Johnson, 021590 NEAGO, AGO 90008

• Case Date: February 15, 1990
• Court: Nebraska

Senator Lowell C. Johnson AGO 90008 No. 90008 Nebraska Attorney General Opinions State of Nebraska office of the Attorney General February 15, 1990           A. Eugene Crump Deputy Attorneys General          SUBJECT: Constitutionality of LB 1219 - Amendment Definition of Consummation of Sale Neb.Rev. Stat. §77-27, 147          REQUESTED BY: Senator Lowell C. Johnson Nebraska State Legislature          WRITTEN BY: Robert M. Spire, Attorney General L. Jay Bartel, Assistant Attorney General          You have requested our opinion regarding the constitutionality of LB 1219. Generally, LB 1219 would amend the provisions of Neb. Rev. Stat. § 77-27, 147 (Reissue 1986), establishing the definition of when a retail sale is "consummated" for purposes of determining the application of the Local Option Revenue Act. Currently, § 77-27, 147(I) (a) provides a retail sale is generally consummated "[a]t the place where title, possession, or segregation takes place, . . . regardless of the business location of the Nebraska retailer .... " LB 1219 proposes to amend § 77-27, 147 to provide that, in the case of retailers delivering live plants or floral arrangements to a place specified by the purchaser, the sale is deemed consummated at the business location of the retailer. The principal constitutional issue raised by this amendment concerns whether the proposed classification is reasonable and does not contravene the prohibition against special legislation in Article III, Section 18, of the Nebraska Constitution.          In State ex rel. Rogers v. Swanson, 192 Neb. 125, 136-37, 219 N.W.2d 726, 734 (1974), the Nebraska Supreme Court stated the following rules regarding the legislative power to classify and the effect of the prohibition against special legislation:

The Legislature may make a reasonable classification of persons, corporations, and property for purposes of legislation concerning them, but the classification must rest upon real differences of situation and circumstances surrounding the members of the class relative to the subject of legislation which render appropriate its enactment.

The Legislature may legislate in regard to a class of persons, but it cannot take what may be termed a natural class of persons, split that class in two, and then arbitrarily designate the dissevered fractions of the original unit as two classes and enact different rules for the government of each.

(quoting United Community Services v. Omaha...