Attorney General of Nebraska — Opinion
DATE: May 11, 1977
SUBJECT: ADVISORY VOTE BY ELECTORATE OF A COUNTY ON ISSUE OF JOINDER OF CITY AND COUNTY GOVERNMENTS
REQUESTED BY: Ronald D. Lahners, Lancaster County Attorney, Lincoln, Nebraska 68508
WRITTEN BY: Paul L. Douglas, Attorney General, Terry R. Schaaf, Assistant Attorney General.
Can Lancaster County submit to the electorate for an advisory vote the issue of whether the City of Lincoln and Lancaster County should consolidate their governments?
No.
Generally the law in this regard appears to be that there is no inherent right or power in the people to hold an election, the system of election in this country not being of common law origin since such was unknown to the common law. Therefore the power to hold an election must be based upon authority conferred by law. 29 C.J.S. Elections § 66.
Also the general rule upon the authority of a governmental body to call an election without statutory or constitutional provisions therefore appears to be stated in 26 Am.Jur.2d Elections § 183:
“It is fundamental that a valid election cannot be called and held except by authority of the law. There is no inherent right in the people, whether of the state or of some particular subdivision thereof, to hold an election for any purpose. Accordingly, an election held without affirmative constitutional or statutory authority, or contrary to a material provision of the law, is a nullity, . . .”
The rule in Nebraska appears to be that as stated inThompson v. James, 125 Neb. 350, 250 N.W. 237 (1933):
“. . . A rule uniform in all the states is that an election held without affirmative constitutional or statutory authority is a nullity. . . . If a question not authorized may be submitted to popular vote, or a question authorized be changed in substance and submitted, a chaotic condition may easily come about. Cost to government as well as impediments to justice would thereby be multiplied. . . .”
Previously this office had occasion to state an opinion as to a county board’s authority to submit the question of the location of a county community hospital to the electorate of that county. Opinion No. 194, June 13, 1966. In this instance it was our opinion that elections may be held only upon an express constitutional or statutory authorization and that no such authority existed in Nebraska for the submission of such a vote to a county electorate.
We believe that that opinion is applicable to the question you raise.
Therefore it is our conclusion that in the absence of any constitutional or statutory authority for such an advisory vote Lancaster County may not submit such a question to the electorate in this manner.