Opinion No. (1981) ( 1981 )

REQUESTED BY: Senator John DeCamp Member of the Legislature State Capitol Building Lincoln, Nebraska 68509

Dear Senator DeCamp:

This is in response to your letter of March 16, 1981, concerning the constitutionality of a proposed amendment to LB 245.

The amendment which would add a new section to this bill reads as follows:

No state appropriations shall be obligated nor shall any bonds be authorized for the Regional College of Veterinary Medicine herein authorized for construction until and unless federal funds in the amount specified in Section 2 hereof have been appropriated for the project by the United States Government.

Your concern was whether this amendment constituted an improper delegation of legislative authority. We do not believe that it does.

This amendment would simply establish a condition or contingency, which when satisfied, would allow the other portions of the bill to become operative. The well recognized rule of law in this area is that, ``The legislature cannot delegate its powers to make a law, but it can make a law to become operative on the happening of a certain contingency or on an ascertainment of a fact upon which the law intends to make its own action depend.' State v. Padley,195 Neb. 358, 360, 237 N.W.2d 883 (1976). See also, Lennoxv. Housing Authority of City of Omaha, 137 Neb. 582,290 N.W. 451 (1940).

That is precisely the case with this proposed legislation, as opposed to any actual delegation of authority to the United States Government. Thus the proposed amendment appears to be constitutional in this regard.

Very truly yours, PAUL L. DOUGLAS Attorney General John Boehm Assistant Attorney General