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AGO Opinion 97017

LB 447; Whether the Term "Corporation" as Used in the Bill Includes Nonprofit Corporations
Opinion 97017

DATE: March 7, 1997

SUBJECT: LB 447; Whether the Term "Corporation" as Used in the Bill Includes Nonprofit Corporations

REQUESTED BY: Senator Jon Bruning
Nebraska State Legislature


WRITTEN BY: Don Stenberg, Attorney General

Dale A. Comer, Assistant Attorney General




LB 447 would change the Nebraska statutes dealing with the

provision of ambulance service by local governmental entities in

several respects. In your opinion request regarding that bill, you

note that the term "corporation" is used throughout the

legislation, and you request a "clarification" of the meaning of

that language. Specifically, you state that:




[t]he Papillion Fire Department is a nonprofit

corporation and there is concern that the term

"corporation" [in LB 447] refers to it. This is not the

intention of LB 447.




We, therefore, assume that you wish our opinion as to whether the

term "corporation," as it is used in LB 447, includes nonprofit

corporations as well as for-profit entities.




The term "corporation" is not defined in LB 447; nor is it

defined in the statute which contains general definitions for use

with the Nebraska statutes. See Neb. Rev. Stat. § 49-801 (1993).

In Nebraska, in the absence of anything indicating the contrary,

statutory language is to be given its plain and ordinary meaning.

Application of City of Grand Island 247 Neb. 446, 527 N.W.2d 864

(1995). Consequently, we believe that the term "corporation" in LB

447 must be interpreted in its plain and ordinary sense.




Generally, a "corporation" is defined as "[a]n artificial

person or legal entity created by or under the authority of the

laws of a state or nation . . . . which is regarded in law as

having an existence distinct from its several members." BLACK'S

LAW DICTIONARY 307 (5th ed. 1979). Consistent with this

definition, the Nebraska Supreme Court has stated that, "[a]

corporation may be said to be an artificial person created by or

under legislative enactment." Nebraska Wheat Growers Association

v. Smith, 115 Neb. 177, 190, 212 N.W. 39, 44 (1927). In Nebraska,

there are generally two types of corporations which may be created

by private individuals, including for-profit corporations created

under the Nebraska Business Corporation Act, Neb. Rev. Stat. §§ 21-

2001 through 21-20,193 (Cum. Supp. 1996), and nonprofit

corporations created under the Nebraska Nonprofit Corporation Act,

Neb. Rev. Stat. §§ 21-1901 through 21-19,177 (Cum. Supp. 1996).




LB 447 does not specify whether "corporation," as used in that

bill, refers to for-profit or nonprofit entities. However, we

believe that the term "corporation," as it is generally defined,

includes both types of corporations, since both are artificial

legal entities created under authority of state statute. As a

result, it appears to us that the term "corporation" in LB 447 does

include both for-profit and nonprofit corporations.




We would also note that the term "corporation" is used several

times in LB 447 with the term "private," as in the bill's proposed

addition to Neb. Rev. Stat. § 13-303 (Cum. Supp. 1996):




(3) The county board or municipal governing body shall

not contract with a private person, firm or corporation

to provide fire service or ambulance service . . .

unless the authority to so contract is approved by a

majority of the registered voters of the county, city or

village voting on the question at a general or special

election.




(emphasis added). However, we believe that such references to

"private" corporations simply distinguish between corporations

which are established under statute by private individuals, and

"public corporations" which are corporations established by

government for the administration of governmental functions. See

BLACK'S LAW DICTIONARY 307 (5th ed. 1979). Therefore, under the

ordinary meaning of those terms, for-profit and nonprofit

corporations are both "private corporations."




You state that it is "not the intention of LB 447" to include

nonprofit corporations such as the Papillion Fire Department within

its definition of "corporation." If that is the case, we suggest

that you consider amending the bill to make it clear, in some way,

that references to "corporation" are intended to apply only to for-

profit corporations.




Sincerely yours,




DON STENBERG

Attorney General




Dale A. Comer

Assistant Attorney General