Nebraska Const. Article I | Constitution of Nebraska — Article I

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I-1 Statement of rights.

Reissue Revised Statutes of Nebraska

I-1

Statement of rights.

All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed.

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

Amended 1988, Initiative Measure No. 403.

1. Personal rights

2. Property rights

3. Taxation

4. Right to bear arms

5. Miscellaneous

1. Personal rights

Section 29-2203 does not violate either the U.S. or Nebraska Constitution. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

Statute providing it shall be unlawful just to be in place where controlled substance is being used illegally is unconstitutionally vague and overbroad. State v. Adkins, 196 Neb. 76, 241 N.W.2d 655 (1976).

Requirement of continuous residency of four months independent of school attendance to establish residence for tuition purposes does not violate this section. Thompson v. Board of Regents of University of Nebraska, 187 Neb. 252, 188 N.W.2d 840 (1971).

Failure to appoint counsel to represent a defendant in a criminal case upon appeal did not violate this section. State v. Dabney, 181 Neb. 263, 147 N.W.2d 768 (1967).

Sexual psychopath law does not deny equal protection of the laws. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 (1965).

Statute prohibiting state and federal officers and employees from being delegates to county, district, and state political conventions did not violate this section. State ex rel. Baldwin v. Strain, 152 Neb. 763, 42 N.W.2d 796 (1950).

Habitual criminal law, defining habitual criminal and providing punishment therefor, is not violative of this section. Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942).

The provision of an agreement between a labor organization and an employer that when a female employee, member of the organization, marries, her employment shall terminate, does not violate constitutional rights of employee. Brisbin v. E. L. Oliver Lodge No. 335, 134 Neb. 517, 279 N.W. 277 (1938).

The right to engage in the sale of intoxicating liquors is not an inherent and inalienable right which the state is forbidden to abridge. Griffin v. Gass, 133 Neb. 56, 274 N.W. 193 (1937).

Statute forbidding possession of liquor elsewhere than in private dwelling is not void as discriminatory. Fitch v. State, 102 Neb. 361, 167 N.W. 417 (1918).

"Sunday Law" is not repugnant to the Constitution. In re Caldwell, 82 Neb. 544, 118 N.W. 133 (1908).

A statute regulating and limiting the hours of employment of females in manufacturing, mechanical and mercantile establishments, hotels and restaurants is not repugnant to the provisions of the Constitution. Wenham v. State, 65 Neb. 394, 91 N.W. 421 (1902), 58 L.R.A. 825 (1902).

2. Property rights

Statute requiring fencing of right-of-way by railroads did not operate to deprive railroad of equal rights. Linenbrink v. Chicago & N.W. Ry. Co., 177 Neb. 838, 131 N.W.2d 417 (1964).

Every citizen has the right to acquire property and sell it at such price as he can obtain in fair barter. Elder v. Doerr, 175 Neb. 483, 122 N.W.2d 528 (1963).

A private employment agency is not a business in which the public has such an interest that price fixing may properly be included as a method of regulation. Boomer v. Olsen, 143 Neb. 579, 10 N.W.2d 507 (1943).

Act regulating sale of motor vehicles for purpose of preventing fraud is not a violation of constitutional rights. Nelsen v. Tilley, 137 Neb. 327, 289 N.W. 388 (1939), 126 A.L.R. 729 (1939).

The right to acquire property and dispose of it in such innocent manner as he pleases for such price as he can obtain in fair barter is guaranteed to every person. State ex rel. English v. Ruback, 135 Neb. 335, 281 N.W. 607 (1938).

Property used for "religious purpose" is within the spirit of Constitution exempting it from taxation. Ancient & Accepted Scottish Rite v. Board of County Commissioners, 122 Neb. 586, 241 N.W. 93 (1932), 81 A.L.R. 1166 (1932).

City ordinance requiring Sunday closing of places of business for sale or exchange of motor vehicles is valid under police power, and not discriminatory under this article. Stewart Motor Co. v. City of Omaha, 120 Neb. 776, 235 N.W. 332 (1931).

Statute requiring railroad company to fence right-of-way is constitutional. Middaugh v. Chicago & N.W. Ry. Co., 114 Neb. 438, 208 N.W. 139 (1926).

Law prohibiting merchants from giving trading stamps is unconstitutional. State ex rel. Hartigan v. Sperry & Hutchinson Co., 94 Neb. 785, 144 N.W. 795 (1913), 49 L.R.A.N.S. 1123 (1913).

3. Taxation

Ordinance of city of Lincoln imposing occupation tax on taxicabs was not objectionable as unjust, discriminatory and denial of equal protection of the laws, though no tax was imposed on trucks carrying freight. Richter v. City of Lincoln, 136 Neb. 289, 285 N.W. 593 (1939).

Gross premium tax on foreign insurance companies is an excise tax on privilege of doing business in Nebraska, and does not violate equal rights clause of Constitution. State ex rel. Smrha v. General American Life Ins. Co., 132 Neb. 520, 272 N.W. 555 (1937).

4. Right to bear arms

The "Right to Bear Arms" amendment to this provision does not abolish the death penalty in Nebraska. Anderson v. Gunter, 235 Neb. 560, 456 N.W.2d 286 (1990).

Section 28-1203(1) is not vitiated by the "Right to Bear Arms" amendment of 1988, is a valid exercise of the State's police power in reasonable regulation of certain firearms, and does not contravene this provision. State v. LaChapelle, 234 Neb. 458, 451 N.W.2d 689 (1990).

The constitutional right to keep and bear arms is subject to reasonable regulation by statute if the statute does not frustrate the guarantee of the constitutional provision. State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989).

5. Miscellaneous

Section 39-6,193, imposing vicarious liability on owners-lessors of trucks for damages by lessees and operators of the leased trucks, is constitutional. Bridgeford v. U-Haul Co., 195 Neb. 308, 238 N.W.2d 443 (1976).

Act establishing vocational technical schools does not violate this section. Campbell v. Area Vocational Technical School No. 2, 183 Neb. 318, 159 N.W.2d 817 (1968).

Statute creating Nebraska Power Review Board did not violate this section. City of Auburn v. Eastern Nebraska Public Power Dist., 179 Neb. 439, 138 N.W.2d 629 (1965).

Zoning ordinance of city of Omaha did not violate this section. Wolf v. City of Omaha, 177 Neb. 545, 129 N.W.2d 501 (1964).

Sunday closing law violated this section and was unconstitutional in its entirety. Terry Carpenter, Inc. v. Wood, 177 Neb. 515, 129 N.W.2d 475 (1964).

Sunday closing ordinance of city of first class violated this section. Skag-Way Department Stores, Inc. v. City of Grand Island, 176 Neb. 169, 125 N.W.2d 529 (1964).

Zoning act and ordinance sustained as constitutional. Schlientz v. City of North Platte, 172 Neb. 477, 110 N.W.2d 58 (1961).

In the interpretation of the Bill of Rights, the court will consider its history, the development of the evil sought to be restrained, the established laws, usages and customs at time of its adoption, and scope of the remedy its terms imply. First Trust Co. of Lincoln v. Smith, 134 Neb. 84, 277 N.W. 762 (1938).

Statute arbitrarily dividing county into commissioner districts, without regard to population, is unconstitutional. State ex rel. Harte v. Moorhead, 99 Neb. 527, 156 N.W. 1067 (1916).

The constitutional right to life, liberty and the pursuit of happiness is not infringed by statutes prohibiting deceit or fraud. In re Barnes, 83 Neb. 443, 119 N.W. 662 (1909).

Bill of rights is not enumeration of all powers reserved to people. State ex rel. Smyth, Attorney General v. Moores, 55 Neb. 480, 76 N.W. 175 (1898), 41 L.R.A. 624 (1898).

Law of land and due process do not mean merely legislative enactments. The Atchison & Nebraska R.R. Co. v. Baty, 6 Neb. 37, 29 Am. R. 356 (1877).

I-2 Slavery prohibited.

Reissue Revised Statutes of Nebraska

I-2

Slavery prohibited.

There shall be neither slavery nor involuntary servitude in this state.

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

Amended 2020, Laws 2019, LR1CA, sec. 1.

An employer's intentional concealment of the dangers inherent in the work environment and the true nature and effect of an occupational disease does not constitute involuntary servitude—the use or threat of physical force or legal coercion to extract labor from an unwilling worker—and thus construing the Workers' Compensation Act to include such conduct does not violate U.S. Const. amend. XIII or this provision. Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).

Imprisonment at hard labor for contempt of court, arising out of violation of injunctive order, is involuntary servitude prohibited by this section. Smolczyk v. Gaston, 147 Neb. 681, 24 N.W.2d 862 (1946).

I-3 Due process of law; equal protection.

Reissue Revised Statutes of Nebraska

I-3

Due process of law; equal protection.

No person shall be deprived of life, liberty, or property, without due process of law, nor be denied equal protection of the laws.

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

Amended 1998, Laws 1997, LR 20CA, sec. 1.

1. Criminal prosecutions

2. Vague or overbroad

3. Arbitrary or unreasonable

4. Procedural due process

5. Reasonable regulation

6. Fundamental rights

7. Deprived of property

8. Contract rights

9. Labor and employment

10. Taxes and special assessments

11. Laws held generally to violate due process

12. Laws held generally not to violate due process

13. Miscellaneous

1. Criminal prosecutions

For the issue involving specialized knowledge to be a significant factor, the issue must be one likely to make a difference as to the outcome if the defendant is successful in contesting it. State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).

There is a reasonable necessity for appointed expert assistance if the defendant shows some basis for believing the issue can only be strongly contested with the assistance of an appointed expert. State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).

There is no principled way to distinguish between psychiatric and nonpsychiatric experts; an expert in any field of expertise may, under the circumstances, be a basic tool of an adequate defense or appeal. State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).

To show a constitutional right to appointment of an independent expert at the State's expense, the accused must timely make a preliminary, particularized showing (1) that an issue involving specialized knowledge is likely to be a significant factor in the accused's defense and (2) that there is a reasonable necessity for the defense to have expert assistance in contesting that issue. State v. Wood, 310 Neb. 391, 966 N.W.2d 825 (2021).

Under this provision, in a criminal prosecution, the State must prove every ingredient of an offense beyond a reasonable doubt and may not shift the burden of proof to the defendant by presuming an ingredient upon proof of the other elements of the offense. Because the burden of proof always remains with the State, it cannot comment on a defendant's failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence. The exception to this rule is when the defendant voluntarily assumes some burden of proof by asserting the defenses of alibi, of self-defense, and of others, relying on facts that could be elicited only from a witness who is not equally available to the State. While a defendant may invite the State to explain why it chose not to submit certain items for testing, a defendant in a criminal case can never open the door to shift the burden of proof. A defendant is entitled to inquire about weaknesses in the State's case, but this does not open the door for the State to point out that the defendant has not proved his or her innocence. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

The Due Process Clauses of the U.S. and Nebraska Constitutions preclude admissibility of an involuntary confession. State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).

The amendment to this provision providing that "no person shall ... be denied equal protection of the laws" operates prospectively only. In order to prove that a defendant's race unconstitutionally taints enforcement of the death penalty, the defendant must at a minimum establish that the decision to enforce the death penalty is based on a conscious discriminatory purpose, resulting in a discriminatory effect suffered by the defendant. A defendant has a life interest in connection with the imposition of the death penalty and is entitled to due process in the imposition of the sentence. State v. Reeves, 258 Neb. 511, 604 N.W.2d 151 (2000).

This section provides that no person shall be deprived of liberty "without due process of law", and article I, section 11, provides that the accused in a criminal prosecution shall have the right to "trial by an impartial jury". These provisions are interconnected and require that criminal convictions rest upon a jury determination that a criminal defendant is guilty beyond a reasonable doubt of every element of the crime charged. State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996).

The due process clause of this provision precludes admissibility of an involuntary confession. State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996); State v. Martin, 243 Neb. 368, 500 N.W.2d 512 (1993).

Allegedly coercive conduct on the part of private detective obtaining a statement from defendant did not carry over to statement made by defendant several hours later in the presence of others. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

Section 29-2203 does not violate either the U.S. or Nebraska Constitution. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

Prosecutions for felonies, including murder, may be had on informations filed by the county attorney, and such procedure neither violates the 14th amendment to the U.S. Constitution nor the due process clause of the Nebraska Constitution. State v. Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).

No one has a vested right in a procedure, and procedural matters can be changed at any time before trial and are binding on a defendant. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

Photographic lineup did not violate due process despite defendant's argument that the identification procedure was unduly suggestive in that the relative heights of suspects were readily determinable by reference to the strategically placed doorframe visible in each photograph. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

Trial court's determination that defendant's incriminating statements were made in a non-custodial setting was not clearly wrong; thus, police did not violate defendant's constitutional right against self-incrimination. State v. Saylor, 223 Neb. 694, 392 N.W.2d 789 (1986).

Due process is afforded defendant in capital case by the traditional trial to court or jury, the presentence report on defendant, a presentence hearing and findings relating to aggravating and mitigating circumstances, and automatic review in Supreme Court, all to assure the death penalty will not be imposed arbitrarily or capriciously. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977).

Sections 29-3301 to 29-3307 do not violate privilege against self-incrimination, are constitutional, and apply to physical evidence, not to oral communications or testimony. State v. Swayze, 197 Neb. 149, 247 N.W.2d 440 (1976).

Due process does not require a prosecuting attorney to hold an adversary hearing prior to determining the manner in which a minor defendant shall be proceeded against. State v. Grayer, 191 Neb. 523, 215 N.W.2d 859 (1974).

Whether an identification procedure is violative of due process will be determined upon a consideration of the totality of the circumstances surrounding it. State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504 (1974).

Failure to appoint counsel to represent a defendant in a criminal case upon appeal did not violate this section. State v. Dabney, 181 Neb. 263, 147 N.W.2d 768 (1967).

Use of any confession obtained in violation of the due process clause requires reversal of the conviction, even though there is other evidence sufficient to sustain the conviction. State v. Long, 179 Neb. 606, 139 N.W.2d 813 (1966).

Sexual psychopath law did not deprive accused of his liberty without due process of law. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 (1965).

Due process of law in a criminal case includes right to trial by jury and right to defend in person or by counsel. Johnson v. State, 169 Neb. 783, 100 N.W.2d 844 (1960).

Detention in jail for six months awaiting trial was not a denial of due process. Svehla v. State, 168 Neb. 553, 96 N.W.2d 649 (1959).

Sentence of juvenile offender to state penitentiary was not a denial of due process of law. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).

Proceedings in contempt were not violative of due process. Cornett v. State, 155 Neb. 766, 53 N.W.2d 747 (1952).

Denial of continuance did not operate to violate due process clause. Hawk v. State, 151 Neb. 717, 39 N.W.2d 561 (1949).

Where a jury in a criminal case disagrees and is properly discharged, a second trial upon original charge, even though one or more degrees of the offense have been withdrawn, does not violate this section. State v. Hutter, 145 Neb. 798, 18 N.W.2d 203 (1945).

A person charged with a crime waives constitutional rights by judicial confession of guilt. In re Application of Carper, Tesar v. Bowley, 144 Neb. 623, 14 N.W.2d 225 (1944).

Habitual criminal law, defining habitual criminal and providing punishment therefor, is not violative of this section. Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942).

Where, after objection that copy of amended information had not been served, trial proceeded upon the original information which had been served, there was no violation of this section. Hoctor v. State, 141 Neb. 329, 3 N.W.2d 558 (1942).

An information alleging all facts necessary to constitute a criminal offense, does not violate constitutional provision as to due process of law. Chadek v. State, 138 Neb. 626, 294 N.W. 384 (1940).

Habitual criminal statute upheld. Right of accused to counsel deemed waived where no demand made. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940).

Due process of law in a criminal case requires a law creating or defining the offense, a court of competent jurisdiction, accusation in due form, notice and opportunity to answer the charge, trial according to the settled course of judicial proceeding, and a right to be discharged unless found guilty. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).

Statute prohibiting granting of new trial if Supreme Court considers that no substantial miscarriage of justice has actually occurred, does not justify court in denying new trial where accused's constitutional right to fair trial was violated. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).

The Constitution guarantees a fair and impartial trial to every person accused of crime, and that no person shall be compelled in any criminal case to be a witness against himself, nor shall he be deprived of life, liberty, or property without due process of law. Coxbill v. State, 115 Neb. 634, 214 N.W. 256 (1927).

The judge of a district court has no jurisdiction to try and determine the guilt or innocence of a defendant charged with a felony who pleads not guilty, without a trial to a jury, and such jurisdiction cannot be conferred by consent of the accused. Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904).

Prosecution of accused on information of prosecuting attorney did not contravene the due process of law clause of the Constitution. Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897).

Although due process does not require the appointment of counsel to represent a prisoner in a private civil matter, due process does require that the prisoner receive meaningful access to the courts to defend against suits brought against him or her. Conn v. Conn, 13 Neb. App. 472, 695 N.W.2d 674 (2005).

2. Vague or overbroad

Motor vehicle flight to avoid arrest, act held unconstitutional upon the ground of vagueness and uncertainty. Heywood v. Brainard, 181 Neb. 294, 147 N.W.2d 772 (1967).

A penal law which makes criminal an act which the utmost care and circumspection would not enable one to avoid violates this section. Markham v. Brainard, 178 Neb. 544, 134 N.W.2d 84 (1965).

Grade A Milk Act contained an unlawful delegation of legislative power to an administrative agency and was unconstitutional. Lincoln Dairy Co. v. Finigan, 170 Neb. 777, 104 N.W.2d 227 (1960).

Municipal ordinance directed against obscene publications was void for uncertainty. State v. Pocras, 166 Neb. 642, 90 N.W.2d 263 (1958).

3. Arbitrary or unreasonable

In setting rates that may be charged by a utility, a state cannot set rates which are unjust, unreasonable, and confiscatory and which, therefore, deprive the utility of property without the due process of law. K N Energy, Inc. v. Cities of Broken Bow et al., 244 Neb. 113, 505 N.W.2d 102 (1993).

If it becomes apparent that a statute does not tend to preserve the public health, safety, or welfare but tends more to stifle legitimate business by creating a monopoly or trade barrier, it is unconstitutional. Gillette Dairy, Inc. v. Nebraska Dairy Products Board, 192 Neb. 89, 219 N.W.2d 214 (1974).

Public Auction Law imposes arbitrary and unreasonable limitations on conduct of a lawful business. Blauvelt v. Beck, 162 Neb. 576, 76 N.W.2d 738 (1956).

Primary purpose of constitutional guaranty afforded by this section was security of the individual from the arbitrary exercise of the powers of government. Rein v. Johnson, 149 Neb. 67, 30 N.W.2d 548 (1947).

Prohibiting manufacture and sale of milk to which has been added any fat or oil other than milk, violates the Constitution as being arbitrary and unreasonable and taking property without due process of law. Carolene Products Co. v. Banning, 131 Neb. 429, 268 N.W. 313 (1936).

Statute regulating size of loaf of bread and authorizing Secretary of Agriculture to fix reasonable excess tolerance is not violative of due process clause. Petersen Baking Co. v. Bryan, 290 U.S. 570 (1934), affirming 124 Neb. 464, 247 N.W. 39 (1933).

Statute fixing maximum weights for loaves of bread is repugnant to the Fourteenth Amendment of the Constitution of the United States. Burns Baking Co. v. Bryan, 264 U.S. 504 (1924), reversing Burns Baking Co. v. McKelvie, 108 Neb. 674, 189 N.W. 383 (1922).

4. Procedural due process

Where a corporation owns real estate having certified irrigated acres under the Nebraska Ground Water Management and Protection Act, due process requires that the corporation be served with notice reasonably calculated to inform it of the subject and issues involved in the proceeding. State ex rel. Seeman v. Lower Republican NRD, 319 Neb. 681, 24 N.W.3d 874 (2025).

The exclusive remedy provided by the Workers' Compensation Act satisfies the due process requirements of this provision, as well as the requirements of Neb. Const. art. I, section 13, that every person shall have a remedy by due course of law for any injury done to him or her. Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).

The hearing each motorist has on each offense before points are assessed, and right to appeal to district court from revocation of his motor vehicle operator's license under sections 39-669.27 and 39-669.28, R.R.S.1943, pending which the court may stay revocation, provide due process. Stauffer v. Weedlun, 188 Neb. 105, 195 N.W.2d 218 (1972).

A person has no property in rules of the common law and such rules subject to constitutional limitations may be changed by the Legislature. State Securities Co. v. Norfolk Livestock Sales Co., Inc., 187 Neb. 446, 191 N.W.2d 614 (1971).

Preliminary hearing before a county judge not an attorney not violative of this section. State v. Howard, 184 Neb. 274, 167 N.W.2d 80 (1969).

Statute providing for withdrawal from area vocational technical schools did not violate this section in failing to provide hearing for determination of validity of signatures. Chaloupka v. Area Vocational Technical School No. 2, 184 Neb. 196, 165 N.W.2d 719 (1969).

Requirement for furnishing of probate appeal bond did not deprive party of due process of law. Rundall v. Whiteside, 182 Neb. 176, 153 N.W.2d 736 (1967).

Requirement of due process of law was satisfied by original notice of hearing before board of appraisers in eminent domain proceedings. Weiner v. State, 179 Neb. 297, 137 N.W.2d 852 (1965).

The incorporation of a village by the county board upon a petition of a majority of the taxable inhabitants is not a denial of due process of law. Kriz v. Klingensmith, 176 Neb. 205, 125 N.W.2d 674 (1964).

Due process of law was not denied by failure to mail notice of intention to pass resolution of necessity declaring advisability of constructing sewer. Jones v. Village of Farnam, 174 Neb. 704, 119 N.W.2d 157 (1963).

Procedure for investigation of conduct of attorneys was not a denial of due process of law. State ex rel. Nebraska State Bar Assn. v. Jensen, 171 Neb. 1, 105 N.W.2d 459 (1960).

Prosecution before a judge disqualified by pecuniary interest is a violation of due process of law. Conkling v. DeLany, 167 Neb. 4, 91 N.W.2d 250 (1958).

Provision for service of process upon Director of Banking in action for violation of Installment Loan Act was constitutional. McNish v. General Credit Corp., 164 Neb. 526, 83 N.W.2d 1 (1957).

Act for change of boundaries of school district required notice and opportunity to be heard. Schutte v. Schmitt, 162 Neb. 162, 75 N.W.2d 656 (1956).

Judgment is void unless a proper method of notification is employed. Board of Trustees of York College v. Cheney, 160 Neb. 631, 71 N.W.2d 195 (1955).

Service under reciprocal nonresident guardianship act did not violate due process clause. Howell v. Fletcher, 157 Neb. 196, 59 N.W.2d 359 (1953).

Statute authorizing annexation of additional territory of rural fire protection district did not deny due process. Seward County Rural Fire Protection Dist. v. County of Seward, 156 Neb. 516, 56 N.W.2d 700 (1953).

Fact that examiner of State Railway Commission considered the interrelationship of various applications when determining action to be taken on each application separately was not a denial of due process. In re Application of Petersen & Petersen, Inc., 153 Neb. 517, 45 N.W.2d 465 (1951).

Party who invoked special proceeding could not question constitutionality thereof under this section. Lackaff v. Department of Roads & Irrigation, 153 Neb. 217, 43 N.W.2d 576 (1950).

Action of county board in determining population of county at a secret meeting without notice to county officers whose salaries were thereby affected, vitally affected the rights and interests of the officers and is void. Shambaugh v. Buffalo County, 133 Neb. 46, 274 N.W. 207 (1937).

Where juror failed to disclose his ineligibility when questioned by trial court, and is permitted to serve on jury, a new trial should be granted. Berg v. Griffiths, 126 Neb. 235, 252 N.W. 918 (1934).

A statute providing that an action for injury to person or property by a common carrier, bus or trucking company may be brought in any county on the road or line where service could be obtained on a driver thereof is not improper or taking of property without due process of law. Schwarting v. Ogram, 123 Neb. 76, 242 N.W. 273 (1932), 81 A.L.R. 769 (1932).

Statute authorizing counties to foreclose lien for taxes delinquent more than three years is not taking property without due process of law. Commercial Savings & Loan Assn. v. Pyramid Realty Co., 121 Neb. 493, 237 N.W. 575 (1931).

Legislation authorizing county superintendent, clerk, and county board to change boundary lines between school districts without notice or hearing is a violation of due process of law. Ruwe v. School District No. 85 of Dodge County, 120 Neb. 668, 234 N.W. 789 (1931).

Statute relating to service on nonresident car owners is constitutional except as to provision for 90 day continuance and does not deprive such owners of property without due process of law. Herzoff v. Hommel, 120 Neb. 475, 233 N.W. 458 (1930).

Statute empowering department to cancel water appropriation, in view of provision for notice and appeal does not deprive one of his property without due process of law. Dawson County Irr. Co. v. McMullen, 120 Neb. 245, 231 N.W. 840 (1930).

Curative act to validate proceedings for creation of a light and power district, but applicable only to particular district, is unconstitutional because it violates due process of law clause. Anderson v. Lehmkuhl, 119 Neb. 451, 229 N.W. 773 (1930).

Where an increase in the assessed valuation of property as returned by county, is made by the State Board of Equalization without notice and without affording sufficient opportunity to be heard, it amounts to confiscation of property without due process. American Tel. & Tel. Co. v. State Board of Equalization & Assessment, 119 Neb. 142, 227 N.W. 455 (1929); Northwestern Bell Tel. Co. v. State Board of Equalization & Assessment, 119 Neb. 138, 227 N.W. 452 (1929); Lincoln Tel. & Tel. Co. v. State Board of Equalization & Assessment, 119 Neb. 137, 227 N.W. 454 (1929); Stanton County v. State Board of Equalization & Assessment, 119 Neb. 136, 227 N.W. 454 (1929).

Failing to provide for notice to resident owners of appraisers' meeting to assess damages in condemnation proceedings by county contravened the Constitution. Sheridan County v. Hand, 114 Neb. 813, 210 N.W. 273 (1926).

The issuance of bonds upon a petition of not less than fifty-one per cent of the voters stands upon the same legal footing as bonds issued by virtue of an election and the fact the taxpayer is given no opportunity to contest the validity of the bonds is not taking of property without due process of law. McCord v. Marsh, 108 Neb. 723, 189 N.W. 386 (1922).

Failure to provide in statute for notice to the property owner of the time and place at which the appraisers would meet for purpose of making their assessment in condemnation of school site is unconstitutional and actual notice cannot operate as a substitute. Albin v. Consolidated School Dist. No. 14 of Richardson County, 106 Neb. 719, 184 N.W. 141 (1921).

Law permitting jury, in court's discretion, to view premises does not violate constitutional provision of taking property without due process of law. Drollinger v. Hastings & N. W. R. R. Co., 98 Neb. 520, 153 N.W. 619 (1915).

Law purporting to validate proceedings of probate court under prior act which had been held unconstitutional contravenes due process of law and is unconstitutional. Draper v. Clayton, 87 Neb. 443, 127 N.W. 369 (1910).

Striking answer from files and denying defendant right to further defense in divorce suit violates the constitutional right of the defendant to due process of law. McNamara v. McNamara, 86 Neb. 631, 126 N.W. 94 (1910).

No judgment of a court is due process of law if rendered without jurisdiction in the court, or without due notice to the party. Herman v. Barth, 85 Neb. 722, 124 N.W. 135 (1910).

To constitute due process of law it is not necessary that notice be given of each step in the process of taxation. It is sufficient if the taxpayer has an opportunity to appear, at some time before a tribunal having jurisdiction, and there procure an adjustment of his liabilities. State v. Several Parcels of Land, 83 Neb. 13, 119 N.W. 21 (1908).

Statute authorizing the revival of a dormant judgment against a nonresident upon service by publication is not repugnant to state Constitution. White v. Ress, 80 Neb. 749, 115 N.W. 301 (1908).

Statute providing for the organization of a drainage district whenever the same will promote the public health, convenience or welfare, funds to be raised in proportion to benefits received, notice giving owner right to appear and be heard and to appeal from order of assignment, does not amount to the taking of private property for private use, nor for public use without just compensation nor without due process of law. State ex rel. Harris v. Hanson, 80 Neb. 724, 115 N.W. 294 (1908).

A statute that provides for seizure and forfeiture of guns used in hunting out of season, if no hearing provided for, is unconstitutional. McConnell v. McKillip, 71 Neb. 712, 99 N.W. 505 (1904).

Whenever an opportunity is offered to invoke equal protection of law by judicial proceeding appropriate for the purpose and adequate to secure the end and object sought to be attained, due process of law is said to be satisfied. Reed v. Reed, 70 Neb. 779, 98 N.W. 73 (1904).

In an action to quiet the title to real estate on the grounds of adverse possession, the former owner has not been deprived of his property without due process of law if the period has expired which, under the law, would bar an action for its recovery by the real owner. Linton v. Heye, 69 Neb. 450, 95 N.W. 1040 (1903), affirmed in 194 U.S. 628 (1904).

Act providing for assessment of damages under herd law, by arbitration, if cumulative, and not exclusive is not taking of property without due process of law. Randall v. Gross, 67 Neb. 255, 93 N.W. 223 (1903).

Statute providing that all witness fees and costs uncalled for within a certain specified time, in default of which they shall be paid into school fund is not taking of property without due process of law. Douglas County v. Moores, 66 Neb. 284, 92 N.W. 199 (1902).

Drainage district assessments, where owners are given opportunity to appear and be heard and accorded a right to review, are not taking of property without due process of law. Dodge County v. Acom, 61 Neb. 376, 85 N.W. 292 (1901).

Lord Campbell's Act gives right of action to personal representative of deceased for death of passenger and does not deprive railroad companies of their property without due process of law. Chicago, R. I. & P. Ry. Co. v. Zernecke, 59 Neb. 689, 82 N.W. 26 (1900); Chicago, R. I. & P. Ry. Co. v. Hambel, 2 Neb. Unof. 607, 89 N.W. 643 (1902).

"Due process of law" is defined as such exertion of power of government as sanctioned by settled maxims of law and under such safeguards for protection of individual rights as prescribed for class of cases to which the one in question belongs. It has never been construed as right to be heard in court of last resort, but is satisfied by proceeding applicable to subject matter and conformable to such general rules as affect all persons alike. Chicago, B. & Q. R. R. Co. v. Headrick, 49 Neb. 286, 68 N.W. 489 (1896).

Providing for organization of drainage districts and charging lands for payment of bonds, upon petition and notice is valid. Board of Directors of Alfalfa Irrigation Dist. v. Collins, 46 Neb. 411, 64 N.W. 1086 (1895).

A statute authorizing a city to change existing grades but failing to provide for notice to property owners of appraisers' meeting is unconstitutional. McGavock v. City of Omaha, 40 Neb. 64, 58 N.W. 543 (1894).

Due process requires that a prisoner receive meaningful access to the courts to defend civil suits brought against the prisoner. Board of Regents v. Thompson, 6 Neb. App. 734, 577 N.W.2d 749 (1998).

5. Reasonable regulation

A look-back provision of a natural resources district's rules governing land irrigation, which allowed acres that had been actually irrigated any year during a particular 10-year period to be certified, did not violate the substantive due process rights of a farmer who began irrigation after the 10-year period, because the provision had a substantial relation to the general welfare, in that it ensured an adequate supply of ground water and the window of time was reasonable due to the existence of limitations on "New Groundwater Irrigated Acres" in the district after that time. Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d 892 (2016).

A look-back provision of a natural resources district's rules governing land irrigation, which allowed acres that had been actually irrigated any year during a particular 10-year period to be certified, did not, under a rational basis test, violate the equal protection rights of a farmer who began irrigation after the 10-year period, because the provision was rationally related to the goal of ground water conservation. Lingenfelter v. Lower Elkhorn NRD, 294 Neb. 46, 881 N.W.2d 892 (2016).

Due process is not violated in termination of parental rights statutes where a parent of ordinary intelligence can ascertain, without guessing, the prescribed standards governing parental conduct. State v. A. H., 198 Neb. 444, 253 N.W.2d 283 (1977).

Legislative act requiring continuous residency of four months independent of school attendance to establish residence for tuition purposes does not violate this section. Thompson v. Board of Regents of University of Nebraska, 187 Neb. 252, 188 N.W.2d 840 (1971).

Prohibiting wholesaler from giving discounts for quantity purchases of alcoholic liquor to retailers is not a denial of due process. Central Markets West, Inc. v. State, 186 Neb. 79, 180 N.W.2d 880 (1970).

Statute authorizing county board to relocate roads did not violate this section. Emry v. Lake, 181 Neb. 568, 149 N.W.2d 520 (1967).

Statute providing for limited access to interstate highway is not violative of due process. Fougeron v. County of Seward, 174 Neb. 753, 119 N.W.2d 298 (1963).

Act authorizing revocation of driver's license for failure to submit to blood or urine test did not violate this section. Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75 (1961).

Statute requiring a warehouseman to report list of property held in storage was not a denial of due process of law. United States Cold Storage Corp. v. Stolinski, 168 Neb. 513, 96 N.W.2d 408 (1959).

Act requiring proper lights on mainline switch stands by railroads was not void under due process clause. State v. Chicago & N.W. Ry. Co., 147 Neb. 970, 25 N.W.2d 824 (1947).

Claim made and rejected that appropriation of surface and ground waters without compensation violated this section. Dischner v. Loup River P.P. Dist., 147 Neb. 949, 25 N.W.2d 813 (1947).

Legislative act providing for proceedings with reference to children born out of wedlock sustained as constitutional. In re Application of Rozgall, 147 Neb. 260, 23 N.W.2d 85 (1946).

While it is competent for the Legislature to classify, the classification, to be valid, must rest on some reason of public policy, or some substantial difference of situation or circumstances, that would naturally suggest the justice or expediency of diverse legislation with respect to the objects classified. Webber v. City of Scottsbluff, 141 Neb. 363, 3 N.W.2d 635 (1942).

Statutes creating housing authorities and granting right of eminent domain to operate for slum clearance do not violate due process clause. Lennox v. Housing Authority of City of Omaha, 137 Neb. 582, 290 N.W. 451 (1940).

Act regulating and licensing sale of motor vehicles, and prohibiting price discriminations does not interfere with rights of property or personal liberty. Nelsen v. Tilley, 137 Neb. 327, 289 N.W. 388 (1939).

Act regulating manufacture of ice cream and dairy products is a proper exercise of police power. State v. McCosh, 134 Neb. 780, 279 N.W. 775 (1938).

City ordinance requiring persons engaged in business of moving houses to procure licenses is constitutional and reasonable exercise of police power. State v. Phillips, 133 Neb. 209, 274 N.W. 459 (1937).

Ordinance requiring peddler to have a license must be reasonable, considering the nature of the business and not so high as to prohibit the carrying on of the business. Hoyt Bros. v. City of Lincoln, 130 Neb. 79, 263 N.W. 898 (1936).

Zoning ordinance enacted as having substantial relation to public health, safety and general welfare is not deprivation of property without due process of law. State ex rel. Herbert v. Anderson, 122 Neb. 738, 241 N.W. 545 (1932); City of Lincoln v. Logan-Jones, 120 Neb. 827, 235 N.W. 583 (1931); City of Lincoln v. Foss, 119 Neb. 666, 230 N.W. 592 (1930).

Statute denying to persons under 16 the right to motor vehicle drivers' license is not in violation of this section. State ex rel. Oleson v. Graunke, 119 Neb. 440, 229 N.W. 329 (1930).

A valid exercise of police power may affect or destroy values where the use of the property for its original purpose has become unlawful by a change in public policy as disclosed by a new statute, but legislation on that ground is constitutional and does not deprive one of property without due process of law. Miller v. McLaughlin, 118 Neb. 174, 224 N.W. 18 (1929), affirmed in 281 U.S. 261 (1930).

Statute relating to drainage by irrigation company of sub-irrigated land is constitutional and does not violate the due process clause of Constitution. State ex rel. Read v. Farmers Irr. Dist., 116 Neb. 373, 217 N.W. 607 (1928).

Authorizing life insurance company to change plan of business from mutual to stock by amending articles does not violate provision relating to due process of law in Constitution. Leininger v. North Amer. Nat. L. Ins. Co., 115 Neb. 801, 215 N.W. 167 (1927).

Prohibiting foreign installment investment company doing business without certificate of approval by Department of Trade and Commerce is not in violation of due process of law. Investors Syndicate v. Bryan, 113 Neb. 816, 205 N.W. 294 (1925).

Statute prohibiting the soliciting of certain classes of claims for the purpose of instituting suits thereon outside of the state and providing a penalty therefor, are regulatory measures and as such, do not infringe the rights of an individual under the Constitution. Chicago, B. & Q. R. R. Co. v. Davis, 111 Neb. 737, 197 N.W. 599 (1924).

Statute providing for the housing of municipal courts in the county courthouse does not interfere with vested rights of the county in such property, and is not unconstitutional as a deprivation of the use of property without due process of law. State ex rel. City of Omaha v. Bd. of County Commissioners of Douglas County, 109 Neb. 35, 189 N.W. 639 (1922).

Statute prohibiting liquor to be kept elsewhere than in private dwelling is not in violation of constitutional provision for due process of law. Fitch v. State, 102 Neb. 361, 167 N.W. 417 (1918).

City ordinance prohibiting the removal of garbage through the streets or alleys by any one not employed by the city for that purpose, is not unconstitutional as taking the property of a restaurant proprietor for public use without just compensation or as depriving him of his property without due process of law. Urbach v. City of Omaha, 101 Neb. 314, 163 N.W. 307 (1917).

Statute fixing maximum rates of premium for surety and fidelity companies under certain circumstances by the insurance board is not taking property without due process of law. State ex rel. Martin v. Howard, 96 Neb. 278, 147 N.W. 689 (1914).

Ordinance prohibiting billiard and pool halls does not take property without due process of law. Cole v. Village of Culbertson, 86 Neb. 160, 125 N.W. 287 (1910); McCarter v. City of Lexington, 80 Neb. 714, 115 N.W. 303 (1908).

Every property holder is secured in his title thereto and holds it under implied rule and understanding that its use may be so regulated and restricted that it shall not be injurious to others having equal right of enjoyment of their property, or to the rights of the community. Wenham v. State, 65 Neb. 394, 91 N.W. 421 (1902).

Statute prohibiting transfer of mortgaged chattels without written consent does not violate Constitution. State v. Heldenbrand, 62 Neb. 136, 87 N.W. 25 (1901).

Statute imposing penalty for neglecting to remove obstruction in line of newly established highway does not deprive owner of property without due process of law. Black v. Stein, 23 Neb. 302, 36 N.W. 548 (1888).

Zoning ordinance of city of Lincoln limiting the rental of a single-family dwelling to one family, which is defined as including not more than three unrelated persons, does not violate due process. State v. Champoux, 5 Neb. App. 68, 555 N.W.2d 69 (1996).

Statute allowing reasonable attorney's fees to plaintiff in suit on policy covering real property does not violate the Constitution on taking of property without due process of law. Farmers & Merchants Ins. Co. v. Dobney, 189 U.S. 301 (1903).

Statute regulating the practice of veterinary medicine and surgery is not a violation of this section. Peet Stock Remedy Co. v. McMullen, 32 F.2d 669 (8th Cir. 1929).

Amendment to charter and ordinance thereunder authorizing city to sell gasoline and oil does not violate provision of Constitution relating to taking of property without due process of law. Mutual Oil Co. v. Zehrung, 11 F.2d 887 (D. Neb. 1925).

6. Fundamental rights

A state constitutional provision is not elevated to a fundamental right solely because it mandates legislative action. Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007).

Besides guaranteeing fair process, the Nebraska due process clause provides heightened protection against government interference with certain fundamental rights and liberty interests. Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007).

Fundamental rights are those implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007).

The Nebraska due process clause forbids the government from infringing upon a fundamental liberty interest, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007).

When a classification created by state action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest. Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007).

7. Deprived of property

Municipal employees' claim that they were denied substantive due process of law by employer's payment of disability pension benefits failed because employees presented no evidence that employer denied employees the benefit of vested employment benefits. Constitutional deprivations are not founded upon speculation or mere possibilities. Bauers v. City of Lincoln, 255 Neb. 572, 586 N.W.2d 452 (1998).

The right of ingress and egress by way of a street is a property right of which an abutting property owner cannot be deprived without compensation. Swanson v. State Dept. of Roads, 178 Neb. 671, 134 N.W.2d 810 (1965).

Statute requiring fencing of right-of-way of railroads did not deprive railroad company of due process of law. Linenbrink v. Chicago & N.W. Ry. Co., 177 Neb. 838, 131 N.W.2d 417 (1964).

Statutory authorization for recovery of treble the actual damages sustained violates this section. Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684 (1960).

Legislative act will not be permitted to operate retrospectively when effect would be to interfere with vested rights. Dell v. City of Lincoln, 170 Neb. 176, 102 N.W.2d 62 (1960).

Holder of school land lease giving option to purchase fee title could not be deprived of that right by subsequent legislation. Pfeifer v. Ableidinger, 166 Neb. 464, 89 N.W.2d 568 (1958).

Right of owner of property abutting a street to ingress and egress to and from his premises is a property right of which he cannot be deprived without due process of law. Hillerege v. City of Scottsbluff, 164 Neb. 560, 83 N.W.2d 76 (1957).

Repeal of ordinance creating a water district did not invade any property rights. Brasier v. City of Lincoln, 159 Neb. 12, 65 N.W.2d 213 (1954).

Suspension of license under Motor Vehicle Safety Responsibility Act does not deprive licensee of property right. Hadden v. Aitken, 156 Neb. 215, 55 N.W.2d 620 (1952).

Provision for allowance of claim for reimbursement against recipient of old age assistance is not violative of due process. Boone County Old Age Assistance Board v. Myhre, 149 Neb. 669, 32 N.W.2d 262 (1948).

Relieving drainage district from liability for damages because of vote of landowners not to become part thereof violated this section. Cooper v. Sanitary District No. 1 of Lancaster County, 146 Neb. 412, 19 N.W.2d 619 (1945).

Zoning ordinance requiring certain size of buildings and ground area did not operate to deny property owners due process of law. Dundee Realty Co. v. City of Omaha, 144 Neb. 448, 13 N.W.2d 634 (1944).

It is a general rule that a person has no vested right in statutory licenses, permits or privileges. Beisner v. Cochran, 138 Neb. 445, 293 N.W. 289 (1940).

Statute making a stay bond a judgment against the surety does not conflict with the due process clause. Baker Steel & Machinery Co. v. Ferguson, 137 Neb. 578, 290 N.W. 449 (1940).

Act taking away right of licensees to sell alcoholic liquors at wholesale in quart bottles, by fixing uniform standards for containers, though reducing value of property formerly used in liquor traffic, does not violate constitutional provision. Marsh & Marsh v. Carmichael, 136 Neb. 797, 287 N.W. 616 (1939).

Statute authorizing reparation of freight rates unlawfully collected cannot be construed to permit retroactive action by Railway Commission. Farmers Union Livestock Commission v. Union Pacific R. R. Co., 135 Neb. 689, 283 N.W. 498 (1939).

Every person legally possesses the right of acquiring the absolute and unqualified title to every species of property recognized by law, with all rights incidental thereto, and, in connection with the right of personal liberty, it includes the right to dispose of such property in such innocent manner as he pleases, and to sell it at such price as he can obtain in fair barter. State ex rel. English v. Ruback, 135 Neb. 335, 281 N.W. 607 (1938).

Public power districts taking land by eminent domain does not violate due process clause of Constitution providing just compensation is paid. Johnson v. Platte Valley Public Power & Irr. Dist., 133 Neb. 97, 274 N.W. 386 (1937).

Creating depositors' final settlement fund authorizing assessment against state banks for payment of losses in banks closed is invalid for the reason one is deprived of his property without due process. Hubbell Bank v. Bryan, 124 Neb. 51, 245 N.W. 20 (1932), certiorari denied 289 U.S. 753 (1933).

Water right acquired prior to 1895 is a vested property right not to be taken away by legislative action. City of Fairbury v. Fairbury Mill & Elevator Co., 123 Neb. 588, 243 N.W. 774 (1932).

City ordinance prohibiting installation and operation of "automatic coin-in-the-slot gasoline pumps" at filling station is not violative of this section. Hawkins v. City of Red Cloud, 123 Neb. 487, 243 N.W. 431 (1932).

Statute transferring assets from depositors' guaranty fund to depositors' final settlement fund, excluding assets subject to payment of judgment liens, is not a violation of due process clause. Bliss v. Bryan, 123 Neb. 461, 243 N.W. 625 (1932).

Appropriation by Legislature of public money to reimburse depositors for losses sustained by depositors in banks operated by guaranty fund commission is in violation of due process provision of federal and state Constitutions. Weaver v. Koehn, 120 Neb. 114, 231 N.W. 703 (1930).

Statute authorizing license to guardian to mortgage insane ward's realty without requiring notice to ward does not violate the Constitution relating to taking of property without due process of law. Mead v. Polly, 119 Neb. 206, 228 N.W. 369 (1929).

Order of Railway Commission requiring the physical connection of two telephone companies and directing that they shall divide all new business in a certain proportion, is in effect taking of property without due process of law. Blackledge v. Farmers Independent Tel. Co. of Red Cloud, 105 Neb. 713, 181 N.W. 709 (1921), 16 A.L.R. 343 (1921).

Law depriving citizens of right to sell hog-cholera serum under certain conditions is unconstitutional. Hall v. State, 100 Neb. 84, 158 N.W. 362 (1916).

Order of Railway Commission requiring railroad to construct private overhead crossing violates due process of law as provided in the Constitution. Postle v. Chicago, B. & Q. R. R. Co., 98 Neb. 192, 152 N.W. 379 (1915).

Ordinance declaring that the carcasses of all dead animals found within the city, which were not slain for food, should at once become the property of the public contractor, is void so far as it attempts to take private property without due process of law. Whelan v. Daniels, 94 Neb. 642, 143 N.W. 929 (1913).

License to sell intoxicating liquors is but a mere temporary permit and is not a property right within the meaning of this section. Harding v. Board of Equalization of Douglas County, 90 Neb. 232, 133 N.W. 191 (1911).

A statute limiting the dower right of a non-resident widow to lands of which her husband died seized, and extending the dower right of a resident widow to other lands, does not contravene the Constitution. Miner v. Morgan, 83 Neb. 400, 119 N.W. 781 (1909).

Statute authorizing the entry of a judgment for costs against a complaining witness in a criminal case is unconstitutional. Teats v. Fox, 75 Neb. 747, 106 N.W. 779 (1906); Rickley v. State, 65 Neb. 841, 91 N.W. 867 (1902).

Statute preventing and punishing the desecration of the flag of the United States is not obnoxious to the provisions of Constitution against depriving any person of his property without due process of law and against special or class legislation. Halter v. State, 74 Neb. 757, 105 N.W. 298 (1905).

Divesting persons entitled thereto of unclaimed witness fees for benefit of school fund is taking of property without due process of law. State ex rel. Broatch v. Moores, 52 Neb. 770, 73 N.W. 299 (1897).

Commission's order to compel railroad to establish underpass for convenience and benefit of landowner in use of his own property is taking of property without due process of law. Chicago, St. P., M. & O. Ry. Co. v. Holmberg, 282 U.S. 162 (1930), Holmberg v. Chicago, St. P., M. & O. Ry. Co., reversing 115 Neb. 727, 214 N.W. 746 (1927).

"Cedar Rust" law does not deprive cedar tree owners of property without due process of law. Upton v. Felton, 4 F.Supp. 585 (D. Neb. 1932).

8. Contract rights

Act reducing penalty for violation of Installment Loan Act did not violate this section. Davis v. General Motors Acceptance Corp., 176 Neb. 865, 127 N.W.2d 907 (1964).

Recovery on behalf of city by taxpayer of amount paid on void contract did not deny defendant due process of law. Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208 (1959).

Construction of a collective bargaining contract decided upon contract and estoppel and not under due process clause of Constitution. Brisbin v. E. L. Oliver Lodge No. 335, 134 Neb. 517, 279 N.W. 277 (1938).

Statute may not operate retrospectively where it would impair obligation of contracts or interfere with vested rights. Travelers Ins. Co. v. Ohler, 119 Neb. 121, 227 N.W. 449 (1929).

Requiring contract work for a city to be performed by union labor violates the due process clause of the Constitution. Wright v. Hoctor, 95 Neb. 342, 145 N.W. 704 (1914).

Statutes on unfair competition do not contravene the Constitution relative to class legislation, freedom of contract or of taking property without due process of law. It is not the making of contracts which is forbidden, but the conduct, purpose and motives of the parties in connection with their acts. State v. Drayton, 82 Neb. 254, 117 N.W. 768 (1908).

Anti-pass law, imposing a penalty on either who give or receive a free railroad pass, is not an impairment of contract or taking property without due process of law. State v. Martyn, 82 Neb. 225, 117 N.W. 719 (1908).

Regulation of Board of Soldiers and Sailors Home providing that certain specific per cent of pension be paid into cash fund of home is a matter of contract and not that of depriving inmate of property without due process of law. Howell v. Sheldon, 82 Neb. 72, 117 N.W. 109 (1908).

9. Labor and employment

Sunday closing law violated this section and was unconstitutional in its entirety. Terry Carpenter, Inc. v. Wood, 177 Neb. 515, 129 N.W.2d 475 (1964).

Sunday closing ordinance of city of first class violated this section. Skag-Way Department Stores, Inc. v. City of Grand Island, 176 Neb. 169, 125 N.W.2d 529 (1964).

Fixing of a scale of wages to be paid by a successful contractor at a public letting violated this section. Philson v. City of Omaha, 167 Neb. 360, 93 N.W.2d 13 (1958).

City ordinance fixing closing hour of barber shops but not of beauty parlors is a discrimination within the due process clause of the Constitution. Ernesti v. City of Grand Island, 125 Neb. 688, 251 N.W. 899 (1933).

Statute requiring taxicab operators to deposit liability insurance or other security is not taking property without due process of law. Petersen v. Beal, 121 Neb. 348, 237 N.W. 146 (1931).

Ordinance prohibiting the selling or exchange of motor vehicles on Sunday is constitutional as police regulation. Stewart Motor Co. v. City of Omaha, 120 Neb. 776, 235 N.W. 332 (1931).

Sunday labor law is not repugnant to this section. In re Caldwell, 82 Neb. 544, 118 N.W. 133 (1908).

Statute regulating hours of employment of females in certain businesses is not unconstitutional. Wenham v. State, 65 Neb. 394, 91 N.W. 421 (1902).

Prescribing 8 hour day for certain kinds of labor is a denial of due process of law. Low v. Rees Printing Co., 41 Neb. 127, 59 N.W. 362 (1894).

10. Taxes and special assessments

A statute which authorized taxation of capital gain including portion of gain which accrued during taxing period prior to adoption of act was not unconstitutional. Altsuler v. Peters, 190 Neb. 113, 206 N.W.2d 570 (1973).

Laws for the levy and collection of general taxes stand upon a different footing than laws for the levy and collection of special assessments or special taxes. Frye v. Haas, 182 Neb. 73, 152 N.W.2d 121 (1967).

Penalty for failure to return personal property for taxation operated to deprive person of property without due process of law. Bachus v. Swanson, 179 Neb. 1, 136 N.W.2d 189 (1965).

An order by district court to produce a copy of income tax return is not a violation of due process clause of state Constitution. Rhodes v. Edwards, 178 Neb. 757, 135 N.W.2d 453 (1965).

Fixing of tax levy for municipal university did not violate due process clause. Ratigan v. Davis, 175 Neb. 416, 122 N.W.2d 12 (1963).

Action of State Board of Equalization and Assessment in raising values was not denial of due process. County of Howard v. State Board of Equalization & Assessment, 158 Neb. 339, 63 N.W.2d 441 (1954).

Ordinance of city of Lincoln imposing occupation tax on taxicabs does not violate due process of law. Richter v. City of Lincoln, 136 Neb. 289, 285 N.W. 593 (1939).

City taxes levied and assessed in accordance with home rule charter do not violate constitutional provision. Eppley Hotels Co. v. City of Lincoln, 133 Neb. 550, 276 N.W. 196 (1937).

Gross premium tax on foreign insurance companies is an excise tax on privilege of doing business in Nebraska, and not violative of due process clause of Constitution. State ex rel. Smrha v. General American Ins. Co., 132 Neb. 520, 272 N.W. 555 (1937).

Statute imposing excise tax on gasoline is consistent with the due process clause of the Constitution. Burke v. Bass, 123 Neb. 297, 242 N.W. 606 (1932).

A special assessment levied upon state banks was not deprivation of private property in violation of this section. Abie State Bank v. Weaver, 119 Neb. 153, 227 N.W. 922 (1929), affirmed in Abie State Bank v. Bryan, 282 U.S. 765 (1931).

Sanitary District Law does not require the officers of a sanitary district to give notice of the levying of a tax which is within their power to levy; if they exceed their power, they may be enjoined. Whedon v. Wells, 95 Neb. 517, 145 N.W. 1007 (1914).

Occupation tax is a revenue measure and does not violate this section. Norris v. City of Lincoln, 93 Neb. 658, 142 N.W. 114 (1913).

Due process of law does not necessarily require a judicial hearing in matters of taxation. Trainor v. Maverick Loan & Trust Co., 80 Neb. 626, 114 N.W. 932 (1908).

The provisions of the statute granting the landowner the right to object to the confirmation of sale, affords him an opportunity to have the question of the validity of the tax determined before he is deprived of his property. State v. Several Parcels of Land, 75 Neb. 538, 106 N.W. 663 (1906).

Statute providing for an assessment of railway property by State Board of Equalization is not deprivation of property by taxation without due process of law. Chicago, B. & Q. R. R. Co. v. Richardson County, 72 Neb. 482, 100 N.W. 950 (1904); State ex rel. Morton v. Back, 72 Neb. 402, 100 N.W. 952 (1904).

An owner is not deprived of his property without due process of law if he has an opportunity to question its validity or the amount of tax or assessment at some stage of the proceedings, either before the amount is finally determined or in subsequent proceedings for its collection. Hacker v. Howe, 72 Neb. 385, 101 N.W. 255 (1904).

Statute providing for foreclosure of tax lien on land for payment of delinquent taxes by proceeding in district court with notice by publication sufficiently answers the demand of due process of law. Woodrough v. Douglas County, 71 Neb. 354, 98 N.W. 1092 (1904).

The power of the state to levy taxes obviously carries with it the power to collect them and to provide all means necessary or appropriate to insure and enforce their collection. Leigh v. Green, 64 Neb. 533, 90 N.W. 255 (1902).

11. Laws held generally to violate due process

Rural Cemetery District Act violated this provision of the Constitution. Anderson v. Carlson, 171 Neb. 741, 107 N.W.2d 535 (1961).

Weather Control Act of 1957 violated this section. Summerville v. North Platte Valley Weather Control Dist., 170 Neb. 46, 101 N.W.2d 748 (1960).

Fair Trade Act violated due process clause. McGraw Electric Co. v. Lewis & Smith Drug Co., Inc., 159 Neb. 703, 68 N.W.2d 608 (1955).

12. Laws held generally not to violate due process

This section was not violated in adoption of L.B. 425 (Laws 1967) amending section 14-1041 and creating section 14-1042, R.R.S.1943. Evans v. Metropolitan Utilities Dist., 187 Neb. 261, 188 N.W.2d 851 (1971).

Statutes relating to annexation of urban and suburban land by first-class cities and providing annexation benefits thereto held constitutional. Plumfield Nurseries, Inc. v. Dodge County, 184 Neb. 346, 167 N.W.2d 560 (1969).

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

Statute creating Nebraska Power Review Board did not violate this section. City of Auburn v. Eastern Nebraska Public Power Dist., 179 Neb. 439, 138 N.W.2d 629 (1965).

Zoning ordinance of city of Omaha did not violate this section. Wolf v. City of Omaha, 177 Neb. 545, 129 N.W.2d 501 (1964).

Statute authorizing paving in city of the second class did not deny due process of law. Elliott v. City of Auburn, 172 Neb. 1, 108 N.W.2d 328 (1961).

Reorganization of School Districts Act did not violate this section. Nickel v. School Board of Axtell, 157 Neb. 813, 61 N.W.2d 566 (1953).

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

Unfair Sales Act sustained as constitutional. Hill v. Kusy, 150 Neb. 653, 35 N.W.2d 594 (1949).

Par Check Law sustained as constitutional exercise of police power. Placek v. Edstrom, 148 Neb. 79, 26 N.W.2d 489 (1947).

Statute prohibiting trial of divorce suit until six months after service of summons does not violate due process of law. Garrett v. State, 118 Neb. 373, 224 N.W. 860 (1929).

Employees liability act does not violate the constitutional guaranty that no person shall be deprived of property without due process of law. United States Fidelity and Guaranty Co. v. Wickline, 103 Neb. 21, 170 N.W. 193 (1918).

Innkeepers' act providing for night watchman to protect guest from fire does not contravene the Constitution in that it deprives the innkeeper of life, liberty and property without due process of law. Strahl v. Miller, 97 Neb. 820, 151 N.W. 952 (1915), Ann. Cas. 1917A 141 (1915).

Bulk sales law does not violate provision of taking property without due process of law. Appel Mercantile Co. v. Barker, 92 Neb. 669, 138 N.W. 1133 (1912).

13. Miscellaneous

Limitations on ex post facto judicial decisionmaking are inherent in the notion of due process, and retroactive judicial decisionmaking may be analyzed in accordance with the more basic and general principle of fair warning under the Due Process Clause; the question is whether the judicial decision being applied retroactively is both unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue. Caton v. State, 291 Neb. 939, 869 N.W.2d 911 (2015).

Constitutionality of legislative act as being in violation of this section raised but not decided, as act was in violation of another section of the Constitution. Williams v. County of Buffalo, 181 Neb. 233, 147 N.W.2d 776 (1967).

Constitutionality of Municipal Ground Water Act raised, but not decided. Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 140 N.W.2d 626 (1966).

Claim of deprivation of property without due process of law under labor relations ordinance was raised but not decided. Midwest Employers Council, Inc. v. City of Omaha, 177 Neb. 877, 131 N.W.2d 609 (1964).

Unconstitutionality of tax statute under this section raised but not decided. Creigh v. Larsen, 171 Neb. 317, 106 N.W.2d 187 (1960).

Issue of double taxation of motor vehicles raised but not decided. Peterson v. Hancock, 166 Neb. 637, 90 N.W.2d 298 (1958).

Effect of instruction as denial of due process raised but not decided. Liakas v. State, 161 Neb. 130, 72 N.W.2d 677 (1955).

Constitutionality of statute authorizing service by publication raised but not decided. Johnson v. Richards, 155 Neb. 552, 52 N.W.2d 737 (1952).

I-4 Religious freedom.

Reissue Revised Statutes of Nebraska

I-4

Religious freedom.

All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No person shall be compelled to attend, erect or support any place of worship against his consent, and no preference shall be given by law to any religious society, nor shall any interference with the rights of conscience be permitted. No religious test shall be required as a qualification for office, nor shall any person be incompetent to be a witness on account of his religious beliefs; but nothing herein shall be construed to dispense with oaths and affirmations. Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the Legislature to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.

Neb. Const. art. I, sec. 4 (1875).

1. Religious freedom

2. Schools

3. Miscellaneous

1. Religious freedom

A public exhibition of religious worship, in the form of a seance for gain on stage or at show, is not a religious liberty guaranteed by Constitution. Dill v. Hamilton, 137 Neb. 723, 291 N.W. 62 (1940).

Restricting term "Religious purpose" to church organization is a transgression of the constitutional inhibition made by this section. Ancient & Accepted Scottish Rite v. Board of County Commissioners, 122 Neb. 586, 241 N.W. 93 (1932), overruled Scottish Rite Bldg. Co. v. Lancaster County, 106 Neb. 95, 182 N.W. 574 (1921), and Mt. Moriah Lodge, A.F. & A.M. v. Otoe County, 101 Neb. 274, 162 N.W. 639 (1917).

Holding Sunday School or religious meetings in a country schoolhouse so infrequently as not to exceed four times a year, and which does not interfere with the school work, does not constitute a place of worship within the meaning of this section. State ex rel. Gilbert v. Dilley, 95 Neb. 527, 145 N.W. 999 (1914).

Courts will not refuse to protect property rights because they may thereby interfere with religious convictions of some individual or group. Constitution contemplates courts may be called upon to protect religious denominations in peaceable enjoyment of own form of worship. Parish of the Immaculate Conception v. Murphy, 89 Neb. 524, 131 N.W. 946 (1911).

2. Schools

The Nebraska Supreme Court interprets the paucity of standards in the free instruction clause as the framers' intent to commit the determination of adequate school funding solely to the Legislature's discretion, greater resources, and expertise. Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731 N.W.2d 164 (2007).

The plain language of the religious freedom clause textually commits to the Legislature the duty to encourage schools. Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731 N.W.2d 164 (2007).

There are no qualitative, constitutional standards for public schools that the Nebraska Supreme Court could enforce, apart from the requirements that the education in public schools must be free and available to all children. Nebraska Coalition for Ed. Equity v. Heineman, 273 Neb. 531, 731 N.W.2d 164 (2007).

Right to religious freedom was not denied by requirement that all schools be taught by qualified teacher. Meyerkorth v. State, 173 Neb. 889, 115 N.W.2d 585 (1962).

Use of state funds to support a school maintained by religious denomination is in violation of this section. State ex rel. Public Sch. Dist. No. 6 of Cedar County v. Taylor, 122 Neb. 454, 240 N.W. 573 (1932).

Reading in public schools of passages from the Bible, singing of hymns, and offering prayer, in accordance with the doctrines of sectarian churches, is forbidden by the Constitution. 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

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

I-5 Freedom of speech and press.

Reissue Revised Statutes of Nebraska

I-5

Freedom of speech and press.

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defense.

Neb. Const. art. I, sec. 5 (1875).

1. Freedom of speech

2. Freedom of the press

3. Truth

4. Miscellaneous

1. Freedom of speech

Because the question of whether an initiative measure should appear on the ballot is determined solely by a state's constitution, the resubmission clause does not restrict the right to political association. State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347 (2006).

The resubmission clause of Neb. Const. art. III, sec. 2, is a limitation on the initiative process itself, but does not restrict speech or expression because it does not regulate the process of advocacy by dictating who can speak or how they must go about speaking. State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347 (2006).

A legislative act with an effective date prior to the date a referendum election on the act can be held does not violate the constitutional right to free speech, based on the fact that Nebraska's referendum provisions make it difficult for sponsors to repeal the act and even more difficult to suspend its operation. Pony Lake Sch. Dist. v. State Committee for Reorg., 271 Neb. 173, 710 N.W.2d 609 (2006).

State restrictions on initiative and referendum rights violate the guarantee of free speech when they significantly inhibit communication with voters about proposed political change and are not warranted by the state interests (administrative efficiency, fraud detection, and informing voters) alleged to justify those restrictions. Pony Lake Sch. Dist. v. State Committee for Reorg., 271 Neb. 173, 710 N.W.2d 609 (2006).

The parameters of the constitutional right to freedom of speech are the same under both the federal and the state Constitutions. Pony Lake Sch. Dist. v. State Committee for Reorg., 271 Neb. 173, 710 N.W.2d 609 (2006).

The parameters of the constitutional right to freedom of speech are the same under this provision and the U.S. Constitution. State v. Hookstra, 263 Neb. 116, 638 N.W.2d 829 (2002).

A content-neutral nude dancing ordinance satisfies the constitutional guarantee of freedom of speech when the ordinance (1) is within the power of the government to enact, (2) reasonably furthers a substantial government interest, (3) is unrelated to the suppression of free expression, and (4) imposes a restriction that is no greater than is essential to the furtherance of the substantial government interest. Village of Winslow v. Sheets, 261 Neb. 203, 622 N.W.2d 595 (2001).

The parameters of the constitutional right to freedom of speech are the same under the Nebraska and U.S. Constitutions. Village of Winslow v. Sheets, 261 Neb. 203, 622 N.W.2d 595 (2001).

The free speech provision of the Nebraska Constitution does not guarantee a picketer or a protester an audience, it only guarantees a reasonable opportunity to speak. Hartford v. Womens Services, P.C., 239 Neb. 540, 477 N.W.2d 161 (1991).

A prior restraint on speech is not per se unconstitutional, but there is a heavy presumption against its constitutional validity. To be lawful, a prior restraint on speech must fit within one of the narrowly defined exceptions to the prohibition against prior restraints. Content-based restrictions on commercial speech are permissible. Commercial speech is speech related solely to the economic interests of the speaker and the audience, or speech which does no more than propose a commercial transaction. Speech intended to exercise a coercive impact is not removed from the reach of the first amendment. J. Q. Office Equip. v. Sullivan, 230 Neb. 397, 432 N.W.2d 211 (1988).

As used in section 28-729, "resist" is not unconstitutionally vague, and use of "fighting words" to constitute "abuse" depends upon the circumstances under which used. State v. Boss, 195 Neb. 467, 238 N.W.2d 639 (1976).

2. Freedom of the press

Obscenity is not within the protection of freedom of the press. State v. Pocras, 166 Neb. 642, 90 N.W.2d 263 (1958).

The freedom implies the publisher's respect for the constitutional rights of others, including the rights of litigants to appear before an independent, impartial court uninfluenced or unembarrassed by contemptuous publications pending litigation. State v. Lovell, 117 Neb. 710, 222 N.W. 625 (1929).

The publication of political matter in a newspaper cannot be enjoined merely because it is false or misleading, such relief being forbidden by this section of the Constitution. Howell v. Bee Pub. Co., 100 Neb. 39, 158 N.W. 358 (1916).

Constitution does not protect any person from punishment for contempt of court for publishing a newspaper article commenting upon a pending cause or proceeding when the publication is calculated to hinder, obstruct, or impede the due administration of justice. Rosewater v. State, 47 Neb. 630, 66 N.W. 640 (1896).

3. Truth

When a publication is made by a chief officer of a fraternal insurance association, addressed to the members of the association, concerning a subject matter which affects the general welfare of the association, such communication, although containing words which are libelous per se, is qualifiedly privileged, and is a complete defense unless it is shown by plaintiff by a preponderance of the evidence that the publication was made with express malice. Peterson v. Cleaver, 105 Neb. 438, 181 N.W. 187 (1920).

Where the purpose of members of village board in signing notice to hotel keeper was to do away with bawdy house, rather than to injure plaintiff, it was with good motives, and for justifiable ends. Deupree v. Thorton, 98 Neb. 804, 154 N.W. 557 (1915).

Truth alone is not a defense in action for libel unless with good motives and for justifiable ends. Wertz v. Sprecher, 82 Neb. 834, 118 N.W. 1071 (1908); Neilson v. Jensen, 56 Neb. 430, 76 N.W. 866 (1898); Pokrok Zapadu Pub. Co. v. Zizkovsky, 42 Neb. 64, 60 N.W. 358 (1894).

In a criminal prosecution for publishing an alleged libelous article, the truth of the article, when established, is a perfect defense. Razee v. State, 73 Neb. 732, 103 N.W. 438 (1905), but see Wertz v. Sprecher, 82 Neb. 834, 118 N.W. 1071 (1908).

4. Miscellaneous

The protections of sections 5 and 7 of this article intertwine when films are the "things" seized. State v. Skolnik, 218 Neb. 667, 358 N.W.2d 497 (1984).

Statute providing it shall be unlawful just to be in place where controlled substance is being used illegally is unconstitutionally vague and overbroad. State v. Adkins and Sutherland, 196 Neb. 76, 241 N.W.2d 655 (1976).

Statute providing that candidates for judicial and educational offices should not be nominated, indorsed, recommended, censured, criticized or referred to in any manner by any political convention, or primary, or at any primary election is a violation of this section. State ex rel. Ragan v. Junkin, 85 Neb. 1, 122 N.W. 473 (1909).

City ordinance prohibiting distribution of handbills or circulars upon public streets, does not violate this section. In re Anderson, 69 Neb. 686, 96 N.W. 149 (1903).

I-6 Trial by jury.

Reissue Revised Statutes of Nebraska

I-6

Trial by jury.

The right of trial by jury shall remain inviolate, but the Legislature may authorize trial by a jury of a less number than twelve in courts inferior to the District Court, and may by general law authorize a verdict in civil cases in any court by not less than five-sixths of the jury.

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

Amended 1920, Constitutional Convention, 1919-1920, No. 1.

1. Meaning and effect

2. Waiver

3. Entitled to jury trial

4. Not entitled as matter of right

5. Miscellaneous

1. Meaning and effect

In 1875, there was no right to a jury trial on any issue in a suit against the State or its political subdivisions because the common-law doctrine of sovereign immunity, and the related common-law doctrine of governmental immunity, operated to bar such suits at that time. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

The guaranty of a jury trial in this provision is part of Nebraska’s fundamental law, but it preserves the right to a jury trial as it existed under the common law when the Constitution of Nebraska was adopted in 1875. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

The purpose of this provision is to preserve the right to a jury trial as it existed at common law and under statutes in force when the Nebraska Constitution was adopted in 1875. The essential character of a cause of action and the remedy or relief it seeks as shown by the allegations of the petition determine whether a particular action is one at law to be tried to a jury or in equity to be tried to a court. State ex rel. Cherry v. Burns, 258 Neb. 216, 602 N.W.2d 477 (1999).

Right to jury trial not abridged by mandatory review of medical claim under Nebraska Hospital-Medical Liability Act. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

The court may require that a motion to waive a jury trial be made or filed within a reasonable time prior to trial as a condition to the consent of the court. State v. Godfrey, 182 Neb. 451, 155 N.W.2d 438 (1968).

Determination of sentence to be imposed by court instead of jury does not violate this section. Poppe v. State, 155 Neb. 527, 52 N.W.2d 422 (1952).

Constitution merely preserves right of jury trial as it existed at common law and under statutes in force when Constitution was adopted. One charged with drunken driving under city ordinance is not entitled to jury trial in absence of statute. State v. Hauser, 137 Neb. 138, 288 N.W. 518 (1939).

Constitutional provision does not extend right to jury trial beyond the limits existing at time of adoption of Constitution; jury trial is not a constitutional right in proceeding for appointment or removal of guardian. In re Guardianship of Warner, 137 Neb. 25, 288 N.W. 39 (1939).

The right of trial by jury is a right not extended by the Constitution but one preserved. In an equity case the court may, but is not bound to, give a jury trial. Omaha Fire Insurance Co. v. Thompson, 50 Neb. 580, 70 N.W. 30 (1897).

An action upon a contract for the payment of money only, unencumbered by any collateral agreements, contracts or securities whatever, is a legal action and the issue of fact is triable to a jury. Kuhl v. Pierce County, 44 Neb. 584, 62 N.W. 1066 (1895).

Where a petition states a cause of action for equitable relief and prays for equitable relief, a jury cannot be demanded as a matter of right for the trial of any issue arising in the case. Sharmer v. McIntosh and Johnson, 43 Neb. 509, 61 N.W. 727 (1895).

2. Waiver

A party’s waiver of a jury trial in district court is statutorily governed by section 25-1126 because it sets reasonable limits on a constitutional right. Section 25-1126 provides an exclusive list of the manners in which a waiver occurs. Unless a party’s conduct falls into one of that section’s three categories, a court will not find a waiver of a constitutional right. Section 25-1126 does not provide that a party waives the right to jury trial by failing to demand one. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Cases in which the parties tried issues of fact to the court without objection or asked for a directed verdict should be construed as falling into the “oral consent” category of waivers under section 25-1126. Such conduct is inconsistent with demanding a jury trial, and the trial court’s judgment operates as its assent to the procedure. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Merely failing to object, before trial, to a defendant’s request for a bench trial on a bifurcated affirmative defense is not oral consent in open court to waive a jury trial. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Right to a trial by jury may be waived by defendant in criminal case. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129 (1967).

In a civil action, right of trial by jury may be waived. McKinney v. County of Cass, 180 Neb. 685, 144 N.W.2d 416 (1966); Davis v. Snyder 45 Neb. 415, 63 N.W. 789 (1895).

Right to trial by jury may be waived. Johnson v. State, 169 Neb. 783, 100 N.W.2d 844 (1960).

Party who invoked special proceeding could not question constitutionality thereof under this section. Lackaff v. Department of Roads & Irrigation, 153 Neb. 217, 43 N.W.2d 576 (1950).

A plea of guilty waived defendant's right to be served with copy of accusation, time in which to examine the charge and prepare his defense, and waived all other preliminary steps. In re Application of Rice, Rice v. Olson, 144 Neb. 547, 14 N.W.2d 850 (1944), reversed in 324 U.S. 786 (1945).

A request by both parties for direction of a verdict amounts to a waiver of a jury. In re Estate of Bose, 136 Neb. 156, 285 N.W. 319 (1939).

Right to trial by jury in civil case is mere personal privilege which the litigant may waive. Berg v. Griffiths, 126 Neb. 235, 252 N.W. 918 (1934).

In felony case, where prisoner waived jury and trial had to court the judgment and sentence is void. Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904); Arnold v. State, 38 Neb. 752, 57 N.W. 378 (1894).

3. Entitled to jury trial

Negligence and personal injury actions are actions at law. At common law, legal claims were tried by a jury and equitable claims were tried by a court. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Cited in determining that material issues of fact in contested garnishment proceedings are triable to jury. Christiansen v. Moore, 184 Neb. 818, 172 N.W.2d 620 (1969).

It is a part of our fundamental law that the right of trial by jury shall remain inviolate. Fugate v. Skate, 169 Neb. 420, 99 N.W.2d 868 (1959).

Value of an attorney's services is ordinarily a jury question. Neighbors & Danielson v. West Nebraska Methodist Hospital, 162 Neb. 816, 77 N.W.2d 667 (1956).

Right of trial by jury is not denied to defendant charged with being the father of a child born out of wedlock. In re Application of Rozgall, 147 Neb. 260, 23 N.W.2d 85 (1946).

Cashier of insolvent bank, made party to proceeding to establish preference, is entitled to jury trial. Gering v. Buerstetta, 118 Neb. 54, 223 N.W. 625 (1929).

In proceeding to revive dormant judgment, where payment or satisfaction is pleaded, it is error for the court to deny a request for a trial by jury. Farak v. First Nat. Bank of Schuyler, 67 Neb. 463, 93 N.W. 682 (1903); McCormick & Brother v. Carey, 62 Neb. 494, 87 N.W. 172 (1901).

Clause in fire insurance policy providing that no action shall be brought thereon after breach but all differences settled by arbitration is void, as tending to oust the courts of the jurisdiction. Phoenix Ins. Co. v. Zlotky, 66 Neb. 584, 92 N.W. 736 (1902); Hartford Fire Ins. Co. v. Hon, 66 Neb. 555, 92 N.W. 746 (1902).

In action for money judgment for breach of contract, though equitable in nature, the issue should be submitted to a jury if demand is made for one. Lett v. Hammond, 59 Neb. 339, 80 N.W. 1042 (1899).

If purpose of action is primarily for recovery of money, though in part equitable in nature, the right to trial by jury exists. Yager v. Exchange Nat. Bank of Hastings, 52 Neb. 321, 72 N.W. 211 (1897); Omaha Fire Ins. Co. v. Thompson, 50 Neb. 580, 70 N.W. 30 (1897).

In garnishment proceedings, if the garnishee makes legal or equitable claim to the funds he is entitled to trial by jury. Clark v. Foxworthy, 14 Neb. 241, 15 N.W. 342 (1883).

4. Not entitled as matter of right

The Legislature has the right to decide the terms under which it will waive its sovereign and governmental immunity for tort actions against the State or its political subdivisions. Because a jury trial is not one of the terms of the State’s waiver of governmental immunity under the Political Subdivisions Tort Claims Act, a party is not entitled to a jury trial on its claim that a defendant is not a political subdivision employee. Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

Notwithstanding constitutional mandates regarding a jury trial, there is no constitutional right to trial by jury for petty offenses carrying a maximum sentence of imprisonment of 6 months or less. State v. Kennedy, 224 Neb. 164, 396 N.W.2d 722 (1986).

It is within the power of the Legislature to provide that the trial of petty offenses in violation of a city or village ordinance shall be triable without a jury. State v. Johnson, 191 Neb. 535, 216 N.W.2d 517 (1974).

Right to jury trial not given in school district reorganization appeal. Schroeder v. Oeltjen, 184 Neb. 8, 165 N.W.2d 81 (1969).

Trial without a jury for violation of city or village ordinance is not a violation of this section. State v. Lookabill, 176 Neb. 254, 125 N.W.2d 695 (1964).

Legislature may authorize trial of petty offenses without a jury for violation of city or village ordinance. State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962).

Election contest is a summary action and is not a suit in which a trial by jury is guaranteed under the Constitution. McMaster v. Wilkinson, 145 Neb. 39, 15 N.W.2d 348 (1944).

Action to quiet title to real estate, acquired by accretion, is tried as an equitable action, without a jury. Frank v. Smith, 138 Neb. 382, 293 N.W. 329 (1940).

Enjoining defendants from betting on horse races in their places of business is an equitable remedy to prevent a nuisance and not a proceeding to punish defendants, and does not violate constitutional guarantee of jury trial. State ex rel. Hunter v. The Araho, 137 Neb. 389, 289 N.W. 545 (1940).

Cases arising under Workmen's Compensation Act may be tried and determined as a suit in equity, and it is not in violation of Constitution not to provide for jury. Nosky v. Farmers Union Cooperative Assn., 109 Neb. 489, 191 N.W. 846 (1922).

This section has no application to judicial proceedings concerning the amount or legality of special assessments for benefits to highways within a drainage district. Drainage Dist. No. 1, Richardson County v. Richardson County, 86 Neb. 355, 125 N.W. 796 (1910).

On a motion for a deficiency judgment in the foreclosure of a real estate mortgage, the mortgagors are not entitled to a trial by a jury. Daniels v. Mutual Benefit Life Insurance Company, 73 Neb. 257, 102 N.W. 458 (1905).

Action by county, to foreclose tax lien, is a suit in equity and there is no constitutional right of a trial by jury. Woodrough v. Douglas County, 71 Neb. 354, 98 N.W. 1092 (1904).

Quo warranto and injunction to exclude a corporation from the privilege of doing business in this state does not require a trial by jury. State v. Standard Oil Co., 61 Neb. 28, 84 N.W. 413 (1900).

In quo warranto proceedings against a public officer, a jury trial cannot be demanded as a matter of right. State ex rel. Broatch v. Moores, 56 Neb. 1, 76 N.W. 530 (1898).

The accused is not entitled to jury trial in prosecution under city ordinance. Liberman v. State, 26 Neb. 464, 42 N.W. 419 (1889).

An action to foreclose mechanic's lien is essentially a suit in equity, and a party is not as a matter of right entitled to a jury therein. Dohle v. Omaha Foundry & Machine Co., 15 Neb. 436, 19 N.W. 644 (1884).

Contempt proceeding is solely to protect public justice from obstruction and the accused is not entitled to trial by jury. Gandy v. State, 13 Neb. 445, 14 N.W. 143 (1882).

5. Miscellaneous

Nebraska's sentencing scheme does not violate article I, sec. 6, of the Nebraska Constitution by leaving to the three-judge panel the ultimate life-or-death decision upon making the selection decisions of whether the aggravating circumstances justify the death penalty and whether sufficient mitigating circumstances exist that approach or exceed the weight given to the aggravating circumstances. State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022).

Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016), did not hold that a jury must find beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances. State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).

The right of trial by jury hereunder does not apply to second offense drunk driving because that is a misdemeanor, not recognized by the common law or any statute in existence when the Constitution was adopted. State v. Young, 194 Neb. 544, 234 N.W.2d 196 (1975).

Denial of request for a separate trial of defendant in a criminal case did not violate this section. State v. Adams, 181 Neb. 75, 147 N.W.2d 144 (1966).

Verdict in civil case by five-sixths of jury was authorized. Cartwright & Wilson Constr. Co. v. Smith, 155 Neb. 431, 52 N.W.2d 274 (1952).

Right of jury trial is not denied where adverse claims are presented and tried in mortgage foreclosure proceeding. Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58, 8 N.W.2d 545 (1943).

Where defendant is charged with a felony, it is prejudicial error for court, without notice to and in absence of defendant and his counsel, to instruct jury orally while it is deliberating upon its verdict. Strasheim v. State, 138 Neb. 651, 294 N.W. 433 (1940).

Where cause of action is reversed and remanded, both parties are entitled to a retrial of the cause generally and it is error for trial court to enter judgment for a certain amount though Supreme Court had indicated that aggrieved party was entitled to damages. Parish v. County Fire Ins. Co., 137 Neb. 385, 289 N.W. 765 (1940).

A judgment notwithstanding the verdict can only be entered when the pleadings of the party in whose favor verdict was rendered confess facts entitling other party to judgment. Wolfinger v. Shaw, 136 Neb. 604, 287 N.W. 63 (1939).

A verdict so clearly excessive as to induce the belief that it must have been found through passion, prejudice or mistake, will be set aside. Collins v. Hughes & Riddle, 134 Neb. 380, 278 N.W. 888 (1938).

It is error to submit a case to a jury and permit it to speculate with the rights of litigants where no question for the jury is involved. Smith v. Epstein Realty Co., 133 Neb. 842, 277 N.W. 427 (1938).

Function of determining facts must, under the Constitution, be discharged by jury in action for damages for personal injuries. Storm v. Christenson, 130 Neb. 86, 263 N.W. 896 (1936).

Practice of nonsuiting plaintiff at close of opening statements to jury disapproved. Temple v. Cotton Transfer Co., 126 Neb. 287, 253 N.W. 349 (1934).

Statute authorizing city to condemn public utility property, although no jury trial provided, is constitutional. City of Mitchell v. Western Public Service Co., 124 Neb. 248, 246 N.W. 484 (1933).

Statute vesting magistrates and police courts with powers to try liquor violations without jury where penalty within certain limits, does not violate this section. State v. Kacin, 123 Neb. 64, 241 N.W. 785 (1932).

A fair determination of the facts involved in a criminal prosecution adversely to the accused, by a constitutional jury, is a prerequisite to the infliction of punishment. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).

Mandamus will not lie to vacate order denying jury trial for liquor offense, in view of adequate remedy by appeal or error. State ex rel. Garton v. Fulton, 118 Neb. 400, 225 N.W. 28 (1929).

Litigant cannot demand jury on issue of adverse possession in suit to quiet title. Krumm v. Pillard, 104 Neb. 335, 177 N.W. 171 (1920).

Legislature may enact a law declaring possession and transportation of intoxicating liquors to be misdemeanors, and providing that violators of the law be tried before magistrates and police courts without a jury, where the penalty does not exceed a fine of one hundred dollars or imprisonment for three months. Bell v. State, 104 Neb. 203, 176 N.W. 544 (1920).

Provision for assessment of $300 against building enjoined as liquor nuisance, if construed as penalty, is unconstitutional as violating owner's right to jury trial. State ex rel. McGuire v. Macfarland, 104 Neb. 42, 175 N.W. 663 (1919).

Every person is guaranteed a fair and impartial trial by an impartial jury, and the obligation to protect these constitutional rights devolves upon the courts, and no court, when called upon to act, can shirk or evade the responsibility cast upon it by law. Wilson v. State, 87 Neb. 638, 128 N.W. 38 (1910).

In a law action a party is entitled to a jury trial as a matter of right. Yeiser v. Broadwell, 80 Neb. 718, 115 N.W. 293 (1908).

Whether or not a right to trial by jury exists must be determined from the object of the action as determined by the averments of the petition, and in case of ambiguity by resort to the prayer. Gandy v. Wiltse, 79 Neb. 280, 112 N.W. 569 (1907).

Where a statute providing for selection of juries is incomplete, it is invalid because its requirements cannot be complied with. State ex rel. Mickey v. Reneau, 75 Neb. 1, 106 N.W. 451 (1905).

Provision for jury of less than twelve in inferior courts does not violate this section. Chicago, B. & Q. R. R. Co. v. Headrick, 49 Neb. 286, 68 N.W. 489 (1896); Moise v. Powell, 40 Neb. 671, 59 N.W. 79 (1894).

I-7 Search and seizure.

Reissue Revised Statutes of Nebraska

I-7

Search and seizure.

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Neb. Const. art. I, sec. 7 (1875).

1. Expectation of privacy

2. Search warrant

3. Exceptions to warrant requirement

4. Probable cause or reasonable suspicion

5. Exclusion of evidence

6. Waiver of right

7. Action by private individual

8. Seizure, what constitutes

9. Miscellaneous

1. Expectation of privacy

In Nebraska, freedom from unreasonable searches and seizures is guaranteed by U.S. Const. amend. IV and Neb. Const. art. I, sec. 7. To determine whether an individual has an interest protected by the Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, sec. 7, one must determine whether an individual has a legitimate or justifiable expectation of privacy in the place subjected to canine scrutiny. Ordinarily, two inquiries are required. First, the individual must have exhibited an actual (subjective) expectation of privacy, and second, the expectation is one that society is prepared to recognize as reasonable. By using a canine to sniff for illegal drugs in a hallway outside an apartment, the police have engaged an investigative technique by which they are able to obtain information regarding the contents of a place that has traditionally been accorded a heightened expectation of privacy, and while such investigative technique may be minimally intrusive, it nevertheless implicates the Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, sec. 7, and requires independent reasonable suspicion. Under the Fourth Amendment to the U.S. Constitution and Neb. Const. art. I, sec. 7, an occupant has a legitimate expectation of some measure of privacy in the hallway immediately outside his or her apartment or at the threshold of his or her home. Given such constitutional protection, before a drug-detecting canine can be deployed to test the threshold of a home, police officers must possess at a minimum reasonable, articulable suspicion that the location to be tested contains illegal drugs. State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999).

A defendant is guaranteed the right to be secure in his person, house, papers, and effects, against unreasonable searches and seizures. State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992).

Neither the U.S. Constitution nor the Nebraska Constitution prohibits the warrantless search and seizure of garbage left for collection outside the curtilage of the home. State v. Trahan, 229 Neb. 683, 428 N.W.2d 619 (1988).

A person's capacity to claim the protection of this section as to unreasonable searches and seizures, like its counterpart, U.S. Const. amend. IV, depends upon whether the person who claims such protection has a legitimate expectation of privacy in the invaded place. An unreasonable search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. Because the defendants had no reasonable expectation of privacy in the searched premises, they were without standing to claim a violation of U.S. Const. amend. IV in regard to the search of their former residence. State v. Hodge and Carpenter, 225 Neb. 94, 402 N.W.2d 867 (1987).

The failure of an individual to secure his vehicle decreased his expectation of privacy relating to the vehicle. State v. Sanders, 15 Neb. App. 554, 733 N.W.2d 197 (2007).

2. Search warrant

Viewing of cell phone videos by police, which led to the observation of a possible sexual assault, was reasonable and within the scope of the warrant. State v. McGovern, 311 Neb. 705, 974 N.W.2d 595 (2022).

Misstatements within a search warrant and application may still produce a valid warrant issued with the requisite probable cause if the rest of the warrant and attached application cures any defect resulting from the scrivener's error when read together. A search warrant and application's indicating incorrect dates of the drafting and signing is not per se fatal to the validity of a warrant. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).

A warrant must be sufficiently particular to prevent an officer from having unlimited or unreasonably broad discretion in determining what items to seize. State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020).

In determining whether a warrant is sufficiently particular, several factors are to be considered: (1) Whether the warrant communicates objective standards for an officer to identify which items may be seized, (2) whether there is probable cause to support the seizure of the items listed, (3) whether the items in the warrant could be more particularly described based on the information available at the time the warrant was issued, and (4) the nature of the activity under investigation. State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020).

In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, the question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause. State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020).

A search warrant authorizing the search of a murder suspect's residence for "any and all firearms" sufficiently described the things to be seized with particularity; even though the particular caliber of the firearm was not specified, the warrant still told police with reasonable clarity which items to search for and seize and did not give police open-ended discretion. State v. Baker, 298 Neb. 216, 903 N.W.2d 469 (2017).

The particularity requirement of this provision demands that a warrant describe with particularity (1) the place to be searched and (2) the persons or things to be seized. State v. Baker, 298 Neb. 216, 903 N.W.2d 469 (2017).

The particularity requirement of this provision is distinct from, but closely related to, the requirement that a warrant be supported by probable cause. A warrant may be sufficiently particular even though it describes the items to be seized in broad or generic terms if the description is as particular as the supporting evidence will allow; but the broader the scope of a warrant, the stronger the evidentiary showing must be to establish probable cause. State v. Baker, 298 Neb. 216, 903 N.W.2d 469 (2017).

The ultimate touchstone of this provision is reasonableness. Searches and seizures must not be unreasonable. Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Provision in a warrant authorizing the police to search for "[a]ny and all firearms" was sufficiently particular. State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).

Provisions in warrants allowing no-knock search warrants offend neither U.S. Const. amend. IV nor this provision. State v. Eary, 235 Neb. 254, 454 N.W.2d 685 (1990).

A search pursuant to a warrant is presumed valid. If police have acted pursuant to a search warrant, the defendant bears the burden of proof that the search or seizure is unreasonable; but, if police have acted without a search warrant, the State has the burden of proof that the search was conducted under circumstances substantiating the reasonableness of such search or seizure. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987).

Seizure of theater owner's films without a warrant is not justified under this provision in the absence of probable cause and exigent circumstances or some other recognized exception. State v. Skolnik, 218 Neb. 667, 358 N.W.2d 497 (1984).

A warrant to search a house also covers the land around the house and associated outbuildings used by the inhabitants of the house. State v. Vicars, 207 Neb. 325, 299 N.W.2d 421 (1980).

This section not violated where law enforcement officers learning of attempted arson from trespassers inspected premises without entry or search to ascertain that no fire was in progress before obtaining search warrant. State v. Howard, 184 Neb. 274, 167 N.W.2d 80 (1969).

Law permitting search warrant to be issued upon information and belief is not in violation of this section. Watson v. State, 109 Neb. 43, 189 N.W. 620 (1922).

The right to a search warrant is in no instance authorized until a showing, on oath, of probable cause and particular description is given of place or premises to be searched and thing to be seized. Peterson v. State, 64 Neb. 875, 90 N.W. 964 (1902).

3. Exceptions to warrant requirement

Section 60-6,197.04 is constitutionally valid and does not conflict with the 4th, 5th, and 14th Amendments to the U.S. Constitution, and this provision or Neb. Const. Art. I, sec. 12, as section 60-6,197.04 mandates a preliminary breath test, rather than a search incident to lawful arrest addressed in Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), and where the arresting officer cited specific articulable facts to support administering the preliminary breath test. State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).

The requirement of ready mobility for the automobile exception to the warrant requirement of this provision is met whenever a vehicle that is not located on private property is capable or apparently capable of being driven on the roads or highways. This inquiry does not focus on the likelihood of the vehicle's being moved under the particular circumstances and is generally satisfied by the inherent mobility of all operational vehicles. It does not depend on whether the defendant has access to the vehicle at the time of the search or is in custody, nor on whether the vehicle has been impounded. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Under this provision, it is reasonable for the police to search the personal effects of a person under lawful arrest as part of the routine procedure incident to booking and jailing the suspect. There is no requirement that such inventory policies be established in writing. State v. Filkin, 242 Neb. 276, 494 N.W.2d 544 (1993).

A valid search as incident to an arrest without a warrant necessarily depends on the legality of the arrest itself. State v. Wickline, 232 Neb. 329, 440 N.W.2d 249 (1989).

Seizure of property which is in plain sight in vehicle's completely open trunk while driving on a public thoroughfare is lawful under the plain view doctrine provided there is probable cause to associate the property which is in plain view with criminal activity. State v. Holman, 221 Neb. 730, 380 N.W.2d 304 (1986).

Items not listed on a search warrant but in plain view of officers searching an area described in the warrant for items listed on the warrant may be seized. State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).

A condition of the appellant's probation requiring him to submit to warrantless searches contributed to the rehabilitation process and was reasonable and therefore, constitutional. State v. Colby, 16 Neb. App. 644, 748 N.W.2d 118 (2008).

The fact that the appellant's probation officer was not present during a warrantless probation search of the appellant's person and vehicle did not render the search unreasonable. State v. Colby, 16 Neb. App. 644, 748 N.W.2d 118 (2008).

A search without a warrant of a readily mobile, unoccupied vehicle in a residential area was justified under the automobile exception to the warrant requirement where police officers had probable cause to believe that the search would uncover evidence of a crime. State v. Sanders, 15 Neb. App. 554, 733 N.W.2d 197 (2007).

Law enforcement officers may search the entirety of a motor vehicle, including closed compartments and baggage, as a search incident to a lawful arrest. A warrantless search of containers within a motor vehicle is allowed where there exists probable cause to believe that contraband is located in the vehicle. State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).

4. Probable cause or reasonable suspicion

Probable cause existed for a warrant to search a cell phone for evidence of unlawful intrusion after a male was observed looking into the window of a bathroom, and the cell phone was located on the path the male took when he fled. State v. McGovern, 311 Neb. 705, 974 N.W.2d 595 (2022).

Although the accuracy of radar equipment must be demonstrated to support a conviction for speeding based on radar readings, reasonable proof of the accuracy of the radar equipment is not necessary to support the minimal level of objective justification for the belief that speeding occurred for purposes of an investigatory stop. State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).

An officer has reasonable suspicion to stop a defendant's vehicle for speeding following radar detection of speeding, even if the police report lacked a memorialization of the officer's visual estimation of the traveling speed, where the officer checked the police cruiser's radar device at the beginning of the officer's shift to ensure it was working properly, the officer waited until the best moment to take the radar reading, there was good Doppler tone, and the radar read that the defendant was driving 50 miles per hour in a 35-mile-per-hour zone. State v. Montoya, 305 Neb. 581, 941 N.W.2d 474 (2020).

The ultimate determination of probable cause to perform a warrantless search is reviewed de novo, and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

Finding the necessary quantum of individualized suspicion only after a stop occurs cannot justify the stop. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

Time of day and reports of crime in the area will not, in and of themselves, justify a stop under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

Although of limited usefulness, a court, in determining whether an officer had reasonable, articulable suspicion justifying continued detention of vehicle occupants following a traffic stop, may consider, with other factors, evidence that the occupants exhibited nervousness. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. But in determining whether the government's intrusion into a motorist's Fourth Amendment interests was reasonable, the question is not whether the officer issued a citation for a traffic violation or whether the State ultimately proved the violation. An officer's stop of a vehicle is objectively reasonable when the officer has probable cause to believe that a traffic violation has occurred. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Evidence that a motorist is returning to his or her home state in a vehicle rented from another state is not inherently indicative of drug trafficking when the officer has no reason to believe the motorist's explanation is untrue, but a court may nonetheless consider this factor when combined with other indicia that drug activity may be occurring, particularly the occupants' contradictory answers regarding their travel purpose and plans or an occupant's previous drug-related convictions. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Factors that would independently be consistent with innocent activities may nonetheless amount to reasonable suspicion to detain a motorist following a traffic stop when considered collectively. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Generally, the factors supporting an officer's reasonable suspicion of illegal drug activity when coupled with a well-trained dog's positive indication of drugs in a vehicle will give the officer probable cause to search the vehicle. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

In determining whether an officer had reasonable, articulable suspicion justifying continued detention of a motorist following a traffic stop, a court can consider, as part of the totality of the circumstances, the officer's knowledge of the motorist's drug-related criminal history. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Reasonable suspicion to detain a motorist following a traffic stop entails some minimal level of objective justification for detention. Reasonable suspicion is something more than an inchoate and unparticularized hunch, but less than the level of suspicion required for probable cause. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. If an officer has probable cause to stop a violator, the stop is objectively reasonable and any ulterior motivation is irrelevant. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

To detain a motorist for further investigation past the time reasonably necessary to conduct a routine investigation incident to a traffic stop, an officer must have a reasonable, articulable suspicion that the motorist is involved in criminal activity unrelated to the traffic violation. Reasonable suspicion for further detention must exist after the point that an officer issues a citation. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Whether a police officer has a reasonable suspicion to detain a motorist for further investigation past the time reasonably necessary to conduct a routine investigation incident to a traffic stop based on sufficient articulable facts depends on the totality of the circumstances. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

The test to determine whether an investigative stop is justified is whether the police officer has a reasonable suspicion based on articulable facts which indicate that a crime has occurred, is occurring, or is about to occur and that the suspect may be involved. An officer is not required to wait until a crime has occurred before making an investigatory stop. It is sufficient if there is an objective manifestation that the person stopped is, has been, or is about to be engaged in criminal activity. State v. Rein, 234 Neb. 917, 453 N.W.2d 114 (1990).

When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect has committed a crime, the officer has probable cause to arrest without a warrant. State v. Wickline, 232 Neb. 329, 440 N.W.2d 249 (1989).

The eyewitness report of a citizen informant may be self-corroborating; the fact that a citizen voluntarily came forward with information is itself an indicium of reliability. State v. King, 207 Neb. 270, 298 N.W.2d 168 (1980).

An investigatory stop and search is not constitutionally permissible where the officer has no reasonable suspicion a person is committing, has committed, or is about to commit a crime. State v. Colgrove, 198 Neb. 319, 253 N.W.2d 20 (1977).

In a "stop and frisk" situation, if after a patdown, officers had nothing more than a suspicion that vehicle contained controlled substances they did not have probable cause to arrest occupants or search vehicle. State v. Aden, 196 Neb. 149, 241 N.W.2d 669 (1976).

An officer does not have probable cause to effectuate an arrest without a warrant where the officer relies upon erroneous information provided from records maintained by Nebraska's Department of Motor Vehicles as the basis for the arrest. State v. Hisey, 15 Neb. App. 100, 723 N.W.2d 99 (2006).

5. Exclusion of evidence

Even if the Fourth Amendment's exclusionary rule applies to a foreign search and seizure, the evidence need not be suppressed unless the foreign search was unreasonable. State v. Scott, 319 Neb. 153, 21 N.W.3d 490 (2025).

The exclusionary rule applies to evidence seized from a search by foreign authorities when U.S. law enforcement's participation in the search and seizure was so substantial as to constitute a "joint venture" between U.S. and foreign officials. State v. Scott, 319 Neb. 153, 21 N.W.3d 490 (2025).

The good faith exception to the exclusionary rule applied to an officer’s stop of a vehicle, which was made in reliance upon incorrect information from the vehicle's registration, because the error originated with the county treasurer’s office and a county treasurer is not an adjunct of law enforcement. State v. Bromm, 285 Neb. 193, 826 N.W.2d 270 (2013).

Miranda warnings and right-to-refuse advisements are not a cure-all and will not, by themselves, purge the taint. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

The relevant factors for attenuation will depend upon the facts of a particular case but include (1) the proximity between the actual illegality and the evidence sought to be suppressed, (2) the presence of intervening factors, and (3) the flagrancy of the governmental misconduct involved in the case. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

When the State seeks to submit evidence as sufficiently attenuated from a previous Fourth Amendment violation, an appellate court reviews the trial court’s findings of historical facts for clear error but reviews de novo the court’s ultimate attenuation determination based on those facts. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

The exclusionary rule is inapplicable in child protection proceedings. In re Interest of Corey P. et al., 269 Neb. 925, 697 N.W.2d 647 (2005).

Once a person is lawfully arrested, if the search is within the scope of a search which may be conducted incident to a lawful arrest, then the evidence obtained from the search is properly admitted. State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).

Evidence obtained pursuant to an arrest by an officer who was without statutory or common-law authority to arrest should be suppressed. State v. Tingle, 239 Neb. 558, 477 N.W.2d 544 (1991).

Evidence obtained as the result of an illegal arrest without a warrant is inadmissible in a criminal prosecution. State v. O'Kelly, 175 Neb. 798, 124 N.W.2d 211 (1963).

Evidence obtained as the result of an unlawful search is not rendered inadmissible. Haswell v. State, 167 Neb. 169, 92 N.W.2d 161 (1958).

Seizure by officer of property beyond scope and terms of search warrant, is a violation of this section; nevertheless articles seized and information procured may be used as evidence. Billings v. State, 109 Neb. 596, 191 N.W. 721 (1923).

Trooper's pat-down search, performed for an improper purpose, was unconstitutional, and evidence found was inadmissible. State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000).

Trooper's warrantless search of defendant's car, glove box, and items strewn about the scene of a vehicle accident lacked probable cause, and evidence found was inadmissible. State v. Scovill, 9 Neb. App. 118, 608 N.W.2d 623 (2000).

6. Waiver of right

When an individual places his or her hand in the same pocket that an officer is trying to search, thereby interfering with the officer's ability to search, the individual sufficiently demonstrates a withdrawal of consent to search. State v. Milos, 294 Neb. 375, 882 N.W.2d 696 (2016).

The consent to search a cell phone was given voluntarily where the defendant had been released from the squad car and handcuffs and had participated in the search by helping the officers unlock the cell phone's lock code. State v. Tyler, 291 Neb. 920, 870 N.W.2d 119 (2015).

Consent to search given in very close temporal proximity to the official illegality is often a mere submission or resignation to police authority. In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012).

The right to be free from search and seizure may be waived by consent of a citizen as long as such consent is given freely and is not the product of a will overborne. State v. Ready, 252 Neb. 816, 565 N.W.2d 728 (1997).

The right to be free from an unreasonable search and seizure may be waived by the consent of the citizen. State v. Graham, 241 Neb. 995, 492 N.W.2d 845 (1992).

The right to be free from unreasonable search and seizure can be waived by the citizen's consent. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).

A consensual search by its very definition is circumscribed by the extent of the permission given, as determined by the totality of the circumstances. State v. Rathjen, 16 Neb. App. 799, 751 N.W.2d 668 (2008).

A suspect's general consent to a search of his pickup truck authorized a police officer to search a locked toolbox in the bed of the pickup truck. State v. Rathjen, 16 Neb. App. 799, 751 N.W.2d 668 (2008).

The right under the federal and state Constitutions to be free from an unreasonable search and seizure may be waived by the consent of the citizen. Consent is an exception to the probable cause requirement of the Fourth Amendment; however, a consensual search may not exceed the scope of the consent given. The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness, or in other words, what a typical reasonable person would have understood by the exchange between the officer and the suspect. State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).

Where a police officer had indicated, prior to searching the defendant's person, that he was looking for drugs and weapons, a reasonable person would have believed that consenting to the officer's request to search the vehicle would include the officer's examination of the contents of unlocked closed containers within the vehicle, and thus the defendant's authorization of the officer's search extended to the safety glasses bag lying in plain view on the front seat, in which bag the officer discovered marijuana and methamphetamine. State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).

Whether one who consents later objects to an ongoing search is a significant inquiry determining whether there is a limitation placed on the scope of the consent that has been granted. State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).

7. Action by private individual

A defendant bears the burden of proving by the greater weight of the evidence that a private party acted as a government agent. State v. Langley, 319 Neb. 67, 20 N.W.3d 902 (2025).

Once a private search has been completed, subsequent involvement of government agents does not transform the original intrusion into a governmental search. State v. Langley, 319 Neb. 67, 20 N.W.3d 902 (2025).

To determine whether a private person's search is actually a search by the state depends on whether the private person must be regarded as having acted as an instrument or agent of the state. State v. Langley, 319 Neb. 67, 20 N.W.3d 902 (2025).

The constitutional protection against unreasonable searches and seizures proscribes only governmental action and is inapplicable to searches or seizures effected by private individuals. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).

Under both the fourth amendment to the U.S. Constitution and this provision, whether a search by a private person is actually a search by the State depends on whether the private person must be regarded as having acted as an instrument or agent of the State. A private person's status as a state agent in a search is not restricted to a search ordered, requested, or initiated by a state official, but may include a search which is a joint endeavor between a private person and a state official. Some conduct by the police in advancement or inducement of a search by a private person must be proven to make out a joint endeavor. State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989).

If a search is a joint endeavor involving a private person and a state or government official, the search is subject to the constitutional safeguard against an unreasonable search, prohibited by the fourth amendment to the U.S. Constitution and this provision. State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (1989).

8. Seizure, what constitutes

An officer's request that an individual step out of a parked vehicle does not amount to a seizure when the totality of the circumstances surrounding the officer's request would not have made a reasonable person believe that he or she was not free to leave. State v. Milos, 294 Neb. 375, 882 N.W.2d 696 (2016).

A seizure subject to constitutional protections did not occur where a police officer activated the patrol unit's overhead lights and merely questioned the defendant in a public place; there was no evidence that the officer displayed his weapon, used a forceful tone of voice, touched the defendant, or otherwise told the defendant that he was not free to leave. State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).

Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a seizure of persons within the meaning of this provision. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

No new arrest occurred when correctional authorities allowed police officers to interview a person being held in jail on other charges, and thus there was no constitutional basis to challenge the officers' seizure of the person when he attempted to leave the interviewing room. State v. Green, 240 Neb. 639, 483 N.W.2d 748 (1992).

A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).

A person is seized by police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his or her freedom of movement. Tyler v. Kyler, 15 Neb. App. 939, 739 N.W.2d 463 (2007).

A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned. Tyler v. Kyler, 15 Neb. App. 939, 739 N.W.2d 463 (2007).

A citizen is not seized under the Fourth Amendment to the U.S. Constitution and this provision of the Nebraska Constitution when a police-citizen encounter involves no restraint of the citizen's liberty, but, rather, noncoercive questioning regarding the status of the citizen's operator's license. State v. Hisey, 15 Neb. App. 100, 723 N.W.2d 99 (2006).

A seizure for purposes of this provision requires either a police officer's application of physical force to a suspect or a suspect's submission to an officer's show of authority. State v. Cronin, 2 Neb. App. 368, 509 N.W.2d 673 (1993).

9. Miscellaneous

A joint venture is not created by U.S. officials' identification and notification of a suspect in a foreign country, provision of information to the foreign authorities, and request that the foreign authorities conduct a search or seizure. State v. Scott, 319 Neb. 153, 21 N.W.3d 490 (2025).

Evidence seized from a search by foreign authorities in their own countries is generally admissible in U.S. courts, even if the search does not otherwise comply with the Fourth Amendment and this provision of the Nebraska Constitution. State v. Scott, 319 Neb. 153, 21 N.W.3d 490 (2025).

For a true joint venture to have occurred, U.S. officials must have been controlling or directing the conduct of the foreign parallel investigation. State v. Scott, 319 Neb. 153, 21 N.W.3d 490 (2025).

The joint venture doctrine is a purposefully limited exception with a high threshold for a defendant to invoke it. State v. Scott, 319 Neb. 153, 21 N.W.3d 490 (2025).

Under most circumstances, it is unreasonable to expect an officer to question the validity of the law the officer is charged with enforcing. State v. Albarenga, 313 Neb. 72, 892 N.W.2d 799 (2022).

A seizure that is lawful at its inception can violate the Fourth Amendment's and the Nebraska Constitution's guarantees against unreasonable searches and seizures by its manner of execution. State v. Ferguson, 301 Neb. 697, 919 N.W.2d 863 (2018).

Judicial probable cause determinations must be made promptly after a warrantless arrest, and unreasonable delays in such judicial determinations of probable cause include delays for the purpose of gathering additional evidence to justify the arrest. However, the arrested individual bears the burden of proving the delay was unreasonable when the probable cause determination occurs within 48 hours. State v. Ferguson, 301 Neb. 697, 919 N.W.2d 863 (2018).

The fact that a dog sniff is conducted after the time reasonably required to complete the initial mission of a traffic stop is not, in and of itself, a Fourth Amendment violation; a Fourth Amendment violation arises only when the dog sniff is conducted after the initial mission of the stop is completed and the officer lacks probable cause or reasonable suspicion to investigate further. State v. Ferguson, 301 Neb. 697, 919 N.W.2d 863 (2018).

The Nebraska Supreme Court typically construes the enumerated rights in the Nebraska Constitution consistently with their counterparts in the U.S. Constitution as construed by the U.S. Supreme Court. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).

The protections of sections 5 and 7 of this article intertwine when films are the "things" seized. State v. Skolnik, 218 Neb. 667, 358 N.W.2d 497 (1984).

Statements and admissions by a defendant in proceedings under sexual psychopath law were not obtained in violation of this section. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 (1965).

Statute requiring a warehouseman to furnish tax assessor a list of property stored in warehouse was not violative of this section. United States Cold Storage Corp. v. Stolinski, 168 Neb. 513, 96 N.W.2d 408 (1959).

Filiation proceedings are essentially civil in character. In re Application of Rozgall, 147 Neb. 260, 23 N.W.2d 85 (1946).

Taking prisoner's shoes while confined in jail and introducing same in evidence against him does not contravene prohibition against unreasonable seizure. Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902).

A citizen has the right to keep existence of his private papers and effects secret from the world unless required by due process of law to make disclosure. Clarke v. Neb. Nat. Bank, 49 Neb. 800, 69 N.W. 104 (1896).

The continued detention of a citizen by a law enforcement officer for approximately 52 minutes after a traffic stop and while awaiting the arrival of a drug detection dog—which detention was based upon a reasonable, articulable suspicion that the citizen was involved in additional criminal activity—was reasonable where the investigative methods employed during the detention were reasonable and the scope and intrusiveness of the detention were reasonable. State v. Kehm, 15 Neb. App. 199, 724 N.W.2d 88 (2006).

Under section 84-106, a deputized railroad security officer is constrained by the Fourth Amendment like any sheriff or police officer. State v. Claus, 8 Neb. App. 430, 594 N.W.2d 685 (1999).

This provision does not foreclose an officer from making observations that lead to a reasonable suspicion of criminal activity during a caretaking encounter. State v. Smith, 4 Neb. App. 219, 540 N.W.2d 375 (1995).

I-8 Habeas corpus.

Reissue Revised Statutes of Nebraska

I-8

Habeas corpus.

The privilege of the writ of habeas corpus shall not be suspended.

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

Amended 1998, Laws 1997, LR 30CA, sec. 1.

I-9 Bail; fines; imprisonment; cruel and unusual punishment.

Reissue Revised Statutes of Nebraska

I-9

Bail; fines; imprisonment; cruel and unusual punishment.

All persons shall be bailable by sufficient sureties, except for treason, sexual offenses involving penetration by force or against the will of the victim, and murder, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

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

Amended 1978, Laws 1978, LB 553, sec. 1.

In Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981), the court held that the portion of this section denying bail to persons charged with certain sexual offenses is an unconstitutional violation of the Eighth Amendment to the Constitution of the United States. But the order in Hunt v. Roth was vacated and remanded in Murphy v. Hunt, 455 U.S. 478, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982) for mootness.

1. Bail

2. Excessive bail

3. Death penalty

4. Fines and punishments

5. Sentences of juveniles

6. Miscellaneous

1. Bail

Pursuant to this provision, not all offenses are bailable offenses. State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).

A constitutional amendment adding first degree sexual assault to offenses for which bail may be denied is constitutional and is not violative of the fourteenth Amendment due process clause of the U.S. Constitution. Parker v. Roth, 202 Neb. 850, 278 N.W.2d 106 (1979).

Denial of bail on murder charge where proof is evident or presumption great is no basis for claim guilty plea involuntary. State v. Hamilton, 187 Neb. 359, 190 N.W.2d 862 (1971).

One charged with first degree murder has no absolute right to bail. State v. Pilgrim, 182 Neb. 594, 156 N.W.2d 171 (1968).

Throughout state history bail has been provided for and favored. State v. Seaton, 170 Neb. 687, 103 N.W.2d 833 (1960).

A fugitive from justice who is in custody by virtue of a rendition warrant issued by the Governor in an extradition proceeding is not entitled to bail pending appeal. In re Application of Campbell, 147 Neb. 382, 23 N.W.2d 698 (1946).

That all persons shall be "bailable by sufficient sureties" is a rule which should apply to one arrested in a "children born out of wedlock" proceeding, as well as to one charged with a felony or misdemeanor. State v. Noxon, 96 Neb. 843, 148 N.W. 903 (1914).

The use of term "bail" without limitation or qualification would seem to imply a bail as understood at common law before adoption of Constitution, and the court may admit to bail after sentence and pending appeal. Ford v. State, 42 Neb. 418, 60 N.W. 960 (1894).

2. Excessive bail

The issue of excessiveness of pretrial bail is not reviewable after a conviction and sentence. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).

Habitual criminal statute does not contravene provision prohibiting excessive bail. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940).

Excessive bail is not whether the amount of bail required is high but rather is the bail demanded per se unreasonable and disproportionate to crime charged in indictment. In re Scott, 38 Neb. 502, 56 N.W. 1009 (1893).

Denying bail to persons charged with certain sexual offenses violates the "excessive bail" clause of the eighth amendment of the U.S. Constitution as incorporated in the fourteenth amendment. Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981).

3. Death penalty

The death penalty is cruel and unusual punishment when imposed on a prisoner whose mental illness makes him or her unable to reach a rational understanding of the reason for his or her execution. State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).

Electrocution as an execution method violates the constitutional prohibition against cruel and unusual punishment because it will inflict intolerable pain unnecessary to cause death in enough executions to present a substantial risk that any prisoner will suffer unnecessary and wanton pain in a judicial execution by electrocution. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

In a method of execution challenge, "wanton" means that the method itself is inherently cruel. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

The death penalty, when properly imposed by a state, does not violate either the 8th or the 14th Amendments to the U.S. Constitution or the state Constitution's proscription against inflicting cruel and unusual punishment. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

The relevant legal standards in deciding whether electrocution is cruel and unusual punishment are whether the State's chosen method of execution (1) presents a substantial risk that a prisoner will suffer unnecessary and wanton pain in an execution, (2) violates the evolving standards of decency that mark a mature society, and (3) minimizes physical violence and mutilation of the prisoner's body. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

Whether a method of execution violates the constitutional prohibition against cruel and unusual punishment presents a question of law. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

Whether a method of inflicting the death penalty inherently imposes a significant risk of causing pain in an execution is a question of fact. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

Whether the Legislature intended to cause pain in selecting a punishment is irrelevant to a constitutional challenge that a statutorily imposed method of punishment violates the prohibition against cruel and unusual punishment. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

The death penalty may deter offenders, is not invariably disproportionate to the severity of the crime of murder, and is not per se cruel and unusual punishment. State v. Simants, 197 Neb. 549, 250 N.W.2d 881 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977).

4. Fines and punishments

The prohibition against cruel and unusual punishment in the federal and state Constitutions is a restraint upon the exercise of legislative power. State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).

Section 29-2203 does not violate either the U.S. or Nebraska Constitution. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

This constitutional provision does not abridge the Legislature's power to select such punishment as it deems most effective in the suppression of crime, provided the punishment is not grossly disproportionate to the crime. State v. Ruzicka, 218 Neb. 594, 357 N.W.2d 457 (1984).

Statute providing six months jail sentence plus two-year revocation of motor vehicle operator's license did not violate this section. State v. Tucker, 183 Neb. 577, 162 N.W.2d 774 (1968).

Provision for sterilization of feeble-minded persons as prerequisite to parole or release from state institution is not "cruel and unusual punishment" and is not repugnant to this section of the Constitution. In re Clayton, 120 Neb. 680, 234 N.W. 630 (1931).

Sentence under statute providing for "bread and water" diet for prisoner is not repugnant to this section. State ex rel. Carson v. Smith, 114 Neb. 661, 209 N.W. 330 (1926); State ex rel. Nelson v. Smith, 114 Neb. 653, 209 N.W. 328 (1926).

The return of the property or of the value thereof in embezzlement or larceny cases, in addition to the penal sentence, should not be considered as any part of the punishment as excessive or unusual. Everson v. State, 66 Neb. 154, 92 N.W. 137 (1902).

In determining whether a criminal fine is so excessive as to violate this provision prohibiting excessive fines, the test is whether the penalty is grossly disproportional to the gravity of the defendant's offense. State v. Newcomer, 23 Neb. App. 761, 875 N.W.2d 914 (2016).

In order to determine whether a fine challenged under this provision is grossly disproportional, the claimant must first make a prima facie showing of gross disproportionality, and if the claimant does so, the court then considers whether the disproportionality reaches such a level of excessiveness that the punishment is more criminal than the crime. State v. Newcomer, 23 Neb. App. 761, 875 N.W.2d 914 (2016).

5. Sentences of juveniles

A juvenile offender's sentence did not constitute cruel and unusual punishment where it allowed for release 17 years before his life expectancy. State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017).

It is unconstitutional for a state to impose a sentence of life imprisonment without parole on a juvenile convicted of a nonhomicide offense. State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017).

Nebraska's sentence of life imprisonment is effectively life imprisonment without parole under the rationale of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), because it provides no meaningful opportunity to obtain release. State v. Thieszen, 295 Neb. 293, 887 N.W.2d 871 (2016).

The mere existence of a remote possibility of parole does not keep Nebraska's sentencing scheme from falling within the dictates of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). State v. Thieszen, 295 Neb. 293, 887 N.W.2d 871 (2016).

6. Miscellaneous

Delegation of the selection criteria and ultimate life-or-death decision to a three-judge panel does not violate article I, sec. 9, of the Nebraska Constitution, because it does not create an unacceptable risk that persons will be executed without the constitutionally required consideration of character, record of the individual offender, and the circumstances of the particular offense. State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022).

A sentence of 25 to 30 years' imprisonment was not cruel and unusual punishment for a defendant who was convicted of first degree sexual assault of a young aspiring Olympian who trained at his gym, because the sentence reflected the seriousness of the crime committed and was proportionate for the offense and the offender. State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).

A sentence under a law not yet operative is null and void. State ex rel. Whitacre v. Smith, 114 Neb. 659, 209 N.W. 332 (1926).

I-10 Presentment or indictment by grand jury; information.

Reissue Revised Statutes of Nebraska

I-10

Presentment or indictment by grand jury; information.

No person shall be held to answer for a criminal offense, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in case of impeachment, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, unless on a presentment or indictment of a grand jury; Provided, That the Legislature may by law provide for holding persons to answer for criminal offenses on information of a public prosecutor; and may by law, abolish, limit, change, amend, or otherwise regulate the grand jury system.

Neb. Const. art. I, sec. 10 (1875).

1. Not violation of section

2. Miscellaneous

1. Not violation of section

Legislative act providing for filiation proceedings is not violative of this section. In re Application of Rozgall, 147 Neb. 260, 23 N.W.2d 85 (1946).

Trial under information by county attorney does not deprive of due process and is in accord with this section. Bolln v. State, 51 Neb. 581, 71 N.W. 444 (1897).

2. Miscellaneous

Prosecutions for misdemeanors are exempt from requirement of being brought only on indictment or information. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).

Permitting prosecutions for felony by information does not conflict with Fourteenth Amendment to Constitution of the United States. Jackson v. Olson, 146 Neb. 885, 22 N.W.2d 124 (1946).

Legislature may provide for prosecution on information instead of indictment. Duggan v. Olson, 146 Neb. 248, 19 N.W.2d 353 (1945).

Where information charging grand larceny was signed by acting county attorney and not county attorney, the error, unless objected to before a plea to the merits, is waived. State ex rel. Gossett v. O'Grady, 137 Neb. 824, 291 N.W. 497 (1940).

Assistant attorney general is not authorized to make and sign an information in his own name, and one so signed is a nullity. Lower v. State, 106 Neb. 666, 184 N.W. 174 (1921).

Legislature is not limited to exclusive choice between indictment or information as form of prosecution but may provide for both. Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).

The proceeding by quo warranto is a civil remedy; it is the means employed by the state to cancel and recall a privilege which the corporation proceeded against has abused. State v. Standard Oil Co., 61 Neb. 28, 84 N.W. 413 (1900).

The filing of information by county attorney is the commencement of the criminal prosecution; filing of complaint before magistrate, in felony or other case which he has no jurisdiction to try, does not arrest running of statute of limitations and is not the beginning of the prosecution by the state. State v. Robertson, 55 Neb. 41, 75 N.W. 37 (1898).

Person appointed by court to act in county attorney's absence is authorized to sign information. Korth v. State, 46 Neb. 631, 65 N.W. 792 (1896).

I-11 Rights of Accused.

Reissue Revised Statutes of Nebraska

I-11

Rights of Accused.

In all criminal prosecutions the accused shall have the right to appear and defend in person or by counsel, to demand the nature and cause of accusation, and to have a copy thereof; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

Neb. Const. art. I, sec. 11 (1875).

1. Nature and cause of accusation

2. Presence of accused

3. Meet witnesses face to face

4. Process for witnesses

5. Speedy trial

6. Impartial jury

7. County where offense committed

8. Testimony at former trial

9. Representation by counsel

10. Miscellaneous

1. Nature and cause of accusation

Defendant's right to demand the nature and cause of accusation does not require State to specify upon which aggravating circumstances of section 29-2523(1) the State intends to rely. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

A finding of guilt of an offense included within the charge of a greater offense does not violate this section. State v. McClarity, 180 Neb. 246, 142 N.W.2d 152 (1966).

It is sufficient if the information states the elements of the crime in the language of the statute. State v. Jarrett, 177 Neb. 459, 129 N.W.2d 259 (1964).

Failure to specify section of statute upon which charge in information was based was error without prejudice. State v. Easter, 174 Neb. 412, 118 N.W.2d 515 (1962).

Information attempting to charge disturbing the peace must set out the particular language or conduct on which the offense is predicated. State v. Coomes, 170 Neb. 298, 102 N.W.2d 454 (1960).

An information must inform the accused with such reasonable certainty of the charge against him that he may prepare his defense and plead the judgment as a bar to a later prosecution for the same offense. May v. State, 153 Neb. 369, 44 N.W.2d 636 (1950).

In prosecution for criminal trespass, complaint must describe locus definitely enough to notify defendant of charge against him. Kissinger v. State, 123 Neb. 856, 244 N.W. 794 (1932).

Embezzlement information must charge particular property with sufficient certainty to apprise defendant of facts relied upon for conviction. Davis v. State, 118 Neb. 828, 226 N.W. 449 (1929).

Amendment of information for larceny of sum of money, during trial, by inserting count for larceny of cream checks, violates constitutional rights of defendant. Stowe v. State, 117 Neb. 440, 220 N.W. 826 (1928).

Law abrogating distinction between principal and accessory does not violate constitutional right to demand nature and cause of accusation. State v. Girt, 115 Neb. 833, 215 N.W. 125 (1927); Scharman v. State, 115 Neb. 109, 211 N.W. 613 (1926).

Information need not negative statutory exceptions. Fitch v. State, 102 Neb. 361, 167 N.W. 417 (1918).

Object of information is to inform accused of precise offense for which he must answer. Moline v. State, 67 Neb. 164, 93 N.W. 228 (1903).

A person may not be informed against for one crime and convicted of another and different one. In re McVey, 50 Neb. 481, 70 N.W. 51 (1897).

2. Presence of accused

A waiver of the right to be present at trial is the voluntary and intentional relinquishment of a known right, privilege, or claim, and may be demonstrated by or inferred from a person's conduct. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021).

An appellate court applies to a defendant, who was out on bail and has failed without explanation to be present at trial, the fundamental proposition that the burden to produce evidence will rest upon the party who possesses positive and complete knowledge concerning the existence of facts which the other party would otherwise be called upon to negative, or if the evidence to prove a fact is chiefly within the party's control. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021).

In determining on direct appeal whether a defendant has waived the right to be present, an appellate court does not merely look to the evidence available at the moment the court pronounced the defendant's absence to be voluntary, but at the entirety of the evidence in the record. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021).

It is the duty of a defendant out on bail to continue to be present after a trial recess, and the defendant's failure to do so constitutes voluntary absence on the defendant's part and a waiver of the defendant's right to be present. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021).

Accused has right to appear and defend in person. State v. Beasley, 183 Neb. 681, 163 N.W.2d 783 (1969).

In trial for manslaughter where trial court orally instructs jury while it is deliberating upon its verdict, in absence of and without notice to defendant or his counsel, such action is violation of constitutional rights of the accused. Strasheim v. State, 138 Neb. 651, 294 N.W. 433 (1940).

Accused cannot as a matter of right insist upon being present at time of filing, arguing or ruling upon motion for new trial. Davis v. State, 51 Neb. 301, 70 N.W. 984 (1897).

Accused cannot as a matter of right insist upon being present at time of interlocutory proceedings prior to the selection of the jury. Miller v. State, 29 Neb. 437, 45 N.W. 451 (1890).

Taking of testimony during voluntary and temporary absence of accused does not contravene Constitution. Hair v. State, 16 Neb. 601, 21 N.W. 464 (1884).

3. Meet witnesses face to face

The analysis of the right to confrontation under this provision is the same as that under the Sixth Amendment to the U.S. Constitution. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).

Both the federal and the state Constitutions guarantee a defendant the right to confront or meet the witnesses against him face to face. Implicit in confrontation is the right to cross-examine all witnesses. A limitation of the right of confrontation can only be necessitated by a showing of a compelling interest and any infringement must be as minimally obtrusive as possible. Record in case did not show a compelling need to protect the child witness from further injury and absent such a showing, the use of closed-circuit television did not withstand constitutional scrutiny. State v. Warford, 223 Neb. 368, 389 N.W.2d 575 (1986).

Question of whether defendant could demand production as witness of inmate in penitentiary raised but not decided. Garcia v. State, 159 Neb. 571, 68 N.W.2d 151 (1955).

Death certificate was not admissible to show cause of death. Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761 (1953).

Contempt proceedings based on hindrance to due administration of justice did not violate this section. Cornett v. State, 155 Neb. 766, 53 N.W.2d 747 (1952).

Constitutional right to meet witnesses face to face does not apply to contempt proceedings. State ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282 (1937).

The guaranty of the Constitution of the right to meet the witnesses against him does not apply in disbarment proceedings in which depositions were taken by prosecution, as proceedings are civil, not criminal. State ex rel. Spillman v. Priest, 118 Neb. 47, 223 N.W. 635 (1929).

4. Process for witnesses

The accused in a criminal prosecution has a right to compulsory process to compel the attendance of witnesses in his behalf; however, a criminal defendant does not possess an absolute constitutional right to demand the personal attendance of a prisoner witness incarcerated outside the county of the venue of trial. As a result, section 25-1233 does not violate the compulsory process clauses of the U.S. and Nebraska Constitutions. State v. Stott, 243 Neb. 967, 503 N.W.2d 822 (1993).

Refusal to order compulsory process for witness whose testimony was immaterial was not prejudicial error. O'Rourke v. State, 166 Neb. 866, 90 N.W.2d 820 (1958).

Right to compel attendance of witness includes taking of depositions out of the state. Dolen v. State, 148 Neb. 317, 27 N.W.2d 264 (1947).

Constitution is not contravened by overruling of motion for continuance on ground of absence of material witnesses when it appears that witness was without process of court. Fanton v. State, 50 Neb. 351, 69 N.W. 953 (1897).

The county is not liable for defendant's witness costs, where he is indicted for a felony. Hewerkle v. Gage County, 14 Neb. 18, 14 N.W. 549 (1883).

5. Speedy trial

A defendant cannot claim the loss of the fundamental right to a speedy trial through the inherent delays of a process the defendant called upon, even if that process was to vindicate another fundamental right. State v. Short, 310 Neb. 81, 964 N.W.2d 272 (2021).

The constitutional right to a speedy trial is distinct from the provision for a speedy trial prescribed by the Nebraska speedy trial act. State v. Oldfield, 236 Neb. 433, 461 N.W.2d 554 (1990).

The right to a speedy trial applies only to criminal trials and, thus, does not apply to postconviction actions, which are civil in nature. State v. Bostwick, 233 Neb. 57, 443 N.W.2d 885 (1989).

If a trial court relies upon section 29-1207 (4)(f), R.R.S.1943, in excluding a period of delay from the six-month computation, a general finding of "good cause" will not suffice; there must be specific findings as to the good cause. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).

It may be reasonably argued that the exclusionary period set forth in section 29-1207(4), R.R.S.1943, would cover the period from a defendant's commitment as a sexual sociopath to the court's opinion in State v. Shaw, 202 Neb. 766, 277 N.W.2d 106 (1979) or the Legislature's enactment of sections 29-2911 to 29-2921, R.R.S.1943. However, since this defendant was not brought to trial within six months of either date, the issue of when to begin computing the time will not be decided here. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).

Trial within six months of date information filed was "speedy public trial" under this section. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977).

In all criminal proceedings, accused is entitled to have a speedy public trial. State v. Bruns, 181 Neb. 67, 146 N.W.2d 786 (1966).

Period of time within which retrial must be had after a mistrial rests in the sound discretion of the trial court. State v. Fromkin, 174 Neb. 849, 120 N.W.2d 25 (1963).

Preliminary proceedings before magistrate in filiation proceedings are in no sense a trial of the merits. In re Application of Rozgall, 147 Neb. 260, 23 N.W.2d 85 (1946).

Preliminary hearing before a magistrate is not a criminal prosecution or trial within the meaning of this section. Roberts v. State, 145 Neb. 658, 17 N.W.2d 666 (1945).

The question of whether a defendant has had a speedy trial is to be determined by what is fair and reasonable under all the facts and circumstances in each particular case. Maher v. State, 144 Neb. 463, 13 N.W.2d 641 (1944).

Accused must be brought to trial in accordance with Constitution and statutes, or be discharged. Critser v. State, 87 Neb. 727, 127 N.W. 1073 (1910).

The Constitution does not entitle accused to demand to be brought before county judge, as such, and proceed with prosecution. In re Chenoweth, 56 Neb. 688, 77 N.W. 63 (1898).

An appeal based solely on an alleged violation of the constitutional right to a speedy trial can be effectively vindicated in an appeal after judgment. State v. Wilson, 15 Neb. App. 212, 724 N.W.2d 99 (2006).

The denial of a motion for discharge, based upon a constitutional right to a speedy trial and in the absence of a nonfrivolous statutory claim, is interlocutory. State v. Wilson, 15 Neb. App. 212, 724 N.W.2d 99 (2006).

6. Impartial jury

This provision provides that the accused in a criminal prosecution shall have the right to "trial by an impartial jury", and article I, section 3, provides that no person shall be deprived of liberty "without due process of law". These provisions are interconnected and require that criminal convictions rest upon a jury determination that a criminal defendant is guilty beyond a reasonable doubt of every element of the crime charged. State v. White, 249 Neb. 381, 543 N.W.2d 725 (1996).

If several juries are picked at one time from a single jury panel for a series of trials, examination must be allowed if requested for good reason in subsequent trials in the series to determine if any jurors should be excused for cause. State v. Myers, 190 Neb. 466, 209 N.W.2d 345 (1973).

Right to trial by jury may be waived by defendant in criminal case. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129 (1967).

Right to trial by an impartial jury was not violated by bet of juror on result of verdict. Fugate v. State, 169 Neb. 420, 99 N.W.2d 868 (1959).

To safeguard right of fair and impartial trial, Legislature has provided for peremptory challenges and challenges for cause of jurors. Oden v. State, 166 Neb. 729, 90 N.W.2d 356 (1958).

Denial of challenge of jury did not violate this section. Bell v. State, 159 Neb. 474, 67 N.W.2d 762 (1954).

Determination of sentence to be imposed by court instead of jury does not violate this section. Poppe v. State, 155 Neb. 527, 52 N.W.2d 422 (1952).

Disqualification of a juror to serve upon account of having sat as a juror in another trial of an offense arising out of the same incident may be waived. Bufford v. State, 148 Neb. 38, 26 N.W.2d 383 (1947).

Gambling places, being nuisances, may be enjoined in equity, without violating constitutional right of person accused of crime to a jury trial. State ex rel. Hunter v. The Araho, 137 Neb. 389, 289 N.W. 545 (1940).

Legislature may provide for trial of petty offenses without jury, where such offenses were not recognized as crimes when Constitution adopted. State v. Hauser, 137 Neb. 138, 288 N.W. 518 (1939).

Accused was guaranteed a fair trial by an impartial jury, and whether such a jury was obtainable in the jurisdiction must first be decided by the trial court. Kirchman v. State, 122 Neb. 30, 239 N.W. 207 (1931).

After a juror has denied on his voir dire that he has said he believed respondent to be guilty, it may be shown by other witnesses that the juror had made such statement. Trobough v. State, 119 Neb. 128, 227 N.W. 443 (1929).

It is not a violation of constitutional rights to try defendant for misdemeanor before jury of eleven, with his consent. Miller v. State, 116 Neb. 702, 218 N.W. 743 (1928).

When, on the trial of a criminal case, a motion to quash the venire because of alleged disqualifications of its several members is made by defendant and overruled by the court, error cannot be predicated on the ruling in the absence of a voir dire examination showing that the jurors against whom the motion was directed were challenged for cause, and that defendant exercised the peremptory challenges allowed under the statute. Kaufmann v. State, 112 Neb. 718, 200 N.W. 998 (1924).

Defendant waived right to object to disqualification of juror, who was not a resident of the county where offense was committed, by failing to interrogate him as to residence. Marino v. State, 111 Neb. 623, 197 N.W. 396 (1924); Seaton v. State, 109 Neb. 828, 192 N.W. 501 (1923).

Where two or more persons are jointly indicted or informed against for the commission of a single offense and sever in their trials, jurors who sat in trial of one are thereby disqualified to sit in trial of another. Seaton v. State, 106 Neb. 833, 184 N.W. 890 (1921).

Fact that juror has opinion which requires evidence to remove will not disqualify him if he can put aside opinion, and is otherwise qualified in accordance with statute. Whitcomb v. State, 102 Neb. 236, 166 N.W. 553 (1918); Lucas v. State, 75 Neb. 11, 105 N.W. 976 (1905).

7. County where offense committed

This provision grants to a criminal defendant the right to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, but does not grant a defendant a constitutional right to be tried in a particular county. State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (1989).

Courts of county where offense is committed have jurisdiction to try accused for crime. State v. Furstenau, 167 Neb. 439, 93 N.W.2d 384 (1958).

Defendant has right to be tried in county where the alleged offense was committed. Gates v. State, 160 Neb. 722, 71 N.W.2d 460 (1955).

Where a person in one county procures the commission of a crime in another through the agency of an innocent person, he is subject to prosecution in the county where the acts were done by the agent. Robeen v. State, 144 Neb. 910, 15 N.W.2d 69 (1944).

The constitutional right to a trial before a jury of the county where the offense is alleged to have been committed is a mere personal privilege of the accused which he may waive. Marino v. State, 111 Neb. 623, 197 N.W. 396 (1924); Kennison v. State, 83 Neb. 391, 119 N.W. 768 (1909).

The right to a trial, anywhere or under any conditions, may be waived and in practice is waived when the accused makes a judicial confession of his guilt. The right to jury from the vicinage may be waived by judicial finding of guilt. McCarty v. Hopkins, 61 Neb. 550, 85 N.W. 540 (1901).

The offense of larceny is committed in every county into which stolen goods are carried, and prosecution may be in any such county. Hurlburt v. State, 52 Neb. 428, 72 N.W. 471 (1897).

The constitutional right to a trial before a jury of the county or district where the crime is alleged to have been committed is a mere personal privilege of the accused, and not conferred upon him from any consideration of public policy; that privilege may be waived by accused. State ex rel. Scott v. Crinklaw, 40 Neb. 759, 59 N.W. 370 (1894).

County where crime committed means precise portion of territory or division of state over which court may exercise power in criminal matters, and limited to that from which a jury for the particular term may legally be drawn. Olive v. State, 11 Neb. 1, 7 N.W. 444 (1881).

8. Testimony at former trial

Evidence of a witness at former trial may be read at later trial, where witness cannot be found after diligent search. Davis v. State, 171 Neb. 333, 106 N.W.2d 490 (1960).

Testimony of a witness under oath face to face with defendant at preliminary hearing, with opportunity for cross-examination, is admissible upon subsequent trial for same offense where attendance of the witness cannot be had. Jackson v. State, 133 Neb. 786, 277 N.W. 92 (1938).

Testimony at former trial is admissible where witness was cross-examined in open court, if attendance at second trial cannot be procured. Koenigstein v. State, 103 Neb. 580, 173 N.W. 603 (1919).

Where a deceased witness testified upon a former trial of the same party for the same offense, being brought "face to face" with the accused and cross-examined by him, it is competent upon a subsequent trial to prove the testimony of such deceased witness and such proof does not violate this section of Constitution. Hair v. State, 16 Neb. 601, 21 N.W. 464 (1884).

9. Representation by counsel

The right to self-representation plainly encompasses certain specific rights of the defendant to have his or her voice heard, including that the pro se defendant must be allowed to control the organization and content of his or her own defense. This control may include a waiver of the right to present mitigating evidence during sentencing in a death penalty case. State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020).

The competence that is required of a defendant seeking to waive his or her right to counsel is the competence to waive the right, not the competence to represent himself or herself. State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).

Under this provision of the Nebraska Constitution, a criminal defendant's right to conduct his or her own defense is not violated when the court determines that a defendant competent to stand trial nevertheless suffers from severe mental illness to the point where he or she is not competent to conduct trial proceedings without counsel. State v. Lewis, 280 Neb. 246, 785 N.W.2d 834 (2010).

There is no federal Sixth Amendment constitutional right to effective standby counsel, and there is no right to effective assistance of standby counsel under this provision. State v. Gunther, 278 Neb. 173, 768 N.W.2d 453 (2009).

A criminal defendant who proceeds pro se is held to the same trial standard as if he or she were represented by counsel, and it is not up to the trial court to conduct the defense of a pro se defendant. State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).

A defendant who elects to represent himself or herself cannot thereafter complain that the quality of his or her own defense amounted to a denial of effective assistance of counsel. State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).

A knowing and intelligent waiver of the right to counsel can be inferred from a defendant's conduct. State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).

A waiver of counsel need not be prudent, just knowing and intelligent. State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).

In order to determine whether a defendant's self-representation rights have been respected, the primary focus must be on whether the defendant had a fair chance to present his or her case in his or her own way. State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).

In order to waive the constitutional right to counsel, the waiver must be made voluntarily, knowingly, and intelligently. State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).

The fact that a defendant has had the advice of counsel throughout his or her prosecution is an indication that the defendant's waiver of counsel and election to represent himself or herself was knowing and voluntary. State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).

A criminal defendant who proceeds pro se is held to the same trial standard as if he or she were represented by counsel. State v. Shepard, 239 Neb. 639, 477 N.W.2d 567 (1991).

An accused is entitled to be represented by counsel at all critical stages of criminal proceedings against him, including sentencing. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

Neither the U.S. nor Nebraska Constitution requires that two attorneys be appointed to represent a criminal defendant in a capital case. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

The exercise of sixth amendment rights to counsel is subject to the necessities of judicial discretion. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989).

Under both the state and federal Constitutions, a defendant in a criminal trial has a right to represent himself and proceed without counsel if he voluntarily and intelligently elects to do so. State v. Kirby, 198 Neb. 646, 254 N.W.2d 424 (1977).

The right to counsel does not apply as a matter of absolute right to a lineup or showup by the police previous to the initiation of adversary judicial criminal proceedings. State v. Sanchell, 191 Neb. 505, 216 N.W.2d 504 (1974).

There is no requirement that counsel be furnished accused prior to preliminary hearing. State v. O'Kelly, 175 Neb. 798, 124 N.W.2d 211 (1963).

Accused has right to counsel and opportunity to make due preparation for trial. Stagemeyer v. State, 133 Neb. 9, 273 N.W. 824 (1937).

10. Miscellaneous

A witness’ testimony is not the result of unconstitutional coercion simply because it is motivated by a legitimate fear of a death sentence. State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).

Perjury per se is not a ground for collateral attack on a judgment. State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).

True promises of leniency are not proscribed when made by persons authorized to make them. State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).

When the reliability of a given witness may be determinative of guilt or innocence, nondisclosure of evidence in the prosecutor’s file which is relevant to the witness’ credibility violates due process, irrespective of the good faith or bad faith of the prosecution. State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).

Where the testimony is in any way relevant to a case, the knowing use of perjured testimony by the prosecution deprives a criminal defendant of his or her right to a fair trial. State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009).

A defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure. State v. Gunther, 271 Neb. 874, 716 N.W.2d 691 (2006).

A defendant may waive his or her rights under this provision through his or her knowing and voluntary absence at trial. State v. Zlomke, 268 Neb. 891, 689 N.W.2d 181 (2004).

In order to sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and this provision of the Nebraska Constitution, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000).

In considering a claim of ineffective assistance of counsel, prejudice should not be presumed for derogatory comments made during final arguments. In considering a claim of ineffective assistance of counsel, prejudice should not be presumed when a tactical decision has been made to concede the elements of a lesser-included offense to avoid a conviction for a greater offense. State v. Hunt, 254 Neb. 865, 580 N.W.2d 110 (1998).

To sustain a claim of ineffective assistance of counsel, the defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. State v. Boppre, 252 Neb. 935, 567 N.W.2d 149 (1997).

The failure of the accused to object to the setting of a trial date more than six months after charges were filed did not constitute a waiver of his rights under this section. State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980).

Jury sentencing is not required in a capital case. Nebraska's procedure of having a three-judge panel impose sentence meets the requirements of this section and of the U.S. Constitution. State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980).

Venue may be proven like any fact, by testimony or by conclusion reached as the only logical inference under the facts. State v. Liberator, 197 Neb. 857, 251 N.W.2d 709 (1977).

Permitting amendment as to date of prior felony alleged in information in habitual criminal charge was not error. State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).

Hearsay testimony of prosecution witness violated this section. State v. Davis, 185 Neb. 433, 176 N.W.2d 657 (1970).

Section of Uniform Reciprocal Enforcement of Support Act sustained as constitutional. State ex rel. Brito v. Warrick, 176 Neb. 211, 125 N.W.2d 545 (1964).

A preliminary hearing before a magistrate is not a criminal prosecution or trial. Wilson v. Solomon, 172 Neb. 616, 111 N.W.2d 372 (1961).

Rights guaranteed under this section are personal privileges which may be waived. Johnson v. State, 169 Neb. 783, 100 N.W.2d 844 (1960); Hawk v. State, 151 Neb. 717, 39 N.W.2d 561 (1949).

A proceeding for contempt is not a criminal prosecution. State ex rel. Beck v. Lush, 168 Neb. 367, 95 N.W.2d 695 (1959).

Preliminary hearing is not a criminal prosecution or trial. Lingo v. Hann, 161 Neb. 67, 71 N.W.2d 716 (1955).

Rights guaranteed by this section are personal privileges and may be waived by a judicial confession of guilt. Kissinger v. State, 147 Neb. 983, 25 N.W.2d 829 (1947).

A person charged with a crime waives constitutional rights by judicial confession of guilt. In re Application of Tail, Tail v. Olson, 145 Neb. 268, 16 N.W.2d 161 (1944); In re Application of Carper, Tesar v. Bowley, 144 Neb. 623, 14 N.W.2d 225 (1944).

Habitual criminal law, defining habitual criminal and providing punishment therefor, is not violative of this section. Rains v. State, 142 Neb. 284, 5 N.W.2d 887 (1942).

Rights may be waived by a judicial confession of guilt. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940); Alexander v. O'Grady, 137 Neb. 645, 290 N.W. 718 (1940).

Constitutionality of statute forbidding picketing cannot be determined where information on which defendant was convicted was insufficient to charge offense. Dutiel v. State, 135 Neb. 811, 284 N.W. 321 (1939).

Refusal to allow accused to cross-examine state's witness for bias and prejudice violated this section. Flannigan v. State, 124 Neb. 748, 248 N.W. 92 (1933).

Separate causes consolidated and tried simultaneously on stipulation, does not violate this section. Luke v. State, 123 Neb. 101, 242 N.W. 265 (1932).

Magistrates and police courts are vested with jurisdiction to try without jury all violations of liquor act and of all of such ordinances wherein the penalty does not exceed a fine of one hundred dollars or imprisonment for a period of three months. State v. Kacin, 123 Neb. 64, 241 N.W. 785 (1932).

Statute prohibiting granting of new trial if Supreme Court considers no substantial miscarriage of justice has actually occurred, does not justify court in denying new trial where accused's right to fair trial was violated. Scott v. State, 121 Neb. 232, 236 N.W. 608 (1931).

The showing of prior convictions for violating liquor laws, by cross-examining defendant and wife, in prosecution for larceny is a violation of this section. Kleinschmidt v. State, 116 Neb. 577, 218 N.W. 384 (1928).

The Constitution guarantees a fair and impartial trial to every person accused of crime, and that no person shall be compelled in any criminal case to be a witness against himself, nor shall he be deprived of life, liberty or property without due process of law. Coxbill v. State, 115 Neb. 634, 214 N.W. 256 (1927).

Order of court excluding spectators from courtroom is a violation of this section. Rhoades v. State, 102 Neb. 750, 169 N.W. 433 (1918).

No instruction should be given the jury which would impose upon defendant a burden to which he was not legally subject, and the effect of which would be to prevent him from having a fair and impartial trial under the law of the land. Kennison v. State, 80 Neb. 688, 115 N.W. 289 (1908).

Accused cannot waive jury in felony case and sentence is void in trial by court alone. Michaelson v. Beemer, 72 Neb. 761, 101 N.W. 1007 (1904).

In order to sustain a claim of ineffective assistance of counsel as a violation of the Sixth Amendment to the U.S. Constitution and this provision, a defendant must show that (1) counsel's performance was deficient and (2) such deficient performance prejudiced the defendant, that is, demonstrate a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different. State v. Cardona, 10 Neb. App. 815, 639 N.W.2d 653 (2002).

I-12 Evidence against self; double jeopardy.

Reissue Revised Statutes of Nebraska

I-12

Evidence against self; double jeopardy.

No person shall be compelled, in any criminal case, to give evidence against himself, or be twice put in jeopardy for the same offense.

Neb. Const. art. I, sec. 12 (1875).

1. Giving evidence against self

2. Jeopardy

1. Giving evidence against self

When a court sua sponte suggests a mistrial, it is not too onerous to require defense counsel to clearly and timely state whether he or she objects to the court's consideration of a mistrial when given an opportunity to do so. State v. Leon-Simaj, 300 Neb. 317, 913 N.W.2d 722 (2018).

Defendant's statement to television representative was not the type of official questioning to which this section applies. State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992).

A defendant is not required to make a statement of any kind under his constitutional right not to be compelled in any criminal case to be a witness against himself. State v. Houser, 241 Neb. 525, 490 N.W.2d 168 (1992).

A suspect's awareness of all possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived the privilege against self-incrimination. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).

In an opening statement for a jury trial, a prosecutor's comment concerning the necessity of the defendant's testimony or an expression concerning the plausibility or credibility of anticipated testimony from a defendant violates an accused's right to remain silent at trial. State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989).

If the State calls a defendant as a witness at a hearing for revocation of the defendant's probation, the defendant's constitutional right to remain silent is not violated, since a revocation of probation is not a stage of prosecuting a defendant on a criminal charge and because the defendant's admission of a probation violation is not necessarily admission of a crime committed by the defendant. State v. Sites, 231 Neb. 624, 437 N.W.2d 166 (1989).

Probation revocation proceedings are not criminal in nature; the privilege against giving evidence against oneself does not arise. State v. Burow, 223 Neb. 867, 394 N.W.2d 665 (1986).

Constitutional privilege against self-incrimination invoked by wife in a dissolution action in response to questions by husband regarding extramarital relations with another man. Ritchey v. Ritchey, 208 Neb. 100, 302 N.W.2d 372 (1981).

In determining whether the testimony of a witness who had pleaded guilty to a similar charge but had not been sentenced, who invoked the privilege on self-incrimination during the cross-examination may be used against the defendant, a distinction must be drawn between cases in which the assertion of the privilege merely precludes inquiry into collateral matters which bear only on the credibility of the witness and those cases in which the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination. State v. Bittner, 188 Neb. 298, 196 N.W.2d 186 (1972).

In order to deny a claim to the privilege against self-incrimination by a witness, it must be perfectly clear to the judge from a careful consideration of all of the circumstances in the case that the witness is mistaken and that the answer or answers cannot possibly have a tendency to incriminate. State v. Holloway, 187 Neb. 1, 187 N.W.2d 85 (1971).

Photographs taken of defendant without his permission do not violate this section. State v. Blackwell, 184 Neb. 121, 165 N.W.2d 730 (1969).

Constitutional privilege against self-incrimination is restricted to oral testimony, and does not apply to chemical analysis of body fluids. Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75 (1961).

This section does not apply to one charged with contempt of court and one so charged may be required to testify the same as any other competent witness. State ex rel. Wright v. Barlow, 132 Neb. 166, 271 N.W. 282 (1937).

Physician's testimony as to sanity of accused, based on examination without court order or attorney's consent, but without objection at time, is not compelling him to give evidence against self. Wehenkel v. State, 116 Neb. 493, 218 N.W. 137 (1928).

Requiring defendant to answer questions on cross-examination as to previous convictions for misdemeanor violates the provisions of this section. Coxbill v. State, 115 Neb. 634, 214 N.W. 256 (1927).

2. Jeopardy

Under the Double Jeopardy Clauses of the U.S. and Nebraska Constitutions, a successive prosecution for a greater offense after a prosecution for a lesser-included offense is not barred if the State is unable to proceed on the more serious charge at the outset because additional facts necessary to sustain that charge have not occurred. State v. Lewis, 313 Neb. 879, 986 N.W.2d 739 (2023).

The protection granted by the Nebraska Constitution against double jeopardy is coextensive to the protection granted by the U.S. Constitution. State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).

Section 60-6,197.04 is constitutionally valid and does not conflict with the 4th, 5th, and 14th Amendments to the U.S. Constitution, and this provision or Neb. Const. Art. I, sec. 7, as section 60-6,197.04 mandates a preliminary breath test, rather than a search incident to lawful arrest addressed in Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), and where the arresting officer cited specific articulable facts to support administering the preliminary breath test. State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).

Double jeopardy protects a defendant against cumulative punishments for convictions on the same offense; however, it does not prohibit the State from prosecuting a defendant for multiple offenses in a single prosecution. State v. Humbert, 272 Neb. 428, 722 N.W.2d 71 (2006).

The concept of double jeopardy applies only in successive prosecution cases and does not apply to a single trial where the defendant has been put in jeopardy only once. State v. Furrey, 270 Neb. 965, 708 N.W.2d 654 (2006).

Whether an amended complaint or information constitutes a continuation of a single trial depends on the nature of the amendment. State v. Furrey, 270 Neb. 965, 708 N.W.2d 654 (2006).

An administrative disciplinary proceeding in which a prisoner loses good time does not place him in jeopardy. A conviction and sentence in a criminal prosecution following an administrative disciplinary proceeding do not constitute double jeopardy. State v. Lynch, 248 Neb. 234, 533 N.W.2d 905 (1995).

Second trial after appellate reversal because of procedural error does not place a defendant in double jeopardy where there is sufficient circumstantial evidence to submit case to jury and to convict defendant. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

Prosecution for traffic infraction held to be a criminal offense within the meaning of double jeopardy herein. State v. Knoles, 199 Neb. 211, 256 N.W.2d 873 (1977).

This Article does not preclude successive prosecutions by federal and Nebraska governments. State v. Pope, 190 Neb. 689, 211 N.W.2d 923 (1973).

Successive prosecutions by federal and state governments in the exercise of concurrent jurisdiction over substantially the same offense are not prohibited by this section. State v. Pope, 186 Neb. 489, 184 N.W.2d 395 (1971).

The conviction of a defendant for intoxication does not bar a subsequent prosecution for offense of operating a motor vehicle while under the influence of intoxicating liquor. State v. Eckert, 186 Neb. 134, 181 N.W.2d 264 (1970).

Order of trial court to set aside verdict and order a new trial did not contravene double jeopardy provision of Constitution. State v. Houp, 182 Neb. 298, 154 N.W.2d 465 (1967).

Sexual psychopath law did not place accused who had been previously convicted of sexual offense in double jeopardy. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 (1965).

A proceeding for contempt is not a criminal case. State ex rel. Beck v. Lush, 168 Neb. 367, 95 N.W.2d 695 (1959).

Determination of sentence to be imposed by court instead of jury does not violate this section. Poppe v. State, 155 Neb. 527, 52 N.W.2d 422 (1952).

Where two persons were killed in automobile collision, acquittal on charge of manslaughter for killing one did not bar prosecution for killing of the other. Jeppesen v. State, 154 Neb. 765, 49 N.W.2d 611 (1951).

Habitual criminal statute does not contravene this section. Davis v. O'Grady, 137 Neb. 708, 291 N.W. 82 (1940).

Discharge of jury and retrial of defendant does not violate constitutional guaranty under this section. Shaffer v. State, 123 Neb. 121, 242 N.W. 364 (1932).

Court, after sentence for less than minimum term prescribed by statute had been served, was without power to vacate it and impose greater penalty. Hickman v. Fenton, 120 Neb. 66, 231 N.W. 510 (1930).

Where offense charged in information upon which defendant was previously tried and acquitted was inclusive of the offense for which she is being held for trial, jeopardy attached by virtue of the former trial, and habeas corpus will lie. In re Resler, 115 Neb. 335, 212 N.W. 765 (1927).

Where jury is discharged after deliberating so long that there is no probability of agreeing and the accused held to a further trial, it is without any infringement of this section. Sutter v. State, 105 Neb. 144, 179 N.W. 414 (1920).

If during a trial of a misdemeanor before a magistrate, it appears that defendant should be put upon his trial for a felony and the magistrate orders a new complaint to be filed and proceeds to sit as examining magistrate, finds probable cause and binds accused over to district court to answer to the felony, this is not violation of this section. Larson v. State, 93 Neb. 242, 140 N.W. 176 (1913).

Where one accused of a felony is put upon trial under an information defective upon its face, and after trial begun, information is amended and the trial proceeded with, there being no change in the offense charged, the accused is not thereby placed in jeopardy a second time. McKay v. State, 91 Neb. 281, 135 N.W. 1024 (1912).

If complaint does not contain necessary averments to constitute criminal charge, there is no former jeopardy. Roberts v. State, 82 Neb. 651, 118 N.W. 574 (1908).

Where the same facts constitute two or more offenses, wherein the lesser offense is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offenses were both committed at the same time and by the same act. Warren v. State, 79 Neb. 526, 113 N.W. 143 (1907).

Judgment of court having no jurisdiction over subject matter is void and does not constitute a bar to further proceedings on same charge. Peterson v. State, 79 Neb. 132, 112 N.W. 306 (1907).

To constitute former jeopardy it must appear that party was put upon trial before court having jurisdiction, upon indictment or information sufficient in form and substance to sustain conviction and that the jury was impaneled and sworn, and thus charged with his deliverance. Steinkuhler v. State, 77 Neb. 331, 109 N.W. 395 (1906).

Confinement of accused under void or erroneous sentence is not a bar to rendition of legal sentence under verdict. McCormick v. State, 71 Neb. 505, 99 N.W. 237 (1904).

Statute directing the assessment of a fine in double the amount embezzled, in addition to the imprisonment imposed in case of conviction is not open to objection that it inflicts a double penalty. Everson v. State, 66 Neb. 154, 92 N.W. 137 (1902).

By appealing, accused thereby waives right to object to further prosecution on reversal, on ground that he has been once put in jeopardy. McGinn v. State, 46 Neb. 427, 65 N.W. 46 (1895).

The constitutional provision against placing accused twice in jeopardy does not apply to mere civil actions for recovery of penalties. Mitchell v. State, 12 Neb. 538, 11 N.W. 848 (1882).

I-13 Justice administered without delay; Legislature; authorization to enforce mediation and arbitration.

Reissue Revised Statutes of Nebraska

I-13

Justice administered without delay; Legislature; authorization to enforce mediation and arbitration.

All courts shall be open, and every person, for any injury done him or her in his or her lands, goods, person, or reputation, shall have a remedy by due course of law and justice administered without denial or delay, except that the Legislature may provide for the enforcement of mediation, binding arbitration agreements, and other forms of dispute resolution which are entered into voluntarily and which are not revocable other than upon such grounds as exist at law or in equity for the revocation of any contract.

Neb. Const. art. I, sec. 13 (1875);

Amended 1996, Laws 1995, LR 1CA, sec. 1.

1. Not unconstitutional

2. Unconstitutional

3. Miscellaneous

1. Not unconstitutional

The court's incorporation by reference of the conditions of confinement set forth in a doctor's report did not deny access to the district court. State v. Hayden, 233 Neb. 211, 444 N.W.2d 317 (1989).

The exclusive remedy provided by the Workers' Compensation Act satisfies the due process requirements of Neb. Const. art. I, section 3, as well as the requirements of this provision, that every person shall have a remedy by due course of law for any injury done to him or her. Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989).

Statute allowing drainage district two years from ascertainment of compensation by appraisers, within which to enter upon and appropriate the land, does not violate this section. Drainage Dist. No. 1 of Pawnee County v. Chicago, B. & Q. R. R. Co., 96 Neb. 1, 146 N.W. 1055 (1914).

Ruling of district court refusing to allow plaintiff in divorce to proceed with trial without first complying with order for payment of temporary alimony does not contravene Constitution. Reed v. Reed, 70 Neb. 779, 98 N.W. 73 (1904).

Drainage proceedings do not contravene Constitution, because party aggrieved has right of appeal to courts. Dodge County v. Acom, 61 Neb. 376, 85 N.W. 292 (1901).

2. Unconstitutional

Section 25-2602 violates this article to the extent that it provides for arbitration of future disputes. State v. Nebraska Assn. of Pub. Employees, 239 Neb. 653, 477 N.W.2d 577 (1991).

Existence of an emergency does not impair or destroy constitutional limitations, and the mortgage moratorium act is unconstitutional as it contravenes the spirit and terms of this section. First Trust Co. of Lincoln v. Smith, 134 Neb. 84, 277 N.W. 762 (1938); Strehlow v. Krings, 134 Neb. 82, 277 N.W. 784 (1938).

Nonsuiting of plaintiff at close of opening statements to jury violates this section. Temple v. Cotton Transfer Co., 126 Neb. 287, 253 N.W. 349 (1934).

Order of district court in divorce suit, striking out answer of defendant as to dissolution of marriage, and refusing to allow him to defend, except as to the amount of alimony, on account of his failure to comply with order for the payment of temporary alimony, violates the Constitution. McNamara v. McNamara, 86 Neb. 631, 126 N.W. 94 (1910).

County judge cannot require party to pay fees or costs in advance as condition to "performing those services which would be necessary to enable the defendant to press his defense." Douglas County v. Vinsonhaler, 82 Neb. 810, 118 N.W. 1058 (1908).

Dismissal of action by district judge without determination of merits because of fraud or imposition on the court by one of the parties is denial of constitutional rights. Fitch v. Martin, 80 Neb. 60, 113 N.W. 796 (1907).

Statute providing for impaneling of juries which is so incomplete as to render it incapable of accomplishing its purpose, contravenes Constitution and is void. State ex rel. Mickey v. Reneau, 75 Neb. 1, 106 N.W. 451 (1905).

Stipulation in insurance contract which provides that no suit shall be maintained but that all differences shall be adjusted by arbitration is void as contravening this section. Phoenix Ins. Company v. Zlotky, 66 Neb. 584, 92 N.W. 736 (1902); Hartford Fire Ins. Co. v. Hon, 66 Neb. 555, 92 N.W. 746 (1902).

3. Miscellaneous

This provision does not create any new rights but is merely a declaration of a general fundamental principle. It is a primary duty of the courts to safeguard this declaration of right and remedy, but where no right or remedy exists under either common law or statute, this constitutional provision creates none. Paulk v. Central Lab. Assocs., 262 Neb. 838, 636 N.W.2d 170 (2001).

This constitutional provision does not provide a remedy for ex parte communications. State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998).

Based on this provision, Nebraska courts have held that predispute arbitration agreements are unenforceable; however, this rule cannot be enforced when it conflicts with the laws of the United States. Dowd v. First Omaha Sec. Corp., 242 Neb. 347, 495 N.W.2d 36 (1993).

Legislature may direct claimant to comply with the Nebraska Hospital-Medical Liability Act prior to exercise of court remedy. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

Pursuant to this section, right of member to sue his union is not dependent upon prior exhaustion of administrative remedies. Poppert v. Brotherhood of R.R. Trainmen, 187 Neb. 297, 189 N.W.2d 469 (1971).

Rule of prior cases, that any change in law exempting charitable hospitals from liability should be made by Legislature, was in violation of this section. Myers v. Drozda, 180 Neb. 183, 141 N.W.2d 852 (1966).

This section does not create any new rights but is merely a declaration of a general fundamental principle. Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16 (1959).

Right of action against charitable institution was not created. Muller v. Nebraska Methodist Hospital, 160 Neb. 279, 70 N.W.2d 86 (1955).

Right to trial without unreasonable and unnecessary delay is guaranteed. Sullivan v. Storz, 156 Neb. 177, 55 N.W.2d 499 (1952).

Party who invoked special proceeding could not question constitutionality thereof under this section. Lackaff v. Department of Roads & Irrigation, 153 Neb. 217, 43 N.W.2d 576 (1950).

Remedy is afforded unaffected by subsequent death of wrongdoer. Rehn v. Bingaman, 151 Neb. 196, 36 N.W.2d 856 (1949).

Litigants are entitled to access to the courts when they have probable cause for believing an injury has been done to their lands, goods, person or reputation. Fender v. Waller, 139 Neb. 612, 298 N.W. 349 (1941).

Damages to land caused by seepage from a reservoir is an injury to land as set out in this section. Applegate v. Platte Valley Public Power & Irr. Dist., 136 Neb. 280, 285 N.W. 585 (1939).

Guest law does not deprive motorist's guest of protection of constitutional provision but merely changes degree of proof essential to recovery. Clarke v. Weatherly, 131 Neb. 816, 270 N.W. 316 (1936); Rogers v. Brown, 129 Neb. 9, 260 N.W. 794 (1935); Howard v. Gerjevic, 128 Neb. 795, 260 N.W. 273 (1935); Gilbert v. Bryant, 125 Neb. 731, 251 N.W. 823 (1933).

Administrator may bring action for damages after death of intestate for pain and suffering inflicted on deceased, by virtue of self-executing provisions of this section. Wilfong v. Omaha & C. B. St. Ry. Co., 129 Neb. 600, 262 N.W. 537 (1935).

The writ of error coram nobis provides a corrective judicial process that the Constitution guarantees shall not be denied. Carlsen v. State, 129 Neb. 84, 261 N.W. 339 (1935).

Contract of employment providing for arbitration of disputes does not deprive employee of right to seek redress in courts. Rentscheler v. Missouri P. R. R. Co., 126 Neb. 493, 253 N.W. 694 (1934).

Provisions of this section are self-executing in their nature and mandatory upon all courts of this state. Burnham v. Bennison, 121 Neb. 291, 236 N.W. 745 (1931).

In a tax foreclosure proceeding by a county to recover delinquent taxes on land without making purchaser at a prior administrative sale a party, the purchaser at the foreclosure sale buys subject to the right of one having a valid lien upon the premises to redeem from such sale, and the one claiming a lien cannot be barred without a hearing. Smith v. Potter, 92 Neb. 39, 137 N.W. 854 (1912).

A mortgagor should not be permitted, in person or by his will, to raise a controversy over the mortgaged property which will delay enforcement of the mortgage in the event of default in payment thereof. Shackley v. Homer, 87 Neb. 146, 127 N.W. 145 (1910).

Where a party has, without fault or neglect on his part or his attorneys', failed to obtain a transcript for a review on error in this court, a new trial will be granted, if necessary, to secure him his constitutional right. Zweibel v. Caldwell, 72 Neb. 47, 99 N.W. 843 (1904).

This section guarantees a remedy only for such as result from an invasion or infringement of a legal right, or the failure to discharge a legal duty or obligation, and is not a guarantee of a remedy for every species of injury in respect of such matters. Goddard v. City of Lincoln, 69 Neb. 594, 96 N.W. 273 (1903).

I-14 Treason.

Reissue Revised Statutes of Nebraska

I-14

Treason.

Treason against the state shall consist only in levying war against the state, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Neb. Const. art. I, sec. 14 (1875).

I-15 Penalties; corruption of blood; transporting out of state prohibited.

Reissue Revised Statutes of Nebraska

I-15

Penalties; corruption of blood; transporting out of state prohibited.

All penalties shall be proportioned to the nature of the offense, and no conviction shall work corruption of blood or forfeiture of estate; nor shall any person be transported out of the state for any offense committed within the state.

Neb. Const. art. I, sec. 15 (1875).

Unconstitutionality of tax statute under this section raised but not decided. Creigh v. Larsen, 171 Neb. 317, 106 N.W.2d 187 (1960).

Permitting recovery of money paid on void contract was not the imposition of a penalty within the meaning of this section. Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208 (1959).

Conviction of felony does not deprive party of civil rights, including right to maintain action for damages for personal injury. Bosteder v. Duling, 115 Neb. 557, 213 N.W. 809 (1927).

Sentence to penitentiary does not corrupt the blood nor prevent legal representative of accused, who died pending appeal, from succeeding to property rights of accused. Stanisics v. State, 90 Neb. 278, 133 N.W. 412 (1911).

Penalty imposed by statute is not unconstitutional unless so excessive as to shock sense of mankind. McMahon v. State, 70 Neb. 722, 97 N.W. 1035 (1904).

Enforcement of penalty after proper notice and failure to remove fence or other obstruction from line of newly established highway does not contravene Constitution. Black v. Stein, 23 Neb. 302, 36 N.W. 548 (1888).

I-16 Bill of attainder; retroactive laws; contracts; special privileges.

Reissue Revised Statutes of Nebraska

I-16

Bill of attainder; retroactive laws; contracts; special privileges.

No bill of attainder, ex post facto law, or law impairing the obligation of contracts, or making any irrevocable grant of special privileges or immunities shall be passed.

Neb. Const. art. I, sec. 16 (1875).

1. Ex post facto law

2. Obligation of contract

3. No irrevocable grant of special privilege

4. Miscellaneous

1. Ex post facto law

Where the death penalty was in effect at the time of the crimes and was also in effect at the time of sentencing, the repeal of the death penalty did not inflict a greater punishment than that available when the crimes were committed. State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).

The ex post facto clause does not prohibit retroactive application for civil disabilities and sanctions; only retroactive criminal punishment for past acts is prohibited. State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).

The registration requirement for an offender convicted of an aggravated offense under Nebraska's Sex Offender Registration Act is not a criminal punishment. State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).

Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage, for they do not attach criminality to any act previously done, and which was innocent when done, nor aggravate any crime already committed, nor provide greater punishment, nor do they alter the degree of proof needed to convict. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

Act reducing penalty for violation of Installment Loan Act did not violate this section. Davis v. General Motors Acceptance Corp., 176 Neb. 865, 127 N.W.2d 907 (1964).

Change in point system law for revocation of license to operate motor vehicle was not ex post facto legislation. Durfee v. Ress, 163 Neb. 768, 81 N.W.2d 148 (1957).

Constitutional prohibition against ex post facto laws applies only to penal or criminal matters, and does not apply to civil penalties imposed for failure to pay taxes. In re Estate of Rogers, 147 Neb. 1, 22 N.W.2d 297 (1946).

Law making an act criminal which was innocent when done, or making crime greater than when committed, or which alters situation of party to his disadvantage, or inflicts greater punishment than law annexed to crime when committed, is ex post facto and exceeds the power granted Legislature in the Constitution. State v. McCoy, 87 Neb. 385, 127 N.W. 137 (1910); Marion v. State, 20 Neb. 233, 29 N.W. 911 (1886); Marion v. State, 16 Neb. 349, 20 N.W. 289 (1884).

A criminal law is not retroactive in its operation. State v. Hoon, 78 Neb. 618, 111 N.W. 462 (1907).

Law intended to affect transactions which occurred, or rights accrued, before it became operative, and which ascribed to them effects not inherent in their nature, in view of the law enforced at time of occurrence, is retrospective. Chicago, B. & Q. R. R. Co. v. State ex rel. City of Omaha, 47 Neb. 549, 66 N.W. 624 (1896).

2. Obligation of contract

Allowance of credit against malpractice judgment for any nonrefundable benefits claimant receives is not an unconstitutional impairment of contract. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

The Legislature may abrogate a right of action for a tort to happen in the future. State Securities Co. v. Norfolk Livestock Sales Co., Inc., 187 Neb. 446, 191 N.W.2d 614 (1971).

Retrospective statute distinguishing judgment liens for alimony and child support held to be constitutional. Hidy v. Hidy, 184 Neb. 527, 169 N.W.2d 285 (1969).

Statute creating Nebraska Power Review Board did not violate this section. City of Auburn v. Eastern Nebraska Public Power Dist., 179 Neb. 439, 138 N.W.2d 629 (1965).

Contract to sell school lands could not be impaired by subsequent legislation. Pfeifer v. Ableidinger, 166 Neb. 464, 89 N.W.2d 568 (1958).

Charter of public corporation does not constitute contract with state. United Community Services v. Omaha Nat. Bank, 162 Neb. 786, 77 N.W.2d 576 (1956).

Nonsigner provision of Fair Trade Act violated this section. McGraw Electric Co. v. Lewis & Smith Drug Co., Inc., 159 Neb. 703, 68 N.W.2d 608 (1955).

This section is a binding limitation on the exercise of governmental powers, legislative, executive or judicial, which "emergency" may not impair, destroy or modify, and the mortgage moratorium act violates constitutional provision on cessation of emergency for which enacted. First Trust Co. of Lincoln v. Smith, 134 Neb. 84, 277 N.W. 762 (1938); Strehlow v. Krings, 134 Neb. 82, 277 N.W. 784 (1938).

Disconnecting of lands from village is not impairment of contract of holder of village bonds. Hustead v. Village of Phillips, 131 Neb. 303, 267 N.W. 919 (1936); Hardin v. Pavlat, 130 Neb. 829, 266 N.W. 637 (1936).

This provision of Constitution does not conflict with Article XII, section 7, of Constitution, providing for double liability of stockholders of state banks. Luikart v. Higgins, 130 Neb. 395, 264 N.W. 903 (1936).

Statute may not operate retrospectively where it would impair obligation of contracts or interfere with vested rights. Travelers Ins. Co. v. Ohler, 119 Neb. 121, 227 N.W. 449 (1929).

Generally, the laws in force at the time a contract is entered into form a part of it and enter into its obligation, but the law then in force affording a remedy for a breach of the contract may be modified or changed without impairing the obligation of the contract, provided that an adequate remedy is left. Norris v. Tower, 102 Neb. 434, 167 N.W. 728 (1918).

Contracts between an irrigation company and consumers under the ditch, with reference to annual rates which should be charged for the use of water, were entered into with the law forming a part of the contract and subject to legislative control. McCook Irr. & Water Power Co. v. Burtless, 98 Neb. 141, 152 N.W. 334 (1915).

Curative acts, which attempt to take away property rights already vested, violate the Constitution. Draper v. Clayton, 87 Neb. 443, 127 N.W. 369 (1910); Helming v. Forrester, 87 Neb. 438, 127 N.W. 373 (1910).

Anti-pass laws, prohibiting free transportation by railroads, do not impair contracts. State v. Martyn, 82 Neb. 225, 117 N.W. 719 (1908).

An act which in effect takes away from counties any cause of action which they might have against persons who have been treasurers, for money which they have been allowed by the county board to retain as commissions on money received, impairs contract obligations of county. Kearney County v. Taylor, 54 Neb. 542, 74 N.W. 965 (1898).

Obligation is impaired whenever remedy is taken away or abolished, or legal obligations diminished, suspended or destroyed by abolishing remedy, or when enforcement burdened by new or unreasonable conditions or restrictions. American Bldg. & Loan Assn. v. Rainbolt, 48 Neb. 434, 67 N.W. 493 (1896).

Lease of public lands providing that lessor shall have right to choose one of the arbitrators for every five years for purpose of valuation, is indispensable contract right and cannot thereafter be changed by subsequent legislation. State ex rel. Brown v. McPeak, 31 Neb. 139, 47 N.W. 691 (1891).

Statute merely changing remedy or mode of enforcing contract is not impairment so as to violate this section. Henry O. Jones v. Elizabeth Davis, 6 Neb. 33 (1877).

Act requiring holder of over-due county warrant drawing 10 per cent to surrender same to county for bonds drawing 7 per cent is void as impairing contract obligation. Brewer v. Otoe County, 1 Neb. 373 (1871).

Reorganization of insolvent state bank under Bank Act of 1929 held to impair obligation of contract as to nonconsenting depositor. Hessen Siak Shams v. Nebraska State Bank of Bloomfield, 48 F.2d 894 (D. Neb. 1931).

3. No irrevocable grant of special privilege

Provisions of Grid System Act constituted a grant of special privileges and an unlawful splitting of a class, and was unconstitutional. Wittler v. Baumgartner, 180 Neb. 446, 144 N.W.2d 62 (1966).

Installment Sales Act of 1965 did not violate this section. Engelmeyer v. Murphy, 180 Neb. 295, 142 N.W.2d 342 (1966).

Legislative Bill 11 of the 1963 Special Session violated this section and was unconstitutional in its entirety. State Securities Co. v. Ley, 177 Neb. 251, 128 N.W.2d 766 (1964).

Legislative act permitting higher rate of interest to be charged by retailers of motor vehicles was a grant of special privilege in violation of this section. Stanton v. Mattson, 175 Neb. 767, 123 N.W.2d 844 (1963).

Constitutionality of Installment Sales Act of 1959 under this section raised, but case decided under another section of the Constitution. Elder v. Doerr, 175 Neb. 483, 122 N.W.2d 528 (1963).

Levy of tax for municipal university did not violate special privileges clause. Ratigan v. Davis, 175 Neb. 416, 122 N.W.2d 12 (1963).

Imposition of liability for reimbursement on estate of recipient of old age assistance does not violate this section. Boone County Old Age Assistance Board v. Myhre, 149 Neb. 669, 32 N.W.2d 262 (1948).

Statutes creating housing authorities for slum clearance sustained against claim of violation of this section. Lennox v. Housing Authority of City of Omaha, 137 Neb. 582, 290 N.W. 451 (1940).

Statutory provision limiting issuance of motor vehicle dealer's license for sale of new cars to persons enfranchised by the manufacturers is an unlawful restriction on right to follow a lawful pursuit. Nelsen v. Tilley, 137 Neb. 327, 289 N.W. 388 (1939).

The Legislature is not prohibited from dictating how county road funds shall be used or allocated. City of Fremont v. Dodge County, 130 Neb. 856, 266 N.W. 771 (1936).

Provisions of irrigation act providing for granting by irrigation board of priority of right to use of water does not contravene this section of the Constitution. Farmers Canal Co. v. Frank, 72 Neb. 136, 100 N.W. 286 (1904).

Municipal grant of franchise for distribution of electric current, if not exclusive, and in the absence of specific limitation or duration, was in perpetuity and conveyed rights of property within the provisions of this section. Old Colony Trust Co. v. Omaha, 230 U.S. 100 (1913).

Statute authorizing city to make irrevocable contract with gas and electric company for maximum rates for twenty-year term is not a violation of this section forbidding Legislature to make "any irrevocable grant of special privileges." Nebraska Gas & Electric Co. v. City of Stromsburg, 2 F.2d 518 (8th Cir. 1924).

4. Miscellaneous

The Ex Post Facto Clauses are a limitation upon the powers of the Legislature and do not concern judicial decisions. Caton v. State, 291 Neb. 939, 869 N.W.2d 911 (2015).

Only the clearest proof suffices to establish the unconstitutionality of a statute as a bill of attainder. State v. Galindo, 278 Neb. 599, 774 N.W.2d 190 (2009).

Constitutionality of Municipal Ground Water Act raised, but not decided. Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 140 N.W.2d 626 (1966).

I-17 Military subordinate.

Reissue Revised Statutes of Nebraska

I-17

Military subordinate.

The military shall be in strict subordination to the civil power.

Neb. Const. art. I, sec. 17 (1875).

I-18 Soldiers quarters.

Reissue Revised Statutes of Nebraska

I-18

Soldiers quarters.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor in time of war except in the manner prescribed by law.

Neb. Const. art I, sec. 18 (1875).

I-19 Right of peaceable assembly and to petition government.

Reissue Revised Statutes of Nebraska

I-19

Right of peaceable assembly and to petition government.

The right of the people peaceably to assemble to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.

Neb. Const. art. I, sec. 19 (1875).

A political meeting or convention is an assemblage within the meaning of the Constitution that the right of the people to assemble and consult for common good shall never be abridged. With good motives and for justifiable ends the membership of such a body may jointly speak and publish the truth about candidates for office and this right extends to aspirants for judicial and educational offices. State ex rel. Ragan v. Junkin, 85 Neb. 1, 122 N.W. 473 (1909).

The people have the right to petition the Governor on the subject of proposed legislation. Weis v. Ashley, 59 Neb. 494, 81 N.W. 318 (1899).

I-20 Imprisonment for debt prohibited.

Reissue Revised Statutes of Nebraska

I-20

Imprisonment for debt prohibited.

No person shall be imprisoned for debt in any civil action on mesne or final process.

Neb. Const. art. I, sec. 20 (1875);

Amended 1998, Laws 1997, LR 26CA, sec. 1.

1. Cases involving fraud

2. Debt

3. Miscellaneous

1. Cases involving fraud

Section 28-611(1), R.R.S.1943, the Nebraska "bad check statute", does not violate this section of the Constitution because section 28-611(1), R.R.S.1943, contains the elements of fraud by its very definition. State v. Kock, 207 Neb. 731, 300 N.W.2d 824 (1981).

Section 69-109, R.S.Supp.,1980, held not to violate this section, since a requirement of fraud has been engrafted onto the statute by judicial interpretation and thereafter statute was reenacted in same form by Legislature, thus supplying the fraud requirement. State v. Hocutt, 207 Neb. 689, 300 N.W.2d 198 (1981).

Statute which permits criminal prosecution without requiring proof of fraud violates this section. State ex rel. Norton v. Janing, 182 Neb. 539, 156 N.W.2d 9 (1968).

2. Debt

"Debt," as stated in state constitutional prohibitions of imprisonment for debt, is generally viewed as an obligation to pay money from the debtor's own resources, which arose out of a consensual transaction between the creditor and the debtor. Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016).

Imprisonment for contempt for the failure to comply with the order of property division in a dissolution decree does not violate this provision. Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016).

Whether an obligation is a "debt" depends on the origin and nature of the obligation and not on the manner of its enforcement. Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016).

Award of alimony, suit money and attorney's fees in divorce action does not create "debt" within meaning of this section. Jensen v. Jensen, 119 Neb. 469, 229 N.W. 770 (1930).

Order to pay temporary alimony is not a mere debt, and imprisonment for contempt in willfully refusing to obey such order does not violate this section. Cain v. Miller, 109 Neb. 441, 191 N.W. 704 (1922).

Fine for violation of liquor laws, one-fourth to be paid to complaining witness, is not a debt. Sothman v. State, 66 Neb. 302, 92 N.W. 303 (1902).

Judgment in "children born out of wedlock" proceeding is not debt. Ex parte Donahoe, 24 Neb. 66, 38 N.W. 28 (1888); Ex parte Cottrell, 13 Neb. 193, 13 N.W. 174 (1882).

3. Miscellaneous

Statute, making issuance of no-fund check a criminal offense, does not violate constitutional provision against imprisonment for debt. White v. State, 135 Neb. 154, 280 N.W. 433 (1938).

Act providing for prosecution and punishment by imprisonment of husband for refusal to pay alimony for support of minor child is not violative of this section. Fussell v. State, 102 Neb. 117, 166 N.W. 197 (1918).

This section has no application to the case of a license tax imposed upon peddlers, if the object is the raising of revenue and its enactment was an exercise of the taxing power and not the police power. Rosenbloom v. State, 64 Neb. 342, 89 N.W. 1053 (1902).

I-21 Private property compensated for.

Reissue Revised Statutes of Nebraska

I-21

Private property compensated for.

The property of no person shall be taken or damaged for public use without just compensation therefor.

Neb. Const. art. I, sec. 21 (1875).

1. Property, what constitutes

2. Public use

3. Public improvements

4. Damages

5. Just compensation

6. Compensation, payment

7. Miscellaneous

1. Property, what constitutes

A Nebraska Public Service Commission order which directed incumbent local exchange carriers to comply with an order establishing multidwelling unit regulations and a statewide policy for access to multidwelling units by competitive local exchange carriers did not constitute a taking. In re Application of Neb. Pub. Serv. Comm., 260 Neb. 780, 619 N.W.2d 809 (2000).

Recovery may be had for damages to property occasioned by temporary takings. Whitehead Oil Co. v. City of Lincoln, 245 Neb. 680, 515 N.W.2d 401 (1994).

Lawful covenants restricting the use of land and binding upon successors in title constitute an interest in the land and property in the constitutional sense. Horst v. Housing Authority, 184 Neb. 215, 166 N.W.2d 119 (1969).

A tenant for a term of years has a property right in land which is protected by this section. Johnson v. City of Lincoln, 174 Neb. 837, 120 N.W.2d 297 (1963).

Unexercised option to purchase real estate need not be compensated for in eminent domain proceedings. Phillips Petroleum Co. v. City of Omaha, 171 Neb. 457, 106 N.W.2d 727 (1960).

Legislature could not lawfully deprive lessee of school land lease of option to purchase. Pfeifer v. Ableidinger, 166 Neb. 464, 89 N.W.2d 568 (1958).

City is not liable to adjacent property owner for destruction of shade trees in street. Weibel v. City of Beatrice, 163 Neb. 183, 79 N.W.2d 67 (1956).

Claim made and rejected that appropriation of surface and ground waters without compensation violated this section. Dischner v. Loup River P. P. Dist., 147 Neb. 949, 25 N.W.2d 813 (1947).

Property rights of a lessee under school land lease are protected from invasion under the power of eminent domain. State v. Platte Valley P. P. & I. Dist., 147 Neb. 289, 23 N.W.2d 300 (1946).

The right to use water for a beneficial purpose is a property right, subject to the constitutional provisions regulating the taking of private property for public use. Loup River Public Power Dist. v. North Loup River Public Power & Irr. Dist., 142 Neb. 141, 5 N.W.2d 240 (1942).

Accretions are property within the meaning of this section. Thies v. Platte Valley Public Power & Irr. Dist., 137 Neb. 344, 289 N.W. 386 (1939).

Right of irrigation district to appropriate water is property and this right is protected by way of damages when water is diverted. Nine Mile Irr. Dist. v. State, 118 Neb. 522, 225 N.W. 679 (1929).

Riparian rights under an appropriation of water are property. McCook Irr. & Water Power Co. v. Crews, 70 Neb. 115, 102 N.W. 249 (1905).

A riparian's right to the use of the flow of the stream passing through or by his land is a right inseparably annexed to the soil and such right is entitled to protection as such, the same as private property rights. Crawford Company v. Hathaway, 67 Neb. 325, 93 N.W. 781 (1903).

Mortgagee's interest in property taken for public use is property, and requires notice to mortgagee in eminent domain proceedings. Dodge v. Omaha & S. W. R. R. Co., 20 Neb. 276, 29 N.W. 936 (1886).

2. Public use

In order to meet the initial threshold in an inverse condemnation case that the property has been taken or damaged for public use, it must be shown that there was an invasion of property rights that was intended or was the foreseeable result of authorized governmental action. Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (2013).

The threshold issue in an inverse condemnation case is to determine whether the property allegedly taken or damaged was taken or damaged as the result of the exercise of the governmental entity’s exercise of its power of eminent domain; that is, was the taking or damaging for public use. Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (2013).

This provision is not a source of compensation for every action or inaction by a governmental entity that causes damage to property. Instead, it provides compensation only for the taking or damaging of property that occurs as the result of an entity’s exercise of its right of eminent domain. Henderson v. City of Columbus, 285 Neb. 482, 827 N.W.2d 486 (2013).

Private property may not be taken under the power of eminent domain for a private use. Burger v. City of Beatrice, 181 Neb. 213, 147 N.W.2d 784 (1967).

Acquisition of aviation easement was a damage for public use, for which compensation could be recovered. Johnson v. Airport Authority, 173 Neb. 801, 115 N.W.2d 426 (1962).

Where land is taken outside the boundaries of right-of-way condemned, it constitutes a second taking of private property for public use. Armbruster v. Stanton-Pilger Drainage Dist., 169 Neb. 594, 100 N.W.2d 781 (1960).

Recovery on behalf of city by taxpayer of amount paid on void contract was not a taking of defendant's property for public use without compensation. Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208 (1959).

Where land is taken outside the boundaries of right-of-way condemned, liability attaches for a second taking of private property for public use. McGree v. Stanton-Pilger Drainage Dist., 164 Neb. 552, 82 N.W.2d 798 (1957).

City ordinance imposing license fee on taxicabs is not taking of private property for public use. Richter v. City of Lincoln, 136 Neb. 289, 285 N.W. 593 (1939).

An individual does not have the right of eminent domain for the use and benefit of himself or his estate under the statute for the irrigation of his own land. Onstott v. Airdale Ranch & Cattle Co., 129 Neb. 54, 260 N.W. 556 (1935).

The furnishing of water to the inhabitants of a city for the purpose of health, convenience, and comfort is a public use of such water. Olson v. City of Wahoo, 124 Neb. 802, 248 N.W. 304 (1933).

Statute authorizing private individuals to create and fix boundaries of a district for public improvement, to be paid for by taxes levied on the property within the district, without a tribunal for determination whether owner's property was arbitrarily or unjustly included, violates this section. Elliott v. Wille, 112 Neb. 78, 200 N.W. 847 (1924).

Statutes providing for special assessments for paving, when not in excess of special benefits, are not invalid as taking private property for public use. Brown Real Estate Co. v. Lancaster County, 110 Neb. 665, 194 N.W. 897 (1923).

Statute making railroad company liable for one dollar per day per car for delay in forwarding, giving notices, or delivery, and in addition thereto imposes liability for actual damages caused by such delay, by necessary implication, violates this section. Sunderland Bros. Co. v. Chicago, B. & Q. R. R. Co., 104 Neb. 319, 177 N.W. 156 (1920).

Ordinance prohibiting removal of garbage except by city employee, is not taking of private property in violation of this section, though it prevents restaurant keeper from selling garbage as feed for swine. Urbach v. City of Omaha, 101 Neb. 314, 163 N.W. 307 (1917).

The use of water power to generate electricity to supply a city and its inhabitants with light and power is a public use and owners of riparian lands should be entitled to damages sustained. Lucas v. Ashland Light, Mill & Power Co., 92 Neb. 550, 138 N.W. 761 (1912).

Transferring unclaimed witness fees and costs to school fund is not taking of private property for public use. Douglas County v. Moores, 66 Neb. 284, 92 N.W. 199 (1902), overruling State ex rel. Broatch v. Moores, 52 Neb. 770, 73 N.W. 299 (1897).

Use of water for irrigation works, and establishment thereof, must be common and not to a particular individual to be a public use. Paxton & Hershey Irr. Canal & Land Co. v. Farmers & Merchants Irr. & Land Co., 45 Neb. 884, 64 N.W. 343 (1895).

Use need not be for benefit of whole public or state, but may be for benefit of small and restricted locality, provided use and benefit is common, not to particular individual or estate. Welton v. Dickson, 38 Neb. 767, 57 N.W. 559 (1894).

Where statute required railroad company to provide underground cattle pass partly at company expense, not as safety measure but to save farmer inconvenience, there was a taking of private property for public use. Chicago, St. P., M. & O. Ry. Co. v. Holmberg, 282 U.S. 162 (1930), reversing Holmberg v. Chicago, St. P., M. & O. Ry. Co., 115 Neb. 727, 214 N.W. 746 (1927).

Condemnation by drainage district in conformity with Nebraska statute was not for private purpose, where the enterprise had been adjudged by state court to be public utility. O'Neill v. Leamer, 239 U.S. 244 (1915).

Statute requiring property owners to destroy as public nuisance red cedar trees growing within two miles of orchards containing 1,000 or more apple trees is not void as taking of property for public or private use without compensation. Upton v. Felton, 4 F.Supp. 585 (D. Neb. 1932).

3. Public improvements

County and irrigation district were liable for damages caused by structure placed in drainage ditch. Baum v. County of Scotts Bluff, 169 Neb. 816, 101 N.W.2d 455 (1960).

Municipality would be held liable for damages resulting from construction and maintenance of flood control project. Gruntorad v. Hughes Bros. Inc., 161 Neb. 358, 73 N.W.2d 700 (1955).

The only foundation for a local assessment lies in the special benefits conferred upon the property assessed by the improvement, and an assessment beyond the benefit so conferred is a taking of property for public use without compensation and therefore illegal. Loup River Public Power Dist. v. Platte County, 144 Neb. 600, 14 N.W.2d 210 (1944).

City is liable to abutting property owner for damages caused by paving street in accordance with established grade ordinance. Heflin v. City of Lincoln, 131 Neb. 484, 268 N.W. 364 (1936).

Property abutting on street is "damaged" within meaning of Constitution by changing grade from natural level. Stocking v. City of Lincoln, 93 Neb. 798, 142 N.W. 104 (1913).

Petition was insufficient to allege damages to adjacent property for erection of standpipe for city water supply. Bonge v. Village of Winnetoon, 90 Neb. 260, 133 N.W. 203 (1911).

Landowner is entitled to recover the damages he has actually sustained, less the special benefits to his property, if any, by subsequent change of street grade. Kavan v. South Omaha, 86 Neb. 469, 126 N.W. 77 (1910).

Owner of land is entitled to compensation for taking of part thereof for highway purposes. Johnson v. Peterson, 85 Neb. 83, 122 N.W. 683 (1909).

The construction and operation of railroad and closing of a public street entitles landowner to recover the difference between the value of the land before and its value after the road was constructed and put in operation. Chicago, R. I. & P. R. R. Co. v. O'Neill, 58 Neb. 239, 78 N.W. 521 (1899).

The placing of poles and wires in city street by an electric street railway is such interference with owner's enjoyment of property to entitle him to compensation commensurate with injury sustained. Jaynes v. Omaha Street Ry. Co., 53 Neb. 631, 74 N.W. 67 (1898).

Owner of land is entitled to damages resulting from grading street or highway by either county or city. Douglas County v. Taylor, 50 Neb. 535, 70 N.W. 27 (1897).

A city is liable to a lot owner for the diminution in value of his property caused by construction of a sewer, built by the city near his lot, on which a brick building had been erected before the sewer grade was established. City of Plattsmouth v. Boeck, 32 Neb. 297, 49 N.W. 167 (1891).

A city is liable to a lot owner for such damages as he may sustain by filling in the street in front of his lot above the level of the same, when the buildings were erected on the lot before any grade was established or by reason of filling in street. Hammond v. City of Harvard, 31 Neb. 635, 48 N.W. 462 (1891); Harmon v. City of Omaha, 17 Neb. 548, 23 N.W. 503 (1885).

Depreciation in value in construction of public improvements entitles abutting owner to just compensation therefor. Chicago, K. & N. Ry. Co. v. Hazels, 26 Neb. 364, 42 N.W. 93 (1889).

Before section line road can be opened and worked, the damages suffered by the owners whose lands are taken must be ascertained and paid. Chicago, B. & Q. R. R. Co. v. Douglas County, 1 Neb. Unof. 247, 95 N.W. 339 (1901).

4. Damages

The diminution in market value establishes the damages in an eminent domain case, and the term "consequential damage" only defines the kinds of damages which are compensable. Walkenhorst v. State, Dept. of Roads, 253 Neb. 986, 573 N.W.2d 474 (1998).

When private property has been damaged for public use, the owner is entitled to seek compensation in a direct action under this constitutional provision, regardless of whether the plaintiff could have sued in tort under the Political Subdivisions Tort Claims Act. Uhing v. City of Oakland, 236 Neb. 58, 459 N.W.2d 187 (1990).

Where cropland, no part of which is taken, temporarily suffers compensable damage, the measure of compensation is not the market value, but the value of the use for the period damaged, i.e., the value of the crops which could and would have been grown upon the land. Kula v. Prososki, 228 Neb. 692, 424 N.W.2d 117 (1988).

When a political subdivision with the power of eminent domain damages property for a public use, the property owner may seek damages in an action for tort, in an action for inverse condemnation under the provisions of sections 76-701 to 76-725, or in an action under the language of this provision. Slusarski v. County of Platte, 226 Neb. 889, 416 N.W.2d 213 (1987).

When private property has been damaged for a public use, the owner of such property is entitled to seek compensation in an action under this section. Parriott v. Drainage District No. 6 of Peru, 226 Neb. 123, 410 N.W.2d 97 (1987).

An irrigation district may be liable for damage due to seepage without proof of negligence if the district's activities caused the seepage. Wood v. Farwell Irr. Dist., 217 Neb. 511, 349 N.W.2d 633 (1984).

Under this section, an irrigation district is strictly liable for seepage damage. Lindgren v. City of Gering, 206 Neb. 360, 292 N.W.2d 921 (1980).

Damages caused by fire spreading from municipal dump onto land of plaintiff is within protection of this section. Colburn v. City of Valentine, 183 Neb. 391, 160 N.W.2d 203 (1968).

An abutting property owner is entitled to recover damages resulting from material impairment of his right of access to an existing highway. Swanson v. State, 178 Neb. 671, 134 N.W.2d 810 (1965).

Recovery could be had where prohibition was imposed by statute upon use of land for display of highway signs. Fulmer v. State, 178 Neb. 20, 131 N.W.2d 657 (1964), opinion withdrawn, 178 Neb. 664, 134 N.W.2d 798 (1965).

All actual damages resulting from exercise of power of eminent domain which diminish market value of property not taken may be recovered. Pieper v. City of Scottsbluff, 176 Neb. 561, 126 N.W.2d 865 (1964).

Tenant was entitled to recover damages for deprivation of right to produce crop. State v. Dillon, 175 Neb. 350, 121 N.W.2d 798 (1963).

The words "or damaged" include all actual damages resulting from the exercise of the power of eminent domain. Leffelman v. City of Hartington, 173 Neb. 259, 113 N.W.2d 107 (1962).

Constitutional provision does not change measure of damages in taking of leasehold. Ballantyne Co. v. City of Omaha, 173 Neb. 229, 113 N.W.2d 486 (1962).

Agreement by city to construct median and barrier curbs in street did not violate this section. Hillerege v. City of Scottsbluff, 164 Neb. 560, 83 N.W.2d 76 (1957).

Temporary damage created by maintenance of a public city dump was recoverable. Patrick v. City of Bellevue, 164 Neb. 196, 82 N.W.2d 274 (1957).

All actual damages resulting from exercise of power of eminent domain may be recovered. Platte Valley Public Power & Irr. Dist. v. Armstrong, 159 Neb. 609, 68 N.W.2d 200 (1955).

Injury to entire property consisting of several city lots could be considered. Rath v. Sanitary District No. One of Lancaster County, 156 Neb. 444, 56 N.W.2d 741 (1955).

All damages which diminish market value of private property may be recovered. Quest v. East Omaha Drainage Dist., 155 Neb. 538, 52 N.W.2d 417 (1952).

Landowner is assured of recovery in one action of the whole damage sustained. Little v. Loup River Public Power Dist., 150 Neb. 864, 36 N.W.2d 261 (1949).

Proof of negligence or the commission of a wrongful act is not necessary to a recovery. Wagner v. Loup River Public Power Dist., 150 Neb. 7, 33 N.W.2d 300 (1948).

Damages from seepage caused by public power and irrigation districts can be recovered under this provision without regard to negligence. Halligan v. Elander, 147 Neb. 709, 25 N.W.2d 13 (1946).

Suit may be maintained against state under this section for improper construction of state highway. Schmutte v. State, 147 Neb. 193, 22 N.W.2d 691 (1946).

The words "or damaged" include all actual damages resulting from the exercise of the right of eminent domain which diminish the market value of private property. Robinson v. Central Nebraska Public Power & Irr. Dist., 146 Neb. 534, 20 N.W.2d 509 (1945).

Legislative act conditionally destroying right to recover damages arising from flooding of lands by drainage district violated this section. Cooper v. Sanitary Dist. No. 1 of Lancaster County, 146 Neb. 412, 19 N.W.2d 619 (1945).

Damages sustained by all property owners alike arising from removal and relocation of railroad cannot be recovered under this provision of the Constitution. Scully v. Central Nebraska Public Power & Irr. Dist., 143 Neb. 184, 9 N.W.2d 207 (1943).

Measure of damages for land taken for public use is the fair and reasonable market value of the land actually taken and the difference in the fair and reasonable market value of the remainder of the land before and after the taking. Schultz v. Central Nebraska Public Power & Irr. Dist., 138 Neb. 529, 293 N.W. 409 (1940).

In action for damages to land caused by seepage from reservoir, recovery for loss of crops for 1936 and 1937, and for depreciation of land at time of trial was proper. Applegate v. Platte Valley Public Power & Irr. Dist., 136 Neb. 280, 285 N.W. 585 (1939).

The words "or damaged" include all damages arising from the exercise of right of eminent domain which cause a diminution in value of a leasehold. James Poultry Co. v. Nebraska City, 135 Neb. 787, 284 N.W. 273 (1939).

A city is liable to owner of abutting real estate for damages caused by changing the grade of street. Quivey v. City of Mitchell, 133 Neb. 727, 277 N.W. 50 (1938).

Rule of damages is value of land actually taken and also depreciation in value of remainder of tract, exclusive of general benefits. Regouby v. Dawson County Irr. Co., 126 Neb. 711, 254 N.W. 389 (1934).

Subsequent change in highway grade to facilitate travel is not basis for action for additional damages. Psota v. Sherman County, 124 Neb. 154, 245 N.W. 405 (1932).

Organizer of irrigation district under the statutes waives right to compensation under this section for damages to property and accepts in lieu thereof the statutory remedy. Omaha Life Ins. Co. v. Gering & Ft. Laramie Irr. Dist., 123 Neb. 761, 244 N.W. 296 (1932).

One whose land is damaged temporarily for public use by the construction of a public improvement by the state suffers such a damage as requires compensation under this section. Gledhill v. State, 123 Neb. 726, 243 N.W. 909 (1932).

Seepage from irrigation ditches does not entitle adjoining landowners to damages for taking or damaging property for public use. Livanis v. Northport Irr. Dist., 121 Neb. 777, 238 N.W. 757 (1931); Spurrier v. Mitchell Irr. Dist., 119 Neb. 401, 229 N.W. 273 (1930), overruled in Snyder v. Platte Valley P. P. & I. Dist., 144 Neb. 308, 13 N.W.2d 160 (1944).

Liability of drainage district extends to damages caused by reason of volume of water passed on plaintiff's land. Compton v. Elkhorn Valley Drainage Dist., 120 Neb. 94, 231 N.W. 685 (1930).

The words "or damaged" include all damages causing diminution in value by reason of vacating public highway. Lowell v. Buffalo County, 119 Neb. 776, 230 N.W. 842 (1930).

Construction of drainage ditches across public highway does not damage abutting property within meaning of Constitution. Douglas County v. Papillion Drainage Dist., 92 Neb. 771, 139 N.W. 718 (1913).

Where in the performance of duty railroads may be required, when necessary, to construct viaducts over and across their tracks, they are liable for damages to any person whose property is injured by such construction. Phoenix Mutual Life Ins. Co. v. City of Lincoln, 91 Neb. 150, 135 N.W. 445 (1912).

In the taking or damaging of private property by a drainage district corporation in carrying out the purposes of its organization, landowner is entitled to damages for the location of a highway or the construction of a railroad. Nemaha Valley Drainage Dist. No. 2 v. Marconnit, 90 Neb. 514, 134 N.W. 177 (1912).

Measure of damages for lowering the surface of street in front of lots was the difference between market value of the real estate immediately before and after the grading. Whelan v. City of Plattsmouth, 87 Neb. 824, 128 N.W. 520 (1910).

Granting of right-of-way for construction and maintenance of poles and wires does not permit the trimming of trees without responding in damages. Slabaugh v. Omaha Electric Light & Power Co., 87 Neb. 805, 128 N.W. 505 (1910).

One whose land is traversed by a drainage ditch is entitled to recover the value of the land actually taken therefor, together with special damages, if any, to the remainder, but not in such proceedings the damages sustained for neglect of county board to keep a previously established ditch free from silt and debris. Gutschow v. Washington County, 81 Neb. 275, 116 N.W. 46 (1908).

Where city partially vacates a street and builds a viaduct thereon opposite landowner's real estate abutting on such street, thereby diminishing the convenience of access to such property, the true measure of damages is the difference in value of property before and immediately after the improvement, unaffected by increase or decrease of property values generally in same vicinity. Gillespie v. South Omaha, 79 Neb. 441, 112 N.W. 582 (1907).

The words "or damaged" include smoke, soot, noise, and convenience of ingress and egress. Stehr v. Mason City & Fort Dodge Ry. Co., 77 Neb. 641, 110 N.W. 701 (1906).

A person whose property has been taken for a highway is entitled not only to the fair market value of the land actually taken, but also such additional damages as accrue to the remainder of the tract by reason of the opening of the road. Scace v. Wayne County, 72 Neb. 162, 100 N.W. 149 (1904).

The words "or damaged" include all damages arising from the exercise of the right of eminent domain which cause a diminution in the value of private property. City of Omaha v. Kramer, 25 Neb. 489, 41 N.W. 295 (1889).

The insertion of the words "or damaged" was intended to give a right of recovery which did not previously exist, and was not intended to limit or restrict any remedy previously existing. Omaha & R. V. R. R. Co. v. Standen, 22 Neb. 343, 35 N.W. 183 (1887).

The words "or damaged" were added to Constitution to grant relief in cases where no direct injury to the real estate, but some physical disturbance of a right possessed by owner in connection therewith. Gottschalk v. C., B. & Q. R. R., 14 Neb. 550, 16 N.W. 475 (1883), 17 N.W. 120 (1883).

Where damages for original construction have been settled or barred, railroad company is not liable to neighboring property owners for damages from smoke. Thompson v. Kimball, 165 F.2d 677 (8th Cir. 1948).

Operator of irrigation canal under state authority is liable for incidental damage to private property. Hooker v. Farmers Irr. Dist., 272 F. 600 (8th Cir. 1921).

5. Just compensation

The Nebraska Constitution limits the sovereign's absolute power to take private property by requiring that property owners whose property has been taken or damaged for public use under the eminent domain authority be compensated. Burlington Northern and Santa Fe Ry. Co. v. Chaulk, 262 Neb. 235, 631 N.W.2d 131 (2001).

Payment of just compensation applies only to vested property rights. Tracy v. City of Deshler, 253 Neb. 170, 568 N.W.2d 903 (1997).

Where city of Fairbury obtained an easement by prescription across plaintiffs' land for public sewer, compensation of plaintiffs referred to in this section not required. Beach v. City of Fairbury, 207 Neb. 836, 301 N.W.2d 584 (1981).

Right of landowner to just compensation for property taken or damaged for public use is guaranteed by this section. W.E.W. Truck Lines, Inc. v. State, 178 Neb. 218, 132 N.W.2d 782 (1965).

Right of landowner or lessee to just compensation for property taken or damaged for public use is guaranteed by this section. Balog v. State, 177 Neb. 826, 131 N.W.2d 402 (1964).

Landowner could not be deprived without compensation of right to reversion of property upon vacation of street. Dell v. City of Lincoln, 170 Neb. 176, 102 N.W.2d 62 (1960).

Exercise of power of eminent domain has been limited only insofar as it is required that just compensation shall be paid for all property taken or damaged. Burnett v. Central Neb. P. P. & I. Dist., 147 Neb. 458, 23 N.W.2d 661 (1946).

Owner is entitled to recover full compensation for land actually taken and such damages to the remainder as are equivalent to diminution in the fair market value thereof. Langdon v. Loup River Public Power Dist., 144 Neb. 325, 13 N.W.2d 168 (1944).

Condemner is required to compensate for property taken, and also for consequential damage to other property in excess of damage sustained by the public at large. Snyder v. Platte Valley Public Power & Irr. Dist., 144 Neb. 308, 13 N.W.2d 160 (1944).

Temporary damage caused by acquisition of an easement for construction of electric transmission line requires payment of compensation. Pierce v. Platte Valley Public Power & Irr. Dist., 143 Neb. 898, 11 N.W.2d 813 (1943).

Section cited in stating contention of public power and irrigation district that assessments for drainage ditch were beyond the benefits conferred, and operated to take property without compensation in violation of this section. Loup River Public Power Dist. v. County of Platte, 141 Neb. 29, 2 N.W.2d 609 (1942).

In a proceeding to condemn riparian land for public use, consequential damages to other land in the same tract are not limited to governmental section a part of which is included in the land actually taken, where depreciation in the value of the remainder extends beyond those sections. McGinley v. Platte Valley Public Power & Irr. Dist., 133 Neb. 420, 275 N.W. 593 (1937). (Syllabus No. 2, McGinley v. Platte Valley Dist., 132 Neb. 292, 271 N.W. 864 (1937), withdrawn.)

A public power and irrigation district is not authorized to condemn and take private property for public use without just compensation. State ex rel. Loseke v. Fricke, 126 Neb. 736, 254 N.W. 409 (1934).

The compensation for land taken by eminent domain is measured by its market value at the time taken, and no evidence is admissible of its peculiar value for special reasons to its owner. Wiles v. Department of Public Works, 120 Neb. 689, 234 N.W. 918 (1931).

"Just compensation" means market value at time of taking, and includes interest from time owner deprived of use pending appeal. Sioux City R. R. Co. v. Brown, 13 Neb. 317, 14 N.W. 407 (1882).

Compensation shall be made for the fair market value of the land actually taken, while special benefits may be set off against any local or incidental injury. Wagner v. Gage County, 3 Neb. 237 (1874).

Statute requiring railroads to construct sidetracks to elevators along right-of-way of railway company is taking property without just compensation. Missouri Pacific Railway Co. v. State, 217 U.S. 196 (1910), reversing State No. Missouri Pacific Railway Co., 81 Neb. 15, 115 N.W. 614 (1908).

Loss of market place by landowner, due to removal of town occasioned by condemnation for reservoir site, is a damage common to all of the inhabitants around it, and does not deprive the landowner of property without just compensation. Feltz v. Central Nebraska Public Power & Irr. Dist., 124 F.2d 578 (8th Cir. 1942).

6. Compensation, payment

Change from a two-way street to a one-way street is not ordinarily compensable in eminent domain proceedings. Painter v. State, 177 Neb. 905, 131 N.W.2d 587 (1964).

Restricting funds from which a public power and irrigation district may pay for private property taken or damaged solely to revenue derived from operation, does not violate constitutional provision. Johnson v. Platte Valley Public Power & Irr. Dist., 133 Neb. 97, 274 N.W. 386 (1937).

Public utility property cannot be acquired by a city by condemnation without paying for it. City of Mitchell v. Western Public Service Co., 124 Neb. 248, 246 N.W. 484 (1933).

Though claim for damages not filed by owner in time, county cannot appropriate land for road without paying damages. Weinel v. Box Butte County, 108 Neb. 293, 187 N.W. 939 (1922).

Lessee of school land is entitled to damages before road opened. Beste v. Cedar County, 87 Neb. 689, 128 N.W. 29 (1910).

Payment need not, unless so provided by law, precede actual taking; it is for the Legislature to determine manner of taking and time and manner of payment. State v. Several Parcels of Land, 79 Neb. 638, 113 N.W. 248 (1907).

Object of section is to stay the hand of the sovereign from the property of the individual until proper compensation has been made. Hopper v. Douglas County, 75 Neb. 329, 106 N.W. 330 (1905).

Until compensation of the landowner has been made sure and certain, he may not be compelled to give up his property, and the public use of the same may be enjoined. Morris v. Washington County, 72 Neb. 174, 100 N.W. 144 (1904).

Statute for depositing award with county judge is only intended as security and does not constitute payment. Brown v. Chicago, R. I. & P. Ry. Co., 66 Neb. 106, 92 N.W. 128 (1902).

Owner of property taken by eminent domain proceedings is not compensated until the sum to which he is entitled is paid or tendered to him or to someone authorized by him to receive it. Brown v. Chicago, R. I. & P. Ry. Co., 64 Neb. 62, 89 N.W. 405 (1902).

A landowner cannot be required to surrender his land for a public use until his damages are first ascertained, and either paid or proper provision made for their payment. Lewis v. City of Lincoln, 55 Neb. 1, 75 N.W. 154 (1898); Hodges v. Board of Supervisors of Seward County, 49 Neb. 666, 68 N.W. 1027 (1896); Hogsett v. Harlan County, 4 Neb. Unof. 310, 97 N.W. 316 (1903).

The just compensation required to be made for taking private property for public use, must, before such taking, be ascertained and payment made accordingly, whether the appropriation of such property is by a municipal or other corporation. Livingston v. County Commissioners of Johnson County, 42 Neb. 277, 60 N.W. 555 (1894).

7. Miscellaneous

The Nebraska Constitution's limit on the sovereign power of eminent domain set forth in this provision applies to temporary as well as permanent takings. Burlington Northern and Santa Fe Ry. Co. v. Chaulk, 262 Neb. 235, 631 N.W.2d 131 (2001).

As this provision is self-executory, a petition alleging that one's property was damaged for a public use is sufficient as against a general demurrer, notwithstanding the fact that the petition refers neither to this article and section nor to the pertinent constitutional language. Slusarski v. County of Platte, 226 Neb. 889, 416 N.W.2d 213 (1987).

To recover damages for loss of or damage to land taken for a public use under this section, it is not necessary that the constitutional provision be set out or its existence alleged in the petition stating the cause of action. It is sufficient for the litigant to allege and prove facts constituting a cause of action because of the loss. Kula v. Prososki, 219 Neb. 626, 365 N.W.2d 441 (1985).

A city may not require a property owner to dedicate private property for some future public purpose as a condition for receiving a building permit unless such future use is directly occasioned by the construction for which the permit is sought. In other cases, eminent domain proceedings are required and compensation must be paid. Simpson v. City of North Platte, 206 Neb. 240, 292 N.W.2d 297 (1980).

When construing eminent domain statutes fundamental concept of this section must be considered. Keller v. State, 184 Neb. 853, 172 N.W.2d 782 (1969).

Cited in a reverse condemnation action. Dietloff v. City of Norfolk, 183 Neb. 648, 163 N.W.2d 586 (1968).

Act of Legislature authorizing city of primary class to annex contiguous or adjacent lands did not violate this section. Campbell v. City of Lincoln, 182 Neb. 459, 155 N.W.2d 444 (1968).

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

Constitutionality of Municipal Ground Water Act raised, but not decided. Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 140 N.W.2d 626 (1966).

An owner of land is not entitled to recover damages for barricade of a county road where he does not suffer an injury different in kind from the public at large. Fougeron v. County of Seward, 174 Neb. 753, 119 N.W.2d 298 (1963).

This section is self-executing. Legislative action is not necessary to make it available. Gentry v. State, 174 Neb. 515, 118 N.W.2d 643 (1962).

Rural Cemetery District Act violated this provision of the Constitution. Anderson v. Carlson, 171 Neb. 741, 107 N.W.2d 535 (1961).

Weather Control Act of 1957 violated this section. Summerville v. North Platte Valley Weather Control Dist., 170 Neb. 46, 101 N.W.2d 748 (1960).

Filing of claim for damages under statute is not a condition precedent to maintenance of action. Armbruster v. Stanton-Pilger Drainage Dist., 165 Neb. 459, 86 N.W.2d 56 (1957).

Statute providing for appointment of district judges as appraisers in condemnation proceedings meets all the requirements of due process. May v. City of Kearney, 145 Neb. 475, 17 N.W.2d 448 (1945).

Zoning ordinance sustained as constitutional. Dundee Realty Co. v. City of Omaha, 144 Neb. 448, 13 N.W.2d 634 (1944).

Provision is self-executing and no waiver of immunity of state from suit is required. Bordy v. State, 142 Neb. 714, 7 N.W.2d 632 (1943).

Where a party having the right to condemn lands takes possession without instituting condemnation proceedings, the owner may waive this feature and recover compensation. Dawson County Irr. Dist. v. Stuart, 142 Neb. 435, 8 N.W.2d 507 (1943).

In action against city for taking and damaging realty for public use without just compensation, it is not necessary that property owner plead or prove that she filed claim with city as provided by city charter. Bridge v. City of Lincoln, 138 Neb. 461, 293 N.W. 375 (1940).

Statute imposing restrictions regarding automobile brake and light equipment and providing for inspection, was not violative of constitutional provision. Beisner v. Cochran, 138 Neb. 445, 293 N.W. 289 (1940).

Housing authority acts did not violate constitutional provision prohibiting taking or damaging private property for public use without compensation. Lennox v. Housing Authority of City of Omaha, 137 Neb. 582, 290 N.W. 451 (1940).

The Legislature cannot waive sovereignty of state in favor of a particular person or persons to permit suit against state for negligence of its agents and servants. Cox v. State, 134 Neb. 751, 279 N.W. 482 (1938).

Noisome odors from city sewage is not damaging of private property entitling owner to injunction where nuisance may be corrected by chemical treatment of sewage. Hall v. City of Friend, 134 Neb. 652, 279 N.W. 346 (1938).

Moratorium Law provided for the taking of private property for public use without just compensation. First Trust Co. of Lincoln v. Smith, 134 Neb. 84, 277 N.W. 762 (1938).

Where the state acquired legal title to mortgaged real estate it cannot be made defendant in foreclosure suit without its consent. Northwestern Mutual Life Ins. Co. v. Nordhues, 129 Neb. 379, 261 N.W. 687 (1935).

Suit against state for infringement of patent can not be brought in state court on theory that plaintiff's property is taken for public use without compensation. Thimgan v. State, 125 Neb. 696, 251 N.W. 837 (1933).

Where employees of the state enter upon land, against the will of the owner, under a void appraisement for damages and attempt to use his land for highway purposes without compensation paid or tendered, they may be restrained by injunction. Goergen v. Department of Public Works, 123 Neb. 648, 243 N.W. 886 (1932).

The Legislature has power to formulate, prescribe, enlarge, modify and alter remedies; provided, however, it does not, under the guise of a statute relating to procedure, attempt to deprive any person of a right secured by the Constitution. Croft v. Scotts Bluff County, 121 Neb. 343, 237 N.W. 149 (1931).

Zoning ordinance was valid under the police power, having substantial relation to the public health, safety and general welfare. City of Lincoln v. Foss, 119 Neb. 666, 230 N.W. 592 (1930).

Owner standing by and neglecting to assert constitutional rights while paving construction is going on, cannot enforce his constitutional rights by means of injunction in a court of equity when he has an adequate remedy at law. Meyer v. City of Alma, 117 Neb. 511, 221 N.W. 438 (1928).

The right of eminent domain cannot be exercised to take land against landowners consent as a site for a reservoir from which to irrigate private property. Vetter v. Broadhurst, 100 Neb. 356, 160 N.W. 109 (1916).

This section is self-executing, and it requires no legislation to prevent private property from being taken or damaged for public use without just compensation. Hopper v. Douglas County, 75 Neb. 329, 106 N.W. 330 (1905); Douglas County v. Taylor, 50 Neb. 535, 70 N.W. 27 (1897).

Mere passive acquiescence by landowner, unaccompanied by conduct indicating affirmative assent, is not waiver of right to compensation. Kime v. Cass County, 71 Neb. 677, 99 N.W. 546 (1904), affirmed on rehearing 71 Neb. 680, 101 N.W. 2 (1904).

Levying special assessments upon tracts of land adjacent to proposed drainage ditch for special benefits received does not violate this section. Dodge County v. Acom, 61 Neb. 376, 85 N.W. 292 (1901).

It is not incumbent upon property owner to take affirmative action as condition precedent to protecting his rights. Propst v. Cass County, 51 Neb. 736, 71 N.W. 748 (1897).

Land is appropriated when its corpus is seized and devoted to an improvement so as to deprive owner of use, and it is not necessary that owner be divested of fee. Martin v. Fillmore County, 44 Neb. 719, 62 N.W. 863 (1895).

Legislature may regulate remedy and prescribe forms to be observed to enforce law, but such regulation must be reasonable and by general laws of uniform operation. City of Lincoln v. Grant, 38 Neb. 369, 56 N.W. 995 (1893).

Legislature has no power to take property of one citizen and transfer it to another, even when full compensation made. Jenal v. Green Island Draining Co., 12 Neb. 163, 10 N.W. 547 (1881).

Public cannot, by means of assessment of benefits against abutting property, reimburse itself for payment of damages occasioned by changing of street grade. Goodrich v. City of Omaha, 10 Neb. 98, 4 N.W. 424 (1880).

I-22 Elections to be free; identification required.

Reissue Revised Statutes of Nebraska

I-22

Elections to be free; identification required.

(1) All elections shall be free; and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise.

(2) Before casting a ballot in any election, a qualified voter shall present valid photographic identification in a manner specified by the Legislature to ensure the preservation of an individual’s rights under this Constitution and the Constitution of the United States.

Neb. Const. art. I, sec. 22 (1875);

Amended 2022, Initiative Measure No. 432.

1. Nominations

2. Miscellaneous

1. Nominations

Legislature is authorized to establish different qualifications for voters in a school district election. Farrell v. School Dist. No. 54 of Lincoln County, 164 Neb. 853, 84 N.W.2d 126 (1957).

This provision does not operate to circumscribe power of Legislature to define the method of effecting the appointment of presidential electors. State ex rel. Beeson v. Marsh, 150 Neb. 233, 34 N.W.2d 279 (1948).

Statutes regulating nomination and election of candidates and prescribing formation of new party are constitutional, if elections are left free and open to all electors. State ex rel. Nelson v. Marsh, 123 Neb. 423, 243 N.W. 277 (1932).

Statute providing for nomination of delegates to constitutional convention by petition only, does not infringe this section, which applies to elections and not to method of nomination. Baker v. Moorhead, 103 Neb. 811, 174 N.W. 430 (1919).

Legislature may regulate nomination of candidates provided regulations are reasonable and do not unnecessarily hamper or impede right of voter to vote for whomsoever he pleases. Morrissey v. Waite, 92 Neb. 271, 138 N.W. 186 (1912).

Statute describing form of official ballot but limiting candidates named thereon to nominees by petition, which has effect of depriving all electors excepting five hundred in each county of right to take part in nominating, violates Constitution. State ex rel. Ragan v. Junkin, 85 Neb. 1, 122 N.W. 473 (1909).

Statute requiring candidates for primary elections to pay fee for filing nomination papers, computed at 1 per cent of emoluments received as salary by that officer, is in conflict with Constitution. State ex rel. Adair v. Drexel, 74 Neb. 776, 105 N.W. 174 (1905).

2. Miscellaneous

Because the right to participate in representative government is not implicated by a referendum proceeding, the constitutional right to vote is not violated by the Nebraska Constitution's limitations on the right to refer legislative enactments to the voters. Pony Lake Sch. Dist. v. State Committee for Reorg., 271 Neb. 173, 710 N.W.2d 609 (2006).

The right to vote under this provision does not extend beyond issues involving the right to participate in representative government. Pony Lake Sch. Dist. v. State Committee for Reorg., 271 Neb. 173, 710 N.W.2d 609 (2006).

This section has no application to a public corporation or political subdivision where it operates in a proprietary capacity. Wittler v. Baumgartner, 180 Neb. 446, 144 N.W.2d 62 (1966).

The second reapportionment act enacted by the 1965 Legislature did not impede the right of a voter to exercise the elective franchise. Carpenter v. State, 179 Neb. 628, 139 N.W.2d 541 (1966).

Levy of tax for municipal university did not violate free elections clause. Ratigan v. Davis, 175 Neb. 416, 122 N.W.2d 12 (1963).

Holding an election shortly after a blizzard did not operate as a hindrance or impediment to the right to vote. Peterson v. Cook, 175 Neb. 296, 121 N.W.2d 399 (1963).

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

Offer of federal government to aid in remodeling of schoolhouse does not invalidate school district election to vote bonds for that purpose. Taxpayers League v. Benthack, 136 Neb. 277, 285 N.W. 577 (1939).

Requirement of Australian Ballot Law that signatures of two judges of election shall be on back of each ballot, is not inimical to constitutional provisions. Swan v. Bowker, 135 Neb. 405, 281 N.W. 891 (1938).

A statute substituting a municipal court for justice of peace courts which excludes electors outside of city but within jurisdiction of municipal court from voting for municipal judge, contravenes constitutional provision. State ex rel. Wright v. Brown, 131 Neb. 239, 267 N.W. 466 (1936).

Statute prohibiting candidate defeated at primary from filing by petition in general election next following is constitutional. State ex rel. Driscoll v. Swanson, 127 Neb. 715, 256 N.W. 872 (1934).

Statute restricting the right to petition for recall of city officers to voters whose names appear upon the registration list is not violative of this section. State ex rel. Miller v. Berg, 97 Neb. 63, 149 N.W. 61 (1914).

Election commissioner is required to accept statements of voter under oath as true and register him as a voter. State ex rel. Williams v. Moorhead, 96 Neb. 559, 148 N.W. 552 (1914).

Following this section, the law makes county clerk liable to forfeit his office and to be fined and imprisoned if he neglects to furnish correct ballots. Wahlquist v. Adams County, 94 Neb. 682, 144 N.W. 171 (1913).

To preserve right of voter at general election, it is not necessary that name of candidate should appear on ballot more than once, nor that he be described as member of more than one political party, as no party can be compelled to put forth as its candidate one who does not affiliate with it. State ex rel. Curyea v. Wells, 92 Neb. 337, 138 N.W. 165 (1912).

The right of every voter to vote a straight ticket for the candidates of his party is guaranteed and any attempt by deception or otherwise to deprive him of that right is a violation of the Constitution. State ex rel. Nebraska Republican State Central Committee v. Wait, 92 Neb. 313, 138 N.W. 159 (1912).

Legislature may control and regulate official ballot and manner of selection of names to be printed thereon, but cannot abolish nor prevent their formation, nor prevent free and open discussion of qualifications and fitness for office. State ex rel. Ragan v. Junkin, 85 Neb. 1, 122 N.W. 473 (1909).

In creation of drainage districts requirement that officers shall be elected by freeholders only does not violate Constitution. State ex rel. Harris v. Hanson, 80 Neb. 738, 117 N.W. 412 (1908).

Legislature may provide for election of officers not named in Constitution by means other than popular vote. State ex rel. Harris v. Hanson, 80 Neb. 724, 115 N.W. 294 (1908).

Where statutes require that ballot be signed by two judges of election, voter cannot be deprived of vote because some ballots were in good faith signed by clerk. Bingham v. Broadwell, 73 Neb. 605, 103 N.W. 323 (1905).

Electors of city cannot be deprived of right to vote for public officer because of failure of Legislature to make special provision for such election. State ex rel. Gordon v. Moores, 70 Neb. 48, 96 N.W. 1011 (1903), affirmed on rehearing 70 Neb. 56, 99 N.W. 504 (1904).

The requirements of the Australian Ballot Law that the names or signatures of the two judges of an election shall be written on the back of each ballot to be used, and that a ballot not so endorsed shall be void, and not counted, are mandatory, and are not inimical to constitutional provisions. Orr v. Bailey, 59 Neb. 128, 80 N.W. 495 (1899).

I-23 Capital cases; right of direct appeal; effect; other cases; right of appeal.

Reissue Revised Statutes of Nebraska

I-23

Capital cases; right of direct appeal; effect; other cases; right of appeal.

In all capital cases, appeal directly to the Supreme Court shall be as a matter of right and shall operate as a supersedeas to stay the execution of the sentence of death until further order of the Supreme Court. In all other cases, criminal or civil, an aggrieved party shall be entitled to one appeal to the appellate court created pursuant to Article V, section 1, of this Constitution or to the Supreme Court as may be provided by law.

Neb. Const. art I, sec. 23 (1875);

Amended 1972, Laws 1972, LB 196, sec. 1;

Amended 1990, Laws 1990, LR 8, sec. 1.

1. Right of review

2. Regulation of exercise of right

3. Miscellaneous

1. Right of review

Right to be heard on question of changes in boundaries of school district by error proceedings could not be denied. Languis v. De Boer, 181 Neb. 32, 146 N.W.2d 750 (1966).

Legislature cannot deprive courts of jurisdiction conferred on them by Constitution. Writ of prohibition is not abolished by statutory provisions. State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676 (1937).

Right of review of judgment rendered party at open public hearing is guaranteed by Constitution. State ex rel. Sorensen v. Nemaha County Bank of Auburn, 124 Neb. 883, 248 N.W. 650 (1933).

Right of review is to be held inviolate. State v. Odd Fellows Hall Assn., 123 Neb. 440, 243 N.W. 616 (1932).

2. Regulation of exercise of right

This section of the Nebraska Constitution does not bar either the Legislature or the Supreme Court from making reasonable rules and regulations governing review on appeal. Nebraska State Bank v. Dudley, 203 Neb. 226, 278 N.W.2d 334 (1979).

Requirement for furnishing of appeal bond in probate matter did not deprive party of right to be heard in court of last resort. Rundall v. Whiteside, 182 Neb. 176, 153 N.W.2d 236 (1967).

Right to be heard in civil case in Supreme Court is dependent upon its exercise in strict conformity to law. Weiner v. State, 179 Neb. 297, 137 N.W.2d 852 (1965).

This section does not prohibit the Legislature from prescribing reasonable rules for review of cause on appeal. Barney v. Platte Valley Public Power & Irr. Dist., 144 Neb. 230, 13 N.W.2d 120 (1944).

Constitutional provision does not prohibit Legislature from prescribing reasonable rules and regulations for the review of a cause by appeal. In re Estate of Kothe, 131 Neb. 531, 268 N.W. 464 (1936).

Legislature may prescribe reasonable rules and regulations for review of case on appeal. In re Estate of Mathews, 125 Neb. 737, 252 N.W. 210 (1933).

Section does not prevent Supreme Court from making reasonable rules to facilitate procedure, nor prohibit Legislature from taking away one method of review, provided another adequate one is left. Schmidt v. Boyle, 54 Neb. 387, 74 N.W. 964 (1898).

Legislature is not prohibited from prescribing reasonable regulations, such as requiring appellant to give bond. School Dist. No. 6 of Cass County v. Traver, 43 Neb. 524, 61 N.W. 720 (1895).

3. Miscellaneous

The writ of error is a writ of right in all cases of felony. State v. Longmore, 178 Neb. 509, 134 N.W.2d 66 (1965).

Judicial discretion should be exercised to promote rather than to defeat right of review. Keil v. Farmers' Irr. Dist., 119 Neb. 503, 229 N.W. 898 (1930).

Statute denying right of review in mortgage foreclosure suit, where defendant files request for stay, will be strictly construed. Theisen v. Peterson, 114 Neb. 154, 206 N.W. 768 (1925).

Court of equity will grant new trial where party is deprived of right of review because, without his fault, he was unable to obtain bill of exceptions or transcript. Ferber v. Leise, 97 Neb. 795, 151 N.W. 307 (1915); Zweibel v. Caldwell, 72 Neb. 47, 99 N.W. 843 (1904), motion for rehearing overruled 72 Neb. 53, 102 N.W. 84 (1905).

Section does not give absolute right to oral argument, but was intended in sense of review. Schmidt v. Boyle, 54 Neb. 387, 74 N.W. 964 (1898).

I-24 Repealed 1990. Laws 1990, LR 8, sec. 1.

Reissue Revised Statutes of Nebraska

I-24

Repealed 1990. Laws 1990, LR 8, sec. 1.

I-25 Rights of property; no discrimination; aliens.

Reissue Revised Statutes of Nebraska

I-25

Rights of property; no discrimination; aliens.

There shall be no discrimination between citizens of the United States in respect to the acquisition, ownership, possession, enjoyment or descent of property. The right of aliens in respect to the acquisition, enjoyment and descent of property may be regulated by law.

Neb. Const. art. I, sec. 25 (1875);

Amended 1920, Constitutional Convention, 1919-1920, No. 2.

1. Discrimination

2. Rights of aliens

3. Miscellaneous

1. Discrimination

Statute abrogating a right of action for a future tort does not violate this section. State Securities Co. v. Norfolk Livestock Sales Co., Inc., 187 Neb. 446, 191 N.W.2d 614 (1971).

Prohibiting wholesalers from giving discounts to retailers for quantity purchases of alcoholic liquor does not violate this section. Central Markets West, Inc. v. State, 186 Neb. 79, 180 N.W.2d 880 (1970).

Harm caused by statute permitting independent hospital district to fractionate territory of counties insufficient to constitute violation of this section. Shadbolt v. County of Cherry, 185 Neb. 208, 174 N.W.2d 733 (1970).

Prohibiting retailer from accepting credit for purchase of beer from wholesaler while permitting acceptance of credit on purchase of liquor is constitutional. Tom & Jerry, Inc. v. Nebraska Liquor Control Commission, 183 Neb. 410, 160 N.W.2d 232 (1968).

A citizen may not only acquire property but he may sell it at such price as he can obtain in fair barter. Burger v. City of Beatrice, 181 Neb. 213, 147 N.W.2d 784 (1967).

Penalty for failure to return personal property for taxation was discriminatory and void under this section. Bachus v. Swanson, 179 Neb. 1, 136 N.W.2d 189 (1965).

Statute requiring fencing of right-of-way by railroads did not discriminate between citizens with respect to ownership and enjoyment of property. Linenbrink v. Chicago & N.W. Ry. Co., 177 Neb. 838, 131 N.W.2d 417 (1964).

Every citizen has the right to acquire property and sell it at such price as he can obtain in fair barter. Elder v. Doerr, 175 Neb. 483, 122 N.W.2d 528 (1963).

Levy of tax for municipal university did not violate discrimination clause. Ratigan v. Davis, 175 Neb. 416, 122 N.W.2d 12 (1963).

City ordinance prescribing charge for conducting business of commercial aerial spraying did not violate this section. City of Ord v. Biemond, 175 Neb. 333, 122 N.W.2d 6 (1963).

Penalty provisions of tax statute were discriminatory and violated this section. Creigh v. Larsen, 171 Neb. 317, 106 N.W.2d 187 (1960).

Amendments to Blue-Sky Law did not violate this section. Davis v. Walker, 170 Neb. 891, 104 N.W.2d 479 (1960).

Public Auction Law was discriminatory and not based upon reasonable classification. Blauvelt v. Beck, 162 Neb. 576, 76 N.W.2d 738 (1956).

Curb-cut ordinance admitted by demurrer to be discriminatory and not a reasonable exercise of police power violated this section. Panebianco v. City of Omaha, 151 Neb. 463, 37 N.W.2d 731 (1949).

Housing Authority Act sustained as constitutional. Lennox v. Housing Authority of City of Omaha, 137 Neb. 582, 290 N.W. 451 (1940).

Limitation on lawful business creating a monopoly violates this section. Nelsen v. Tilley, 137 Neb. 327, 289 N.W. 388 (1939).

Regulation of size of containers in which alcoholic liquors are sold at retail is not violative of this section. Marsh & Marsh v. Carmichael, 136 Neb. 797, 287 N.W. 616 (1939).

The constitutional right to acquire and possess property includes the right to dispose of it in such innocent manner as the owner pleases. State ex rel. English v. Ruback, 135 Neb. 335, 281 N.W. 607 (1938).

Zoning ordinance was not discriminatory. City of Lincoln v. Foss, 119 Neb. 666, 230 N.W. 592 (1930).

Statute providing for tuberculin test making distinction between breeding cattle and feeding cattle and authorizing summary destruction of diseased animals, is constitutional. State ex rel. Spillman v. Splittgerber, 119 Neb. 436, 229 N.W. 332 (1930).

Former statute prohibiting trial of divorce suit within six months after service of summons is not violative of this section. Garrett v. State, 118 Neb. 373, 224 N.W. 860 (1929).

Occupation tax on "rolling store" was not discriminatory. Erwin v. City of Omaha, 118 Neb. 331, 224 N.W. 692 (1929).

"Cedar Rust" law is constitutional. Upton v. Felton, 4 F.Supp. 585 (D. Neb. 1932).

2. Rights of aliens

Provision precluding distinction between resident aliens and citizens was inapplicable to nonresident wife of resident alien. Engen v. Union State Bank of Harvard, 121 Neb. 257, 236 N.W. 741 (1931).

Legislature did not intend by Alien Act of 1889 to discriminate against the heirs of a resident alien in favor of the heirs of a nonresident. State ex rel. Toop v. Thomas, 103 Neb. 151, 172 N.W. 690 (1919).

Statutes limiting right of dower of nonresident widow to lands of which husband died seized, while extending right of dower to resident widow of other lands, does not violate Constitution. Miner v. Morgan, 83 Neb. 400, 119 N.W. 781 (1909).

The words "aliens" and "citizens" relate to political status of persons as respecting their relation to United States, while the word "residents" relates to status of persons with respect to State of Nebraska. Glynn v. Glynn, 62 Neb. 872, 87 N.W. 1052 (1901).

Statute denying aliens the right to take or hold title to real estate in Nebraska by descent or devise, with certain exceptions and qualifications, does not violate this section. Toop v. Ulysses Land Co., 278 F. 840 (D. Neb. 1913).

3. Miscellaneous

This provision of the Nebraska Constitution is no more demanding than the Equal Protection Clause of the U.S. Constitution. Mach v. County of Douglas, 259 Neb. 787, 612 N.W.2d 237 (2000).

I-26 Powers retained by people.

Reissue Revised Statutes of Nebraska

I-26

Powers retained by people.

This enumeration of rights shall not be construed to impair or deny others, retained by the people, and all powers not herein delegated, remain with the people.

Neb. Const. art. I, sec. 26 (1875).

L.B. 1003, Eighty-second Legislature, First Session, sections 23-2601 to 23-2612 does not contravene this section. Dwyer v. Omaha-Douglas Public Building Commission, 188 Neb. 30, 195 N.W.2d 236 (1972).

A state agency may not, by invoking the doctrine of police power, exercise powers not granted it by and inconsistent with provisions of the state Constitution. First Trust Co. of Lincoln v. Smith, 134 Neb. 84, 277 N.W. 762 (1938).

This section is characteristic of republican form of government and distinguishes such government from monarchy or oligarchy. State ex rel. Harte v. Moorhead, 99 Neb. 527, 156 N.W. 1067 (1916).

This section removes all doubt that powers other than those specified in bill of rights were retained by the people, and any act in violation of such rights is as clearly invalid as though same had been expressly prohibited by fundamental law. State ex rel. Smyth, Attorney General v. Moores, 55 Neb. 480, 76 N.W. 175 (1898), overruled in Redell v. Moores, 63 Neb. 219, 88 N.W. 243 (1901).

Police power is one of the powers which has been reserved by the people of the state, and which cannot be surrendered. Chicago, B. & Q. R. R. Co. v. State ex rel. City of Omaha, 47 Neb. 549, 66 N.W. 624 (1896).

I-27 English language to be official.

Reissue Revised Statutes of Nebraska

I-27

English language to be official.

The English language is hereby declared to be the official language of this state, and all official proceedings, records and publications shall be in such language, and the common school branches shall be taught in said language in public, private, denominational and parochial schools.

Neb. Const. art. I, sec. 27 (1920);

Adopted 1920, Constitutional Convention, 1919-1920, No. 3.

This section may be unconstitutional as applied to nonpublic schools, in light of Meyer v. Neb., 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). But Meyer concerned a statute enacted in 1919, and did not address this constitutional provision, which was enacted in 1920. The constitutionality of this section remains undecided.

I-28 Crime victims; rights enumerated; effect; Legislature; duties.

Reissue Revised Statutes of Nebraska

I-28

Crime victims; rights enumerated; effect; Legislature; duties.

(1) A victim of a crime, as shall be defined by law, or his or her guardian or representative shall have: The right to be informed of all criminal court proceedings; the right to be present at trial unless the trial court finds sequestration necessary for a fair trial for the defendant; and the right to be informed of, be present at, and make an oral or written statement at sentencing, parole, pardon, commutation, and conditional release proceedings. This enumeration of certain rights for crime victims shall not be construed to impair or deny others provided by law or retained by crime victims.

(2) The Legislature shall provide by law for the implementation of the rights granted in this section. There shall be no remedies other than as specifically provided by the Legislature for the enforcement of the rights granted by this section.

(3) Nothing in this section shall constitute a basis for error in favor of a defendant in any criminal proceeding, a basis for providing standing to participate as a party to any criminal proceeding, or a basis to contest the disposition of any charge.

Neb. Const. art. I, sec. 28 (1996);

Adopted 1996, Laws 1995, LR 21CA, sec. 1.

This provision is not self-executing. Legislative action is necessary to provide for the implementation of the rights provided herein. State ex rel. Lamm v. Nebraska Bd. of Pardons, 260 Neb. 1000, 620 N.W.2d 763 (2001).

I-29 Marriage; same-sex relationships not valid or recognized.

Reissue Revised Statutes of Nebraska

I-29

Marriage; same-sex relationships not valid or recognized.

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

Neb. Const. art. I, sec. 29 (2000);

Adopted 2000, Initiative Measure No. 416.

This section is unconstitutional in light of Obergefell v. Hodges, 135 S. Ct. 2584 (2015), as a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States. Waters v. Ricketts, 159 F. Supp. 3d 992 (D. Neb. 2016).

I-30 Discrimination or grant of preferential treatment prohibited; public employment, public education, or public contracting; section, how construed; remedies.

Reissue Revised Statutes of Nebraska

I-30

Discrimination or grant of preferential treatment prohibited; public employment, public education, or public contracting; section, how construed; remedies.

(1) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(2) This section shall apply only to action taken after the section's effective date.

(3) Nothing in this section prohibits bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(4) Nothing in this section shall invalidate any court order or consent decree that is in force as of the effective date of this section.

(5) Nothing in this section prohibits action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.

(6) For purposes of this section, state shall include, but not be limited to: (a) the State of Nebraska; (b) any agency, department, office, board, commission, committee, division, unit, branch, bureau, council, or sub-unit of the state; (c) any public institution of higher education; (d) any political subdivision of or within the state; and (e) any government institution or instrumentally of or within the state.

(7) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Nebraska's antidiscrimination law.

(8) This section shall be self executing. If any part or parts of this section are found to be in conflict with federal law or the Constitution of the United States, this section shall be implemented to the maximum extent that federal law and the Constitution of the United States permit. Any provision held invalid shall be severable from the remaining portions of this section.

Neb. Const. art. I, sec. 30 (2008); Adopted 2008, Initiative Measure No. 424.

I-31 Unborn children; protection from abortion; exceptions.

Reissue Revised Statutes of Nebraska

I-31

Unborn children; protection from abortion; exceptions.

Except when a woman seeks an abortion necessitated by a medical emergency or when the pregnancy results from sexual assault or incest, unborn children shall be protected from abortion in the second and third trimesters.

Neb. Const. art. I, sec. 31 (2024); Adopted 2024, Initiative Measure No. 434.

Constitution of Nebraska — Article I

I-1 Statement of rights.

I-2 Slavery prohibited.

I-3 Due process of law; equal protection.

I-4 Religious freedom.

I-5 Freedom of speech and press.

I-6 Trial by jury.

I-7 Search and seizure.

I-8 Habeas corpus.

I-9 Bail; fines; imprisonment; cruel and unusual punishment.

I-10 Presentment or indictment by grand jury; information.

I-11 Rights of Accused.

I-12 Evidence against self; double jeopardy.

I-13 Justice administered without delay; Legislature; authorization to enforce mediation and arbitration.

I-14 Treason.

I-15 Penalties; corruption of blood; transporting out of state prohibited.

I-16 Bill of attainder; retroactive laws; contracts; special privileges.

I-17 Military subordinate.

I-18 Soldiers quarters.

I-19 Right of peaceable assembly and to petition government.

I-20 Imprisonment for debt prohibited.

I-21 Private property compensated for.

I-22 Elections to be free; identification required.

I-23 Capital cases; right of direct appeal; effect; other cases; right of appeal.

I-24 Repealed 1990. Laws 1990, LR 8, sec. 1.

I-25 Rights of property; no discrimination; aliens.

I-26 Powers retained by people.

I-27 English language to be official.

I-28 Crime victims; rights enumerated; effect; Legislature; duties.

I-29 Marriage; same-sex relationships not valid or recognized.

I-30 Discrimination or grant of preferential treatment prohibited; public employment, public education, or public contracting; section, how construed; remedies.

I-31 Unborn children; protection from abortion; exceptions.

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