Constitution of Nebraska — Article VII

Publisher edition notice: This collection preserves the complete Constitution directory at the captured revision of the Legislature's official LegalDocs repository, including its source notes and annotations. Later repository revisions are captured by the daily sync.

VII-1 Legislature; free instruction in common schools; provide.

Reissue Revised Statutes of Nebraska

VII-1

Legislature; free instruction in common schools; provide.

The Legislature shall provide for the free instruction in the common schools of this state of all persons between the ages of five and twenty-one years. The Legislature may provide for the education of other persons in educational institutions owned and controlled by the state or a political subdivision thereof.

Neb. Const. art. VIII, sec. 1 (1875);

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 1;

Amended 1940, Laws 1939, c. 109, sec. 1, p. 477;

Amended 1952, Laws 1951, c. 164, sec. 2(3), p. 646;

Amended 1954, Laws 1953, c. 174, sec. 1, p. 554;

Amended 1970, Laws 1969, c. 423, sec. 1, p. 1439;

Amended 1972, Laws 1972, LB 1023, sec. 1.

1. Free instruction

2. Miscellaneous

1. Free instruction

In the context of student discipline cases, no fundamental right to education exists in Nebraska. The term "free instruction" is construed in right to education cases as pertinent to the issue of the constitutionality of school financing, including collection of fees, tuition, and taxes. Kolesnick v. Omaha Pub. Sch. Dist., 251 Neb. 575, 558 N.W.2d 807 (1997).

Parents of school children occupying federal farmstead project are residents of public school district in which such lands are situated, and such children are entitled to common school privileges without payment of tuition. Tagge v. Gulzow, 132 Neb. 276, 271 N.W. 803 (1937).

Establishment of municipal university in Omaha was a matter of state concern in accord with duty to provide free instruction in public schools. Carlberg v. Metcalfe, 120 Neb. 481, 234 N.W. 87 (1930).

High school district that receives pupils from another district cannot collect additional tuition fee beyond that fixed by the Legislature. State ex rel. Baldwin v. Dorsey, 108 Neb. 134, 187 N.W. 879 (1922).

Child living with married sister, resident of district, is entitled to attend school without paying tuition. Martins v. School Dist. No. 30 of Cuming County, 101 Neb. 258, 162 N.W. 631 (1917).

Mandamus will not lie to compel school district officers to set aside entire revenue for payment of registered warrants, if effect would be to deprive children of free education. State ex rel. Collins v. Gardner, 79 Neb. 101, 112 N.W. 373 (1907).

Statutes with reference to education should be liberally and broadly construed to provide for free instruction. McNish v. State ex rel. Dimick, 74 Neb. 261, 104 N.W. 186 (1905).

The method and means to be adopted to furnish free instruction is left to the Legislature. Affholder v. State ex rel. McMullen, 51 Neb. 91, 70 N.W. 544 (1897).

Under requirement for free school instruction, public lands were designed to provide funds therefor. It is the duty of Legislature, by proper law, to encourage sale of public lands at best possible price. Washington County v. Fletcher, 12 Neb. 356, 11 N.W. 460 (1882).

2. Miscellaneous

The appropriate level of scrutiny in constitutional challenges to school funding decisions is whether the state action is rationally related to a legitimate government purpose. Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007).

This provision of the constitution does not confer a fundamental right to equal and adequate funding of schools. Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007).

Statutory provision authorizing transfer of land from a nonaccredited to an accredited high school district was constitutional. De Jonge v. School Dist. of Bloomington, 179 Neb. 539, 139 N.W.2d 296 (1966).

Matters pertaining to creation and dissolution of school districts are vested in the Legislature. Farrell v. School Dist. No. 54 of Lincoln County, 164 Neb. 853, 84 N.W.2d 126 (1957).

Denial of approval of high school, based on invalid regulation, 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).

In enacting legislation under this section, Legislature is restrained by other limitations of Constitution. Peterson v. Hancock, 155 Neb. 801, 54 N.W.2d 85 (1952).

This provision is not self-executing. State ex rel. Shineman v. Board of Education of School Dist. No. 33, 152 Neb. 644, 42 N.W.2d 168 (1950).

Expulsion of pupil for contumacious behavior is not violative of this section. Smith v. Johnson, 105 Neb. 61, 178 N.W. 835 (1920).

Teaching of foreign language is not repugnant to theory of "common school," and statute providing for such teaching upon petition of parents is not unconstitutional. State ex rel. Thayer v. School Dist. of Nebraska City, 99 Neb. 338, 156 N.W. 641 (1916).

VII-2 State Department of Education; general supervision of school system.

Reissue Revised Statutes of Nebraska

VII-2

State Department of Education; general supervision of school system.

The State Department of Education shall be comprised of a State Board of Education and a Commissioner of Education. The State Department of Education shall have general supervision and administration of the school system of the state and of such other activities as the Legislature may direct.

Neb. Const. art. VIII, sec. 2 (1875);

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 2;

Amended 1972, Laws 1972, LB 1023, sec. 1.

Grant of administrative and executive power to the Department of Education is authorized. School Dist. No. 8 of Sherman County v. State Board of Education, 176 Neb. 722, 127 N.W.2d 458 (1964).

VII-3 State Board of Education; members; election; manner of election; term of office.

Reissue Revised Statutes of Nebraska

VII-3

State Board of Education; members; election; manner of election; term of office.

The State Board of Education shall be composed of eight members, who shall be elected from eight districts of substantially equal population as provided by the Legislature. Their term of office shall be for four years each. Their duties and powers shall be prescribed by the Legislature, and they shall receive no compensation, but shall be reimbursed their actual expense incurred in the performance of their duties. The members of the State Board of Education shall not be actively engaged in the educational profession and they shall be elected on a nonpartisan ballot.

Neb. Const. art. VIII, sec. 3 (1875);

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 3;

Amended 1972, Laws 1972, LB 1023, sec. 1.

Powers and duties of State Board of Education are prescribed by law. School Dist. No. 8 of Sherman County v. State Board of Education, 176 Neb. 722, 127 N.W.2d 458 (1964).

VII-4 State Board of Education; Commissioner of Education; appointment; powers; duties.

Reissue Revised Statutes of Nebraska

VII-4

State Board of Education; Commissioner of Education; appointment; powers; duties.

The State Board of Education shall appoint and fix the compensation of the Commissioner of Education, who shall be the executive officer of the State Board of Education and the administrative head of the State Department of Education, and who shall have such powers and duties as the Legislature may direct. The board shall appoint all employees of the State Department of Education on the recommendation of the Commissioner of Education.

Neb. Const. art. VIII, sec. 4 (1875);

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 4;

Amended 1966, Laws 1965, c. 294, sec. 1, p. 836;

Amended 1972, Laws 1972, LB 1023, sec. 1.

VII-5 Fines, penalties, and license money; allocation; use of forfeited conveyances.

Reissue Revised Statutes of Nebraska

VII-5

Fines, penalties, and license money; allocation; use of forfeited conveyances.

(1) Except as provided in subsections (2) and (3) of this section, all fines, penalties, and license money arising under the general laws of the state, except fines and penalties for violation of laws prohibiting the overloading of vehicles used upon the public roads and highways of this state, shall belong and be paid over to the counties respectively where the same may be levied or imposed, and all fines, penalties, and license money arising under the rules, bylaws, or ordinances of cities, villages, precincts, or other municipal subdivision less than a county shall belong and be paid over to the same respectively. All such fines, penalties, and license money shall be appropriated exclusively to the use and support of the common schools in the respective subdivisions where the same may accrue, except that all fines and penalties for violation of laws prohibiting the overloading of vehicles used upon the public roads and highways shall be placed as follows: Seventy-five per cent in a fund for state highways and twenty-five per cent to the county general fund where the fine or penalty is paid.

(2) Fifty per cent of all money forfeited or seized pursuant to enforcement of the drug laws shall belong and be paid over to the counties for drug enforcement purposes as the Legislature may provide.

(3) Law enforcement agencies may use conveyances forfeited pursuant to enforcement of the drug laws as the Legislature may provide. Upon the sale of such conveyances, the proceeds shall be appropriated exclusively to the use and support of the common schools as provided in subsection (1) of this section.

Neb. Const. art. VIII, sec. 5 (1875);

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 5;

Amended 1956, Laws 1955, c. 195, sec. 1, p. 558;

Amended 1984, Laws 1984, LR 2, sec. 1.

1. License money

2. Fines and penalties

3. Miscellaneous

1. License money

Statute requiring use of hunting and fishing license fees for other than school purposes sustained as constitutional. Wilcox v. Havekost, 144 Neb. 562, 13 N.W.2d 889 (1944).

License fees received by Liquor Control Commission, and imposed for benefit of state, do not go to school fund. School Dist. of Omaha v. Gass, 131 Neb. 312, 267 N.W. 528 (1936).

Act imposing license fees upon persons desiring to fish and hunt in state, and requiring such fees to be paid to State Treasurer for benefit of state school funds is not in conflict with this section. State ex rel. Stevens v. Nickerson, 97 Neb. 837, 151 N.W. 981 (1915).

Where sole purpose of occupation tax is to raise revenue, taxes received are not license money within the meaning of this section. State ex rel. School Dist., City of Auburn v. Boyd, 63 Neb. 829, 89 N.W. 417 (1902).

License money cannot be diverted from school fund under guise of occupation tax. State ex rel. School Dist. of City of Lincoln v. Aitken, 61 Neb. 490, 85 N.W. 395 (1901).

2. Fines and penalties

Restitution ordered in an amount not exceeding the actual damage sustained by the victim, pursuant to section 29-2280, is not a penalty within the meaning of this provision and is constitutional. State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).

Court costs are not fines or penalties within the meaning of this Article and section of the Constitution of Nebraska. DeCamp v. City of Lincoln, 202 Neb. 727, 277 N.W.2d 83 (1979).

The provision of section 48-125, R.R.S.1943, for added amount for waiting time does not impose a penalty to an individual within prohibition of this section. University of Nebraska at Omaha v. Paustian, 190 Neb. 840, 212 N.W.2d 704 (1973).

Forfeited recognizances and cash bail bonds are penalties arising under the general laws of the state and should be distributed to the several school districts of the county. School Dist. of Omaha v. City of Omaha, 175 Neb. 21, 120 N.W.2d 267 (1963).

Fines, penalties, and license money arising under city ordinance are to be apportioned among all school districts in city in proportion to the number of children of school age residing in areas of districts within the city. School Dist. No. 54 of Douglas County ex rel. Hogan v. Howell, 172 Neb. 404, 110 N.W.2d 52 (1961).

Fines, penalties, and license money under general laws of state are apportioned among all school districts in county. School Dist. No. 54 of Douglas County ex rel. Hogan v. School Dist. of Omaha, 171 Neb. 769, 107 N.W.2d 744 (1961).

Collections from violations for overparking under parking-meter ordinance were penalties belonging to school fund. School District of McCook v. City of McCook, 163 Neb. 817, 81 N.W.2d 224 (1957).

Words "fines, penalties, and license money" refer to and include fines imposed in punishment of crimes and misdemeanors and exactions imposed for violation of ordinances having the characteristics of a criminal proceeding, and do not include penalties provided for failure to pay taxes. School District of the City of Omaha v. Adams, 147 Neb. 1060, 26 N.W.2d 24 (1947).

Act that provides for recovery of penalty by county, but does not provide manner of distribution of penalty, does not violate this section. In re Estate of Rogers, 147 Neb. 1, 22 N.W.2d 297 (1946).

Statute making railroad liable to shipper for penalty for delay, in addition to actual damages is void, as all penalties must go to school funds. Sunderland Bros. Co. v. Chicago, B. & Q. R. R. Co., 104 Neb. 319, 179 N.W. 546 (1920).

Statute providing for tax against owner and building adjudged to be liquor nuisance is void as diverting penalty from school fund. State ex rel. McGuire v. Macfarland, 104 Neb. 42, 175 N.W. 663 (1919); State ex rel. English v. Fanning, 97 Neb. 224, 149 N.W. 413 (1914), reversing 96 Neb. 123, 147 N.W. 215 (1914).

Statute imposing only compensatory damages for delay in nature of liquidated damages is valid. Cram v. Chicago, B. & Q. Ry. Co., 85 Neb. 586, 123 N.W. 1045 (1909), 84 Neb. 607, 122 N.W. 31 (1909), affirmed in Chicago, B. & Q. Ry. Co. v. Cram, 228 U.S. 70 (1913).

All fines and penalties, when collected, are required to be paid into the school fund. Sothman v. State, 66 Neb. 302, 92 N.W. 303 (1902).

Act allowing compensation and damages to injured party in case of embezzlement is not a fine or penalty within the meaning of this section. Everson v. State, 66 Neb. 154, 92 N.W. 137 (1902).

Statute fixing fifty dollars damage for failure and refusal of mortgagee to release chattel mortgage is not in conflict with this section. Clearwater Bank v. Kurkonski, 45 Neb. 1, 63 N.W. 133 (1895).

3. Miscellaneous

While ordinarily, with respect to state causes of action, punitive damages contravene this section and are not allowed, punitive damages are recoverable in a suit filed in Nebraska state court pursuant to 42 U.S.C. section 1983. State ex rel. Cherry v. Burns, 258 Neb. 216, 602 N.W.2d 477 (1999).

Statute providing for recovery of treble damages in civil action was unconstitutional. Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684 (1960).

Statutory provision making contract wholly void was remedial and not penal. Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208 (1959).

This provision has no application to action by borrower asserting violation of Installment Loan Act. McNish v. General Credit Corp., 164 Neb. 526, 83 N.W.2d 1 (1957).

Officer collecting money belonging to school fund is custodian thereof and if he defaults he is ineligible to hold any office created by Constitution or statutes. State ex rel. Broatch v. Moores, 52 Neb. 770, 73 N.W. 299 (1897).

Money collected should be divided pro rata among school districts. King v. State ex rel. School Dist. No. 1, Hall County, 50 Neb. 66, 69 N.W. 307 (1896); Guthrie v. State ex rel. School Dist. No. 7, Sioux County, 47 Neb. 819, 66 N.W. 853 (1896).

VII-6 Educational lands; management; Board of Educational Lands and Funds; members; appointment; sale of lands.

Reissue Revised Statutes of Nebraska

VII-6

Educational lands; management; Board of Educational Lands and Funds; members; appointment; sale of lands.

No lands now owned or hereafter acquired by the state for educational purposes shall be sold except at public auction under such conditions as the Legislature shall provide. The general management of all lands set apart for educational purposes shall be vested, under the direction of the Legislature, in a board of five members to be known as the Board of Educational Lands and Funds. The members shall be appointed by the Governor, subject to the approval of the Legislature, with such qualifications and for such terms and compensation as the Legislature may provide.

Neb. Const. art. VIII, sec. 6 (1875);

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 6;

Amended 1972, Laws 1972, LB 1023, sec. 1.

1. Powers of Legislature

2. Powers of board

3. State as trustee

4. Miscellaneous

1. Powers of Legislature

This section authorizes Legislature to direct sale of school lands. State ex rel. Belker v. Board of Educational Lands & Funds, 185 Neb. 270, 175 N.W.2d 63 (1970).

Legislature has no power to make a grant in fee of, or an easement over, public school lands without compensation. State ex rel. Johnson v. Central Nebraska Public Power & Irr. Dist., 143 Neb. 153, 8 N.W.2d 841 (1943).

Legislature cannot pass law providing for disposition of school lands otherwise than as provided by Constitution. State v. Tanner, 73 Neb. 104, 102 N.W. 235 (1905).

2. Powers of board

Board of Educational Lands and Funds has control and management of school lands. State v. Kidder, 173 Neb. 130, 112 N.W.2d 759 (1962); State v. Cooley, 156 Neb. 330, 56 N.W.2d 129 (1952); State v. Gardner, 156 Neb. 326, 56 N.W.2d 135 (1952).

While there has been change in composition of board, there has been no change in its functions since 1875. State ex rel. Bottcher v. Bartling, 149 Neb. 491, 31 N.W.2d 422 (1948).

Board of Commissioners, under direction of Legislature and subject to terms imposed by it, has power to lease school lands. State v. Platte Valley P. P. & I. Dist., 147 Neb. 289, 23 N.W.2d 300 (1946).

Board is by law in charge of and responsible for the investment of school funds. State v. Bass, 131 Neb. 592, 269 N.W. 68 (1936).

Board of Educational Lands and Funds has executive power over the sale, leasing and general management of school lands under legislative direction. Briggs v. Neville, 103 Neb. 1, 170 N.W. 188 (1918); Fawn Lake Ranch Co. v. Cumbow, 102 Neb. 288, 167 N.W. 75 (1918).

Board of Educational Lands and Funds may, in exercise of reasonable discretion, reject appraisement if it appears too low. State ex rel. Rutledge v. Eaton, 78 Neb. 202, 110 N.W. 709 (1907).

Sole power to handle permanent school funds of state is lodged with board. State ex rel. Crounse v. Bartley, 40 Neb. 298, 58 N.W. 966 (1894).

Board has no jurisdiction or control over disposition of so-called saline lands of state. McMurtry v. Engelhardt, 5 Neb. Unof. 271, 98 N.W. 40 (1904).

3. State as trustee

Title to school lands was vested in state upon express trust for support of common schools. State ex rel. Ebke v. Board of Educational Lands & Funds, 159 Neb. 79, 65 N.W.2d 392 (1954).

The state as trustee is without power to bestow a special benefit upon any person or corporation, public or private, at the expense of the cestui que trust, the public school system of the state. State v. Platte Valley Public Power & Irr. Dist., 143 Neb. 661, 10 N.W.2d 631 (1943).

Since state, and not the board or its individual members, is trustee of school fund, suit may not be brought against the board and its individual members for an accounting by a taxpayer, since the suit is essentially one against the state. State ex rel. Walker v. Board of Commissioners for Educational Lands & Funds, 141 Neb. 172, 3 N.W.2d 196 (1942).

4. Miscellaneous

Prior to 1940 amendment, Commissioner of Public Lands and Buildings, as statutory officer, had duties to perform. Swanson v. State, 132 Neb. 82, 271 N.W. 264 (1937).

Where board is created by law, no one member having greater power than every other member, board can act only by majority vote. Follmer v. State, 94 Neb. 217, 142 N.W. 908 (1913).

VII-7 Perpetual funds enumerated.

Reissue Revised Statutes of Nebraska

VII-7

Perpetual funds enumerated.

The following are hereby declared to be perpetual funds for common school purposes, including early childhood educational purposes operated by or distributed through the common schools, of which the annual interest or income only can be appropriated, to wit:

First. Such percent as has been, or may hereafter be, granted by Congress on the sale of lands in this state.

Second. All money arising from the sale or leasing of sections number sixteen and thirty-six in each township in this state, and the lands selected, or that may be selected, in lieu thereof.

Third. The proceeds of all lands that have been, or may hereafter be, granted to this state, where by the terms and conditions of such grant the same are not to be otherwise appropriated.

Fourth. The net proceeds of lands and other property and effects that may come to this state, by escheat or forfeiture, or from unclaimed dividends, or distributive shares of the estates of deceased persons.

Fifth. All other property of any kind now belonging to the perpetual fund.

Neb. Const. art. VIII, sec. 7 (1875);

Amended 1920, Constitutional Convention, 1919-1920, No. 20;

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 7;

Amended 1972, Laws 1972, LB 1023, sec. 1;

Amended 2006, Laws 2006, LB 1006, sec. 1.

Legislative act providing for offsetting of capital gains against past capital losses held unconstitutional. State ex rel. Bottcher v. Bartling, 149 Neb. 491, 31 N.W.2d 422 (1948).

Act providing for payment out of state school funds of tuition of children whose parent is in military service of United States, stationed in Nebraska, was void. Taylor v. School Dist. of City of Lincoln, 128 Neb. 437, 259 N.W. 168 (1935).

Constitution recognizes the right of the state to acquire land by escheat. In re Estate of O'Connor, 126 Neb. 182, 252 N.W. 826 (1934).

School in part sectarian was not eligible to receive portion of state common school trust funds. State ex rel. Public School Dist. No. 6, Cedar County v. Taylor, 122 Neb. 454, 240 N.W. 573 (1932).

Saline lands granted to state by United States are not included in educational lands under control of Board of Educational Lands and Funds. Chicago, B. & Q. R. R. Co. v. Neville, 102 Neb. 817, 170 N.W. 176 (1918).

Teaching of foreign language is not contrary to public policy of state to provide common schools. State ex rel. Thayer v. School Dist. of Nebraska City, 99 Neb. 338, 156 N.W. 641 (1916).

Sale of school lands to pay special assessment for drainage purposes does not affect right of state in such lands. Morehouse v. Elkhorn River Drainage Dist., 90 Neb. 406, 133 N.W. 446 (1911); McMurtry v. Engelhardt, 5 Neb. Unof. 271, 98 N.W. 40 (1904).

Act of Legislature is not necessary to appropriation and use of funds in order to expend same for purposes expressed in grant. State ex rel. Spencer Lens Co. v. Searle, 77 Neb. 155, 109 N.W. 770 (1906).

Returns of unsold school lands must be applied to support of common schools and not be vested in permanent school fund. State ex rel. McKenzie v. McBride, 5 Neb. 102 (1876).

VII-8 Trust funds belong to state for educational purposes; use; investment.

Reissue Revised Statutes of Nebraska

VII-8

Trust funds belong to state for educational purposes; use; investment.

All funds belonging to the state for common school purposes, including early childhood educational purposes operated by or distributed through the common schools, the interest and income whereof only are to be used, shall be deemed trust funds. Such funds with the interest and income thereof are hereby solemnly pledged to the purposes for which they are granted and set apart and shall not be transferred to any other fund for other uses. The state shall supply any net aggregate losses thereof realized at the close of each calendar year that may in any manner accrue. Notwithstanding any other provisions in this Constitution, such funds shall be invested as the Legislature may by statute provide.

Neb. Const. art. VIII, sec. 8 (1875);

Amended 1920, Constitutional Convention, 1919-1920, No. 21;

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 8;

Amended 1972, Laws 1972, LB 1023, sec. 1;

Amended 2006, Laws 2006, LB 1006, sec. 1.

The public school lands are held in trust for educational purposes. State ex rel. Ebke v. Board of Educational Lands & Funds, 159 Neb. 79, 65 N.W.2d 392 (1954); State ex rel. Ebke v. Board of Educational Lands & Funds, 154 Neb. 244, 47 N.W.2d 520 (1951).

Lease of school land under unconstitutional law was void from inception. Board of Educational Lands & Funds v. Gillett, 158 Neb. 558, 64 N.W.2d 105 (1954).

Persons dealing with school lands do so subject to trust obligation of state. Propst v. Board of Educational Lands & Funds, 156 Neb. 226, 55 N.W.2d 653 (1952).

State is under obligation to replace losses in permanent school fund, which cannot be diminished by application of capital gains. State ex rel. Bottcher v. Bartling, 149 Neb. 491, 31 N.W.2d 422 (1948).

While there is an obligation on the part of the state as trustee to replace shortages in the school fund, the obligation is not self-executing. State ex rel. Walker v. Board of Commissioners for Educational Lands & Funds, 141 Neb. 172, 3 N.W.2d 196 (1942).

Educational funds of state are trust funds, and can only be paid out for purposes specified. Taylor v. School Dist. of City of Lincoln, 128 Neb. 437, 259 N.W. 168 (1935).

Funds derived from grant by Congress of public lands, by contract with the federal government, are held by the state as trustee to carry out the object of the grant. State ex rel. Ledwith v. Brian, 84 Neb. 30, 120 N.W. 916 (1909).

School lands are held in trust by the state. United States v. 78.61 Acres of Land in Dawes & Sioux Counties, 265 F.Supp. 564 (D. Neb. 1967).

VII-9 Educational funds; trust funds; use; early childhood education endowment fund; created; use; early childhood education, defined.

Reissue Revised Statutes of Nebraska

VII-9

Educational funds; trust funds; use; early childhood education endowment fund; created; use; early childhood education, defined.

(1) The following funds shall be exclusively used for the support and maintenance of the common schools in each school district in the state or for early childhood education operated by or distributed through the common schools as provided in subsection (3) of this section, as the Legislature shall provide:

(a) Income arising from the perpetual funds;

(b) The income from the unsold school lands, except that costs of administration shall be deducted from the income before it is so applied;

(c) All other grants, gifts, and devises that have been or may hereafter be made to the state which are not otherwise appropriated by the terms of the grant, gift, or devise; and

(d) Such other support as the Legislature may provide.

(2) No distribution or appropriation shall be made to any school district for the year in which school is not maintained for the minimum term required by law.

(3)(a) An early childhood education endowment fund shall be created for the purpose of supporting early childhood education in this state as provided by the Legislature.

(b) An amount equal to forty million dollars of the funds belonging to the state for common school and early childhood educational purposes operated by or distributed through the common schools described in Article VII, section 7, of this Constitution shall be allocated for the early childhood education endowment fund.

(c) Only interest or income on such early childhood education endowment fund may be appropriated as provided by the Legislature for the benefit of the common schools and for the exclusive purpose of supporting early childhood education in this state.

(d) For purposes of Article VII of this Constitution, early childhood education means programs operated by or distributed through the common schools promoting development and learning for children from birth to kindergarten-entrance age.

(e) If the annual income from twenty million dollars of private funding is not irrevocably committed by July 1, 2011, to the use of the early childhood education endowment fund, then the forty-million-dollar allocation pursuant to subdivision (3)(b) of this section may revert to the use of the common schools as the Legislature shall determine.

Neb. Const. art. VIII, sec. 9 (1875);

Amended 1908, Laws 1907, c. 201, sec. 1, p. 580;

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 9;

Amended 1966, Laws 1965, c. 302, sec. 2(1), p. 852;

Amended 1970, Laws 1969, c. 423, sec. 1, p. 1439;

Amended 1972, Laws 1972, LB 1023, sec. 1;

Amended 2006, Laws 2006, LB 1006, sec. 1.

1. Grants, gifts, and devises

2. Miscellaneous

1. Grants, gifts, and devises

Primary purpose of trust is production of income for the support and maintenance of common schools. State ex rel. Ebke v. Board of Educational Lands & Funds, 154 Neb. 244, 47 N.W.2d 520 (1951).

Profit on sale of securities becomes a part of permanent school fund. State ex rel. Bottcher v. Bartling, 149 Neb. 491, 31 N.W.2d 422 (1948).

Since state, and not the board or its individual members, is trustee of school fund, suit may not be brought against the board and its individual members for an accounting by a taxpayer, since the suit is essentially one against the state. State ex rel. Walker v. Board of Commissioners for Educational Lands & Funds, 141 Neb. 172, 3 N.W.2d 196 (1942).

Act providing for payment out of state school funds of tuition of children whose parent is in military service of United States, stationed in Nebraska, was void. Taylor v. School Dist. of City of Lincoln, 128 Neb. 437, 259 N.W. 168 (1935).

State school fund is a trust fund and can be used only for purposes specified. Taylor v. School Dist. of City of Lincoln, 128 Neb. 437, 259 N.W. 168 (1935).

Saline lands granted to state by United States are not included in educational lands. Chicago, B. & Q. R. R. Co. v. Neville, 102 Neb. 817, 170 N.W. 176 (1918).

Funds derived from certain grants for specified purposes cannot be converted to General Fund of the state. Olive v. School District No. 1, 86 Neb. 135, 125 N.W. 141 (1910); State ex rel. Ledwith v. Brian, 84 Neb. 30, 120 N.W. 916 (1909); State ex rel. McKenzie v. McBride, 5 Neb. 102 (1876); McMurtry v. Engelhardt, 5 Neb. Unof. 271, 98 N.W. 40 (1904).

All lands, money or other property bequeathed, or in any manner conveyed to state for educational purposes, shall be used and expended in accord with terms of grant and cannot be diverted to general fund or other uses. State ex rel. Ledwith v. Brian, 84 Neb. 30, 120 N.W. 916 (1909).

2. Miscellaneous

Constitutionality of a retroactive statute generally depends upon reasonableness. Relevant factors to consider are the nature and strength of the public interest, the extent of modification of the asserted pre-enactment right, and the nature of the right altered by the statute. Hiddleston v. Nebraska Jewish Education Soc., 186 Neb. 786, 186 N.W.2d 904 (1971).

Law having for its object diversion of any funds raised by taxation for school purposes to different purpose is unconstitutional and void. State ex rel. Ahern v. Walsh, 31 Neb. 469, 48 N.W. 263 (1891).

In proceedings by United States to condemn state school lands, measure of compensation is the fair market value of the property in fee, irrespective of number and kind of interests existing therein. State of Nebraska v. United States, 164 F.2d 866 (8th Cir. 1947).

VII-10 University of Nebraska; government; Board of Regents; election; student membership; terms.

Reissue Revised Statutes of Nebraska

VII-10

University of Nebraska; government; Board of Regents; election; student membership; terms.

The general government of the University of Nebraska shall, under the direction of the Legislature, be vested in a board of not less than six nor more than eight regents to be designated the Board of Regents of the University of Nebraska, who shall be elected from and by districts as herein provided and three students of the University of Nebraska who shall serve as nonvoting members. Such nonvoting student members shall consist of the student body president of the University of Nebraska at Lincoln, the student body president of the University of Nebraska at Omaha, and the student body president of the University of Nebraska Medical Center. The terms of office of elected members shall be for six years each. The terms of office of student members shall be for the period of service as student body president. Their duties and powers shall be prescribed by law; and they shall receive no compensation, but may be reimbursed their actual expenses incurred in the discharge of their duties.

The Legislature shall divide the state, along county lines, into as many compact regent districts, as there are regents provided by the Legislature, of approximately equal population, which shall be numbered consecutively.

The Legislature shall redistrict the state after each federal decennial census. Such districts shall not be changed except upon the concurrence of a majority of the members of the Legislature. In any such redistricting, county lines shall be followed whenever practicable, but other established lines may be followed at the discretion of the Legislature. Whenever the state is so redistricted the members elected prior to the redistricting shall continue in office, and the law providing for such redistricting shall where necessary specify the newly established district which they shall represent for the balance of their term.

Neb. Const. art. VIII, sec. 10 (1875);

Amended 1920, Constitutional Convention, 1919-1920, No. 22;

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 10;

Amended 1968, Laws 1967, c. 320, sec. 1, p. 853;

Amended 1974, Laws 1974, LB 323, sec. 1.

This section requires the Legislature to vest the general government of the University in the Board of Regents. Board of Regents v. Exon, 199 Neb. 146, 256 N.W.2d 330 (1977).

Government of University of Nebraska is vested in the Board of Regents, subject to direction of the Legislature. Board of Regents v. County of Lancaster, 154 Neb. 398, 48 N.W.2d 221 (1951).

This section does not prohibit Legislature from imposing new duties on regents, or from requiring them to establish and conduct hog-cholera serum plant. Fisher v. Board of Regents of University of Nebraska, 108 Neb. 666, 189 N.W. 161 (1922).

Legislature in 1869, in accordance with this section, established the University of Nebraska, and provided the general powers of Board of Regents. Stewart v. Barton, 91 Neb. 96, 135 N.W. 381 (1912).

It was the duty of Board of Regents to establish experimental substations as directed by Legislature. State ex rel. Bushee v. Whitmore, 85 Neb. 566, 123 N.W. 1051 (1909).

This Article and section 85-105, R.R.S.1943, do not grant power to waive immunity from suit in federal court. Board of Regents of University of Nebraska v. Dawes, 370 F.Supp. 1190 (D. Neb. 1974).

VII-11 Appropriation of public funds; handicapped children; sectarian instruction; religious test of teacher or student.

Reissue Revised Statutes of Nebraska

VII-11

Appropriation of public funds; handicapped children; sectarian instruction; religious test of teacher or student.

Notwithstanding any other provision in the Constitution, 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 from time to time defined by the Legislature, if such services are nonsectarian in nature.

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.

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.

Neb. Const. art. VIII, sec. 11 (1875);

Amended 1920, Constitutional Convention, 1919-1920, No. 23;

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 11;

Amended 1972, Laws 1971, LB 656, sec. 1;

Amended 1976, Laws 1976, LB 666, sec. 1.

The third paragraph in this section has been reinstated pursuant to Cunningham v. Exon, 207 Neb. 513, 300 N.W.2d 6 (1980).

1. Grant of public funds

2. Constitutionality of certain practices

3. Miscellaneous

1. Grant of public funds

The provisions of section 79-487 authorizing the transportation of nonprofit private school students on public school buses do not violate the provisions of this section in that they do not appropriate public funds to a nonpublic institution. State ex rel. Bouc v. School Dist. of City of Lincoln, 211 Neb. 731, 320 N.W.2d 472 (1982).

No appropriation or grant of public funds or property shall be made to any educational institution which is not owned and controlled by the state or a governmental subdivision thereof. Gaffney v. State Department of Education, 192 Neb. 358, 220 N.W.2d 550 (1974).

2. Constitutionality of certain practices

An act which indirectly benefits private institutions through public grants to students is unconstitutional. State ex rel. Rogers v. Swanson, 192 Neb. 125, 219 N.W.2d 726 (1974).

It is not unconstitutional for a public school district to lease classrooms in a church or other sectarian building if the classrooms are under the control and operation of the public school authorities and the instruction offered is nonsectarian. State ex rel. School Dist. of Hartington v. State Board of Education, 188 Neb. 1, 195 N.W.2d 161 (1972).

Reading from Bible, singing of hymns and offering prayer, in accordance with doctrines of religious organizations, is prohibited in public schools by this section. State ex rel. Freeman v. Scheve, 65 Neb. 853, 91 N.W. 846 (1902), judgment adhered to 65 Neb. 876, 93 N.W. 169 (1903).

3. Miscellaneous

The age of twenty-one years is reached upon a person's twenty-first birthday, and, therefore, the term "under the age of twenty-one years" excludes any persons who have reached their twenty-first birthday. Monahan v. School Dist. No. 1 of Douglas County, 229 Neb. 139, 425 N.W.2d 624 (1988).

This section does not prohibit the State from doing business or contracting with private institutions in fulfilling a governmental duty and furthering a public purpose. State ex rel. Creighton Univ. v. Smith, 217 Neb. 682, 353 N.W.2d 267 (1984).

Adoption of 1976 amendment to allow for state contracting with institutions not wholly owned or controlled by the state or any political subdivision for nonsectarian services for handicapped children did not repeal third full paragraph of original section 11, which forbids state to match federal grants to nonpublic institutions with public money. Cunningham v. Exon, 207 Neb. 513, 300 N.W.2d 6 (1980).

A citizen taxpayer has standing to maintain an action for a declaratory judgment to challenge the accuracy and validity of the proclamation, publication, and incorporation of an amendment to this Article and section of the Constitution of Nebraska. Cunningham v. Exon, 202 Neb. 563, 276 N.W.2d 213 (1979).

Legislature cannot authorize donations by public corporations for religious or charitable purposes. United Community Services v. Omaha Nat. Bank, 162 Neb. 786, 77 N.W.2d 576 (1956).

Section is applicable to school in part sectarian. State ex rel. Public School Dist. No. 6, Cedar County v. Taylor, 122 Neb. 454, 240 N.W. 573 (1932).

VII-12 Education and reform of minors.

Reissue Revised Statutes of Nebraska

VII-12

Education and reform of minors.

The Legislature may provide by law for the establishment of a school or schools for the safe keeping, education, employment and reformation of all children under the age of eighteen years, who, for want of proper parental care, or other cause, are growing up in mendicancy or crime.

Neb. Const. art. VIII, sec. 12 (1875);

Amended 1920, Constitutional Convention, 1919-1920, No. 24;

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 12.

Establishment of Boys' Training School is authorized by this section. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).

Juvenile courts do not have the sole or exclusive jurisdiction of children under eighteen years of age who have violated the law. State v. McCoy, 145 Neb. 750, 18 N.W.2d 101 (1945).

Under former section Legislature was without power to authorize commitment to state industrial school of children over sixteen who had not been convicted of crime. Scott v. Flowers, 61 Neb. 620, 85 N.W. 857 (1901), reversing 60 Neb. 675, 84 N.W. 81 (1900).

VII-13 State colleges; government; board; name; selection; duties; compensation.

Reissue Revised Statutes of Nebraska

VII-13

State colleges; government; board; name; selection; duties; compensation.

The general government of the state colleges as now existing, and such other state colleges as may be established by law, shall be vested, under the direction of the Legislature, in a board of seven members to be styled as designated by the Legislature, six of whom shall be appointed by the Governor, with the advice and consent of the Legislature, two each for a term of two, four, and six years, and two each biennium thereafter for a term of six years, and the Commissioner of Education shall be a member ex officio. The duties and powers of the board shall be prescribed by law, and the members thereof shall receive no compensation for the performance of their duties, but may be reimbursed their actual expenses incurred therein.

Neb. Const. art. VIII, sec. 13 (1920);

Adopted 1920, Constitutional Convention, 1919-1920, No. 25;

Transferred by Constitutional Convention, 1919-1920, art. VII, sec. 13;

Amended 1952, Laws 1951, c. 164, sec. 2(4), p. 646;

Amended 1968, Laws 1967, c. 315, sec. 1, p. 845.

Board of Education of State Normal Schools was established in 1920. State ex rel. Johnson v. Hagemeister, 161 Neb. 475, 73 N.W.2d 625 (1955).

Teacher, head of department in state normal school, dismissed by president without action by board, is entitled to test, by quo warranto, the right of teacher employed to take his place. Eason v. Majors, 111 Neb. 288, 196 N.W. 133 (1923).

Upon showing that college administrative body acted from honest conviction upon belief facts showed it was for best interests of the school, and there was no showing that act was arbitrary or generated by ill will, fraud, coercion, or other such motives, court will not interfere. Levitt v. Board of Trustees of Nebraska State Colleges, 376 F.Supp. 945 (D. Neb. 1974).

VII-14 Coordinating Commission for Postsecondary Education; membership; powers and duties; coordination, defined.

Reissue Revised Statutes of Nebraska

VII-14

Coordinating Commission for Postsecondary Education; membership; powers and duties; coordination, defined.

On January 1, 1992, there shall be established the Coordinating Commission for Postsecondary Education which shall, under the direction of the Legislature, be vested with the authority for the coordination of public postsecondary educational institutions. Public postsecondary educational institutions shall include each postsecondary educational campus or institution which is governed by the Board of Regents of the University of Nebraska, the Board of Trustees of the Nebraska State Colleges, any board or boards established for the community colleges, or any other governing board for any other public postsecondary educational institution which may be established by the Legislature.

Coordination shall mean:

(1) Authority to adopt, and revise as needed, a comprehensive statewide plan for postsecondary education which shall include (a) definitions of the role and mission of each public postsecondary educational institution within any general assignments of role and mission as may be prescribed by the Legislature and (b) plans for facilities which utilize tax funds designated by the Legislature;

(2) Authority to review, monitor, and approve or disapprove each public postsecondary educational institution's programs and capital construction projects which utilize tax funds designated by the Legislature in order to provide compliance and consistency with the comprehensive plan and to prevent unnecessary duplication; and

(3) Authority to review and modify, if needed to promote compliance and consistency with the comprehensive statewide plan and prevent unnecessary duplication, the budget requests of the Board of Regents of the University of Nebraska, the Board of Trustees of the Nebraska State Colleges, any board or boards established for the community colleges, or any other governing board for any other public postsecondary educational institution which may be established by the Legislature.

The Legislature may provide the commission with additional powers and duties related to postsecondary education as long as such powers and duties do not invade the governance and management authority of the Board of Regents of the University of Nebraska and the Board of Trustees of the Nebraska State Colleges as provided in the Constitution of Nebraska, Article VII, sections 10 and 13. The Legislature may provide that coordination of the community colleges by the commission pursuant to this section may be conducted through a board or association representing all the community colleges.

Nothing in this section providing for statewide coordination shall limit or require the use of property tax revenue by and for community colleges.

The commission shall consist of eleven members, residents of the state or the districts for which appointed, who shall be appointed by the Governor with the approval of a majority of the Legislature. Six of the members shall be chosen from six districts of approximately equal population and five shall be chosen on a statewide basis.

The terms of the members of the commission shall be six years or until a successor is qualified and takes office, except that of the members initially appointed, four members shall serve for terms of two years and four members shall serve for terms of four years. The members of the commission shall receive no compensation for the performance of their duties but may be reimbursed their actual and necessary expenses.

Neb. Const. art. VII, sec. 14 (1990);

Adopted 1990, Laws 1990, LB 1141, sec. 1.

VII-15 Omitted.

Reissue Revised Statutes of Nebraska

VII-15

Omitted.

Article VII, section 15, of the Constitution of Nebraska, as adopted in 1992 by Initiative 407, and in 1994 by Initiative 408, has been omitted because of the decisions of the Nebraska Supreme Court in Duggan v. Beermann, 245 Neb. 907, 515 N.W.2d 788 (1994) and Duggan v. Beermann, 249 Neb. 411, 544 N.W.2d 68 (1996).

VII-16 Repealed 1972. Laws 1972, LB 1023, sec. 1.

Reissue Revised Statutes of Nebraska

VII-16

Repealed 1972. Laws 1972, LB 1023, sec. 1.

VII-17 Repealed 1972. Laws 1972, LB 1023, sec. 1.

Reissue Revised Statutes of Nebraska

VII-17

Repealed 1972. Laws 1972, LB 1023, sec. 1.