REQUESTED BY: Dear Senator:

This is in reply to your inquiry concerning the constitutionality of the above sections of the Nebraska statutes as they are proposed to be amended. In arriving at our conclusion we have considered a rule stated inSmithberger v. Banning, 129 Neb. 651, wherein our Supreme Court held:

"The state legislature has no power to delegate any of its legislative powers to any outside agency such as the congress of the United States."

With this rule in mind we call to your attention that section 55-135 provides that National Guard officers may hold their commissions until separated, and section 55-136 that staff officers may hold their positions until retired, `pursuant to regulation issued by the Department of Army or the Department of Air Force'; that section 55-138 provides for the selection and separation of National Guard officers `as prescribed in regulations issued by the Department of the Army or the Department of the Air Force'; and that section55-143 provides that the `general fitness for the service of a National Guard officer may be determined by an efficiency board as provided by the United States.'

Considering the rule in the Smithberger case, if regulations issued by the Department of Army or the Department of Air Force, or any law adopted by the United States affecting the above provisions of our statutes are unchanged after the enactment or amendment of the above statutes, it is doubtful that their constitutionality would be affected. However, if federal regulations or laws affecting the above sections were to be adopted or amended subsequent to the amendment of these statutes, there would be a serious question as to their constitutionality.