State ex rel. Spire v. Public Employees Retirement Bd.

• Decision Date: 07 August 1987
• Docket Number: No. 86-819,86-819
• Citation: 410 N.W.2d 463,226 Neb. 176
• Parties: STATE of Nebraska ex rel. Robert M. SPIRE, Attorney General of the State of Nebraska, Relator, v. PUBLIC EMPLOYEES RETIREMENT BOARD et al., Respondents.
• Court: Nebraska Supreme Court

Page 463

410 N.W.2d 463

226 Neb. 176

STATE of Nebraska ex rel. Robert M. SPIRE, Attorney General of the State of Nebraska, Relator, v. PUBLIC EMPLOYEES RETIREMENT BOARD et al., Respondents.

No. 86-819.

Supreme Court of Nebraska.

August 7, 1987.

Syllabus by the Court

1. Constitutional Law: Statutes. Statutes are presumed to be constitutional, and all reasonable doubt must be in favor of the statutes' constitutionality.

2. Constitutional Law: Statutes. The party challenging the constitutionality of a statute has the burden to show it is unconstitutional.

3. Constitutional Law: Courts. Courts must apply and must enforce the Constitution as it is written.

4. Constitutional Law. Before construing a constitutional provision, it must be demonstrated that its meaning is not clear and that construction is necessary.

5. Constitutional Law. If a constitutional provision is construed, its words and terms are to be interpreted in their most natural and obvious sense, although they should receive a more liberal construction than statutes and are not subject to rules of strict construction.

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

7. Constitutional Law: Statutes: Legislature. L.B. 1129, adopted by the Nebraska Legislature on April 16, 1986, is in contravention of the provisions of Neb. Const. art. III, § 7, and as such is invalid and unenforceable.

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

Steven E. Achelpohl, of Schumacher & Gilroy, Omaha, for respondents.

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

PER CURIAM.

This is a declaratory judgment action, brought by the Attorney General of the State of Nebraska, as relator for the State of Nebraska, challenging the constitutionality of 1986 Neb.Laws, L.B. 1129, passed by the Nebraska Legislature on April 16, 1986, over the veto of then Governor Robert Kerrey. Respondents are public officers delegated duties to implement the law, including then Treasurer, now Governor, Kay Orr. Because this is a civil action in which the State is a party and because this action involves a matter relating to the revenue of the State, is of great public importance, requires a prompt answer, and does not involve any disputed questions of fact, we granted authority to the Attorney General to file an original action in the Supreme Court pursuant to Neb. Const. art. V, § 2, and the provisions of Neb.Rev.Stat. § 24-204 (Reissue 1985).

We have now reviewed the law in question, considered the arguments of the parties, and examined the applicable authorities. We are of the opinion that L.B. 1129 is in contravention of the provisions of Neb. Const. art. III, § 7, and as such must be declared invalid and unenforceable.

L.B. 1129, which consists of 20 specific sections, attempts to create a pension program to provide retirement benefits to members of the Nebraska Legislature. Section 3 of the law establishes a retirement system to be known as the Legislators' Retirement System. Section 5 provides that the system is to be administered by the Public Employees Retirement Board, and § 9 creates a fund known as the Legislators' Retirement Fund. Under provisions of § 12 of the act, a member of the Legislature is eligible for a retirement allowance, upon his or her written application, if he or she has attained the age of 65, has completed 5 or more years of "creditable service," and is no longer a member of the Legislature. "Creditable service" is defined under the provisions of § 4 of the act to mean "all years of service in the Legislature for any person who becomes a member of the system." The act further provides that upon retirement eligible members shall receive a monthly allowance equal to $38 times the number of years of his or her creditable service, subject to certain other limitations set out in the act. Finally, § 20 provides for an appropriation of $177,500 for the period of July 1, 1986, to June 30, 1987, for payment into the Legislators' Retirement Fund.

Each side cites us to a series of legal principles to be used when attempting to examine the constitutionality of a legislative act. We are reminded that statutes are presumed to be constitutional, and all reasonable doubt must be in favor of the statutes' constitutionality. State v. Mayhew Products Corp., 211 Neb. 300, 318 N.W.2d 280 (1982). The party challenging the constitutionality of a statute has the burden to show it is unconstitutional. Weiner v. State ex rel. Real Estate Comm., 217 Neb. 372, 348 N.W.2d 879 (1984). Courts must apply and must enforce the Constitution as it is written, State ex rel. Meyer v. Steen, 183 Neb. 297, 160 N.W.2d 164 (1968), and 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 construing a constitutional provision, it must be demonstrated that its meaning is not clear and that construction is necessary. State ex rel. School Dist. of Scottsbluff v. Ellis, 168 Neb. 166, 95 N.W.2d 538 (1959). If a constitutional provision is construed, its words and terms are to be interpreted in their most natural and obvious sense, although they should receive a more liberal construction than statutes and are not subject to rules of strict construction. Nebraska P.P. Dist. v. Hershey School Dist., 207 Neb. 412, 299 N.W.2d 514 (1980). The language of the Constitution is to be interpreted with reference to established laws, usages, and customs of the country at the time of its adoption, State ex rel. Caldwell v. Peterson, 153 Neb. 402, 45 N.W.2d 122 (1950), and State v. Sheldon, 78 Neb. 552, 111 N.W. 372 (1907); yet the terms and provisions of the Constitution "are constantly expanded and enlarged by construction to meet the advancing affairs of men." State ex rel. State Railway Commission v. Ramsey, 151 Neb. 333, 338, 37 N.W.2d 502, 506 (1949).

We turn first to the specific language of the Constitution which the Attorney General maintains invalidates the provisions of L.B. 1129. It is a section which we have had occasion in recent times to examine. See State ex rel. Douglas v. Beermann, 216 Neb. 849, 347 N.W.2d 297 (1984). Specifically, the language in question is found in Neb. Const. art. III, § 7, and reads in relevant part as follows:

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 and special session of the Legislature. Members of the Legislature shall receive no pay nor perquisites other than said salary and expenses....

(Emphasis supplied.)

The question, simply stated, is: Does the granting of a retirement benefit to members of the Legislature constitute either "pay" or a "perquisite" otherwise prohibited by the provisions of Neb. Const. art. III, § 7?

While presented to us in a slightly different context, we did have an occasion to define the terms "pay" and "perquisite" in State ex rel. Douglas v. Beermann, supra at 854-55, 347 N.W.2d [226 Neb. 180] at 301-02, where we said:

Webster's Third New International Dictionary, Unabridged (1968), tells us that "pay," as a noun, in an archaic sense, means "something given in return by way of reward or retaliation"; that it is wages, salary, or remuneration. Black's Law Dictionary 1016 (5th ed. 1979) defines the noun "pay" as meaning compensation, wages, salary, commissions, or fees....

"Perquisite" is defined in Webster's Third New International Dictionary, Unabridged (1968), as casual income or profits; a privilege, gain, or profit incidental to an employment in addition to regular salary or wages; a gratuity or tip; something held or claimed as an exclusive right or possession. Black's Law Dictionary 1027 (5th ed. 1979) defines the word as meaning emoluments, fringe benefits, or other incidental profits or benefits attaching to an office or position. We have previously, in State v. Sheldon, 78 Neb. 552, 111 N.W. 372 (1907), defined perquisite as a gain or profit incidentally made from employment in addition to regular salary or wages. In that case we held that a residence provided by the state for occupancy by the Governor, at the place he was required by law to live, was not a "perquisite" within the meaning of a constitutional provision that the Governor might not receive any "perquisites of office or other compensation" in addition to his salary. We concluded that perquisite meant a compensation or reward for the performance of an official duty. [Citations omitted.]

We concluded in State ex rel. Douglas v. Beermann, supra at 855-56, 347 N.W.2d at 302, by saying:

Therefore, the first 14 words of the third sentence of the constitutional provision in question, "Members of the Legislature shall receive no pay nor perquisites other than said salary," given their most natural and obvious meaning, say that Nebraska's legislators shall receive no wages, remuneration, compensation, fees, profit, or gain incidental to their office other than the salary mandated in the first sentence of the section.

We concluded that by reason of the provisions of Neb. Const. art. III, § 7, a legislator could only receive $400 per month by way of salary and be reimbursed for expenses actually incurred in the performance of the legislator's official duties. In view of the fact that the moneys to be reimbursed to the legislator in the performance of official duties for expenses incurred were to be equal to and not in excess of actual moneys paid or incurred by the legislator for and on behalf of the State, the legislator would not be receiving more than $400 per month as...