In this original action, Gayle E. Haman, a resident Nebraska taxpayer, on behalf of herself and all others similarly situated, attacks the constitutionality of legislation which would pay $33.8 million of state tax money to depositors who have suffered losses due to the failure of industrial loan and investment companies in Nebraska.
Because 1990 Neb. Laws, L.B. 272A, passed by Nebraska’s Ninety-first Legislature, Second Session, is (1) special legislation which creates (a) an unreasonable and (b) a closed classification, in contravention of Neb. Const, art. Ill, § 18, and (2) gives the state’s credit to a private corporation, in contravention of Neb. Const, art. XIII, § 3, it is unconstitutional.
*703 On November 1,1983, the Nebraska Department of Banking and Finance (department) closed Commonwealth Savings Company (Commonwealth) and placed it in receivership. On January 4, 1985, the Nebraska Depository Institution Guaranty Corporation (NDIGC), a private corporation created to insure deposits up to $30,000 in industrial loan and investment companies and cooperative credit associations (industrial companies), turned over and surrendered all of its assets to the receiver of Commonwealth. The NDIGC thereafter has had no assets to fulfill its guaranty of any deposits in any depository institution.
On March 20, 1985, the receiver filed a tort claim lawsuit against the State of Nebraska in the district court for Lancaster County. The suit alleged numerous acts of wrongful and negligent conduct by the department in its supervision, regulation and examination of Commonwealth and in admitting Commonwealth as a member of the NDIGC. This suit ended with a court-approved settlement of $8.5 million as a full and complete compromise of any and all legal claims of the receiver, Commonwealth holders of certificates of indebtedness, and creditors against the state and its officials. See
Weimer v. Amen,
After the closing of Commonwealth, all but two of the remaining industrial companies either merged with, or were purchased by, other financial institutions, received charters to operate as banks, or sought protection by reorganization under Chapter 11 of the U.S. Bankruptcy Code. The two remaining industrial companies which have continued to operate are First Commerce Savings of Lincoln, Nebraska, and Commerce Savings of Columbus, Nebraska. The stipulation of the parties indicates that the depositors of these two industrial companies are now insured by the FDIC. The only two industrial companies to seek bankruptcy protection were American Savings Company and State “Securities” Savings Company. Legal claims filed by these two companies against the state were dismissed by demurrer and then dismissed voluntarily on appeal,
see American Savings Co. v. State,
In 1984, Nebraska’s Legislature provided that industrial loan and investment companies organized under state law must, within 6 months of March 13 of that year, obtain and continually maintain insurance of their savings or certificates of indebtedness by membership in the FDIC, merge with an institution holding such membership and insurance, or provide notice to their depositors that their deposits were not insured. Any industrial loan and investment company organized after March 13, 1984, was and is required to comply with the same requirements before commencing its operations. See Neb. Rev. Stat. § 8-407.03 (Reissue 1987).
As a response to the losses to specified depositors because of the demise of the NDIGC, Nebraska’s Legislature passed L.B. 272A, and the Governor signed the act on April 2, 1990. This legislation authorized the department to fulfill the $30,000 guaranty of each and every deposit. The Legislature appropriated $16.9 million for each of two fiscal years, with the intent of future appropriations from time to time until the $30,000 guaranties are discharged.
The pertinent provisions of L.B. 272A read as follows:
Section 1. For purposes of this act:
(1) Company in receivership shall mean an industrial company which is being liquidated by a receiver or the department;
(2) Department shall mean the Department of Banking and Finance;
(3) Deposit shall mean a certificate of indebtedness . . . which was unpaid when a protected company filed bankruptcy pursuant to Chapter 11 of the United States Bankruptcy Code or when a company in receivership entered receivership;
(5) Industrial company shall mean any industrial loan and investment company;
(7) Protected company shall mean an industrial company that filed bankruptcy pursuant to Chapter 11 *705 ... after November 1,1983 ...
Sec. 2. The Legislature hereby finds and declares that the [NDIGC] was formed with department approval to protect depositors of certain financial institutions____[I]n 1977 the Legislature enacted what now appears as section 21-17,144 which requires every depository institution to display at each place of business maintained by it a sign or signs indicating that its member or depositor accounts are protected by the [NDIGC] and that it include in all of its advertisements a statement to the effect that its member or depositor accounts are protected by the [NDIGC].
The Legislature further finds and declares that prior to the department’s approval of Commonwealth ... as a member of the [NDIGC] the department knew or should have known that Commonwealth . . . was in unsatisfactory financial condition .... [Beginning in 1982 the department knew that Commonwealth . . . was insolvent, but at no time prior to November 1, 1983, did the department report [Commonwealth’s] insolvency to other industrial companies or to the public, and at no time did the department prior to November 1,1983, take action against Commonwealth... or its officers____
The Legislature further finds and declares that on November 1, 1983 . . . the department, without regard to whether other industrial companies were solvent, publicly ordered all other industrial companies to refuse to allow depositors to withdraw funds unless the depositors’ certificates of indebtedness had matured. The publication of such an order caused depositors to lose confidence in industrial companies, to withdraw their deposits as soon as their certificates of indebtedness matured, and to decline to reinvest their money in any other industrial company. Therefor the assets of such industrial companies were continuously drained until all such companies were forced to merge with or be purchased by other financial institutions or to seek protection by reorganization under Chapter 11 ... . Because of the above chain of events, after November 1, 1983, holders of certificates of
*706 indebtedness in industrial companies which later became protected companies were paid in full if their certificates . . . matured before the industrial company filed bankruptcy, but those whose certificates . . . happened to mature afterwards received only partial payment.
The Legislature further finds and declares that the enactment of the Nebraska Property and Liability Insurance Guaranty Association Act has allowed state funds by means of premium tax credits to be used to protect policyholders in insolvent insurance companies, and the same principle should be extended to depositors in insolvent industrial companies.
The Legislature further finds and declares that the actions of the department [and] the requirement passed by the Legislature in section 21-17,144, that is, that the thirty-thousand-dollar guaranty of each deposit by the [NDIGC] be displayed and advertised, and principles of fairness all require that the State of Nebraska fulfill the thirty-thousand-dollar guaranty of each and every deposit.
Sec. 3. In addition to the findings in section 2 of this act, the Legislature further finds and declares that the circumstances recited in such section have seriously impaired the confidence of the people of this state in the Legislature and in the enactments of the Legislature such as section 21-17,144 . . . the welfare and stability of this state and its financial institutions require that the people have confidence in the Legislature and in the financial institutions . . . and the redemption of the guaranty to depositors by the [NDIGC] will serve a necessary public purpose and will effect a sound and necessary public policy.
Sec. 4. The department shall, from money appropriated to it from time to time, distribute to depositors sums of money to be applied to the payment of deposits up to thirty thousand dollars. ... To ensure fair and equitable distribution of the money appropriated and that all depositors will recover the guaranteed portions of *707 their deposits at approximately the same time, the distributions shall be allocated so that, at any one point in time, all depositors shall be reasonably assured of recovering the same percentage of the guaranteed portions of their deposits____
Sec. 6. When payment has been offered to all depositors in the full amount of the thirty-thousand-dollar guaranty, then, but not before, the offer of such payment to each depositor shall (1) constitute a full satisfaction of the depositors’ claims against the state based on the guaranty by the [NDIGC]____
1990 Neb. Laws, L.B. 272A.
At the time L.B. 272A was passed, only depositors of Commonwealth, American Savings, and State Securities Savings fit within the defined class of recipients. Shortly after L.B. 272A was signed by the Governor, this suit was filed, and a temporary restraining order was issued by this court on June 29,1990, halting any planned disbursements.
The plaintiff, a nondepositor Nebraska taxpayer and resident, prays that this court declare L.B. 272A unconstitutional, permanently enjoin its implementation, and award her attorney fees and costs.
The defendants were sued in their official capacities as officers of the State of Nebraska. Defendants, Frank Marsh, Treasurer; Deb Thomas, Director of Administrative Services; and Cynthia H. Milligan, Director of Banking and Finance, ask this court to find L.B. 272A constitutional as a legitimate exercise of police power, dismiss plaintiff’s original action with prejudice, and tax all costs to the plaintiff.
Briefs were also submitted by Security Investment Company, as intervenor and successor in interest to and assignee of State Security “Investment” Co. (Intervenor), and the receiver of Commonwealth, as amicus curiae (Amicus), in support of the constitutionality of L.B. 212A.
The plaintiff makes four arguments attacking the constitutionality of L.B. 272A, as follows:
(1) The state had no preexisting legal duty to pay depositors. Any liability to the Commonwealth depositors was discharged *708 by the settlement between the receiver and the state and the appropriation of $8.5 million to consummate that settlement. The depositors of State Securities Savings and American Savings, the only other institutions covered by the legislation, had their claims dismissed. Legislation which acts retroactively to compensate private individuals is invalid because it violates due process of law, it effects an unreasonable classification, and it constitutes special legislation.
(2) Legislation which operates upon or affects a closed class constitutes special legislation and creates an unreasonable classification, in violation of Neb. Const, art. I, § 16, and Neb. Const, art. Ill, § 18. L.B. 272A operates upon a class consisting of Commonwealth, American Savings, and State Securities Savings depositors, which class is closed, leaving no room or opportunity for an increase in the members of the class.
(3) L.B. 272A violates Neb. Const, art. XIII, § 3, which prohibits the state, except in circumstances not relevant here, from giving or loaning its credit in aid of any individual, association, or corporation.
(4) Legislation which has no regulatory function, which bears no rational relationship to the welfare of the public, and which is contrary to the provisions of the Constitution cannot be justified as an exercise of police power.
Claims of unconstitutionality must be examined under the following rules of law: The party claiming that a legislative act is unconstitutional has the burden of establishing such unconstitutionality, and all reasonable doubts will be resolved in favor of constitutionality.
In re Application A-16642,
SPECIAL LEGISLATION
We begin by addressing the plaintiff’s first and second arguments, whereby she claims that L.B. 272A is special *709 legislation. The pertinent constitutional provision is as follows:
The Legislature shall not pass local or special laws in any of the following cases, that is to say:
Granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever .... In all other cases where a general law can be made applicable, no special law shall be enacted.
Neb. Const, art. Ill, § 18.
By definition, a legislative act is general, and not special, if it operates alike on all persons of a class or on persons who are brought within the relations and circumstances provided for and if the classification so adopted by the Legislature has a basis in reason and is not purely arbitrary. See
Bauer
v.
State Game, Forestation and Parks Commission,
A legislative act can violate Neb. Const, art. Ill, § 18, as special legislation in one of two ways: (1) by creating a totally arbitrary and unreasonable method of classification, or (2) by creating a permanently closed class. See
City of Scottsbluff
v.
Tiemann,
*710 Unreasonable Classification
The term “class legislation” is a characterization of legislation in contravention of Neb. Const. art. III, § 18.
State, ex rel. Taylor, v. Hall,
The plaintiff cites various cases, most notably
Cox
v.
State,
The defendants argue, without citation, the proposition that “legislative classifications will be upheld as long as there is some rational basis for establishing the classification or there is a valid public policy reason for establishing the legislative classification.” (Emphasis omitted.) Brief for defendants at 14.
Contending that a rational basis exists for L.B. 272A, the defendants argue it was enacted in response to a unique situation involving a class of individuals who suffered a real difference in harm from those outside the class.
Based on the proposition that any act is permissible if it is reasonably designed for promotion of public health, safety, morals, security, prosperity, contentment, or the general welfare of a state’s inhabitants, the defendants also contend that there was a valid public purpose for enacting the legislation. The defendants maintain that a moral obligation *711 existed on the part of the state and that L.B. 272A would extinguish this moral obligation and, in turn, instill confidence in the Legislature, its enactments, and the state banking system.
In essence, the defendants argue that there was a public purpose for L.B. 272A and that since what is accomplished under the act is rationally related to that purpose, this court should defer to the findings of the Legislature. Nothing in the briefs of the Intervenor or Amicus add to this contention.
We must first consider the applicable test for determining the constitutionality of legislative classifications, which test has been set out succinctly by prior case law.
“A legislative classification, in order to be valid, must be based upon some reason of public policy, some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to objects to be classified. Classifications for the purpose of legislation must be real and not illusive; they cannot be based on distinctions without a substantial difference.“Classification is proper if the special class has some reasonable distinction from other subjects of like general character, which distinction bears some reasonable relation to the legitimate objectives and purposes of the legislation. The question is always whether the things or persons classified by the act form by themselves a proper and legitimate class with reference to the purpose of the act.”
(Citation omitted.) (Emphasis omitted.)
State ex rel. Douglas v. Marsh,
From the foregoing, we are unpersuaded by the analysis of the defendants. Despite lengthy briefs by all those supporting L.B. 272A’s constitutionality, their analysis is flawed by the use of a faulty proposition of law. Repeated again, they presuppose that “legislative classifications will be upheld as long as there is some rational basis for establishing the classification or there is a valid public policy reason for establishing the legislative classification.”
The first and most obvious flaw is that the proposition is disjunctive. Under that flawed proposition, either a rational basis or public policy would support the constitutionality of
*712
L.B. 272A. However, we have previously disposed of this argument. If the purpose of a legislative act is unclear and the Legislature declares a public purpose which is not invalid on its face, this court will give strong consideration to the intent of the Legislature, but if the act is clearly contrary to the Constitution, the court must declare the act unconstitutional regardless of the proclaimed legislative intent. See,
State ex rel. Spire v. Public Emp. Ret. Bd., 226
Neb. 176,
The second flaw in the defendants’ presentation is that it relies upon an erroneous test. The defendants argue that rational basis is the appropriate test of legislation challenged as being in contravention of Neb. Const, art. Ill, § 18. In Nebraska, both equal protection and the prohibition against special legislation emanate from that constitutional provision.
See Distinctive Printing & Packaging Co.
v.
Cox,
Under equal protection, classifications that do not involve a suspect class or fundamental right are tested for rational basis. All that is required is that there be a rational relationship between a legitimate state interest and the statutory means selected by the Legislature to accomplish that purpose. See,
Distinctive Printing & Packaging Co.
v.
Cox, supra
(rational basis for parental liability statute holding parents liable for children causing intentional property damage);
Snyder
v.
IBP, inc.,
However, the plaintiff has not attacked L.B. 272A on equal protection grounds but, rather, attacks it as special legislation.
*713
The narrower special legislation prohibition supplements the equal protection theory.
McRoberts v. Adams,
There has obviously been a judicial tendency to blur the difference between the two tests, leading to the present confusion.
Dover
v.
Imperial Cas. & Indem. Co.,
[Ujnder the Equal Protection clause, both state and federal courts will uphold state laws which make economic classifications “unless ‘the classification rests on grounds wholly irrelevant to the achievement of the State’s objective’ ” [citation omitted], or unless the law “is so unrelated to the achievement of a legitimate purpose that it appears irrational” [citation omitted]. On the other hand, the test for statutes challenged under the special-laws prohibitions ... is that they must bear “a reasonable and substantial relation to the object sought to be accomplished by the legislation.”
Benderson Development Co.
v.
Sciortino,
*714 Having determined the applicable test, we consider whether L.B. 272A contravenes Nebraska’s Constitution, which prohibits special legislation. The inquiry is whether payments to a class of failed industrial company depositors bear a reasonable and substantial relation to instilling confidence in the Legislature, its enactments, and the state banking system.
The plaintiff initially argues that there is no legal obligation on the part of the state to these depositors. See
Weimer
v.
Amen,
The plaintiff responds to this argument by stating that “legislative appropriations in response to what are deemed to be moral obligations, invites [sic] open-ended appeals from those claiming injury where there is an arguable connection between that injury and state governmental activity.” Reply brief for plaintiff at 4-5.
Addressing the defendants’ argument, we have already determined that a mere rational basis nexus is insufficient. In specific regard to the moral obligation found by the Legislature, we need not rule whether a moral obligation would provide reasonable and substantial support for the classification in question, for we find that no moral obligation existed. In
Wakeley
v.
Douglas County,
There is no reasonable and substantial relationship between the classification and the object sought to be accomplished by L.B. 272A. Payments of deposits in a now defunct private guaranty system can hardly be said to instill confidence in the state’s banking depositors. All deposits are now federally insured or not insured at all. If not insured, notice is given to the depositor. It appears the opposite result of that intended by the Legislature in enacting L.B. 272A would occur. The act would instill fear rather than confidence, for it indicates that every time someone is injured, the state will rescue him or her. The result could be either economic bankruptcy or economic suffocation through taxation. The scheme outlined by L.B. 272A extends even further than the statute in
Cox
v.
State,
In the words of Justice Cardozo: “If the evil to be corrected can be seen to be merely fanciful, the injustice or the wrong illusory, the courts may intervene and strike the special statute down.”
Williams
v.
Mayor,
Closed Class
Plaintiff also claims that the class of depositors is closed. Although the parties agree on the definition of a closed class, each party draws different conclusions as to the character of the statutory classification in question.
“The rule appears to be settled by an almost unbroken line of decisions that a classification which limits the application of the law to a present condition, and leaves no room or opportunity for an increase in the numbers of the class by future growth or development, is special, and a violation of the clause of the constitution above quoted.
City of Scottsbluff
v.
Tiemann,
The plaintiff argues that the group of recipients under the act is identified and fixed by historical circumstance to include only the depositors of Commonwealth, State Securities Savings, and American Savings.
The plaintiff describes what she deems a “highly unlikely (if not impossible)” sequence of events whereby the class of depositors could expand beyond the aforementioned industrial companies:
First, new industrials would have to be chartered. Second, they would have to become members of the NDIGC (or the only two industrials which presently exist would have to renounce their FDIC coverage and become members of the NDIGC), and the deposits of those industrials would have to be guaranteed by the NDIGC. Third, those industrials would have to go into receivership or bankruptcy. And, fourth, the depositors of those . institutions would have to suffer deposit losses.
Reply brief for plaintiff at 14.
With the plaintiff bearing the burden of proving the act *717 unconstitutional, the issue becomes, to what degree must the plaintiff prove that the class is closed? The defendants argue that
[t]he plain language of LB 272A is open-ended. It does not name any industrial . . . companies which would benefit from its enactment____
The possibility for future growth or development in the class created by the Legislature need not be definite or certain. The possibility for future growth or development is sufficient to sustain a constitutional challenge on the basis of a closed class.
Brief for defendants at 43,46. Amicus argues that
[a] closed class is only present if, by the explicit language of the legislative act, the class is fixed and may never be increased. This standard is not satisfied by a probability, only by a certainty.... [T]he plaintiff must prove that the class defined by LB 272Ais absolutely closed.
Brief for Amicus at 24.
In determining whether a class is closed, this court is not limited to the face of the legislation, but may consider the act’s application. See,
Axberg v. City of Lincoln,
In the context in which L.B. 272A operates we are compelled to find that the act represents a closed classification. Despite Amicus’ argument that the plaintiff must prove the class is absolutely closed, our case law does not impose such a burden. See
City of Scottsbluff v. Tiemann, supra
(legislation directing certain cities to establish municipal courts found unconstitutional because it assured that
in practical operation
the class was limited to two cities). In deciding whether a statute legitimately classifies, the court must consider the actual probability that others will come under the act’s operation. If
*718
the prospect is merely theoretical, and not probable, the act is special legislation. The conditions of entry into the class must not only be possible, but reasonably probable of attainment.
Republic Inv. Fund I
v.
Town of Surprise,
Having determined that the classification, as defined by L.B. 272A, was unreasonable and that there is no reasonable probability that the class will increase in members by future developments, we find the act unconstitutional in contravention of Neb. Const, art. Ill, § 18, as special legislation.
PUBLIC CREDIT TO CORPORATIONS
The plaintiff claims that L.B. 272A is also unconstitutional because it unlawfully pledges the credit of the state. The relevant constitutional provision reads as follows: “The credit of the state shall never be given or loaned in aid of any individual, association, or corporation ...” Neb. Const, art. XIII, § 3.
Except for certain circumstances not relevant here, the purpose of article XIII, § 3, of Nebraska’s Constitution is to prevent the state or any of its governmental subdivisions from extending the state’s credit to private enterprise.
United Community Services v. The Omaha Nat. Bank,
The purpose of this constitutional provision, which appears in some form in most states, was set forth in State v. Northwestern Mutual Insurance Co.,86 Ariz. 50 ,340 P.2d 200 (1959), quoting from Thaanum v. Bynum Irr. Dist.,72 Mont. 221 ,232 P. 528 (1925):
“ ‘It represents the reaction of public opinion to the orgies of extravagant dissipation of public funds by counties, townships, cities and towns in aid of the construction of railways, canals, and other like undertakings during the half century preceding 1880, and it was designed primarily to prevent the use of public funds raised by general taxation in aid of enterprises apparently devoted to quasi public purposes, but actually engaged in private business.’86 Ariz. at 53 ,340 P.2d at 201 . (Emphasis in original.)”
The plaintiff argues that L.B. 272A constitutes a promise by the state to make good on the future claims of new class members, as well as on the redemption of guaranties, on purported moral grounds, to those presently within the class.
The defendants, although arguing with respect to article III, §18, claim that a public purpose existed for the enactment of L.B. 272A. Because public purpose alone will not save a statute otherwise in contravention of article III, § 18, and because we found L.B. 272A to be special legislation which is prohibited by article III, § 18, it was not necessary to determine under that section of the Constitution whether a public purpose existed in the enactment of L.B. 272A.
We begin our analysis by dissecting the components of article XIII, § 3. In order to establish L.B. 272A unconstitutional under article XIII, § 3, a plaintiff must prove each of the following elements: (1) The credit of the state (2) was given or loaned (3) in aid of any individual, association, or corporation.
The first question is whether L.B. 272A involves the “credit of the state.” The state’s credit is inherently the power to levy taxes and involves the obligation of its general fund. See
Tax Increment Fin. Com’n v. Dunn Const.,
Here, there is no question that the credit of the state is unconstitutionally involved in L.B. 272A. In
State ex rel. Douglas
v.
Nebraska Mortgage Finance Fund,
The next question is whether the state’s credit was “given or loaned,” as opposed to the state receiving valuable consideration. L.B. 272A provides that when payment is offered up to the full amount of the $30,000 guaranties, this (1) constitutes full satisfaction of the depositors’ claims against the state and (2) constitutes an assignment of the depositors’ claims against any other individual or entity. 1990 Neb. Laws, L.B. 272A, § 6. Neither of these represents valuable consideration. All legal claims against the state, its officers, and its employees were settled, see
Weimer v. Amen,
Next we address whether the state’s credit was given “in aid of any individual, association, or corporation.” This question is easily answered affirmatively by considering the act’s stated purpose of fulfilling the NDIGC guaranties. The NDIGC, as we have stated, is a private corporation. See Weimer v. Amen, supra.
We reject the defendants’ argument that public purpose necessarily saves the statute and avoids judicial scrutiny.
“What is a public purpose is primarily for the Legislature to determine. A public purpose has for its objective the promotion of the public health, safety, morals, security, prosperity, contentment, and the general welfare of all the inhabitants. No hard andfast rule can be laid down for determining whether a proposed expenditure ofpublic funds is valid as devoted to a public use or purpose. Each case must be decided with reference to the object sought to be accomplished and to the degree and manner in which that object affects the public welfare.” [Citation omitted.]
“It is the province of the Legislature to determine matters of policy and appropriate the public funds. If there is reason for doubt or argument as to whether the purpose for which the appropriation is made is public or a private purpose, and reasonable men might differ in regard to it, it is essentially held that the matter is for the Legislature.” [Citation omitted.]
(Emphasis supplied.)
State ex rel. Douglas
v.
Thone,
Closely related to the prohibition against the giving or lending of the state’s credit, although technically not part of the prohibition due to the prohibition’s narrow and specific
*722
wording, is the principle of law that public funds cannot be expended for private purposes.
Utah Technology Finance Corp.
v.
Wilkinson,
In finding the second part of the statute unconstitutional, we held it involved an extension of credit of the governmental subdivision to some individual, association, or corporation for private use. If the real estate acquired decreased in value, the loss would be that of the subdivision.
The prohibition against the pledge of the state’s credit does not hinge on whether the legislation achieves a “public purpose,” when the pledge benefits a private individual, association, or corporation.
McGuffey
v.
Hall,
Having held L.B. 272A unconstitutional in three separate particulars, any one of which is sufficient to declare the act void, we find no further discussion of either the plaintiff’s or the defendants’ position on constitutionality is necessary.
ATTORNEY FEES
In regard to the plaintiff’s request for attorney fees and costs, the general rule in Nebraska is that attorney fees and expenses may be recovered only in such cases as are provided for by statute, or where the uniform course of procedure has been to allow such a recovery.
Gottsch Feeding Corp.
v.
Red Cloud Cattle Co., 229
Neb. 746,
When an original action is instituted in the Supreme Court by or against the state, or any office, department, or officer thereof, involving the constitutionality of any act of the Legislature no matter when such act was passed, attorney fees and costs may be allowed, if any of the following conditions set forth in subdivision (1), (2), or (3) of this section are found to exist:
(l)(a) The action challenges the constitutionality of an act which the Attorney General has previously ruled constitutional or unconstitutional or as to which he has made no ruling____
In this instance, the Attorney General issued an advisory opinion ruling that L.B. 272A was constitutional. Att’y Gen. Op. No. 90002 (Jan. 18, 1990). Section 24-204.01 further provides that if certain conditions are met, the Supreme Court shall allow reasonable attorney fees and costs in such amounts as the court shall determine. As stated, the necessary conditions were met. Thus, the plaintiff is entitled to attorney fees.
. This court having declared L.B. 272A unconstitutional, judgment is hereby entered for the plaintiff and against the defendants and each of them in their official capacities. The Treasurer of the State of Nebraska is hereby permanently enjoined from disbursing on behalf of the State of Nebraska *724 any funds appropriated by 1990 Neb. Laws, L.B. 272A, to depositors of any former industrial loan and investment companies, and the Director of Administrative Services of the State of Nebraska and the Director of Banking and Finance of the State of Nebraska are enjoined from implementing the provisions of L.B. 272A.
Plaintiff is hereby awarded $10,000 to apply on her attorney fees and costs of this action, which shall be paid in accordance with § 24-204.01.
JUDGMENT FOR PLAINTIFF.