City of North Platte v. Tilgner

C ity of North P latte , Nebraska , a muNiCiPal CorPoratioN,
aPPellee aNd Cross -aPPellaNt, v. William l. tilgNer
et al ., aPPellaNts aNd Cross -aPPellees.
803 N.W.2d 469
Filed September 23, 2011. 	No. S-10-540.
1. Statutes. Statutory interpretation presents a question of law.
2. Constitutional Law. Constitutional interpretation presents a question of law.
3. Declaratory Judgments: Appeal and Error. When a declaratory judgment
action presents a question of law, an appellate court decides the question indepen-
dently of the conclusion reached by the trial court.
4. Municipal Corporations: Declaratory Judgments: Initiative and Referendum:
Notice. Under Neb. Rev. Stat. § 18-2538 (Reissue 2007), when a municipality
does not seek a declaratory judgment until after it is notified that a ballot measure
petition contains the required signatures, a court cannot bar the measure from
being placed on the ballot.
5. Initiative and Referendum. A court order forbidding a county clerk from con-
sidering the votes cast for a proposed ballot measure or reporting the results
keeps the measure off the ballot.
6. Municipal Corporations: Declaratory Judgments: Initiative and Referendum:
Notice: Time. Under Neb. Rev. Stat. § 18-2538 (Reissue 2007), if a city brings
a declaratory judgment action challenging a ballot measure within 40 days of
receiving notice of the requisite signatures, a court may invalidate the measure
because of a deficiency in form or procedure even if the voters approved it.
7. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an
appellate court gives words in a statute their ordinary meaning.
8. ____: ____. In construing statutory language, an appellate court attempts to give
effect to all parts of a statute and avoid rejecting as superfluous or meaningless
any word, clause, or sentence.
9. ____: ____. When possible, an appellate court will try to avoid a statutory con-
struction that would lead to an absurd result.
10. Initiative and Referendum: Contracts: Ordinances: Taxation. Under Neb.
Rev. Stat. § 18-2528(1)(a) (Reissue 2007), a general tax ordinance cannot be a
measure necessary to carry out a contractual obligation if an obligation did not
exist when the municipality passed it.
11. Initiative and Referendum: Contracts: Immunity. Under Neb. Rev. Stat.
§ 18-2528(1)(a) (Reissue 2007), the Legislature has immunized from the referen-
dum process measures necessary to carrying out contractual obligations for proj-
ects previously approved by a measure which was, or is, subject to referendum or
limited referendum.
12. Municipal Corporations: Initiative and Referendum: Contracts. Neb. Rev.
Stat. § 18-2528(1)(a) (Reissue 2007) does not shield from the referendum proc-
ess a revenue measure that funds a city’s subsequent contractual obligations for
a project that was not previously approved by a measure that was subject to
referendum.
328 	282 NebRASkA RepoRtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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13. Municipal Corporations: Initiative and Referendum: Appeal and Error. An
appellate court liberally construes grants of municipal initiative and referendum
powers to permit, rather than restrict, the power and to attain, rather than prevent,
its object.
14. Municipal Corporations: Initiative and Referendum. to determine whether
petitioners for a municipal ballot measure are acting under their initiative power
or their referendum power, a court should look to the function of their proposed
ballot measure—not its label.
15. Municipal Corporations: Initiative and Referendum: Ordinances. the cor-
rect distinction for determining whether a proposed municipal ballot measure
falls under the petitioners’ initiative power or their referendum power is whether
the proposed measure would enact a new ordinance or would amend an exist-
ing ordinance.
16. Constitutional 	Law: 	Legislature: 	Municipal 	Corporations: 	Statutes:
Ordinances. the Legislature’s authority to enact statutes providing a right for
municipal voters to enact or repeal municipal ordinances does not depend on the
existence of article III, §§ 2 and 3, of the Nebraska Constitution.
17. Constitutional Law: Legislature. the Nebraska Constitution is not a grant, but
a restriction, on legislative power, and the Legislature may legislate upon any
subject not proscribed by the Constitution.
18. Constitutional Law: Courts: Intent. In ascertaining the intent of a constitutional
provision from its language, a court may not supply any supposed omission, or
add words to or take words from the provision as framed.
19. ____: ____: ____. If the meaning is clear, the Nebraska Supreme Court gives a
constitutional provision the meaning that laypersons would obviously understand
it to convey.
20. Constitutional Law. It is a fundamental principle of constitutional interpretation
that each and every clause within a constitution has been inserted for a useful
purpose.
21. Constitutional Law: Ordinances. Neb. Const. art. III, § 2, neither applies to
proposed municipal ordinances nor requires that they comply with a single sub-
ject rule.
22. Constitutional Law: Municipal Corporations: Initiative and Referendum.
the constitutional power of referendum under Neb. Const. art. III, § 3, does not
confer a right to refer municipal measures to the voters.
23. Constitutional Law: Ordinances: Judgments. the constitutional requirement in
Neb. Const. art. III, § 14, that bills and resolutions contain only one subject does
not apply to city ordinances, nor the adoption thereof, and decisions thereunder
are valuable only as analogies.
24. Constitutional Law: Municipal Corporations: Initiative and Referendum:
Statutes. the initiative and referendum powers of municipal voters are estab-
lished by statute in this state—not the Constitution.
25. Ordinances: Voting. the Nebraska Supreme Court has adopted a common-law
single subject rule of form that preserves the integrity of the municipal electoral
process. the rule invalidates proposed ordinances that require voters to approve
distinct and independent propositions in a single vote.
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Cite as 282 Neb. 328

26. ____: ____. A proposed ordinance is invalid if it would (1) compel voters to
vote for or against both propositions—when they might not do so if presented
separately; (2) confuse voters on the issues they are asked to decide; or (3) create
doubt as to what action they have authorized after the election.
27. Municipal Corporations: Voting. A municipal ballot measure with separate
provisions does not violate the single subject rule if each of its provisions has
a natural and necessary connection with each other and together are part of one
general subject.
Appeal from the District Court for Lincoln County: JohN
P. murPhy, Judge. Affirmed in part, and in part reversed and
vacated.
V. gene Summerlin, of ogborn, Summerlin & ogborn, p.C.,
for appellants.
Steve grasz, of husch blackwell, L.L.p., and Douglas L.
Stack for appellee.
heaviCaN, C.J., gerrard, stePhaN, mCC ormaCk , and miller-
lermaN, JJ.
C oNNolly, J.
I. SUMMARy
the appellants, William L. tilgner, Dallis C. Dye, and
edward L. Rieker, filed an “initiative and referendum” petition
to refer a proposed ballot measure to the voters of the City of
North platte, Nebraska (the City). the ballot measure would
have amended a 1999 city ordinance that imposed an occupa-
tion tax.
After being notified that a sufficient number of voters had
signed the petition, the City filed this declaratory judgment
action to have the proposed measure declared invalid. the
district court ruled that the petition proposed a referendum
measure that violated Neb. Rev. Stat. § 18-2528(1)(a) (Reissue
2007). In some circumstances, § 18-2528(1)(a) prohibits ref-
erendums that interfere with a city’s contractual obligations.
the electors voted on the proposed amendment. but the court
ordered the county clerk not to count the votes cast and not to
report or certify the results.
our holding will be spelled out with some specificity in the
following pages, but briefly stated, it is this:
330 	282 NebRASkA RepoRtS

(1) the court lacked the authority to block a count of the
votes cast because the City failed to comply with the statu-
tory requisites that would allow a court to take that action. We
reverse and vacate that portion of the order.
(2) We reverse the court’s ruling that the proposed referen-
dum violated § 18-2528(1)(a) by interfering with a contrac-
tual obligation.
(3) We reject the City’s cross-appeal claim that the petition
was an improper combination of initiative and referendum
measures.
(4) We find merit, however, to the City’s cross-appeal claim
that the proposed referendum violated a common-law single
subject rule. that rule invalidates proposed ballot measures
that ask voters to approve independent and distinct measures
in a single vote.
Accordingly, we affirm in part, and in part reverse and
vacate.
II. bACkgRoUND
the parties stipulated to the following facts: In February
1999, the City adopted an ordinance providing for an occupa-
tion tax (the ordinance). the ordinance stated in relevant part:
[R]evenue collected on hotel accommodations shall be
used by the [C]ity to assist the [C]ity in constructing and
operating a visitors center promoting the [C]ity’s railroad
heritage until 12:00 a.m. (midnight) February 17, 2029,
after which time the same shall be deposited into the
general Fund of the [C]ity.
In 	November 	2004, 	the 	City 	entered 	into 	an 	“option
Agreement” 	to 	purchase 	a 	completed 	visitor 	center 	from
golden Spike tower & Visitor Center, a Nebraska nonprofit
corporation (golden Spike). the record fails to show how the
City approved this contract.
Under the contract, golden Spike would purchase real estate
upon which it would construct a “tourism/museum/educational
facility and visitor center promoting the community’s rail-
road heritage.” the contract stated that golden Spike intended
to borrow money from the U.S. Department of Agriculture
(USDA) to fund the project.
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Cite as 282 Neb. 328

paragraph A.1 required the City to make option payments
to golden Spike, which payments were to be applied toward
the purchase price. paragraph A.1 comprised two components.
Under paragraph A.1(a), all of the (unspecified) revenues from
the occupation tax that the City had already paid to golden
Spike 	constituted 	one 	option 	payment. 	paragraph 	A.1(b)
required the City to pay golden Spike each month an amount
equal to the previous month’s collected revenues from the
occupation tax—until the occupation tax expired in February
2029. the contract stated that upon the City’s exercise of its
option to purchase the visitor center, the purchase price “shall
be the aggregate of the amounts paid pursuant to paragraph
A.1.” golden Spike would use these funds to pay off its USDA
loan, make improvements, and fund operating costs.
the City could exercise its exclusive option to purchase the
property within 1 year after the earlier of two events occurred:
(1) the date that golden Spike paid the USDA loan in full or
(2) February 27, 2029, when the City’s use of the tax revenues
for a visitor center was scheduled to end. If the City failed
to exercise its purchase option, its payments to golden Spike
were nonrefundable.
In March 2009, the appellants filed an “Initiative and
Referendum petition” with the city clerk. the appellants col-
lected signatures, and on January 28, 2010, the petition was
certified to have been signed by 15 percent of the City’s quali-
fied electors. the petition proposed to amend the occupation
tax ordinance as follows:
[R]evenue collected on hotel accommodations shall be
used by the [C]ity to assist the [C]ity in constructing and
operating a visitors center promoting the [C]ity’s railroad
heritage retire debt to the [USDA], secured by [golden
Spike] until 12:00 a.m. (midnight) February 17, 2029[.]
after which time the same shall be deposited into the
general fund of the City. Any occupation tax revenue col-
lected on hotel accommodations beyond the amount paid
to retire the [USDA] debt on [golden Spike] shall be paid
into the City’s general Fund to be used by the City for
property tax relief.
332 	282 NebRASkA RepoRtS

In February 2010, the city council considered amending the
ordinance to reflect the petition’s language but declined to do so.
Instead, on February 18, the City filed a complaint for declara-
tory relief, seeking to have the petition declared invalid.
the City claimed that the petition was invalid under three
theories: (1) It proposed a referendum on a measure that was
not subject to referendum under § 18-2528(1)(a); (2) it vio-
lated Neb. Rev. Stat. §§ 18-2523 and 18-2527 (Reissue 2007)
by impermissibly joining an initiative and a referendum in the
same petition; and (3) it impermissibly combined two or more
separate and unrelated questions for voters to approve in a
single vote.
the appellants claimed that the purchase price under the
contract was indefinite and illusory. the court concluded, how-
ever, that the purchase price was the revenues collected from
the occupation tax over the course of the agreement, even if
the City changed the rate or the revenues varied. that ruling is
not part of this appeal. the court also declared that the petition
violated § 18-2528(1)(a). the court reasoned that the proposed
measure would interfere with a contractual obligation created
by the original ordinance. It stated:
[t]he referendum is clearly an attempt to amend and
impair the obligation of the contract and is, thus, violative
[sic] of Sec. 18-2528(1)(a) . . . .
. . . the people, acting through their representatives,
have determined that referendum may not be used if there
is an obligation of contract that will be impaired by the
referendum process. that is specifically the situation in
this case. . . .
. . . .
the only issue presented to this Court is whether or not
the ordinance as adopted creates a contractual obligation
that may not be impaired by the action of a referendum.
the Court has reached the conclusion that it is and finds
that a referendum is not the proper method to attack the
ordinance in question.
because the court concluded that the proposed ballot mea-
sure violated § 18-2528, it ordered the county clerk not to count
the votes and not to report or certify the results of the vote.
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Cite as 282 Neb. 328

III. ASSIgNMeNtS oF eRRoR
the 	appellants 	assign 	that 	the 	district 	court 	erred 	as
follows:
(1) ruling that the appellants’ referendum measure violated
§ 18-2528(1)(a); and
(2) ruling that their referendum measure did not qualify for
inclusion on the May 2010 election ballot.
In its cross-appeal, the City assigns, restated, that the district
court erred in failing to make the following rulings:
(1) the petition violated §§ 18-2523 and 18-2527 by improp-
erly combining an initiative and a referendum within a single
petition; and
(2) the petition unconstitutionally combined two separate
and unrelated questions for a single vote.
IV. StANDARD oF ReVIeW
[1-3] Statutory interpretation presents a question of law.1
Constitutional interpretation also presents a question of law.2
When a declaratory judgment action presents a question of
law, we decide the question independently of the conclusion
reached by the trial court.3
V. ANALySIS
1. direCt aPPeal
(a) the Court Lacked Authority to Stop
a Count of the Vote
Although the parties have not raised the issue, we conclude
that the court lacked authority to order the county clerk not to
count and certify the votes cast for or against the ballot meas-
ure. because the court’s lack of authority raises a jurisdiction
issue, we address it first.
the jurisdiction issue arises under Neb. Rev. Stat. § 18-2538
(Reissue 2007), which authorized the City’s declaratory judg-
ment action:
1 McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798 N.W.2d 386
(2011).
2 See State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347 (2006).
3 See State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007).
334 	282 NebRASkA RepoRtS

the municipality or any chief petitioner may seek
a declaratory judgment regarding any questions aris-
ing under Chapter 18, article 25, . . . including, but not
limited to, determining whether a measure is subject to
referendum or limited referendum or whether a measure
may be enacted by initiative. . . . Any action brought for
declaratory judgment for [these] purposes . . . may be
filed in the district court at any time after the filing of a
referendum or initiative petition with the city clerk for
signature verification until forty days from the date the
governing body received notification pursuant to section
18-2518. If the municipality does not bring an action for
declaratory judgment to determine [these issues] until
after it has received notification pursuant to section
18-2518, it shall be required to proceed with the initia-
tive or referendum election in accordance with sections
18-2501 to 18-2537 and this section. If the municipality
does file such an action prior to receiving notification
pursuant to section 18-2518, it shall not be required
to proceed to hold such election until a final decision
has been rendered in the action. . . . When an action is
brought to determine [one or more of these issues], a
decision shall be rendered by the court no later than five
days prior to the election.
(emphasis supplied.)
We specifically discussed the requirements of this statute in
Sydow v. City of Grand Island.4 there, whether the petition-
ers had obtained sufficient signatures depended upon which
statute governed their ballot measure. the city council refused
to put the initiative on the ballot. It believed that the petition
presented a general initiative measure, which required the peti-
tion to have verified signatures from 15 percent of the qualified
electors.5 but it was undisputed that the petition had sufficient
signatures to satisfy the 10-percent requirement for a sales
tax proposal.6 the petitioners filed for a writ of mandamus to
4 Sydow v. City of Grand Island, 263 Neb. 389, 639 N.W.2d 913 (2002).
5 See Neb. Rev. Stat. § 18-2524 (Reissue 2007).
6 See Neb. Rev. Stat. § 77-27,142.03 (Reissue 2009).
CIty oF NoRth pLAtte v. tILgNeR 	335
Cite as 282 Neb. 328

have the initiative put on the ballot, which request the district
court granted. In affirming that judgment, we explained that to
keep a ballot measure off the ballot, a city must comply with
§ 18-2538:
Under § 18-2538, either party may seek a declaratory
judgment determining whether a proposed measure is a
measure that may be enacted by initiative up to 40 days
after the governing body receives notification of the veri-
fied signatures pursuant to § 18-2518. but, if a city does
not bring an action before notification is received, it must
proceed with an election on the initiative. If a city files a
declaratory judgment action before notification is received,
it will not be required to place the challenged proposal on
the ballot until a final decision has been rendered in the
action. thus, the plain language of § 18-2538, which we
are obligated to respect and enforce, specifically con-
templates a circumstance in which a municipality may
be required to place an initiative measure on the ballot
before a court determines whether the measure would be
legally valid if enacted by the voters. . . .
. . . [t]he parties stipulated that the election commis-
sioner formally notified the city council of the number
of verified signatures in compliance with § 18-2518. the
[c]ity did not at any time seek a declaratory judgment that
the proposal was not a measure that may be enacted by
initiative. thus, under § 18-2538, the [c]ity was required
to place the proposal on the ballot. had the [c]ity wished
to avoid placing the proposal on the ballot while it chal-
lenged whether it could be enacted by initiative, it was
required to file a declaratory judgment action before noti-
fication of the verified number of signature was received.
because the [c]ity failed to seek a declaratory judgment
before it received notification pursuant to § 18-2518,
the [c]ity has a ministerial duty to place the proposal on
the ballot.7
[4,5] In this appeal, the parties’ stipulation shows that the
City did not seek a declaratory judgment until after it was
7 Sydow, supra note 4, 263 Neb. at 401-02, 639 N.W.2d at 923-24.
336 	282 NebRASkA RepoRtS

notified that the ballot measure petition contained the required
signatures. therefore, under § 18-2538, the court could not bar
the measure from being placed on the ballot. In effect, how-
ever, a court order forbidding the county clerk from counting
the votes cast for a proposed ballot measure or reporting the
results keeps the measure off the ballot.
the time requirements under § 18-2538 were obviously
intended to avoid having elections left in limbo whenever a city
challenges a ballot measure. We conclude that the order frus-
trated the Legislature’s specific requirement that a municipality
“shall be required to proceed with the initiative or referendum
election.”8 here, the City did not file its declaratory judgment
action before receiving notification of the requisite signatures.
thus, the court’s order blocking a count of the votes was an
unauthorized act that was outside of the court’s jurisdiction.9
We reverse and vacate that portion of the court’s order.
(b) the Court had Jurisdiction to Decide
the City’s Challenges
[6] Although the court lacked authority to block a count of
the vote, the City filed its complaint within 40 days of receiv-
ing notification of the verified signatures.10 And in City of
Fremont v. Kotas,11 we held that under § 18-2538, if a munici-
pality claims that a proposed ballot measure violates a statute
under chapter 18, article 25, of the Nebraska Revised Statutes,
the claim is a challenge to the procedure or form of the pro-
posal that may be raised in a preelection declaratory judgment
action.12 So under § 18-2538, if a city brings a declaratory
judgment action challenging a ballot measure within 40 days of
receiving notice of the requisite signatures, a court may invali-
date the measure because of a deficiency in form or procedure
even if the voters approved it.
8 § 18-2538.
9 See In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d 607 (2011).
10 See § 18-2538.
11 City of Fremont v. Kotas, 279 Neb. 720, 781 N.W.2d 456 (2010).
12 See 5 eugene McQuillin, the Law of Municipal Corporations § 16:68
(rev. 3d ed. 2004).
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Cite as 282 Neb. 328

In its first two claims, the City challenged the proposed
measure as violating the statutes under chapter 18, article 25.
these challenges focused on the petition’s failure to comply
with procedural requirements or requirements for the form of
the proposed measure. In addition, the City claimed that the
proposed measure violated the single subject rule. In City of
Fremont, we stated that a single subject challenge is a request
for a procedural review of a city initiative.13 So all of the City’s
claims regarding procedure or form were ripe for adjudication
in a preelection declaratory judgment action.
(c) the petition Did Not Impair a Contractual
obligation Incurred Under a previously
Approved Measure
Under § 18-2528, the Legislature has specified the circum-
stances under which citizens can exercise their municipal refer-
endum power. the district court concluded that § 18-2528(1)(a)
barred the referendum measure. In deciding the direct appeal,
we assume that the court correctly concluded that the petition
proposed a referendum measure. It characterized the issue as
whether “the ordinance as adopted create[d] a contractual obli-
gation that may not be impaired by the action of a referendum”
and concluded that it had.
Section 18-2528 provides in part:
(1) the following measures shall not be subject to ref-
erendum or limited referendum:
(a) Measures necessary to carry out contractual obliga-
tions, including, but not limited to, those relating to the
issuance of or provided for in bonds, notes, warrants, or
other evidences of indebtedness, for projects previously
approved by a measure which was, or is, subject to refer-
endum or limited referendum or previously approved by a
measure adopted prior to July 17, 1982.
the Legislature has defined a measure as “an ordinance,
charter provision, or resolution which is within the legislative
authority of the governing body of a municipal subdivision to
13 City of Fremont, supra note 11.
338 	282 NebRASkA RepoRtS

pass, and which is not excluded from the operation of referen-
dum by the exceptions in section 18-2528.”14
(i) Parties’ Contentions
the appellants contend that the court erred in concluding
that § 18-2528(1)(a) prohibited their proposed referendum.
they argue that they sought only to amend the 1999 ordinance
passing an occupation tax to assist the City in constructing and
operating a visitor center. they contend that the tax ordinance
was a measure that contemplated a visitor center but did not
formally approve one. Moreover, they argue that no measure
approving of a visitor center exists. So they conclude that
under § 18-2528(1)(a), there was no measure that was sub-
ject to a referendum. they also contend that because the tax
ordinance was not a measure that was necessary to carry out a
contractual obligation for a previously approved project, it fell
under § 18-2528(6), which states that measures not exempted
are subject to a referendum at any time.
the City does not contend that the tax ordinance was a
measure approving of the visitor center project. And it agrees
that the option contract with golden Spike was not a measure.
Although the City makes vague assertions that the contract
presupposed an authorizing resolution, it points to no resolu-
tion that could have been referred to voters. Instead, the City
argues that § 18-2528(1)(a) does not require a project to be
previously approved. It contends that the statute protects from
the referendum process any measure necessary to carrying out
a city’s contractual obligations. It argues that the clause in
§ 18-2528(1)(a) referring to “projects previously approved”
modifies only the immediately preceding phrase referring to
measures “relating to the issuance of or provided for in bonds,
notes, warrants, and other evidences of indebtedness.” And
because the statute explicitly states that measures necessary to
carrying out contractual obligations are not limited to measures
such as bonds, notes, et cetera, the City argues that the statute
protects any measure necessary to carry out a contractual obli-
gation. We disagree.
14 Neb. Rev. Stat. § 18-2506 (Reissue 2007).
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Cite as 282 Neb. 328

(ii) Analysis
[7-9] Absent a statutory indication to the contrary, we give
words in a statute their ordinary meaning.15 In construing
statutory language, we attempt to give effect to all parts of
a statute and avoid rejecting as superfluous or meaningless
any word, clause, or sentence.16 And when possible, we will
try to avoid a statutory construction that would lead to an
absurd result.17
[10] the Legislature unambiguously excluded from the ref-
erendum process “[m]easures necessary to carry out contrac-
tual obligations.”18 Regardless of the language following this
phrase, under § 18-2528(1)(a), a general tax ordinance cannot
be a measure necessary to carry out a contractual obligation
if an obligation did not exist when the municipality passed it.
here, no contractual obligation existed in 1999 when the City
passed the occupation tax ordinance. the 1999 occupation tax
contemplated only a future construction of a visitor center.
Accepting the City’s logic would lead to an absurd result.
Any general taxation measure that a city is authorized to pass
could be considered a measure necessary to carrying out a
city’s later contractual obligations. It is true that without that
revenue stream, a city may not meet its obligations. but the
City’s interpretation would mean that a city’s general taxation
measure to raise revenues for a general purpose is shielded
from referendum—even if electors later learn that the City
unlawfully entered into a contract to carry out that purpose or
contracted to spend much more than the tax raised.
[11] Instead, under § 18-2528(1)(a), the Legislature has
sensibly immunized from the referendum process measures
necessary to carrying out contractual obligations “for projects
previously approved by a measure which was, or is, subject to
referendum or limited referendum.”19 obviously, a city must be
15 In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).
16 See State v. Stolen, 276 Neb. 548, 755 N.W.2d 596 (2008).
17 Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739
N.W.2d 742 (2007).
18 § 18-2528(1)(a).
19 Id.
340 	282 NebRASkA RepoRtS

able to contract for services to implement approved projects
without fear of referendum when its citizens did not petition
for a referendum on the original measure approving the project.
So we reject the City’s argument that the phrase “for projects
previously approved” in § 18-2528(1)(a) does not modify the
type of measures necessary to carry out a contractual obliga-
tion. the City’s interpretation renders that phrase meaningless.
If the Legislature had intended to shield from the referen-
dum process any revenue-raising measure, it would not have
included this language.
[12] We conclude that § 18-2528(1)(a) does not shield from
the referendum process a revenue measure that funds a city’s
subsequent contractual obligations for a project that was not
previously approved by a measure that was subject to referen-
dum. the court erred in ruling that § 18-2528(1)(a) shielded
the occupation tax ordinance from a referendum. We now turn
to the City’s cross-appeal.
2. C ross -aPPeal
(a) the petition Was Not an Improper Combination
of Initiative and Referendum proposals
As noted, in deciding the direct appeal, we assumed that
the court correctly concluded that the petition proposed a
referendum measure. but the City challenges that conclusion.
It argues that the petition improperly combined an initiative
measure and a referendum measure. It acknowledges that we
have previously held that voters may use their municipal ini-
tiative power to repeal or amend a city ordinance.20 but the
City argues that the Legislature changed the statutes in 1982 to
preclude combining initiative and referendum measures in the
same petition. the City argues that the petition proposed an
invalid referendum measure that included an initiative proposal
“to enact a new provision.”21 that is, the City contends that the
part of the proposed measure that would change the required
use of the occupation tax revenues was an initiative proposal.
We disagree with the City’s interpretation.
20 See State ex rel. Boyer v. Grady, 201 Neb. 360, 269 N.W.2d 73 (1978).
21 brief for appellee on cross-appeal at 10.
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[13] We liberally construe grants of municipal initiative and
referendum powers “to permit, rather than restrict, the power
and to attain, rather than prevent, its object.”22
In 1978, we held that voters may use their municipal ini-
tiative power to repeal or amend an existing ordinance.23 At
that time, there were no limitations on the municipal initia-
tive power.24 but the municipal referendum power was more
limited. petitioners could refer an ordinance to the voters for
their approval or rejection only if they had petitioned for a ref-
erendum within 30 days of the ordinance’s passage.25 We held
that citizens could use their initiative power to take any action
that the city council or mayor could take, including the repeal
or amendment of an ordinance. We reasoned that over time,
“circumstances may change or voters may simply find an ordi-
nance undesirable and wish to abolish it, or amend it.”26
In 1982, the Legislature substantially revised the statutes
governing municipal initiative and referendum powers.27 the
Legislature placed some limits on the power of initiative.
Under § 18-2523, the power of initiative is a right to enact
measures. And a proposed initiative measure “shall not have
as its primary or sole purpose the repeal or modification of
existing law” unless “such repeal or modification is ancillary
to and necessary for the adoption and effective operation of the
initiative measure.”28
but under § 18-2527, the Legislature expanded the power
of referendum. It is true that § 18-2528 clarified when citizens
could exercise the power. but under § 18-2527, the power
of referendum is now the right “to repeal or amend existing
measures.” (emphasis supplied.) So under the 1982 revisions,
the power to amend an existing ordinance is part of the voters’
22 State ex rel. Boyer, supra note 20, 201 Neb. at 365, 269 N.W.2d at 76.
23 See State ex rel. Boyer, supra note 20.
24 See, id.; Neb. Rev. Stat. § 18-101 (Reissue 1977).
25 See Neb. Rev. Stat. § 18-112 (Reissue 1977).
26 State ex rel. Boyer, supra note 20, 201 Neb. at 366-67, 269 N.W.2d at 77.
27 See 1982 Neb. Laws, L.b. 807.
28 § 18-2523(1).
342 	282 NebRASkA RepoRtS

municipal referendum power, not their initiative power. the
City, however, argues that § 18-2527 “prohibits municipal
referendum petitions from proposing new measures.”29 We dis-
agree that the appellants’ petition proposed a new law.
[14] the problem stems in part from the appellants’ incor-
rect labeling of their petition as an “Initiative and Referendum
petition.” Despite this, the court clearly considered the pro-
posal to be a referendum measure. We believe the court was
correct in not relying on the appellants’ label. As stated,
we liberally construe the municipal initiative and referendum
statutes to permit the exercise of these powers. to determine
whether petitioners for a municipal ballot measure are acting
under their initiative power or their referendum power, a court
should look to the function of their proposed ballot measure—
not its label.
the City incorrectly construes the statutes to preclude a
proposed amendment of an ordinance in a referendum petition
if it would constitute a new provision of law. It would require
a court to construe any substantive change to an existing law
as a proposal for a new law that must be presented in an initia-
tive petition. this interpretation of the municipal initiative and
referendum statutes would be unworkable.
the definition of “enact”—to “make into law by authorita-
tive act”30—is broad enough to include any substantive amend-
ment to an existing law. but a substantive change to an exist-
ing law cannot be both an enactment under § 18-2523 and an
amendment under § 18-2527 because § 18-2523 precludes a
proposed initiative (enactment) from having modification of an
existing law as its primary or sole purpose. this prohibition
of combined initiative and referendum proposals is consistent
with Neb. Rev. Stat. § 18-2513(2) (Reissue 2007). that statute
provides that “[p]roposals for initiative and referendum shall be
submitted on separate ballots . . . .”
[15] but focusing on the distinction between an enactment
and an amendment would obviously create confusion for trial
courts applying § 18-2523. Instead, the correct distinction for
29 brief for appellee on cross-appeal at 8.
30 black’s Law Dictionary 606 (9th ed. 2009).
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determining whether a proposed municipal ballot measure
falls under the petitioners’ initiative power or their referen-
dum power is the one supported by the plain language of the
statutes: whether the proposed measure would enact a new
ordinance or would amend an existing ordinance. the appel-
lants did not seek to enact a new ordinance in the same meas-
ure that would repeal or amend an existing ordinance. We
agree with the court’s conclusion that the petition proposed
a referendum measure. the City’s argument that the petition
improperly combined initiative and referendum measures is
without merit.
(b) the petition Violated a Common-Law Single
Subject Rule to protect the Integrity
of the electorate
the City contends that the petition unconstitutionally com-
bined two separate and unrelated questions for a single vote.
It argues that the Nebraska Constitution prohibits petitioners
from log-rolling issues in a ballot measure. “Log rolling is the
practice of combining dissimilar propositions into one pro-
posed amendment so that voters must vote for or against the
whole package even though they would have voted differently
had the propositions been submitted separately.”31
(i) The Nebraska Constitution Does Not Impose
a Single Subject Rule for Municipal
Ballot Measures
We reject the City’s argument that Neb. Const. art. III, §§ 2
and 3, prohibit a municipal ballot measure from containing two
distinct and independent propositions. It is true that one could
read our decision in City of Fremont to imply that the Nebraska
Constitution confers upon electors the power to propose munic-
ipal ordinances:
the right to an initiative vote to enact laws indepen-
dent of the Legislature is the first power reserved by the
people in the Nebraska Constitution. See Neb. Const.
art. III, § 2. the Legislature provides for initiatives and
31 City of Fremont, supra note 11, 279 Neb. at 727, 781 N.W.2d at 462-63.
344 	282 NebRASkA RepoRtS

referendums for municipal subdivisions in chapter 18,
article 25, of the Nebraska Revised Statutes. See Neb.
Rev. Stat. §§ 18-2501 through 18-2538 (Reissue 2007).
An initiative . . . may be used to enact a “[m]easure,”
defined as “an ordinance, charter provision, or resolution
which is within the legislative authority of the governing
body of a municipal subdivision to pass, and which is not
excluded from the operation of referendum by the excep-
tions in section 18-2528.”32
Further, in rejecting the argument in City of Fremont that the
proposed municipal ordinance was unconstitutional because it
contained more than one subject, we specifically applied a sin-
gle subject rule from Neb. Const. art. III, § 2. thus, we implic-
itly reasoned that constitutional requirements for the form of
a statewide initiative petition apply to proposals for municipal
ordinances. but on further reflection, we were wrong.
[16,17] First, the Legislature’s authority to enact statutes pro-
viding a right for municipal voters to enact or repeal municipal
ordinances does not depend on the existence of article III, §§ 2
and 3, of the Nebraska Constitution. the Nebraska Constitution
is not a grant, but a restriction, on legislative power, and the
Legislature may legislate upon any subject not proscribed by
the Constitution.33 because the Nebraska Constitution does not
restrict the right to petition for municipal ballot measures, the
Legislature was free to grant these powers to municipal voters
even if the same powers did not exist for statewide voters under
the Constitution.
[18-20] Second, by its terms, the Nebraska Constitution
reserves to the people the right to enact or repeal only state
laws, not municipal ordinances. In ascertaining the intent of
a constitutional provision from its language, a court may not
supply any supposed omission, or add words to or take words
from the provision as framed.34 If the meaning is clear, we give
a constitutional provision the meaning that laypersons would
32 Id. at 723, 781 N.W.2d at 460.
33 See Pony Lake Sch. Dist. v. State Committee for Reorg., 271 Neb. 173, 710
N.W.2d 609 (2006).
34 State ex rel. Lemon, supra note 2.
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Cite as 282 Neb. 328

obviously understand it to convey.35 And as we know, it is a
fundamental principle of constitutional interpretation that each
and every clause within a constitution has been inserted for a
useful purpose.36
No clause in Neb. Const. art. III, § 2, refers to ordinances or
municipal laws:
the first power reserved by the people is the initia-
tive whereby laws may be enacted and constitutional
amendments adopted by the people independently of the
Legislature. . . . If the petition be for the enactment of a
law, it shall be signed by seven percent of the registered
voters of the state, and if the petition be for the amend-
ment of the Constitution, the petition therefor shall be
signed by ten percent of such registered voters. In all
cases the registered voters signing such petition shall be
so distributed as to include five percent of the registered
voters of each of two-fifths of the counties of the state,
and when thus signed, the petition shall be filed with the
Secretary of State who shall submit the measure thus pro-
posed to the electors of the state . . . . the constitutional
limitations as to the scope and subject matter of statutes
enacted by the Legislature shall apply to those enacted
by the initiative. Initiative measures shall contain only
one subject.
(emphasis supplied.)
[21] this section unambiguously refers to state voters—not
municipal voters. And the requirement of obtaining signatures
from voters distributed in different counties shows that the
constitutional provision governs the enactment only of state
laws—not of municipal ordinances.37 Further, article III of the
Nebraska Constitution deals with the “legislative authority of
the state.”38 So references to “the Legislature” in article III
should not be construed to include municipal legislative bodies.
35 See State ex rel. Johnson, supra note 3.
36 State ex rel. Lemon, supra note 2.
37 See Schroeder v. Zehrung, 108 Neb. 573, 188 N.W. 237 (1922).
38 See Neb. Const. art. III, § 1 (emphasis supplied).
346 	282 NebRASkA RepoRtS

Contrary to our reasoning in City of Fremont,39 we hold that
article III, § 2, of the Nebraska Constitution neither applies to
proposed municipal ordinances nor requires that they comply
with a single subject rule.
Furthermore, the power of referendum under Neb. Const.
art. III, § 3, is even more explicitly limited to state laws:
the second power reserved is the referendum which
may be invoked, by petition, against any act or part of
an act of the Legislature, except [specified appropria-
tion measures]. petitions invoking the referendum shall
be signed by not less than five percent of the registered
voters of the state, distributed as required for initiative
petitions, and filed in the office of the Secretary of State
within ninety days after the Legislature at which the act
sought to be referred was passed shall have adjourned
sine die or for more than ninety days. . . . No more than
one act or portion of an act of the Legislature shall be the
subject of each referendum petition.
(emphasis supplied.)
[22,23] And so we have specifically held that the consti-
tutional power of referendum under article III, § 3, does not
confer a right to refer municipal measures to the voters.40 We
have similarly held that the constitutional requirement in Neb.
Const. art. III, § 14, that bills and resolutions contain only
one subject does not apply “to city ordinances, nor the adop-
tion thereof, and [that] decisions thereunder are valuable only
as analogies.”41
[24] Summed up, the constitutional requirements for the
initiative and referendum powers in article III were intended to
give statewide voters equal legislative authority to enact state
laws or to refer acts passed by the Legislature to the voters. but
“[t]he initiative and referendum powers of municipal voters are
established by statute in this state”42—not the Constitution.
39 City of Fremont, supra note 11.
40 See Schroeder, supra note 37.
41 See Gembler v. City of Seward, 136 Neb. 196, 198, 285 N.W. 542, 544
(1939), modified 136 Neb. 916, 288 N.W. 545.
42 State ex rel. Boyer, supra note 20, 201 Neb. at 364, 269 N.W.2d at 76.
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(ii) A Common-Law Single Subject Rule Applies
to Municipal Ballot Measures
Despite the Constitution’s silence on municipal initiative and
referendum powers, we agree with the City that a single sub-
ject rule does apply to proposed ballot measures for municipal
ordinances. In many cases from other jurisdictions, courts have
adopted a common-law single subject rule of form that applies
to questions submitted to voters generally.43 Although it was
not explicitly stated, in Drummond v. City of Columbus,44 we
adopted a single subject rule for proposed municipal initia-
tives and held that the adopted ordinance was invalid under
that rule.
In Drummond, a statute that governed the form of a munici-
pal ballot measure provided the following: “If there is but
one proposal submitted, the ballots shall be so printed as to
give each voter a clear opportunity to designate by an (X) in
parenthesis at the right, his answer ‘yes’ or ‘No’ as approv-
ing or rejecting the same.”45 but the parties apparently did not
raise that statute, and we did not discuss it. Instead, we relied
on cases from other jurisdictions and applied a common-law
single subject rule to ordinances that must be approved by
the voters.46
[25] the common-law single subject rule of form that we
adopted in Drummond preserves the integrity of the munici-
pal electoral process by invalidating proposed ordinances that
require voters to approve distinct and independent propositions
in a single vote. Voters must be able to intelligently express
what they are voting for or against.
Moreover, the single subject rule is consistent with the bal-
lot form requirements under § 18-2513(1)(b) for initiative and
43 See, e.g., Munch v. Tusa, 140 Neb. 457, 300 N.W. 385 (1941), citing Lang
v. Cavalier, 59 N.D. 75, 228 N.W.819 (1930); Stern v. City of Fargo et al.,
18 N.D. 289, 122 N.W. 403 (1909) (citing cases).
44 Drummond v. City of Columbus, 136 Neb. 87, 285 N.W. 109 (1939).
45 See Comp. Stat. § 18-511 (1929).
46 See, City of Denver v. Hayes, 28 Colo. 110, 63 p. 311 (1900); Leavenworth
v. Wilson, 69 kan. 74, 76 p. 400 (1904); Stern, supra note 43; Julson v.
Sioux Falls, 48 S.D. 452, 205 N.W. 43 (1925).
348 	282 NebRASkA RepoRtS

referendum measures. that section provides that the ballot title
must include “[a] briefly worded question which plainly states
the purpose of the measure and is phrased so that an affirma-
tive response to the question corresponds to an affirmative
vote on the measure.” (emphasis supplied.) this statutory rule
of form anticipates that a ballot measure will permit voters to
clearly express their approval or rejection of a single question.
And if a municipality’s governing body does not adopt a pro-
posed initiative or referendum measure by resolution, it must
submit the measure to voters as presented.47 but if a proposed
ballot measure combines two distinct proposals so that voters
are compelled to vote for or against both when they might not
do so if separate questions were submitted, then they cannot
express a clear preference on both proposals.
[26] We conclude that a proposed municipal ballot measure
is invalid if it would (1) compel voters to vote for or against
distinct propositions in a single vote—when they might not do
so if presented separately; (2) confuse voters on the issues they
are asked to decide; or (3) create doubt as to what action they
have authorized after the election.48
(iii) The Proposed Referendum Violated
the Single Subject Rule
the City argues that the petition contains the following dis-
tinct questions: (1) whether to continue paying the occupation
tax to golden Spike after the USDA loan is paid off and (2)
whether to allocate the occupation tax to property tax relief.
We agree that the voters were asked to approve of independent
and distinct propositions in a single vote.
In Drummond, we determined that the initiative was invalid
because it asked voters to decide whether the city should
acquire an electrical distribution system “‘and/or’” acquire
transmission lines to connect to another source of electricity.49
Instead of being asked to approve one proposal over another,
voters could not express their preference for either proposal
47 See § 18-2524 and Neb. Rev. Stat. § 18-2530 (Reissue 2007).
48 See Drummond, supra note 44.
49 Id., 136 Neb. at 88, 285 N.W. at 110.
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without also authorizing city officials to take the action that
the voters did not prefer. because voters were compelled to
approve either action, they were not expressing their own
preference.
[27] In contrast, in City of Fremont, we held that a munici-
pal initiative petition to regulate illegal aliens did not violate
the single subject rule.50 We concluded that a municipal ballot
measure with separate provisions does not violate the single
subject rule if the provisions have a natural and necessary
connection with each other and together are part of one gen-
eral subject.51
In this case, the proposed referendum would have amended
the ordinance as follows:
[R]evenue collected on hotel accommodations shall be
used by the [C]ity to assist the [C]ity in constructing and
operating a visitors center promoting the [C]ity’s railroad
heritage retire debt to the [USDA], secured by [golden
Spike] until 12:00 a.m. (midnight) February 17, 2029[.]
after which time the same shall be deposited into the
general fund of the City. Any occupation tax revenue col-
lected on hotel accommodations beyond the amount paid
to retire the [USDA] debt on [golden Spike] shall be paid
into the City’s general Fund to be used by the City for
property tax relief.
the tax ordinance does not include a time limit. the tax
continues regardless of how the City uses the revenues. the
original ordinance required the City to use the revenues for two
purposes: (1) to assist with constructing and operating a visitor
center until February 2029; and (2) after that date, to increase
the City’s general fund. the proposed amendment changed
the original ordinance to impose two separate requirements on
the City.
the petition’s first proposed amendment required the City
to use the tax revenues to retire golden Spike’s USDA debt
until February 2029. the City could not use the revenues to
construct and operate a visitor center. even assuming that
50 City of Fremont, supra note 11.
51 Id.
350 	282 NebRASkA RepoRtS

the building had already been constructed, the first proposed
amendment would have prohibited the City from using any
revenues to operate the facility. the petition’s second pro-
posed amendment required the City to use the additional
collected revenues to provide property tax relief. So under
the second proposed amendment, the City could not use the
additional revenues to increase its general fund. the second
proposed amendment took effect as soon as the USDA debt
was retired.
these amendments were not separate provisions of the same
law. but even if they could be construed as such, we conclude
that they presented independent and distinct proposals instead
of having a natural and necessary connection. the first amend-
ment changed the ordinance by limiting the City’s use of rev-
enues to retiring golden Spike’s USDA debt until that debt was
retired, instead of using revenues to operate the visitor center.
Changing the City’s use of additional revenues, however—to
require property tax relief instead of increasing its general
fund—did not have a natural and necessary connection to lim-
iting the use of revenues for the visitor center to retiring the
USDA debt. because the petition presented distinct but dual
propositions for a single vote, voters could not express a pref-
erence on either without approving or rejecting both. because
the appellants’ referendum petition would not permit voters to
express a clear preference on dual propositions, it violated the
single subject rule and was invalid.
VI. CoNCLUSIoN
We conclude that although the district court had authority to
decide the City’s challenges to the proposed ballot measure, it
erred in blocking a count of the vote on the measure. We vacate
that portion of the court’s order.
We determine that court correctly ruled that the proposed
ordinance was a referendum measure, instead of a combined
initiative and referendum. but we determine that it erred in
ruling that § 18-2528(1)(a) barred the appellants’ referen-
dum. Section 18-2528(1)(a) does not shield from the referen-
dum process general taxation measures that become necessary
to meeting the City’s subsequent contractual obligations for
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Cite as 282 Neb. 328

municipal projects that the City had not previously approved in
a measure subject to referendum.
We conclude, however, that the appellants’ referendum peti-
tion violated a common-law single subject rule that invalidates
proposed ordinances that require voters to approve distinct and
independent propositions in a single vote. Accordingly, we
affirm the remaining part of the judgment.
affirmed iN Part, aNd iN Part
reversed aNd vaCated.
C oNNolly, J., participating on briefs.
Wright, J., not participating.
state of Nebraska , aPPellee , v.
stuart d. hoWard, aPPellaNt.
state of Nebraska , aPPellee , v.
aNthoNy m. laWs , aPPellaNt.
803 N.W.2d 450
Filed September 23, 2011. 	Nos. S-10-660, S-10-874.
1. Investigative Stops: Warrantless Searches: Probable Cause: Appeal and
Error. When reviewing a district court’s determinations of reasonable suspicion
to conduct an investigatory stop and probable cause to perform a warrantless
search, ultimate determinations of reasonable suspicion and probable cause are
reviewed de novo. but findings of historical fact to support that determination are
reviewed for clear error, giving due weight to the inferences drawn from those
facts by the trial court.
2. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no
matter how minor, creates probable cause to stop the driver of a vehicle.
3. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. once a
vehicle is lawfully stopped, a law enforcement officer may conduct an investiga-
tion reasonably related in scope to the circumstances that justified the traffic stop.
this investigation may include asking the driver for an operator’s license and
registration, requesting that the driver sit in the patrol car, and asking the driver
about the purpose and destination of his or her travel. Also, the officer may run
a computer check to determine whether the vehicle involved in the stop has been
stolen and whether there are outstanding warrants for any of its occupants.
4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. In order to expand the scope of a traffic stop and continue to detain the
motorist for the time necessary to deploy a drug detection dog, an officer must
352 	282 NebRASkA RepoRtS