State ex rel. Douglas v. Beermann

• Decision Date: 30 March 1984
• Docket Number: No. 83-091,83-091
• Parties: STATE of Nebraska ex rel. Paul L. DOUGLAS, Attorney General of the State of Nebraska, Appellee, v. Allen J. BEERMANN, Secretary of State of the State of Nebraska, et al., Appellants.
• Court: Nebraska Supreme Court

Page 297

347 N.W.2d 297

216 Neb. 849

STATE of Nebraska ex rel. Paul L. DOUGLAS, Attorney General of the State of Nebraska, Appellee, v. Allen J. BEERMANN, Secretary of State of the State of Nebraska, et al., Appellants.

No. 83-091.

Supreme Court of Nebraska.

March 30, 1984.

Syllabus by the Court

1. Constitutional Law. Neb.Rev.Stat. § 50-201 (Cum.Supp.1982) does not violate the constitutionally mandated separation of legislative, executive, and judicial powers found in article II, § 1, of the Nebraska Constitution.

2. Constitutional Law. A legislative statement that an enactment is within the constitutional exercise of the Legislature's power does not violate the constitutionally mandated separation of legislative, executive, and judicial powers found in article II, § 1, of the Nebraska Constitution.

3. Constitutional Law. Neb.Rev.Stat. § 50-202 (Cum.Supp.1982) does not violate article III, § 7, of the Nebraska Constitution.

4. Constitutional Law. Constitutional provisions are not open to construction as a matter of course.

5. Constitutional Law. Before rules of construction become available in regard to a constitutional provision, it must be demonstrated that the meaning of the provision is not clear and that the intent of the people in adopting the provision can be determined only by construction.

6. Constitutional Law. The words and terms of a constitutional provision are to be interpreted and understood in their most natural and obvious meaning, unless the subject indicates or the text suggests that they have been used in a technical sense.

7. Constitutional Law: Words and Phrases. The word "pay," as used in article III, § 7, of the Nebraska Constitution, means wages, remuneration, compensation, or fees.

8. Constitutional Law: Words and Phrases. The word "perquisite," as used in article III, § 7, of the Nebraska Constitution, means a gain or profit made incidentally from the office of legislator, in addition to regular salary.

9. Words and Phrases. "Expenses" are the charges incurred in connection with the performance of one's duties, and typically include transportation, meals, and lodging while traveling.

10. Legislature: Public Officers and Employees. Neb.Rev.Stat. § 50-202 (Cum.Supp.1982) allows legislators reimbursement for expenses incurred in connection with the performance of their duties.

11. Constitutional Law. Ordinarily, executive construction of a constitutional provision, long acquiesced in by the Legislature, is entitled to substantial weight in determining the meaning of the provision.

12. Constitutional Law. A presumption of constitutionality attaches to legislative enactments, and a reasonable legislative interpretation of a constitutional provision which has a doubtful meaning should be adopted by this court.

13. Constitutional Law. The touchstone in determining the meaning of ambiguous constitutional language is to discover and give effect to the intent of the framers of the Constitution and the people in adopting it.

Walter H. Radcliffe, Lincoln, for appellants.

Paul L. Douglas, Atty. Gen., and Patrick T. O'Brien, Asst. Atty. Gen., Lincoln, for appellee.

Herbert M. Fitle, Omaha City Atty., and Timothy K. Kenny, Omaha, for amicus curiae City of Omaha.

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

PER CURIAM.

The district court declared Neb.Rev.Stat. §§ 50-201 and 50-202 (Cum.Supp.1982) to be in contravention of article II, § 1, and article III, § 7, of the Nebraska Constitution. This appeal followed. For the reasons hereinafter stated we reverse and remand for judgment consistent with this opinion.

In the 1981 session of the Legislature, L.B. 206 was passed over the veto of then Governor Charles Thone and is codified at Neb.Rev.Stat. §§ 50-201 and 50-202 (Cum.Supp.1982). These statutes provide: "The Legislature hereby finds and declares (1) that the Constitution of Nebraska, by expressly providing for the legislative branch of government, implies the powers and the duty to provide the means, accessories, and instrumentalities to carry into effect the purposes for which the Legislature was created, (2) that items in the nature of expenses incidental to holding the office are not pay or perquisites within the meaning of Article III, section 7 of the Constitution of Nebraska, and (3) that the Constitution is construed to allow expenses to members of the Legislature, incidental to the performance of their duties as members of the Legislature, without contravening any constitutional provision as to pay, perquisites, or compensation." § 50-201.

"Each member of the Legislature shall be allowed necessary expenses incurred while performing in the official capacity as a member of the Legislature." § 50-202.

The facts have been stipulated. On November 4, 1981, State Senator Ernie Chambers of the 11th Legislative District in Omaha filed a $29.40 claim with the Director of Administrative Services for mileage reimbursement for one round trip between Omaha and Lincoln in connection with his attendance at the first special session of the Eighty-seventh Legislature. This claim was honored and paid.

On November 6, 1981, Senator Chambers filed a claim for $250 to reimburse him for $147 in mileage, for five round trips between Omaha and Lincoln, and $103 in meals. These expenses were incurred also in connection with Senator Chambers' attendance at the 1981 special session. On December 30, 1981, Senator Chambers submitted a claim for $117.60 for four Omaha-to-Lincoln round trips, also for the 1981 special session. Senator Chambers has also filed claims for $50 per day, which includes mileage and meals, for the 1981 90-day regular session of the Legislature and the 1982 60-day regular session. None of these claims have apparently been honored or paid by the Director of Administrative Services.

A petition, naming the Secretary of State and Director of Administrative Services as defendants, was filed by the Attorney General in the district court for Lancaster County, seeking a declaration that §§ 50-201 and 50-202 are in violation of article III, § 7, of the Nebraska Constitution, which provides in relevant part: "Each member of the Legislature shall receive a salary of not to exceed four hundred dollars per month during the term of his office. In addition to his salary, each member shall receive an amount equal to his actual expenses in traveling by the most usual route once to and returning from each regular or special session of the Legislature. Members of the Legislature shall receive no pay nor perquisites other than said salary and expenses, and employees of the Legislature shall receive no compensation other than their salary or per diem."

The district court found § 50-202 to be in conflict with the above-quoted constitutional provision, and § 50-201 an inordinate legislative exercise of judicial power in violation of the constitutionally mandated separation of legislative, executive, and judicial powers found in article II, § 1, of the Nebraska Constitution. It further found that Senator Chambers was entitled to reimbursement of his mileage expenses incurred for one round trip between Omaha and Lincoln for each of the three legislative sessions and that meal expenses were not constitutionally allowed.

We disagree with the district court's interpretation of those constitutional provisions.

We first address the issue of whether § 50-201 violates article II, § 1, of the Nebraska Constitution. Section 50-201 is, in essence, a statement by the Legislature that it has assessed the Nebraska Constitution and concluded that § 50-202 is a constitutional exercise of its power. Assessing the limits of constitutionally permitted conduct is an activity commonly engaged in by many persons or entities other than the judges and courts of this state. Ideally, whenever a police officer, without obtaining a warrant, makes an arrest or conducts a search, that officer has determined the activity is constitutionally permissible. In a similar manner, when the Legislature enacts a law, it has determined that the enactment abides with the Constitutions creating the state and federal governments. While it appears that, in the usual case, a law created by the Legislature is not accompanied by a specific finding that the law is a constitutional exercise of its power, we see no reason to treat the Legislature's expression of its assessment of the limits of its constitutional power as an encroachment upon the powers granted to the judiciary. Section 50-201 in no way encroaches upon the powers commonly exercised by the courts of this state to interpret and enforce their interpretations of the state Constitution. It in no way infringes upon the power of this court, with the concurrence of five of its judges, to declare this act of the Legislature unconstitutional, if such it were. The finding by the district court that the enactment of § 50-201 is a violation of the separation of powers required by article II, § 1, of the Nebraska Constitution is erroneous.

In turning our attention to the question of whether § 50-202 violates article III, § 7, of the Nebraska Constitution, it is well to remind ourselves that constitutional provisions are not open to construction as a matter of course. Gaffney v. State Department of Education, 192 Neb. 358, 220 N.W.2d 550 (1974). Before rules of construction become available in regard to a constitutional provision, it must be demonstrated that the meaning of the provision is not clear and that the intent of the people in adopting the provision can be determined only by construction. State ex rel. School Dist. of Scottsbluff v. Ellis, 168 Neb. 166, 95 N.W.2d 538 (1959). The words and terms of a constitutional provision are to be interpreted and understood in their most natural and obvious meaning, unless the subject indicates or the text suggests that they have been used in a technical sense. State ex rel. Caldwell v. Peterson...