Cunningham v. Exon

300 N.W.2d 6, 207 Neb. 513, 1980 Neb. LEXIS 995
CourtNebraska Supreme Court
DecidedDecember 19, 1980
Docket42989
StatusPublished
Cited by6 cases

This text of 300 N.W.2d 6 (Cunningham v. Exon) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cunningham v. Exon, 300 N.W.2d 6, 207 Neb. 513, 1980 Neb. LEXIS 995 (Neb. 1980).

Opinions

White, J.

In Cunningham v. Exon, 202 Neb. 563, 276 N.W.2d 213 (1979), the question on appeal was whether plaintiff-taxpayer had standing to bring an action for a declaratory judgment that art. VII, §11, of the Nebraska Constitution was not amended at the 1976 general election in such a way that the third full paragraph of that section was repealed. We reversed the District Court’s dismissal of the action and remanded the case for a trial on the merits. The District Court found for the plaintiff. We affirm.

Art. XVI, § 1, of the Nebraska Constitution requires that amendments proposed by the Legislature be put to a vote of the people and that any such proposed amendments adopted by the people shall become part of the Constitution. The amendments voted on in the 1976 election were proposed by the Legislature in 1976 Neb. Laws, L.B. 666. Before the 1976 general election, art. VII, § 11, provided, in part:

“Sec. 11. Appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof.
[515]*515“All public schools shall be free of sectarian instruction.
“The state shall not accept money or property to be used for sectarian purposes; Provided, that the Legislature may provide that the state may receive money from the federal government and distribute it in accordance with the terms of any such federal grants, but no public funds of the state, any political subdivision, or any public corporation may be added thereto.” L.B. 666, as adopted by the Legislature, reads as follows:
“AN ACT for submission to the electors of amendments to Article VII, section 11, of the Constitution of Nebraska, relating to education; to permit contracting for nonsectarian services for handicapped children; to permit aid for nonsectarian purposes for postsecondary students; to prohibit the use of public funds for sectarian purposes; to provide for the time and manner of submission and form of ballots; and to provide the effective date thereof.
“Be it enacted by the people of the State of Nebraska,
“Section 1. That at the general election in November, 1976, there shall be submitted to the electors of the State of Nebraska for approval the following amendment to Article VII, section 11, of the Constitution of Nebraska, and the further amendment of Article VII by the addition of new section 11A thereto, which are hereby proposed by the Legislature:
“‘Sec. 11. Notwithstanding any other provision in the Constitution,-Appropriation-appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof; Provided, that the Legislature may provide that the state or any political subdivision thereof may contract with institutions not wholly owned or controlled by the state or any political subdivision to provide for educational or other services for the benefit of children under the age of twenty-one years who are handicapped, as that term is [516]*516from time to time defined by the Legislature, if such services are nonsectarian in nature. [This is the language represented on the November ballot by Part 1.]
“All public schools shall be free of sectarian instruction.
“The state-sha-l-l not accept money or property to be used for sectarian purposes, Provided, that the Legislature may provide that thc-st-a-t-e-may receive money from the federal- govcrnment--a-nd distribute it in ae eorda-nee with the terms of-a-ny-sueh federal grants, but no-publk-Tu-nd&of the state, any pol-i-tical subdivision-ror any — pub lie corporation may be-added thereto. [This is the paragraph in question.]
“A religious test or qualification shall not be required of any teacher or student for admission or continuance in any school or institution supported in whole or in part by public funds or taxation.
“Sec. 11A. Notwithstanding any other provision in the Constitution, the Legislature may provide financial aid in the form of loans or grants to students attending postsecondary educational institutions not wholly owned or controlled by the state or a political subdivision thereof if such aid is expressly limited to nonsectarian purposes. The Legislature may provide that the state may receive money from the federal government and distribute it in accordance with the terms of any such federal grants, but any public funds of the state, any political subdivision, or any public corporation added thereto shall not be used for sectarian purposes.’, [This is the language represented on the November ballot by Part 2.]
“Sec. 2. The proposed amendments shall be submitted to the electors in the manner prescribed by Article XVI, section 1, of the Constitution of Nebraska. The proposition for the submission of the proposed amendments shall be placed upon the ballots in the following form:
[517]*517“‘Constitutional amendment to permit contracting with institutions not wholly owned or controlled by the state or any political subdivision for nonsectarian services for handicapped children.
“For
“Against
“Constitutional amendment to permit financial aid for nonsectarian purposes to students attending postsecondary educational institutions not wholly owned or controlled by the state or a political subdivision thereof; and to prohibit the expenditure of public funds, added to funds received from the federal government, for sectarian purposes.
“For
“Against’
“Sec. 3. That the proposed amendments, if adopted, shall be in force and take effect immediately upon the completion of the canvass of the votes, at which time it shall be the duty of the Governor to proclaim them as a part of the Constitution of Nebraska.”

At the 1976 general election in November, the proposed changes of art. VII, §11, were presented to the voters in two parts. Part 1 appeared on the ballot as follows:

“PART 1
“A vote FOR this proposal will enable the Legislature to enact legislation providing that the state or any political subdivision may contract with non-public institutions for the provision of educational or other services to handicapped children as long as the services are nonsectarian in nature.
“A vote AGAINST this proposal will continue the present situation whereby neither the state nor any political subdivision may contract with non-public institutions for the provision of educational or other services to handicapped children even though nonsectarian in nature.
[518]*518Constitutional amendment to permit “□ For contracting with institutions not wholly owned or controlled by the state or any
□ Against political subdivision for nonsectarian services for handicapped children.”

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Bluebook (online)
300 N.W.2d 6, 207 Neb. 513, 1980 Neb. LEXIS 995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cunningham-v-exon-neb-1980.