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Opinion 98007

DATE: January 23, 1998

SUBJECT: Legislation to Amend Proposed Boundary Compact With Missouri

REQUESTED BY: Roger R. Wehrbein, Senator, Nebraska Legislature

WRITTEN BY: Don Stenberg, Attorney General

Marie C. Pawol, Assistant Attorney General




You have posed two questions relating to LB 59, legislation

that would recognize the middle of the Missouri River channel as

the compromise boundary between the states of Missouri and

Nebraska. You note that an amendment (AM 1604) to LB 59 has been

introduced which proposes to establish a state fund for the

replacement of lost tax revenues sustained by any Nebraska

political subdivision as the result of lands ceded to another

state.




First, you question whether AM 1604 would be considered

"closed class" legislation, causing LB 59 to be declared

unconstitutional if enacted. Second, you ask whether AM 1604, or

any other possible amendment, would invalidate the proposed

boundary compact between Missouri and Nebraska, if enacted, since

Nebraska's legislation would not remain identical to that already

passed by Missouri's General Assembly.




As to the first inquiry, it is our opinion that the proposed

amendment does not constitute "special legislation" in violation of

Article III, § 18 of our State's Constitution. A legislative act

constitutes special legislation if it creates an arbitrary and

unreasonable method of classification, or if it establishes a

permanently "closed class." Haman v. Marsh, 237 Neb. 699, 467

N.W.2d 836 (1991). A closed class is one that limits the

application of the law to present conditions, and leaves no room or

opportunity for an increase in the numbers of the class by future

growth or development. City of Ralston v. Balka, 247 Neb. 773, 530

N.W.2d 594 (1995).




In determining whether a class is closed, courts are not

limited to reviewing the language used by the legislature, but may

also consider an act's practical application. So, if the prospect

that others will be added to a class is merely theoretical, and not

probable, the act nevertheless constitutes special legislation.

"The conditions for entry to the class must not only be possible,

but reasonably probable of attainment." Haman, 237 Neb. at 718,

467 N.W.2d at 849. In Haman v. Marsh, the Nebraska Supreme Court

determined that the class of depositors benefitted by the

challenged legislation was closed despite open-ended language of

the act. As noted by the court, "[t]he realities of the situation

are that except for a highly improbable set of events the class is

permanently closed to future members." Id. See also, Scottsbluff

v. Tiemann, 185 Neb. 256, 262, 175 N.W.2d 74 (1970)(legislation

directing certain cities to establish municipal courts found

unconstitutional because the act's reference to particular census

assured that, in practical operation, class was limited to two

cities).




On its face, AM 1604 is not restricted solely to those

political subdivisions impacted by the proposed boundary compact

between the states of Missouri and Nebraska. Nor, by its practical

application, is AM 1604 permanently closed to a set number of

political subdivisions. Rather, the amendment leaves open the

possibility that other political subdivisions may be included in

the class as the result of future state agreements or compacts that

entail the ceding of land within the State's borders. Thus, we

conclude that the class of political subdivisions identified by AM

1604 is not of a closed nature. See e.g., Hunzinger v. State, 39

Neb. 653, 58 N.W. 194 (1894)(an act will not be declared special

legislation, solely because at time of enactment there was only one

county to which provisions were applicable); State v. Stuht, 52

Neb. 209, 71 N.W. 941 (1897)(a law, general in character, although

affecting but one city, is constitutional); Omaha Parking Authority

v. City of Omaha, 163 Neb. 97, 77 N.W.2d 862 (1956)(legislature may

properly enact laws applicable to all cities of a given class even

though there is only one city presently within the class).




With respect to the second issue raised, it is our view that

amending LB 59 to include provisions not found in Missouri's

counterpart legislation will not undermine the ability of the

states to reach a valid compact, so long as any such amendment

places no burdens on the compact, and is not made part of the

compact agreement itself. In Northeast Bancorp, Inc. v. Board of

Gov'rs of the Federal Reserve System, 472 U.S. 174, 105 S. Ct.

2545, 2254 (1985), the United States Supreme Court outlined some of

the indicia of compacts. These include conditional consent by

member states in which each state is not free to modify or repeal

its participation unilaterally; and state enactments which require

reciprocal action for their effectiveness. See also, In People,

Ect. v. City of South Lake Tahoe, 466 F. Supp. 527, n.29 (E.D. Cal.

1978)("[i]n order to secure congressional approval of a bi-state

compact as required by the Constitution, the legislation enacted by

the states must be identical in every respect"); Seattle Master

Builders v. Pacific N.W. Elec. Power, 786 F.2d 1359, 1363 (9th Cir.

1986).




The "reciprocal legislation" noted in the foregoing cases,

however, is a reference to the compact agreement itself, not

recitals or administrative sections contained within the enabling

legislation that may necessarily differ between compacting states'

respective legislative proposals. See e.g. Bush v. Muncy, 659 F.2d

402, 412, n.8 (4th Cir. 1981)(noting that "local adaptations"

contained within states' respective compact proposals "are

perfectly compatible with a mutual intention of party states that

the substantive provisions of the compact shall be identical in

substance and hence subject to uniform application among all the

parties.") In short, so long as non-reciprocal terms are not

contained in the text of the agreement itself, and do not alter the

intended operation of the states' compact, such variants will not

undermine the validity of an interstate compact. As noted by the

court in C.T. Hellmuth v. Washington Metro. Area Trans., 414 F.

Supp. 408 (D. Maryland 1976):




It is within the competency of a State which is a party

to a compact with another State, to legislate in respect

of matters covered by the compact so long as such

legislative action is in approbation and not in

reprobation of the compact.




Kansas City Area Transp. Auth. v. State of Mo., 640 F.2d 173, 174

(8th Cir. 1981), quoting Henderson v. Delaware River Joint Toll

Bridge Comm'n, 362 Pa. 475, 66 A.2d 843, 849 (1949).




Thus, because the provisions contained in AM 1604 would not

impose burdens upon the operation of the proposed compact, there is

nothing to preclude its adoption. As a cautionary measure,

however, we would recommend that AM 1604 be modified to clarify

that its terms are not in reprobation of the compact, nor made a

part of the compact agreement itself. The inclusion of a

severability clause would also avoid any possibility that the

proposed compact might be nullified as the result of non-reciprocal

amendments to LB 59.




Sincerely,




DON STENBERG

Attorney General






Marie C. Pawol

Assistant Attorney General