AGO 98007.

• Court: Nebraska

Nebraska Attorney General Opinions 1998. AGO 98007. DATE: January 23, 1998SUBJECT: Legislation to Amend Proposed Boundary Compact With MissouriREQUESTED BY: Roger R. Wehrbein, Senator, Nebraska LegislatureWRITTEN 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...