Filed Date: 5/6/1983
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Senator Jerome Warner Nebraska State Legislature State Capitol Lincoln, NE 68509
Dear Senator Warner:
You have asked three questions concerning the constitutionality of pending amendments to L.B. 120. The first is whether amendment 1293 would allow the use by the State of either state, federal, or even private (the fees provided for in section 3 of the bill) funds for the erection or maintenance of logo signs. Logo signs are interpreted to be signs advertising goods or services provided by specifically named private entities as distinguished from official highway signs giving general information.
In answer, insofar as private individuals, associations, or corporation would be the primary or sole financial beneficiaries of such erection or maintenance, and it is believed that they would be, it would be considered a violation of both Neb. Const. art.
The crucial question regarding expenditure of state funds is whether it is for a public purpose. Such determination is admittedly often difficult. The Nebraska Supreme Court in dealing with the problem in the case of State exrel. Douglas v. Nebraska Mortgage Finance Fund,
"No hard and fast rule can be laid down for determining whether a proposed expenditure of public funds is valid as devoted to a public use or purpose. Each case must be decided with reference to the object sought to be accomplished and to the degree and manner in which that object affects the public welfare."
In this case, it is believed that the court would find that although the legislature has a very wide discretion to determine what constitutes a public purpose, this `act' appears to be obviously designed to expend public funds and permit the use of public property for private purposes or benefit.
Secondly you ask can the State even allow the erection of these logo signs in the highway right-of-way?
In answer, only the State (Department of Roads) can erect signs within the right-of-way of any portion of the State highway system. See Neb.Rev.Stat. 1320.06(2)(b)(iv), (Reissue 1978). Authorization for logo signs, as you know, is contained in Neb.Rev.Stat.
Lastly, you ask, is the new subsection (4) of section
Essentially, Opinion No. 86 declared proposed legislation which would give different and broader `just compensation' to owners of non-conforming signs erected between certain dates to be in violation of Neb. Const. art.
Very truly yours, PAUL L. DOUGLAS Attorney General Randall E. Sims Assistant Attorney General