Johnson, 030486 NEAGO, AGO 86027

Docket Nº:AGO 86027
Case Date:March 04, 1986
Senator Rod Johnson
AGO 86027
No. 86027
Nebraska Attorney General Opinions
State of Nebraska office of the Attorney General
March 4, 1986
          Date: March 3, 1986           A. EUGENE CRUMP Deputy Attorney General.          SUBJECT: Constitutionality of LB 953 -- The Imposition of the State's Police Power          REQUESTED BY: Senator Rod Johnson Nebraska State Legislature          WRITTEN BY: Robert M. Spire, Attorney General, John Boehm, Assistant Attorney General.          This is in response to your opinion request of February 10, 1986, in which you ask us about the constitutionality of LB 953. LB 953 would eventually require all retailers of gasoline in this state to make gasohol available for sale. Failure to comply with this section would constitute a Class V misdemeanor.          The Fourteenth Amendment to the Constitution of the United States provides in part that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction equal protection of the laws. "          Article I, Section 1 of the Constitution of the State of Nebraska provides "All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty and the pursuit of happiness. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed." Article I, Section 3 of the Constitution of the State of Nebraska further provides "No person shall be deprived of life, liberty, or property, without due process of law."          Since LB 953 imposes a requirement on retailers of gasoline as to the conduct of their business, and in particular without regard to the consequences of this requirement in terms of potential losses, and because it makes failure to comply with this provision a criminal offense, it infringes upon those individuals' liberty and property interests guaranteed by the Constitution. "Liberty within the constitutional meaning includes absence of arbitrary and unreasonable restraint upon a person in the conduct of his business and handling of his property." McGraw Electric Company v. Lewis & Smith Drug Co., Inc., 159 Neb. 703 at 717, 68 N.W.2d 608 (1955). Such an infringement could be considered as
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