suspend the taking effect of such act or part of act until the same has been approved by the electors of the state.'

Article III, section 4, of the Constitution of Nebraska, specifically provides in part: 'The provisions with respect to the initiative and referendum shall be self-executing, but legislation may be enacted to facilitate their operation.'

Section 32--702, R.R.S.1943, requires that the form of referendum petition shall be substantially as specified in that section. The statutory form requires a concise statement in large type of the legal effect of the filing of the petition and the objective sought to be secured by submitting the measure to the voters. The statutory form reads in part: 'Legislative Bill No. _ _ entitled (title of act, and if the petition is against less than the whole act then set forth here the part or parts on which the referendum is sought), * * *.' (Emphasis supplied.)

Section 32--704, R.R.S.1943, provides: 'Upon each sheet for petitioners' signatures shall be printed a full and correct copy of the title and text of the law or amendment to the Constitution so proposed or the measure sought to be referred to the electors by the initiative or referendum petition, as the case may be, * * *. Prior to obtaining any signatures to the petition, a copy of the form to be used shall be filed with the Secretary of State, * * *.'

This is apparently a case of first impression on the specific factual situation presented. It involves a situation in which the Legislature passed a legislative bill embodying a complete act. Circulation of a referendum petition against that act was commenced after the passage and adoption of the bill, but before the adjournment of that session of the Legislature. The Legislature then introduced and passed a separate bill amending a part of one section of the original bill. The referendum petition against the original act was not changed and was then completed and filed after the amendment and after the adjournment of that session of the Legislature. We have been cited to no cases directly in point from this or any other jurisdiction.

The plaintiff contended and the lower court determined that the Constitution contemplates that the proceedings of the Legislature and the operation of the referendum proceedings shall be consecutive and not concurrent legislative processes, and that the power to refer legislation can be construed consistently only if referral is delayed until final action of the the Legislature on any particular legislative proposal. To the extent this conclusion implies that the legislative power of initiative and referendum reserved to the people and the legislative authority granted to the Legislature may not be exercised concurrently, we disagree. Both the initiative and the referendum involve the...