Omaha Nat. Bank v. Spire

• Decision Date: 20 June 1986
• Docket Number: No. 85-471,85-471
• Parties: The OMAHA NATIONAL BANK, a Corporation, Appellant, v. Robert M. SPIRE, Attorney General of the State of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 269

389 N.W.2d 269

223 Neb. 209

The OMAHA NATIONAL BANK, a Corporation, Appellant, v. Robert M. SPIRE, Attorney General of the State of Nebraska, Appellee.

No. 85-471.

Supreme Court of Nebraska.

June 20, 1986.

Syllabus by the Court

1. Constitutional Law. The State of Nebraska does not derive any of its substantive powers from the Preamble to the Nebraska Constitution. The Preamble cannot exert any power to secure the declared objects of the Constitution unless, apart from the Preamble, such power can be found in, or can be properly implied from, some express delegation in the Constitution.

2. Constitutional Law: Initiative and Referendum. Under the Nebraska Constitution, in an initiative proceeding, the labeling attached to a proposed enactment determines the nature of the proposed enactment.

3. Constitutional Law. A proposed amendment to the Nebraska Constitution does not have to deal with fundamental rights or the organization of government, but may deal with any subject.

4. Constitutional Law: Initiative and Referendum. Conflict with existing articles or sections of a constitution can afford no logical basis for invalidating an initiative amendment.

5. Constitutional Law: Initiative and Referendum. The intent of the voters adopting an initiative amendment to the Nebraska Constitution must be determined from the words of the initiative amendment itself.

6. Constitutional Law. Neb. Const. art. XII, § 8(1), does not conflict with 12 U.S.C. § 29 (1982).

7. Constitutional Law: Due Process: Equal Protection. Neb. Const. art. XII, § 8(1), does not conflict with the due process or equal protection clauses of the 14th amendment of the U.S. Constitution.

8. Declaratory Judgments. The granting of declaratory relief is discretionary.

9. Rules of the Supreme Court: Appeal and Error. This court reserves the right to note and correct plain error which appears on the face of the record in furtherance of the interests of substantial justice.

James W.R. Brown and Thomas R. Brown of Fitzgerald, Brown, Leahy, Strom, Schorr & Barmettler, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Bernard L. Packett, Lincoln, for appellee.

Charles E. Wright and Kathleen A. Jaudzemis of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for amicus curiae First Nat. Bank & Trust Co. of Lincoln.

Richard L. Berkheimer and Carmen K. Maurer of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for amicus curiae Nat. Bank of Commerce Trust and Sav. Ass'n.

Vard R. Johnson of Broom & Johnson, Omaha, for amici curiae Hall et al.

KRIVOSHA, C.J., and BOSLAUGH, CAPORALE, SHANAHAN, and GRANT, JJ., and McCOWN, J., Retired, and COLWELL, D.J., Retired.

GRANT, Justice.

This is a declaratory judgment action brought by the plaintiff-appellant, The Omaha National Bank, a corporation, against the defendant-appellee, Attorney General of the State of Nebraska. Omaha National alleged in its petition that it was a corporation organized under the laws of the United States (a national bank) and was authorized to, and did, carry on a banking business in the State of Nebraska, including owning title to real estate as a corporation. Omaha National further alleged that under provisions of the United States Code, it had authority to, and did, act as trustee, executor, administrator, and in other fiduciary capacities; that it has held, and will hold, farm and ranch lands in trust; and that it has been trustee under various wills and has been designated to take title to such lands to administer them.

Omaha National further alleged that on November 2, 1982, the voters of the State of Nebraska adopted Initiative Petition 300, which purports to amend article XII of the Nebraska Constitution by adding a new section, designated as § 8. As stated in the initiative petition, the enactment provided in part as follows:

That Article XII of the Constitution of the State of Nebraska be amended by adding a new section numbered 8 and subsections as numbered, notwithstanding any other provisions of this Constitution.

Sec. 8(1) No corporation or syndicate shall acquire, or otherwise obtain an interest, whether legal, beneficial, or otherwise, in any title to real estate used for farming or ranching in this state, or engage in farming or ranching.

....

The Secretary of State shall monitor corporate and syndicate agricultural land purchases and corporate and syndicate farming and ranching operations, and notify the Attorney General of any possible violations. If the Attorney General has reason to believe that a corporation or syndicate is violating this amendment, he or she shall commence an action in district court to enjoin any pending illegal land purchase, or livestock operation, or to force divestiture of land held in violation of this amendment.

Omaha National alleged that "[i]f Initiative 300 is construed to apply to the acquisition and administration of farm and ranch lands by [Omaha National] for non-corporate and non-syndicate beneficiaries, it will greatly limit [Omaha National's] ability to carry on a trust business in the State of Nebraska."

Omaha National further alleged that in the course of its business it will, in the future, acquire title to farm and ranch lands and will operate and manage such lands, and will lease or sell such lands without restriction as to whether the lessee or purchaser is a corporation. Omaha National then contends that insofar as Initiative 300 prohibits such activities, Initiative 300 is void.

The petition prayed that Initiative 300 be determined not to apply to Omaha National as a trustee holding farm and ranch land in trust, or as an owner of such lands, or that Initiative 300 be determined to be void as violating certain provisions of the U.S. and Nebraska Constitutions.

Defendant Attorney General filed his answer admitting the formal allegations of the petition, denying that Initiative 300 was void for any reason, denying the other allegations, and alleging that 12 U.S.C. § 92a (1982) did not authorize the Comptroller of the Currency to authorize Omaha National to act as trustee or administrator (as alleged by Omaha National) when Omaha National was operating in contravention of state law. Defendant prayed that the court declare Omaha National to be a corporation subject to the provisions of Initiative 300.

Each party moved for summary judgment. A single hearing was held on both motions. The evidence before the court consisted of facts properly pled and not denied, the parties' "Stipulation of Facts," and affidavits. The trial court determined there were no genuine issues as to any material facts necessary for the court's decision. After the hearing the court entered its order on the two motions, and on June 6, 1985, entered its judgment finding generally that Initiative 300 was a valid amendment to the Nebraska Constitution and dismissing Omaha National's declaratory judgment action, except that the court found that "the first sentence of subsection (K) of Initiative 300 conflicts with section 29 of the National Bank Act and is void under the supremacy clause of the United States Constitution...." The court declined to determine that the 5-year holding period of Initiative 300 conflicts with the National Bank Act. As to that issue, the court found there was not a justiciable controversy cognizable in a declaratory judgment action.

Omaha National timely appealed, and in this court alleges that the trial court erred in the following specific respects:

1. In not holding that Initiative 300 is statutory in nature and void because it conflicts with Neb. Const. art. I, §§ 1, 3, and 25.

2. In holding that Initiative 300 prohibits Omaha National from holding farm and ranch lands in trust for noncorporate and nonsyndicate beneficiaries.

3. In holding that the evidence was insufficient to show any conflict between the National Bank Act and those portions of Initiative 300 which purport to prohibit plaintiff from operating, leasing, or selling farm and ranch lands.

4. In failing to hold that the provisions of Initiative 300 which purport to prohibit plaintiff from operating, leasing, or selling farm and ranch lands were in conflict with the National Bank Act and void.

5. In holding that Initiative 300 does not conflict with the equal protection clause of the 14th amendment of the U.S. Constitution.

6. In holding that a justiciable controversy was not presented with respect to the validity of the absolute 5-year limitation imposed by Initiative 300 on the holding of farm and ranch lands by a national bank.

We modify the judgment of the trial court and, as modified, affirm.

We begin our analysis by quoting the observation of the U.S. Supreme Court in New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976): "[T]he judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines...."

Even more so, in a case involving the people's amendment to their Constitution, we make no attempt to judge the wisdom or the desirability in enacting such amendments. Our task, and the only task we undertake, is to determine whether any of Omaha National's assignments of error have legal merit.

With regard to appellant's contentions, we are aided not only by the briefs of appellant and amici but by a law review article prepared by appellant's counsel. See Brown & Brown, Constitutionality of Nebraska's Initiative Measure Prohibiting Corporate Farming and Ranching, 17 Creighton L.Rev. 233 (1984). In opposition thereto, we have available the defendant's brief, and those of certain amici who support the Attorney General's position in part, as well as a responding law review article. See Lake, Constitutionality of "Initiative 300": An Answer, 17 Creighton L.Rev. 261 (1984).

We first discuss Omaha National's contention that Initiative 300 is statutory...