School District of Seward Education Ass'n v. School District

degree confusing, conflicting and we be- was to some position in a assess better lieve trial court was respect the local well as costs, situation knowledge apply to the facts and circumstances an if case. action for evidence divorce, principally in irreconcilable conflict oral and is depends issues a reasonable determination of the respective upon reliability of witnesses, extent great given trial will the conclusions of the court good .appeal weight, and not be on unless will disturbed Buchanan, 186 Neb. is shown. Buchanan v. cause See, p. 393, Martin v. ante 886; Martin, 89, 180 N. W. 2d N. 388. W. 2d court were correct district

The determinations plaintiff is allowed a fee are affirmed. $350 attorney in this of her for the services court.

Affirmed. J., Spencer, dissenting. respectfully I herein because feel the award I dissent support, inadequate plaintiff, were child on the record. an Association, Education District

School Seward unincorporated appellee, v. School association, County Seward, in the Seward, District Nebraska, also known as School District appellant. Seward, N. 199 W. 2d 752 July 21, 38267. 1972. No. Filed appellant. Blevins, Blevins, Bartu & for Pansing, Binning Crosby, Theodore L. & Guenzel appellee. Kessner, for Harding, A. Dowd, C. Thomas William

A. F. Sidner, Harding, Leonard & Marchetti, Jack G. Wolfe, Nelson, Wright, Wright Williams, Tate, Cline, and L. Bruce Oldfather, & amici curiae. Johnson J., C. Smith, Boslaugh, Spencer, White, Heard before JJ. McCown, Newton, and Clinton, J. Spencer, brought by plaintiff

This is a labor association case representative employed as certificated teachers by defendant, District of School Seward. Court court, Industrial Relations, hereinafter referred to negotiate plaintiff ordered the defendant on wages employment. parties ne- and conditions of The except salary gotiated to settlement all of issues salary the court trial, schedule. After established by increasing pay Defendant scale the 1970-71base $100. perfected appeal. principally question of the

Defendant raises the Additionally, ques- constitutionality legislation. of the authority administrative matters tions court’s over employment; may be included as conditions which the compelling negotiation arbitration; and and the wages employees. right to set for school provisions of Nebraska which Constitution pertinent are as follows: could be * “* * part: provides in shall Article I, section * * * Legislature pass duty suitable laws be the encourage the means of instruction.” schools provides: powers of the “The II, section Article distinct government divided into three of this state are departments, legislative, judicial, executive and person persons and no being or collection of one of departments, these any properly shall exercise belonging except to either of the others, as hereinafter permitted.” expressly directed “* * * provides Article part: III, section in legislative authority of the state shall be vested in a * * Legislature *.”

Article provides: Legislature VII, section 6, “The provide shall for the free instruction in the common persons schools of this ages state of all between the twenty-one years.” five and provides part: Article VII, section in “The State Department general of Education supervision shall have system administration school of the state Legislature of such other may activities as the direct.” provides part:

Article VII, section 15, “The State composed eight Board of Education shall he members, ** * ** *. prescribed Their duties and shall be * * *.” provides: Article XV, may section “Laws be en- providing investigation, acted for the submission and employers determination of controversies between employees any business or vocation affected with public prevention interest, of unfair busi- practices gains ness and unconscionable business affecting or vocation welfare. An Industrial purpose Commission be created for the of adminis- tering appeals Supreme laws, such shall lie to the judgments Court from final orders and of such com- mission.” question requiring

The first consideration herein is meaning XV, Article Constitution operate exception it intended to Nebraska. Was as an leg- to Article II, does create commission a with judicial powers? Engelmeyer executive, islative, In (1966), Murphy 180 Neb. 2d N. W. we construing said: “In constitutional amendments, con- given sideration leading should be to the circumstances adoption purpose sought to their and the to be accom- plished.”

Article XV, section came into our Constitution the Constitutional Convention of An 1919-1920. exam- proceedings suggest ination of the of that Convention implementation leg- of the amendment being questioned islation is in accord the intention with of its architects.

Substantially judicial all of the on Proposal work article completed been had before No. which be- presented came this section, on floor was Convention. The judicial Convention had altered the permit article to to establish in- courts Supreme ferior to the Court. The on Committee In- presented proposal dustrial Conditions a substitute proposals originally the four introduced at the Conven- proposal tion. The substitute considered was on the floor of the then Convention, and referred back a joint committee of the Industrial Courts Committee and Subjects the Miscellaneous Committee for combination regulation proposal. joint the trade with This commit- Proposal submitting pro- tee submitted 333. In No. posal, report judgment the committee states: “It is our tribunal in the form of commission com- legislative judicial powers, bined administrative, proper governmental agency to be entrusted with granted, prescribed, duties to be judicial power making findings to extend to orders, leaving penalties of enforcement measures or sum- process mary judicial department of the state government.” Dist. School No. 8 v. State Board Education

(1964), 176 Neb. held: “It N. W. we general Legislature may rule that not law- delegate legislative powers fully to an administra- agency. exception tive An the rule obtains when

777 delegation legislative power of authorized Con- stitution.

“Article of VII, 14, section the Nebraska Constitution grant legislative authorizes the powers of administrative and Department subject to the Education, implementation Legislature to and limitation accordance Article VII, section Constitu- 15, tion.” (1967),

In Anderson v. Tiemann 182 Neb. 155 N. holding Legislature W. 2d after had not made delegation legislative an power, unconstitutional we discussing separation powers: said, the matter of “Basically respect same issues involved with delegation judicial power. Article V, power judicial vests Constitution, in the tribunals gives therein named but also to the Supreme other create courts inferior to Court. However, L. not B. does create a court but grant body quasi does a state official or administrative judicial powers. general Powers of the same nature upon many character are conferred administrative' quasi judicial bodies. Such duties are of a nature and yet invariably such bodies are almost held to be admin- County istrative. See Dawson Irr. Co. v. McMullen, state, conferring upon Neb. 231 N. W. 840. The agencies officers, of executive or administrative func- requiring quasi judicial powers, tions the exercise of provisions does not conflict with the constitutional re- garding upon judicial power officers and bodies whom particularly be conferred. This is true where such peculiarly and duties relate matters which are provision affected interest and where appeal agen- from made decisions such officers or cies to courts.” supra, Tiemann,

In Anderson v. further we said: “This' recognized principle has also court constitutional interpretation every that each and clause in a constitu- purpose. been inserted for some tion useful has Con- provisions stitutional should receive even broader and more liberal than statutes, construction and constitu- subject tions are not penter of strict construction. rules Car- State, 179 Neb. 139 N. W. 2d 541.” Meyer Equalization In State ex rel. v. State Board of (1970), & Assessment 185 Neb. 176 N. 2d 920, W. “ suffrage people we said: ‘We are indebted to the of the adoption for the of all amendments submitted in- adoption original deed for the Constitution which changed. patent such amendments From this fact it is language employed plain, that, where is the courts meaning obviously should accord it which would ” accepted by layman.’ XV, Article section 9, Constitution of Nebraska, ob viously exception intended to be an was to Article II language of the Constitution. The of the amendment, providing investigation, “Laws be enacted for the coupled submission and determination of controversies,” designation “An Industrial Commission,” in powers. dicates commission with administrative The providing appeals sentence last from its orders final judgments judicial means a commission with some powers report to determine controversies. of the joint authorizing it committee that was commission legislative, judicial combined administrative, with powers clearly type indicates of commission agency authorizing. the Constitutional Convention was respect, category In this is in same IV, as Article Railway created the which Commission. We Railway that the heretofore held have Commission has judicial legislative, powers excep executive, as an (1919), In re Lincoln See, tion to Article II. Traction Co. 192; 171 N. W. 103 Neb. Swanson v. Sorensen . (1967), 312, 148 2d 181 Neb. N. W. 197 The same is of Industrial adopting true Court Relations. In provision authorizing the constitutional an Industrial independent part Commission, it made an was of the

779 Constitution of Nebraska, and not as an amendment to Article II.

Article VII, section 14, Nebraska, Constitution of Department establishes a gives of Education, and general supervision and administration of the school system of the state. Section Article, same provides however, the State Board Education composed eight shall be provides members, and powers their prescribed by Leg- duties and shall be general supervision islature. The and administration system granted of the school of the state to the State grant power, Board Education, while constitutional dependent upon implementing legislative action. School (1964), Dist. No. 8 v. State Board of Education 176 Neb. 127 N. W. 2d 458. In State ex rel. School Equalization (1958), Dist. Board of 166 Neb. 785, 90 N. W. 2d 421, which involved a Class III district, school as does the case, instant we “A said: school district possesses this state is a creature of statute and no granted Legislature.” other than those Campbell v. Area Vocational Technical School No. (1968), 183 Neb. N. W. we said: “A Legislature. pur- district school is a creation Its pose placed duty fulfill constitutional upon the encourage ‘to schools and the means of in- * * struction’ Legislature plenary power has and control over including provision appointment districts, school or election of for the - governing Consequently, bodies thereof. provide may any authority it limitations on to be exer- cised If school board. has such complete control over school it districts, follows, chapter 15, enactment of L. B. Laws exercising page 1405, was control. plaintiff,

Upon application of the the court ordered negotiations. pre- conduct district to the school This two-pronged question. does the First, court sents negotiate power to order the district to about have anything; power to order second, does have negotiations duty, professional associations, noon about dress code, and calendar? school Supp., provides: “Public 48-837,

Section R. S. right join par- employees form, shall have par- ticipate forming, joining, in, or or to refrain from employee organization ticipating any of their own in, right choosing. employees Public shall have negotiate represented organizations by employee col- lectively public employers in the determina- with their employment, tion of their and conditions of terms grievances arising thereunder; the administration agreements any such with State of Provided, any agency or thereof shall cover a biennial Nebraska coinciding budgeting period period the biennial subject approval by Legis- shall be state and lature.” Supp., provides: “All in- 48-810,

Section R. S. disputes involving governmental dustrial serv- service, public utility, disputes Legisla- ice of or other as the may provide by invoking juris- ture shall be settled Relations; of Industrial Court Provided, diction jurisdiction persons, any court have no over such shall organizations, subject provi- or school districts to the Negotia- of the Nebraska Teachers’ sions Professional to 79-1295, sections Revised Act, tions 79-1287 Statutes provisions Supplement, 1967, until all such act have dispute exhausted resolution of the been without in- volved.” provides: 48-810.01, R. S.

Section R. “Notwith- any provision standing law, other Ne- political governmental any or braska thereof subdivision compelled any cannot be enter into contract agreement, otherwise, written labor or- grievances, concerning disputes, ganization labor rates employment pay, or conditions hours of work.” Supp., provides: R. 48-818, S. “The Section findings order or and- orders establish or alter the

781 wages, employ- scale of hours or conditions of labor, making ment, or one or more of the same. In such findings and or the of Industrial orders, order Court pay Relations shall establish and conditions rates employment comparable prevalent which to wage paid employment rates and conditions of main- exhibiting tained for the same or similar work workers working like or similar under the or skills same similar establishing wage conditions. rates the court shall compensation pres- take into consideration overall ently regard employees, having only received not wages actually wages to for time but to worked also including holidays, worked, time not vacations, including other excused received, all time, and benefits pensions, continuity stability insurance and and the employment enjoyed by employees. Any order or orders entered be modified on the court’s own application by any parties motion or on affected, only upon showing change but a the conditions prevailing original from those at time order entered.” was

In International Brotherhood of Electrical Workers City Hastings (1965), Neb. N. W. public agency governmental 822, we held that a em- legal ployer authority bargain no had with a labor express statutory authority, union in absence of further Court of Industrial Relations no had compel public utility operated by govern- proprietary bargain capacity negotiate ment in Subsequent labor case, with a union. to this give authority was amended to law the court bargaining public corporation order ing when was act- capacity, proprietary in as defined in section 48- 801, R. S. 1943. L. B. R. 15 amended 48-816, acting proprietary R. to eliminate R. in a S. “when capacity as defined in section 48-801” from the statute, provision permitting left the but court order bar- unchanged, although gaining several other additions were

made to section R. S. 1943. 48-816, R. 48- 48-810, 48-804, 48-801,

L. B. 15 amended sections repealed 48-810.02, 811, 48-816, 48-818, sections It did not 1943. 48-820, and to R. S. 48-836, 48-824 R. repeal 1943, amend R. S. which 48-810.01, or section R. question came our con- con- into the for law 1967. not there is a sideration, therefore, is whether 48-810.01, 1943, and sec- flict R. between section R. S. Supp., 48-810.02, 48-818, tion R. R. R. 1969. Section S. provided having population a 1943, S. that cities service, than or in cities under civil 5,000, more jurisdiction appli- court to order discussion on the had party. 48-820, 1943, cation of either R. R. S. Section dispute any provided not industrial within jurisdiction by consent be court could mutual to the court arbitration. Sections 48-824 referred for cities to covered arbitration 48-836, R. R. S. city but 5,000, service, more than under civil of any a report advisory only. decision or be It is would eliminating Legisla- by obvious that these sections, reports, advisory ture to intended eliminate arbitration give by attempted authority to the court L. B. 15 to bargaining. order Supp., provides 48-810, R. S'. that all in-

Section involving governmental disputes service shall dustrial invoking jurisdiction he settled of the Court jurisdiction of Relations, but limits the Industrial Supp., 79-1295, sections 79-1287 R. S. court where provisions until those ex- have been involved, dispute. a settlement without It was inad- hausted 48-810.01, argued vertently R. R. section S. accept premise, this law. We do not in the left knowledge full acted with assume the but leaving section in Conse- this the statute. that it was given meaning in rela- quently, must be some the section paid sections, because all statutes in to the other tion together and construed as must be considered materia given possible, if effect they and, law, if were one provision. City (1966), each of Grand Island Ehlers Neb. N. W. 770. The court construed section 48-810.01,R. R. S. to mean that while the court could not order into a school district enter power had the court to settle contro- contract, versy pursuant Supp., 48-816 R. sections S. 48-818, doing forcing 1969. so, it not was the district exercising enter into contract with the union but was dispute 48-818, to settle under R. S. Supp., 1969. no There is construction which would other harmonize the sections. following position

Defendant’s indicated jurisdiction from its brief: “Whatever Court may have, Industrial Relations much certain that notwithstanding any provision other of law School compelled any District cannot be to enter into contract agreement organization concerning any or labor pajr. judgment rates of The Court’s is in direct viola- premised tion This, of this statute.” on course, interpretation 48-810.01, of section R. R. S'. 1943. We interpretation. have indicated our predictions many

There to have been dire relative possible 15 if ramifications do not find we L.B. specifically prevents R. R. S. 48-810.01, entering binding wages on court the conditions of from order interpret employment. As Con- we Legislature complete stitution, control of the has Legisla- of school Whether not the actions boards. or wisely premises acted is not matter ture has judicial are not determination. The courts arbiters legislative upon function as a check wisdom, but assumptions power. unauthorized unconstitutional amici If situation is as critical as defendant and the only believe, curiae can did observe, we we (1971), 186 Neb. 183 N. W. 2d 911: Workman “* * * making wrong his contentions in the defendant They might appropriately be addressed to the forum. duty Legislature, it is but of this court Nebraska interpret passed by to and enforce laws constitutionally if which one is.” valid, question interpretation next raised involved an

The language employment.” While “conditions may parties the issue moot reach be because the did agreement points except wages on do all referred we pertinent. Generally, some feel observations are teacher organizations given term “conditions of em- have ployment” extremely meaning, boards an broad while preserve of education have tried to restrict that term to management prerogatives policy-making their powers. many may

While there nebulous areas overlap working should not be re- conditions, boards quired negotiations pre- to enter matters on which are dominately management policy, matters of educational prerogatives, statutory or duties of edu- board Kansas, statute, cation. defined conditions has employment to include hours of vacation work, allow- injury holidays, ances, leave, sick number of wearing apparel. 75-4322(s). Supp., § K.S.A. 1971 With- trying lay specific any out to we hold down would rule, interpreted employment can be conditions only directly affecting the teach- include those matters way attempting er’s welfare. Without be specific, foregoing, consider limit would we exclusively following management within the to be prerogative: right hire; to maintain order and efficiency; assignments; work; to transfers and to schedule control determine what activities extracurricular supported sponsored; to determine the types specialists size, to be curriculum, class legisla- public policy employed. in involved this The expressed R. 1943. With in R. S. 48-802, section is tion this public policy mind, school districts teacher in good negotiate in the faith within associations should respective responsibilities. of their ambit point that the amici curiae of the raised One complied Pro- the Administrative not had court point defendant, cedures The Act. was not raised noncompliance nothing there is the record to indicate in question in with the Act. Because the be raised is future, we Court of Industrial Relations hold the agency purview an Administrative within the Procedures Act.

The not come with- Court of Relations does Industrial R. 84-901, section court as used in definition of excepted specifically from R. nor it been S. has operation respect, is in of the Act. In this Railway the same situation as Commission. the Nebraska Railway Commis- Yellow Cab Co. v. Nebraska State (1963), sion we held 120 N. Neb. W. railway agency commission to an within definition R. 1943. That section S. R. 84-901, “Agency provides, means each far as material herein: so department, other division, or board, commission, officer, government of the state administrative office or unit Adjutant except rules, to make authorized law provided Chapter courts, office, General’s including Compensation Court, Nebraska Workmen’s * * Legislature; R. and the R. S 48-809, Section grants adopt power to all reasonable full court regulations. rules and following Nebraska State Cab Co. v. from Yellow supra, pertinent “The

Railway herein: Commission, ju- legislative commission has certain fact may distinguish powers re- in certain dicial which purely agencies spects ad- other which exercise from being prevent it from ministrative does not agency in a sense.” the state broad an judgment of the court enunciated, the For the reasons is affirmed. correct and

Affirmed. Newton, J., dissenting. opinion majority agree I with the

I cannot find many years great For adopted case. as the law steady and opposed decried have the states seemingly growth and the inexorable of federalism governmental powers centralization of capitol. in the national legislative This decision act and on which step is based is the creation of cen- toward similar powers Capitol tralized in the Nebraska State on a deprives political 'statewide basis. It local subdivisions right manage regard their affairs in own employment practices. supply The law of demand pay. ability replaced by is nullified as is also It is arbitrary operating decisions of a Commission aon wages employees statewide level. Since the consti- very major budgets political tute a item in the all subdivision's, the decisions of the necessar- Commission ily gov- govern interfere with to some and, extent, making budgets, appropriations, ernmental duties of ascertaining Although the levels of taxation. our political part, are, subdivisions for at least the most re- authority powers granted by Legisla- stricted in theory self-government recognized ture, the of local provisions relating constitutional our to counties and aptly County, cities. As was stated Schulz v. Dixon self-government, 134 Neb. W. 179: “Local N. having part always system, been of the American finds recognition provisions our State Constitution; expressly recognized, and even if not to be still understood are that these instruments framed with its present anticipated existence and continuance view.” by Chapter

The conferred article R. very R. S. on the Industrial Commission are broad. applicable political If construed as to the and its necessarily they existing subdivisions, statutes, conflict government, theories and constitutional provisions. municipalities, Tax levies of certain school townships, governmental districts, other subdivisions by legislative are limited enactment in the case and, of appropriations counties, Constitution. to make levy

and to taxes has vested in the been penalties governing local bodies. There assessable are spending violations such unbud- excess levies geted unappropriated tax Furthermore, funds. leyies appropriations basis an annual made on change. subject the Com- are not thereafter Can guise dispute settling re- under the a labor mission, gov- wages garding erning expense items, or other direct the organizations expend these to additional bodies of doing, statutory funds provisions or constitutional and, in so violate gov- adopted expressly passed their for powers taxation ernment? take Can over appropriation granted political specifically sub- these This situa- divisions the Constitution and statutes? XV, 9, tion would indicate Article section Constitu- contemplate placing Nebraska, tion of did not jurisdiction. Further- bodies under the Commission’s single governing these not a one more, political of the statutes been the manner mentioned has subdivisions in appropriation au- amended to make the taxation subject tinkering by thorities to the Commission. III, respect Article

this has there been violation 14, of the Constitution. develop on Also of interest is a situation which could republican the state has the standard level. Nebraska three-way government division form basic powers. all constitutional The most fundamental legislative the exclusive is branch awarded to levy is appropriate This power funds taxes. to delegate. S., Con power J. 16 See, cannot C. which it Opinion Justices, p. § 552; Law, stitutional Ariz. Frohmiller, 45 205; 2d v. 54 Del. 177 A. Crane County Gallet, 35 v. 955; Blaine Inv. Co. 45 P. 2d Independent School 1066; El Dorado Idaho 204 P. Opin App.), (Tex. 420; 2d S. W. Dist. Tisdale Com. v. 3 674; Cook Justices, 13 So. of the Ala. ion Up-to-Date Dyeing 155 Misc. Co., Yarn Silk Supp. Y. 348. N. where the in an instance the effect

What then is recompense state appropriated Legislature sum to has employees provided raising money by dispute wages, taxation, then in a over the Industrial wages? Any legisla- Commission raises excess over appropriation tive paid be cannot constitutional under provisions attempt delegate power to dispute by wages raising to settle Commission anis attempt delegate power to the Commission make appropriation. a state As such is void and unconstitu- just power tional. is “It fundamental power provide tax disposition and the for the of taxes inseparable, raised identical and disposi- clothed with full and control over the tion including of revenues taxation, derived from those by political raised subdivisions of the state under au- thority subject only to state, constitutional re- * * * strictions. meaning should

“It also construed when principles not clear to conform with fundamental levy taxation in the and collection of taxes and apportionment contrary and distribution thereof unless a by prin- intent is indicated its terms. The fundamental ciple powers Legislature on matters of except plenary clearly taxation are where restricted by powers must also be Constitution, considered. The Legislature of matters on of taxation be lim- cannot by implication interpretation, ited and the restric- upon legislative tion be must clear un- equivocal. given The construction the constitutional provision by Legislature administrative offi- given cers since its enactment must likewise be effect to which it entitled.” State ex rel. School Dist. Ellis, Scottsbluff v. 95 N. 2d 538. Neb. W. creating purports act the Commission

The to derive XV, from Article section Constitu- authorization language tion of Nebraska. The section and the powers it are not clear. Was it intended to confer governmental apply and its sub- intended to the State foregoing divisions? I submit that the indicates was not. XV,

Article section 9, Constitution pro- of Nebraska, may providing be “Laws enacted vides: for the investi- gation, submission and determination of controversies employers employees any in between business or with, public vocation a pre- interest, and for affected practices of unfair business vention and unconscion- gains affecting business pub- able or vocation lic welfare. Industrial Commisison An be created purpose administering appeals for the such laws, Supreme shall lie to Court from the final orders judgments (Emphasis of such commission.” sup- plied.) scope “any is limited covered business or with,

vocation interest” Just what affected can the authorize businesses the Industrial deal with? will Commission to It be noted that “any uses the words business section or vocation.” What accepted meaning is the common and of these words? enterprise.” is “a commercial or A business industrial person is “the work regularly A vocation which a employed.” Webster’s Third New International Dic- tionary, p. occupations, 2561. The terms refer to activi- gain, enterprises advantage, for ties, See Black’s Law livelihood. Dictionary (De Ed.), p. Luxe, 4th 248. governmental unit, whether state No or a classified as subdivision, can be business or vocation. agencies only governmental supplying govern- They are nonprofit services on basis. such, mental As XV, Article conferred Constitution clearly inapplicable Employ- to them. Nebraska, example, is not a vocation. State, ment Voca- employment type stenographer, such means tion secretary, adopting Chap- etc. laborer, accountant, Legisla- R. S. 48, 1943, article R. the 8, amended, ter constitutional has exceeded its its at- ture tempt agencies bring governmental the within ambit 790 act the act is unconstitutional. “The words provision terms a constitutional be inter-

preted their most natural and understood in and obvious meaning, subject sug- the unless indicates or text the gests they been used in a have technical sense.” ex rel. 153 Peterson, 402, State Caldwell v. Neb. 45 N. See, also, ex W. 2d 122. State rel. v. Johnson 147 Chase, 25 2d 1. Neb. N. W. 758, is the term

What “affected with meant It principle interest”? is fundamental constitutional given that effect must be the construction intent of organic people adopt- framers of law and the the ing § Law, it. 16 Jur. Constitutional 2d, See Am. Railway p. 239. In ex rel. State Commission v. Ramsey, 37 N. held: Neb. W. it is “The meaning provision is to be of a constitutional determined adoption, intent as of the time and under- standing people adopted of its framers and it who is construing inquiry Ramsey principal it.” In Gage, County 153 Neb. N. W. 2d “* * * judicial this court will notice of stated: take proceedings of the Constitutional Convention.” The following in the the court embodied state- decision of apparent quite “It is an examination of the ment: from Proceedings ref- Constitutional Convention with subject matter involved that here erence to change language provision people only not did question but the construction as of the Constitution also, State, Swanson v. 132 Neb. See, well.” 264. N. W. provision question adopted in Convention of 1919-1920. was constitutional

pursuant the Constitutional proceedings of the Convention examination An provision drafter of the made statement crystal not intended to bear clear that it was make it governmental upon The amendment units. was affect originally “Proposal 333.” As intro- No. denominated part 1. “Section Laws provided in as follows: duced, may providing be investigation, enacted the submis- sion and determination of controversies between em- ployers employees public in which the is welfare against providing practices affected; unfair business gains unconscionable business or vocation affected public with a interest; and the public interest of the may protected by against interruption, be law either in public operation public the service, in the utilities of production or in the and distribution es- commodities public sential (Emphasis to the supplied.) welfare.” public specifically Note included service, as well as public utilities, and public commodities essential to the welfare. resulting Considerable discussion ensued finally adopted. its amendment as At that time the delegate offering the amended version defined term public distinguished “affected with a interest.” He general from the welfare then stated: “Business, by public it, as I affected a understand interest is busi- public person, ness in which surrenders some corporation, right association or firm, public gives some which the corporation, to some individual or some privilege might right which it otherwise have not enjoy. permit If the Convention will me I will read good authority upon an from as as we have definitions, Dictionary: Bouvier’s Law “ by permission public If INTEREST. ‘PUBLIC one making public property he is use be chances to public only respect with whom can deal with one property, his that business is to the use of affected with requires public him a which to deal interest quotation public terms.’ reasonable That from on Cooley on Limitations. Constitutional “ public a affected interest: ‘Business “ following one, the business is Where ‘1. permitted right, by but is not state as which public privilege 2. franchise. Where the state or on a grounds special by business renders assistance 3. Where otherwise. for the accommo- or taxation special made use is to be dation of a allowed business public property public 4. Where easement. or granted special privileges in consideration public.’ special to made to the some return be public “In other business is affected words whole, for which as a interest is business person corporation society of some because which special right, privilege franchise, and in consider- right pub- granting of franchise the ation of corpora- the conduct of such lic interest is affected and person regulated tion or law.” is that the term “business or vocation affected It clear legal public interest” in its was used narrow with a usage by the was understood dele- sense and gates. original “public reference to service” which extending governmental interpreted might serv- good presumably reason. The for deleted, ices was only private referred to include businesses. businesses regulation consistently process, “Respecting due with public merely interest’ ‘affected are businesses with police power. subject to exercise of Wholesale those of California v. Na- Dealers Bureau Southern Tobacco tional Candy Co., Cal., 3, 14, & Tobacco 82 P. 118 A. L. R. 486. public ‘affected with a interest’ business is when

“A given legal authority by poly virtual is a mono- or law public adapt their or field where business by it. Western to the methods used Buse or conduct Telephone Telephone Bell Co., Co. v. Northwestern 248 * * * 188 Minn. 524. 220, 229, N. W. provisions requiring process ‘due of “Constitutional protection preclude ‘equal do not of laws’ law’ regulating Legislature from a business ‘affected state a (cid:127) subject public interest,’ means to the which a with regulation ‘police power,’ is not unreasonable, where discriminatory, capricious, arbitrary, or means regulation. object Bohannon v. of Duncan, related ** * 898, Ga. 840. 897, E. 196 S. public interest,’ “A where business ‘affected a is with acting engaged or franchise, the one in it under monopoly from nature it, has virtual or where necessarily carrying in the business the one on is money property customers, trusted of his with or man or been conducted such where business has adapted public their ner that the have business required used; the fact that a license is methods but public employment. Peo not make does the business a ple A., 14 L. Steele, 236, 340, 231 Ill. R. v. 83 N. E. Chicago Rep. City 321; N. S., Am. St. 83 N. E. 231 Ill. 560.

Powers, public phrase “The, interest’ can mean ‘affected awith adequate industry, reason, is no more than that an subject good, public there no control for the category affected or of such businesses closed class public Respecting regulation consistently interest. public process, in- due ‘affected with businesses police subject merely exercise terest’ are power; those being enjoy- interest not touchstone People monopoly. ment Nebbia v. franchise York, 291 U. S. Y., N. 54 S. Ct. New 1469.” 5A Words and 78 L. Ed. 89 A. L. R. pp. 675, 676. Phrases, Affected, Business governmental never been a Public business has subject police power. exercise of Such an subject type unnecessary is this of business is because legislative and in at all times all re- to direct control pro- spects extraordinary remedy the resort to without police power. It clear that Article the seems vided legislation bringing 9, section does not authorize XV, governmental agencies political within subdivisions or jurisdiction I con- Industrial Commission. attempt present to dele- statutes clude gate insofar as such, power, they are unconstitutional and void. passing may that Article XV, to note In be well adopted activity in a result of similar 9, was as section defining yet in “affected Kansas, businesses the State 794 public gov- interest,”

with a statute omits the Kansas ernmental Annotated, units. Kansas sec- See Statutes tion 44-603. every

Another fundamental rule is statement interpreted light a state constitution must be sequestered pro- document, entire rather than aas nouncement and because fundamental constitutional principles equal dignity are of none must be so impair substantially enforced toas the other, if there apparent repugnancy provisions, anis between different possible. the court should harmonize them if See 16 p. § Law, Am. Jur. 2d, Constitutional 243. ex Johnson rel. 147 Chase, v. N. W. 2d Neb. language it is “The said: of the Constitution is to be interpreted with reference to the laws, established us- ages adoption. country customs at the time of its * * *

“The Constitution must in connection be read history represent- development * * * facts of and the of a government. ative form of

“The Constitution as amended must be construed See, a whole.” also, Swanson State, Neb. 271 N. W. 264. application

If Article XV, is limited public companies private service and other or cor- porate directly materially businesses which bear on welfare and are therefore “affected with a public interest,” there will no conflict other provisions, constitutional not, if it but there is an pointed obvious conflict. As out, heretofore on the Legislature, Legislature only, state level, and the appropriation money can control taxes to be III, levied. See Article sections Con- stitution of Nebraska. cannot Even in- cur $100,000. indebtedness in excess See Article governmental powers XIII, section 1. The division of provided following language: for in the “The government state into are divided three departments, legislative, distinct and executive judicial, being person persons and no collection of or prop- departments, any power one of these exercise shall erly belonging except here- to others, either permitted.” expressly Article II, inafter directed or direct constitu- section No 1, Constitution of Nebraska. provision by the tional such an encroachment authorizes budgetary judicial departments upon executive or appropriative powers Legislature. pointed out, There a conflict has been with also, as places Article limit on the VIII, section a 5, which levy. may amount of taxes assess which counties pressed presently their Counties are customary hard finance permit foreign body impose duties. To by additional financial means increased burdens wages already levy- county on salaries which ing compel an excess maximum tax allowed will levy require simply or cur- will abandonment county tailment of in connection with services rendered bridges, the administra- the maintenance of roads and welfare, tion of the numerous activities social and of engaged county the latter officers. various In imposed they duties case, to fulfill the will be unable upon them law. practical standpoint, by fol- Commission,

From a bring lowing guidelines might adopt, fit to can see wage district em- about statewide scale for school disregard ployees complete for individual fitness awith pay irrespective ability of the size and doing bring respective can about districts. In so impair many well demise of school districts requires operation VII, of Article section which provide in the for free instruction attempting to interfere school common schools. curriculums, and local con- hours, teachers’ duties and employed work, teachers are under which ditions it VII, Article which clash also will general Department gives of Education supervision system. school administration our provisions

The conflict in- other constitutional things. dicates First, XV, two that Article section broadly was never intended to be so construed. Sec- construing light ond, that in it in the of the Constitution interpreted grant as whole, cannot au- as thority political over the State and subdivisions if its it is to be reconciled with other constitutional directives. Chapter

I submit that article R. S. R. amended, unconstitutional and void. joins J., in this dissent. C.

White, J., dissenting. Clinton, respectfully majority opinion points I dissent. The correctly out, believe, I XV, section 9, Article of Nebraska, Constitution authorizes the creation of commingled the commission with exec- administrative, judicial powers. opinion points utive, and The also out independent grant power by this is an of such special provisions virtue of the of Article XV, section exception 9, and ais separation constitutional to the powers provision agree this Article I II. reasoning applies scope insofar as it the mat- ters by entrusted to XV, the commission Article sec- tion 9. point Judge by specific raised Newton is not the question by

constitutional raised but I defendant, part believe it is in valid. With I him believe Article apply employers XV, 9, does not terms employees governmental and in the I base sector. upon language adopted conclusion of section 9 as language and without reference to the from eliminated original proposal in the course of this consideration. grants (1<) Section 9 two areas: In determin- ing employers employees controversies between “in public business or vocations affected with a interest,” (2) prevention practices business “unfair gains unconscionable business vocation affect- ing (Emphasis supplied.) welfare.” apparent It seems to me that the terms “business vocation” as XV, twice used in Article section 9, refers profit-making businesses vocations for the term practices gains” “unfair business and unconscionable operation gov- can have no reference to the of state or governmental ernmental capacities. subdivisions in their employer’s As first used, those terms refer to the busi- occupation ness or vocation not example, to the or vocation employee, teachers. It is not rea- government sonable to assume that in the first instance is included in the term or vocation” “business and in the second instance it is not. question grants

Because the statute a combination legislative, judicial powers executive, outside scope of the matters authorized Article XV, sec- tion it9, runs afoul of Article II of the constitutional provision pertaining separation powers. to the question would,

There however, seem to be no that Legislature may independently enact XV, of Article legislation applicable public section 9, labor employees, doing provisions but in so separa- of Article II on the tion must be observed. Boslaugh, J.; concurring. question concerning

The the construction of Article XV, section 9, Constitution of raised Nebraska, in the dissenting opinion Judge Newton, not without although presented any force not in of the briefs filed in this case. permits relating

The section the enactment of laws employers employees “controversies between business or vocation affected with á interest.” Although disagreement there can be what language appear means, would the terms busi- ness or vocation were used an alternative sense' and legislation' relating to- controversies between em- ployers employees under this section is not limited públic to a business affected' with a interest. legislative pro- construction of a constitutional

798 controlling, given although vision, not con- should be doubtful, particularly in sideration, and when de- cases liberately made. joins J., in this concurrence.

MeCown, Wesley County F. Hansen, appellee, Lincoln, appellants. et Nebraska, al.,

197 N. W. 2d July 21, Filed 1972. No. 38355.

See p. original opinion. ante W. for N. Myers, appellants, R. Mullikin W. Richard P. for Dwyer McGrath, North, Nelson, Shkolnick & August appellee. Ross, for Heard before C. J., White, Spencer, Boslaugh, Smith, JJ.

McCown, Newton, Clinton, J. Clinton, rehearing Motion this case cites Gamboni v. County sug- Otoe, Neb. 67 N. W. 2d gests pro- that while section R. 77-1736.04, R. S. remedy vides the exclusive obtain a refund of taxes paid prior enjoining to a court decree re- collection or quiring segregation accounting, yet paid as to taxes entry after decree the order refund court taxpayer paid entry who has class after the seriously decree. We examined this con- have agree. and find cannot was decided tention we Gamboni 77-1736.04, Section December 1954. R. R. S. chapter page was enacted and Laws 1955,

Case Details

Case Name: School District of Seward Education Ass'n v. School District

Court Name: Nebraska Supreme Court

Date Published: Jul 21, 1972

Citation: 199 N.W.2d 752

Docket Number: 38267

Court Abbreviation: Neb.