Nebraska State Constitution Article II-1

Article II-1

II-1.

Legislative, executive, judicial.

(1) The powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution.

(2) Notwithstanding the provisions of subsection (1) of this section, supervision of individuals sentenced to probation, released on parole, or enrolled in programs or services established within a court may be undertaken by either the judicial or executive department, or jointly, as provided by the Legislature.

Source

Annotations


1. Legislative power


2. Executive power


3. Judicial power


4. Miscellaneous


1. Legislative power

The Legislature may not delegate its lawmaking function to the executive or judicial branches. In re Petition of Nebraska Community Corr. Council, 274 Neb. 225, 738 N.W.2d 850 (2007).

An executive agency decision which is a legislative act encroaches upon and interferes with legislative powers that cannot be delegated to an executive agency. Such unilateral action by an agency violates the language of this provision. Clemens v. Harvey, 247 Neb. 77, 525 N.W.2d 185 (1994).

A grant of administrative authority is not an unconstitutional delegation of legislative power. Blackledge v. Richards, 194 Neb. 188, 231 N.W.2d 319 (1975).

Sections 77-202.25 to 77-202.33 do not constitute an appropriation and are not violative hereof. Stahmer v. State, 192 Neb. 63, 218 N.W.2d 893 (1974).

Sections 79-486 and 79-4,102 do not unlawfully delegate legislative authority and are not unconstitutional. Mann v. Wayne County Board of Equalization, 186 Neb. 752, 186 N.W.2d 729 (1971).

Legislature cannot through appropriations exercise or invade constitutional rights or powers of executive. Legislature cannot administer appropriations once made. State ex rel. Meyer v. State Board of Equalization & Assessment, 185 Neb. 490, 176 N.W.2d 920 (1970).

Nebraska Revenue Act of 1967 was not an unlawful delegation of legislative power to the United States. Anderson v. Tiemann, 182 Neb. 393, 155 N.W.2d 322 (1967).

Legislature may not delegate or impose legislative functions upon judicial department. McDonald v. Rentfrow, 176 Neb. 796, 127 N.W.2d 480 (1964).

Grant of legislative power to Department of Education was an exception expressly authorized by Constitution. School Dist. No. 8 of Sherman County v. State Board of Education, 176 Neb. 722, 127 N.W.2d 458 (1964).

Legislature, in creating an administrative body, cannot delegate power which is conferred solely upon the Legislature. Terry Carpenter, Inc. v. Nebraska Liquor Control Commission, 175 Neb. 26, 120 N.W.2d 374 (1963).

Legislature has power to confirm appointments to public office. State ex rel. Johnson v. Hagemeister, 161 Neb. 475, 73 N.W.2d 625 (1955).

Delegation of rule-making power to Superintendent of Public Instruction, without adequate standards, violated this section. School Dist. No. 39 of Washington County v. Decker, 159 Neb. 693, 68 N.W.2d 354 (1955).

Delegation of legislative powers to a county committee to fix boundaries of school district was constitutional. Nickel v. School Board of Axtell, 157 Neb. 813, 61 N.W.2d 566 (1953).

Legislature could delegate to Board of Regents authority to make rules for efficient operation of University Hospital. Board of Regents v. County of Lancaster, 154 Neb. 398, 48 N.W.2d 221 (1951).

Reclamation Act did not violate this section. Nebraska Mid-State Reclamation District v. Hall County, 152 Neb. 410, 41 N.W.2d 397 (1950).

Housing authority acts granting administrative functions to city council were not unconstitutional delegation of legislative authority. Lennox v. Housing Authority of City of Omaha, 137 Neb. 582, 290 N.W. 451 (1940).

Legislature has no power to delegate legislative authority to an administrative board or to outside agency such as United States Congress. Smithberger v. Banning, 129 Neb. 651, 262 N.W. 492 (1935).

Statute regulating size of loaf of bread, authorizing Secretary of Agriculture to fix reasonable excess tolerances, is not invalid as a delegation of legislative power. Petersen Baking Co. v. Bryan, 124 Neb. 464, 247 N.W. 39 (1933), affirmed in 290 U.S. 570 (1934).

Act providing for control and eradication of diseases among domestic animals does not delegate legislative power, and is not invalid. State ex rel. Sorensen v. Knudtsen, 121 Neb. 270, 236 N.W. 696 (1931).

Governor, in submitting budget recommendations and in acting on appropriation bills, is in performance of "legislative duties" within meaning hereof. Elmen v. State Board of Equalization and Assessment, 120 Neb. 141, 231 N.W. 772 (1930).

Proviso of law relating to organization of new school districts was unconstitutional as attempting to delegate legislative functions to private persons. Rowe v. Ray, 120 Neb. 118, 231 N.W. 689 (1930).

Duty placed on administrative board to provide form of insurance contract was not an unconstitutional delegation of legislative power. State ex rel. Martin v. Howard, 96 Neb. 278, 147 N.W. 689 (1914).

Statute providing for direct appeals to Supreme Court from Railway Commission is not invalid as attempting to confer legislative power on court. Hooper Tel. Co. v. Nebraska Tel. Co., 96 Neb. 245, 147 N.W. 674 (1914).

This section prohibits attempting to confer upon district court legislative authority to sever agricultural lands from municipal limits. Winkler v. City of Hastings, 85 Neb. 212, 122 N.W. 858 (1909).

Making it discretionary in district court to determine necessity for calling grand jury does not confer legislative powers upon judiciary. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).


2. Executive power

The Board of Nursing has power to deny a license upon proof applicant is guilty of unprofessional conduct, and upon review de novo, district court may not substitute its own judgment on that issue. Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976).

The statutes which give the Court of Industrial Relations jurisdiction over public employees are not unconstitutional. American Fed. of S., C. & M. Emp. v. Department of Public Institutions, 195 Neb. 253, 237 N.W.2d 841 (1976).

Adoption of existing law or regulation by reference does not delegate legislative power to administrative officer to create criminal offenses. State v. Workman, 186 Neb. 467, 183 N.W.2d 911 (1971).

Statute authorizing transfer of land from a nonaccredited to an accredited high school district did not violate this section. De Jonge v. School Dist. of Bloomington, 179 Neb. 539, 139 N.W.2d 296 (1966).

Regulation of Nebraska Liquor Control Commission fixing hours for sale of beer outside corporate limits of cities and villages did not violate this section. Griffin v. Gass, 133 Neb. 56, 274 N.W. 193 (1937).

Powers of State Board of Agriculture are neither legislative nor judicial. Crete Mills v. Nebraska State Board of Agriculture, 132 Neb. 244, 271 N.W. 684 (1937).

Legislature may not impose judicial power upon executive officers or delegate legislative power to them. Laverty v. Cochran, 132 Neb. 118, 271 N.W. 354 (1936).

Act requiring county attorney to perform duties of coroner is not invalid as clothing administrative officer with judicial power. State ex rel. Crosby v. Moorhead, 100 Neb. 298, 159 N.W. 412 (1916).

Act authorizing chief officer of state department or institution to employ attorney, rather than to have Attorney General act, is not invalid. Follmer v. State, 94 Neb. 217, 142 N.W. 908 (1913).

Ministerial officers, such as board of education, while not exactly executive or political, are obviously more nearly related to executive than to legislative or judicial department. State v. Loechner, 65 Neb. 814, 91 N.W. 874 (1902).

Attempt to confer upon courts authority to remove police magistrates for misconduct in office was unlawful delegation of executive power. Gordon v. Moores, 61 Neb. 345, 85 N.W. 298 (1901).

By quo warranto proceeding court does not exercise nor assume to exercise any power belonging to executive department. State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N.W. 739 (1891), 51 N.W. 602 (1892), reversed in Boyd v. Nebraska ex rel. Thayer 143 U.S. 135 (1892).


3. Judicial power

This provision of the Nebraska Constitution prohibits the Legislature from mandating that the Supreme Court adopt sentencing guidelines for felony drug offenses. In re Petition of Nebraska Community Corr. Council, 274 Neb. 225, 738 N.W.2d 850 (2007).

The Nebraska Supreme Court is vested with the sole power to admit persons to the practice of law in this state and to fix qualifications for admission to the Nebraska bar. In re Application of Brown, 270 Neb. 891, 708 N.W.2d 251 (2006).

A trial court that indicates it will concur in an agreement granting sentence concessions is not bound and has not ceded its authority and, thus, has not violated the doctrine of the separation of powers. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).

Although courts have no jurisdiction to review wholly legislative acts, some agency determinations possess quasi-judicial characteristics and are reviewable without violating the separations of powers doctrine. Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995).

The Nebraska Supreme Court, and only that court, is invested with the power to admit persons to the practice of law and to fix qualifications for admission to the bar. Thus, it has the responsibility to adopt and implement systems designed to protect the public and safeguard the judicial system by assuring that those admitted to the bar are of such character and fitness as to be worthy of the trust and confidence such admission implies. In re Application of Majorek, 244 Neb. 595, 508 N.W.2d 275 (1993).

The discretion vested in a prosecuting attorney to determine in which court a minor shall be prosecuted does not violate this section as an unlawful delegation of legislative power. State v. Grayer, 191 Neb. 523, 215 N.W.2d 859 (1974).

Legislative act attempting to confer upon the courts the power of determining what lands should be annexed to a city violated this section. Williams v. County of Buffalo, 181 Neb. 233, 147 N.W.2d 776 (1967).

Legislature may confer upon the courts the power to review action taken by county board of equalization in levying taxes. C. R. T. Corp. v. Board of Equalization, 172 Neb. 540, 110 N.W.2d 194 (1961).

Motor Vehicle Safety Responsibility Act does not confer judicial powers on Department of Roads and Irrigation. Hadden v. Aitken, 156 Neb. 215, 55 N.W.2d 620 (1952).

Under separation of powers of government, judiciary has the inherent right to admit attorneys to practice law and prescribe their qualifications, and while Legislature may impose minimum standards as an exercise of the police power, the judiciary is not required to accept lower standards than it prescribes. State ex rel. Ralston v. Turner, 141 Neb. 556, 4 N.W.2d 302 (1942).

Power to admit persons to practice of law and fix their qualifications to practice is vested solely in Supreme Court. State ex rel. Wright v. Hinckle 137 Neb. 735, 291 N.W. 68 (1940).

Statute conferring powers over solvent and insolvent banks on Department of Banking is not unconstitutional as attempt to delegate judicial powers to the department. Department of Banking v. Hedges, 136 Neb. 382, 286 N.W. 277 (1939).

The right to define and regulate the practice of law belongs to the judicial department of government. In re Integration of the Nebraska State Bar Association, 133 Neb. 283, 275 N.W. 265 (1937).

The Supreme Court has no power to regulate public utilities. Furstenberg v. Omaha & C. B. St. Ry. Co., 132 Neb. 562, 272 N.W. 756 (1937).

Power to admit persons to practice law in this state and to fix their qualifications is vested solely in the Supreme Court. State ex rel. Wright v. Barlow, 131 Neb. 294, 268 N.W. 95 (1936).

Statute providing for assignment of district judges as appraisers in condemnation proceedings is not unconstitutional delegation of power hereunder. City of Mitchell v. Western Public Service Co., 124 Neb. 248, 246 N.W. 484 (1933).

Judicial department of government must protect its jurisdiction at boundaries of power fixed by the Constitution. State ex rel. Sorensen v. Mitchell State Bank, 123 Neb. 120, 242 N.W. 283 (1932); State ex rel. Sorensen v. State Bank of Minatare, 123 Neb. 109, 242 N.W. 278 (1932).

Statute relating to declaratory judgments is valid since it does not confer nonjudicial powers on courts. Lynn v. Kearney County, 121 Neb. 122, 236 N.W. 192 (1931).

Power conferred on Supreme Court Justice to require filing of nomination acceptance is judicial, not quasi political or administrative. State ex rel. Meissner v. McHugh, 120 Neb. 356, 233 N.W. 1 (1930).

Statute requiring court to determine whether power district should be incorporated, what its boundaries should be, etc., is invalid as imposing nonjudicial duties. Searle v. Yensen, 118 Neb. 835, 226 N.W. 464 (1929).

Statute making federal census reports basis for determining population of subdivisions of state is void as usurping judicial power. Gordon v. Lowry, 116 Neb. 359, 217 N.W. 610 (1928).

Appointment by Supreme Court of district judges to appraise public utility does not violate this section. In re Appraisement of Omaha Gas Plant, 102 Neb. 782, 169 N.W. 725 (1918).

Statute vesting in district court duty of ordering annexation or disconnecting territory from municipal limits upon determination of existence of required facts does not violate Constitution. Bisenius v. City of Randolph, 82 Neb. 520, 118 N.W. 127 (1908).

Statute providing for appointment of municipal park commissioners by judges of district court is void as violating Constitution. State ex rel. Thompson v. Neble and Latenser, 82 Neb. 267, 117 N.W. 723 (1908).

Statute cannot vest judiciary with legislative functions under subterfuge of giving court jurisdiction over such questions on appeal. Tyson v. Washington County, 78 Neb. 211, 110 N.W. 634 (1907).

Creation of State Banking Board with regulatory power over banking corporations does not vest such board with judicial powers in violation of this article. State ex rel. Prout v. N. W. Trust Co., 72 Neb. 497, 101 N.W. 14 (1904).

Issuance of writ of mandamus by judicial branch directing performance of duty by member of executive department does not violate this section. State ex rel. Wright v. Savage, 64 Neb. 684, 90 N.W. 898 (1902), modified on rehearing 64 Neb. 702, 91 N.W. 557 (1902).

Supreme Court, on appeal from State Board of Equalization involving valuation and assessment of railroad property, acts in judicial and not in administrative capacity. Chicago & N. W. Ry. Co. v. Bauman, 69 F.2d 171 (8th Cir. 1934).


4. Miscellaneous

Nebraska's separation of powers clause prohibits the three governmental branches from exercising the duties and prerogatives of another branch and prohibits a branch from improperly delegating its own duties and prerogatives, except as the constitution directs or permits. In re Petition of Nebraska Community Corr. Council, 274 Neb. 225, 738 N.W.2d 850 (2007).

In Nebraska, the distribution of powers clause prohibits one branch of government from exercising the duties of another branch. Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731 N.W.2d 164 (2007).

The distribution of powers clause prohibits one branch of government from exercising the duties of another. State v. Divis, 256 Neb. 328, 589 N.W.2d 537 (1999).

The powers of the state government are separated into three distinct departments, none of which shall exercise the powers belonging to the others. State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996).

This provision separates the powers of state government into three distinct departments, none of which shall exercise the powers belonging to the others. State v. Jones, 248 Neb. 117, 532 N.W.2d 293 (1995).

This provision, which distributes state governmental powers to the legislative, judicial, and executive branches, does not apply to the governing bodies of municipalities. Howard v. City of Lincoln, 243 Neb. 5, 497 N.W.2d 53 (1993).

This provision prohibits one branch of government from encroaching on the duties and prerogatives of the others or from improperly delegating its own duties and prerogatives, and prohibits one who exercises the powers of one branch from being a member of one of the other branches. An employee of a state college is a member of the executive branch of government. An individual cannot simultaneously hold a position as an assistant professor at a state college and serve in the Legislature. State ex rel. Spire v. Conway, 238 Neb. 766, 472 N.W.2d 403 (1991).

Act establishing Court of Industrial Relations does not violate any constitutional provision and the standards for its guidance are adequate. Orleans Education Assn. v. School Dist. of Orleans, 193 Neb. 675, 229 N.W.2d 172 (1975).

The provision authorizing an Industrial Commission is an independent part of the Constitution and not an amendment to Article II. School Dist. of Seward Education Assn. v. School Dist. of Seward, 188 Neb. 772, 199 N.W.2d 752 (1972).

Provision in Nebraska Clean Waters Commission Act regarding appointment of trustees construed so as not to violate this section. State ex rel. Meyer v. Duxbury, 183 Neb. 302, 160 N.W.2d 88 (1968).

Airport Authority Act did not violate this section. Obitz v. Airport Authority of City of Red Cloud, 181 Neb. 410, 149 N.W.2d 105 (1967).

Statute providing that judicial determination that legislative act is unconstitutional shall have prospective effect only held to be in violation of this section. Davis v. General Motors Acceptance Corp., 176 Neb. 865, 127 N.W.2d 907 (1964).

Statute authorizing paving in city of the second class did not delegate legislative functions to private individuals. Elliott v. City of Auburn, 172 Neb. 1, 108 N.W.2d 328 (1961).

Grade A Milk Act was unconstitutional as conferring legislative power upon administrative officer. Lincoln Dairy Co. v. Finigan, 170 Neb. 777, 104 N.W.2d 227 (1960).

Powers of government are divided into three distinct departments, the legislative, the executive and the judicial. State ex rel. Howard v. Marsh, 146 Neb. 750, 21 N.W.2d 503 (1946).

Appointment of district judges as appraisers in condemnation proceedings does not violate the doctrine of separation of powers. May v. City of Kearney, 145 Neb. 475, 17 N.W.2d 448 (1945).

Requirement that candidate for office of member of State Railway Commission be not less than thirty years of age does not violate this section. State ex rel. Quinn v. Marsh, 141 Neb. 436, 3 N.W.2d 892 (1942).

Purpose of section was to establish and maintain the independence of the three branches of government. State ex rel. Randall v. Hall, 125 Neb. 236, 249 N.W. 756 (1933).

This section concerns only government of state and does not attempt to limit Legislature in prescribing manner in which municipalities may administer local affairs. State ex rel. Baughn v. Ure, 91 Neb. 31, 135 N.W. 224 (1912).