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summary judgment in their favor. The district court’s entry of 

summary judgment in favor of the appellees on this theory was 

not error.

CONCLUSION

With respect to Brock’s first cause of action, the district 

court determined that because Brock failed to show that he 

made a written claim for the tort of wrongful discharge in 

retaliation for filing his workers’ compensation claim, his 

claim was barred under § 13-919(1) and entered summary 

judgment in favor of the appellees on this cause of action. 

With respect to Brock’s second cause of action under § 1983, 

the district court determined that the appellees did not violate 

Brock’s constitutional right to property, right to freedom of 

speech, or right to privacy and entered summary judgment in 

favor of the appellees on each of these three theories. Although 

our reasoning differs somewhat from that of the district court, 

we find no error in the entry of summary judgment in favor 

of the appellees on both causes of action, and, therefore, 

we affirm.

Affirmed.

Big John’s Billiards, Inc., a Nebraska corporation, appellee

and cross-appellant, v. State of Nebraska et al., 

appellants and cross-appellees, and Douglas

County Health Department, appellee.

___ N.W.2d ___

Filed August 29, 2014. No. S-13-803.

1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional presents a question of law, which the Nebraska Supreme Court resolve 

independently of the lower court’s determination.

2. Constitutional Law: Statutes: Presumptions. A statute is presumed to 

be constitutional, and all reasonable doubts are resolved in favor of its 

constitutionality.

3. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity.

4. ____: ____: ____. The unconstitutionality of a statute must be clearly established 

before it will be declared void.
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5. Constitutional Law: Statutes: Legislature: Presumptions. The Nebraska 

Legislature is presumed to have acted within its constitutional power despite that, 

in practice, its laws may result in some inequality.

6. Special Legislation. The focus of the prohibition against special legislation is the 

prevention of legislation which arbitrarily benefits or grants “special favors” to a 

specific class.

7. ____. A legislative act constitutes special legislation if (1) it creates an arbitrary and unreasonable method of classification or (2) it creates a permanently 

closed class.

8. Constitutional Law: Statutes: Special Legislation. When the Legislature confers privileges on a class arbitrarily selected from many who are standing in the 

same relation to the privileges, without reasonable distinction or substantial difference, then the statute in question has resulted in the kind of improper discrimination prohibited by the Nebraska Constitution.

9. Special Legislation. Classifications for the purpose of legislation must be real 

and not illusive; they cannot be based on distinctions without a substantial difference. The question is always whether the things or persons classified by the 

act form by themselves a proper and legitimate class concerning the purpose of 

the act.

10. ____. A legislative body’s distinctive treatment of a class is proper if the class has 

some reasonable distinction from other subjects of a like general character. And 

that distinction must bear some reasonable relation to the legitimate objectives 

and purposes of the legislative act.

11. ____. In order to determine if there is a “substantial difference of circumstances 

to suggest the expediency of diverse legislation” between the general class governed by a statute and the exempted class, it is necessary to examine both the 

purpose of the statute and the purpose behind the exemptions. The question is 

whether there is a difference in circumstances between the general class and the 

exempted class so as to justify treating one differently than the other, in light of 

the purpose of the act.

12. Constitutional Law: Statutes. The general rule is that when part of an act is 

held unconstitutional, the remainder must likewise fail, unless the unconstitutional portion is severable from the remaining portions.

13. Statutes: Constitutional Law: Legislature: Intent: Appeal and Error. To 

determine whether an unconstitutional portion of a statute may be severed, an 

appellate court considers (1) whether a workable statutory scheme remains without the unconstitutional portion, (2) whether valid portions of the statute can be 

enforced independently, (3) whether the invalid portion was the inducement to 

passage of the statute, (4) whether severing the invalid portion will do violence 

to the intent of the Legislature, and (5) whether the statute contains a declaration 

of severability indicating that the Legislature would have enacted the bill without 

the invalid portion.

14. Constitutional Law: Contracts. A three-part test is applied to determine 

whether a contract has been unconstitutionally interfered with. Pursuant to that 

test, a court must examine (1) whether there has been an impairment of the 

contract; (2) whether the governmental action, in fact, operated as a substantial 

impairment of the contractual relationship; and (3) whether the impairment 
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was nonetheless a permissible, legitimate exercise of the government’s sovereign powers.

15. Constitutional Law: Property. Payment of just compensation pursuant to article 

I, § 21, of the Nebraska Constitution applies only to vested property rights.

16. Constitutional Law: Property: Legislature. The Legislature is free to create 

and abolish rights so long as no vested right is disturbed. The type of right that 

vests can be described generally as an interest which it is proper for the state to 

recognize and protect and of which the individual may not be deprived arbitrarily 

without injustice.

17. Constitutional Law: Words and Phrases. To be considered a vested right, the 

right must be fixed, settled, absolute, and not contingent upon anything.

18. Constitutional Law: Property. With respect to property, a right is considered 

to be vested if it involves an immediate fixed right of present or future enjoyment and an immediate right of present enjoyment, or a present fixed right of 

future enjoyment.

19. ____: ____. A vested right must be something more than a mere expectation 

based upon an anticipated continuance of the existing law; it must have become 

a title, legal or equitable, to the present or future enjoyment of property.

20. Constitutional Law: Statutes: Intent: Presumptions. A vested right can 

be created by statute. But it is presumed that a statutory scheme is not 

intended to create vested rights, and a party claiming otherwise must overcome 

that presumption.

Appeal from the District Court for Lancaster County: Jodi

Nelson, Judge. Affirmed in part, and in part reversed.

Jon Bruning, Attorney General, Dale A. Comer, Lynn A. 

Melson, and Natalee J. Hart for appellants.

Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for 

appellee Big John’s Billiards, Inc.

Heavican, C.J., Connolly, Stephan, McCormack, MillerLerman, and Cassel, JJ., and Pirtle, Judge.

Stephan, J.

The Nebraska Clean Indoor Air Act (the Act)1 prohibits smoking in public places and places of employment 

but exempts certain facilities from that prohibition. In this 

action, we are asked to determine the constitutionality of 

three of these exemptions. We conclude that one exemption 

1 Neb. Rev. Stat. §§ 71-5716 to 71-5734 (Reissue 2009 & Cum. Supp. 

2012).
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is constitutional, but the remaining two are unconstitutional 

special legislation which are severable from the Act.

I. BACKGROUND

In 2008,2 the Nebraska Legislature amended the Act to make 

it “unlawful for any person to smoke in a place of employment or a public place.”3

 The Act defines “[p]ublic place” as 

“an indoor area to which the public is invited or in which the 

public is permitted.”4 The Act specifically provides that “[a] 

private residence is not a public place.”5

Three indoor areas were exempted from the smoking prohibition in the 2008 legislation:

(1) Guestrooms and suites that are rented to guests 

and are designated as smoking rooms, except that not 

more than twenty percent of rooms rented to guests in an 

establishment may be designated as smoking rooms. All 

smoking rooms on the same floor shall be contiguous, 

and smoke from such rooms shall not infiltrate into areas 

where smoking is prohibited under the [Act];

(2) Indoor areas used in connection with a research 

study on the health effects of smoking conducted in a scientific or analytical laboratory under state or federal law 

or at a college or university approved by the Coordinating 

Commission for Postsecondary Education; [and]

(3) Tobacco retail outlets.6

As defined by the Act, a “[t]obacco retail outlet” is “a store 

that sells only tobacco and products directly related to tobacco. 

Products directly related to tobacco do not include alcohol, coffee, soft drinks, candy, groceries, or gasoline.”7

In 2009,8 the Legislature added a fourth exemption for 

“[c]igar bars,” which are defined in the Act via reference to 

2 2008 Neb. Laws, L.B. 395.

3 § 71-5729.

4 § 71-5726.

5 Id.

6 See, § 71-5730 (Cum. Supp. 2008); L.B. 395.

7 § 71-5728.

8 2009 Neb. Laws, L.B. 355.
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the Nebraska Liquor Control Act9 as “an establishment operated by a holder of a Class C liquor license” which “[d]oes not 

sell food,” “annually receives ten percent or more of its gross 

revenue from the sale of cigars” and related tobacco products 

other than cigarettes, “[h]as a walk-in humidor on the premises,” and “[d]oes not permit the smoking of cigarettes.”10 A 

cigar bar may serve alcohol.11

Big John’s Billiards, Inc. (Big John’s), is a corporation 

which operates a billiards hall in Omaha, Nebraska. On May 

20, 2009, Big John’s filed an action in the district court for 

Lancaster County seeking a declaratory judgment that the Act 

was unconstitutional. As relevant here, Big John’s asserted 

the Act was unconstitutional because it was special legislation, because it constituted a regulatory taking, and because it 

impaired its right to contract. The operative complaint named 

the State of Nebraska, two state agencies, two state officials, 

and the Douglas County Health Department as defendants. We 

refer to these parties collectively as “the State.”

In September 2010, the district court held a hearing on 

summary judgment motions filed by both sides. The hearing 

was limited to Big John’s claim that three exemptions from 

the Act violated the prohibition against special legislation set 

forth in Neb. Const. art. III, § 18. The district court concluded 

that the exemptions for guestrooms, tobacco retail outlets, and 

cigars bars were unconstitutional special legislation. In doing 

so, it reasoned that the record failed to show that there was 

a substantial difference in circumstances between those three 

exemptions and all public places and places of employment 

when considered in light of the purpose of the Act. However, it 

found that the exemptions were severable from the remaining 

provisions of the Act and that the Act therefore remained valid 

and enforceable.

9 See Neb. Rev. Stat. §§ 53-101 to 53-1,122 (Reissue 2010, Cum. Supp. 

2012 & Supp. 2013).

10 §§ 71-5730(4) (Reissue 2009) and 53-103.08.

11 See id.
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The State appealed to this court.12 We determined we lacked 

jurisdiction because not all of the claims asserted below had 

been resolved.13 On September 12, 2013, the district court 

resolved the remaining claims in favor of the State. The State 

then filed this timely appeal, and Big John’s cross-appealed.

II. ASSIGNMENTS OF ERROR

The State assigns that the district court erred in (1) misapplying the special legislation test and (2) determining the statutory exemptions for hotel guestrooms, tobacco retail outlets, 

and cigar bars were unconstitutional special legislation.

In its cross-appeal, Big John’s assigns that the district court 

erred in (1) concluding the Act should not be invalidated but 

merely should be subject to a severing of the unconstitutional exemptions; (2) concluding the Act did not constitute an 

impairment of its contractual rights, in violation of article I, 

§ 16, of the Nebraska Constitution; and (3) concluding the Act 

did not constitute an unconstitutional regulatory taking in violation of article I, § 21, of the Nebraska Constitution.

III. STANDARD OF REVIEW

[1] Whether a statute is constitutional presents a question 

of law, which we resolve independently of the lower court’s 

determination.14

IV. ANALYSIS

[2-5] Our independent resolution of the issues presented 

by this appeal is governed by familiar principles applicable 

to constitutional challenges to state statutes. A statute is presumed to be constitutional, and all reasonable doubts are 

resolved in favor of its constitutionality.15 The burden of 

12 Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).

13 Id.

14 In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).

15 Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012); Sarpy 

Cty. Farm Bureau v. Learning Community, 283 Neb. 212, 808 N.W.2d 598 

(2012).
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establishing the unconstitutionality of a statute is on the one 

attacking its validity.16 The unconstitutionality of a statute 

must be clearly established before it will be declared void.17

The Nebraska Legislature is presumed to have acted within 

its constitutional power despite that, in practice, its laws may 

result in some inequality.18

1. Special Legislation

[6,7] The enactment of special legislation is prohibited by 

Neb. Const. art. III, § 18, which provides in relevant part:

The Legislature shall not pass local or special laws in 

any of the following cases, that is to say:

. . . .

Granting to any corporation, association, or individual 

any special or exclusive privileges, immunity, or franchise 

whatever . . . . In all other cases where a general law can 

be made applicable, no special law shall be enacted.

The focus of the prohibition against special legislation is 

the prevention of legislation which arbitrarily benefits or 

grants “special favors” to a specific class.19 A legislative act 

constitutes special legislation if (1) it creates an arbitrary 

and unreasonable method of classification or (2) it creates a 

permanently closed class.20 It is undisputed that there is not 

a permanently closed class at issue in this case, and thus our 

focus is on whether there is an arbitrary and unreasonable 

classification.

[8-10] When the Legislature confers privileges on a class 

arbitrarily selected from many who are standing in the same 

relation to the privileges, without reasonable distinction or 

substantial difference, then the statute in question has resulted 

16 Id.

17 Id.

18 Connelly, supra note 15; Staley v. City of Omaha, 271 Neb. 543, 713 

N.W.2d 457 (2006).

19 In re Interest of A.M., supra note 14.

20 D-CO, Inc. v. City of La Vista, 285 Neb. 676, 829 N.W.2d 105 (2013); In 

re Interest of A.M., supra note 14; Hug v. City of Omaha, 275 Neb. 820, 

749 N.W.2d 884 (2008).
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in the kind of improper discrimination prohibited by the 

Nebraska Constitution.21 Classifications for the purpose of legislation must be real and not illusive; they cannot be based on 

distinctions without a substantial difference.22 The question is 

always whether the things or persons classified by the act form 

by themselves a proper and legitimate class concerning the 

purpose of the act.23 A legislative body’s distinctive treatment 

of a class is proper if the class has some reasonable distinction from other subjects of a like general character.24 And that 

distinction must bear some reasonable relation to the legitimate 

objectives and purposes of the legislative act.25

We have addressed special legislation issues on numerous 

occasions. In one case, Hug v. City of Omaha,

26 we examined 

an issue very similar to that presented here. Hug involved a 

challenge to exemptions to an Omaha ordinance imposing a 

smoking ban throughout the city. In analyzing the special legislation claim with respect to these exemptions, we focused on 

the city council’s purpose in creating the class and examined 

whether there was a substantial difference of circumstances to 

suggest the expediency of diverse legislation. We noted that in 

determining whether the exemptions to a city ordinance prohibiting smoking in most public places and places of employment constituted special legislation, it was necessary to focus 

“on the City’s purpose behind exempting certain entities and 

decide whether there is a substantial difference of circumstances between exempted and nonexempted facilities which 

would suggest the expediency of diverse legislation.”27

Hug noted that in comparing exempted and nonexempted 

facilities, it was necessary to examine the stated purpose 

of the ordinance, which was “the prohibition of smoking in 

21 In re Interest of A.M., supra note 14; Hug, supra note 20.

22 Id.

23 D-CO, Inc., supra note 20.

24 Id.; In re Interest of A.M., supra note 14.

25 Id.

26 Hug, supra note 20.

27 Id. at 827, 749 N.W.2d at 890.
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public gathering places and in places of employment in order 

to protect the public health and welfare and to guarantee the 

right to breathe smoke-free air.”28 In finding exemptions for 

stand-alone bars, keno establishments, and horseracing simulcast locations were invalid special legislation, we reasoned: 

“Nothing in the ordinance’s stated purpose would explain why 

employees of the exempted facilities or members of the public 

who wish to patronize those establishments are not entitled 

to breathe smoke-free air or to have their health and welfare protected.”29 We also noted that the city had not offered 

any evidence to support making such a distinction. Thus, we 

determined that on the record, there was no “‘substantial difference of circumstances to suggest the expediency of diverse 

legislation.’”30 We specifically noted, however, that we were 

not holding that “similar exemptions could not be constitutionally justified.”31

(a) Special Legislation Test

The parties disagree as to how the special legislation analysis is to be applied when exemptions to a statute are alleged to 

constitute special legislation. The district court found, and Big 

John’s agrees, that whether the exemptions are special legislation should be examined in light of the purpose of the entire 

Act. The State, on the other hand, argues that whether the 

exemptions are special legislation should be determined solely 

from the purpose of the exemptions themselves.

[11] Both sides are partially correct. In order to determine 

if there is a “substantial difference of circumstances to suggest the expediency of diverse legislation”32 between the 

general class governed by a statute and the exempted class, 

it is necessary to examine both the purpose of the statute and 

28 Id.

29 Id.

30 Id. at 827, 749 N.W.2d at 890-91, quoting Le v. Lautrup, 271 Neb. 931, 

716 N.W.2d 713 (2006).

31 Id. at 827, 749 N.W.2d at 891.

32 Id. at 826, 749 N.W.2d at 890.
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the purpose behind the exemptions. The question is whether 

there is a difference in circumstances between the general 

class and the exempted class so as to justify treating one 

differently than the other, in light of the purpose of the Act. 

We explained this premise in Gourley v. Nebraska Methodist 

Health Sys.

33:

“‘Classification is proper if the special class has some 

reasonable distinction from other subjects of a like general character, which distinction bears some reasonable 

relation to the legitimate objectives and purposes of the 

legislation. The question is always whether the things or 

persons classified by the act form by themselves a proper 

and legitimate class with reference to the purpose of 

the act.’”

(i) Purpose of the Act

According to § 71-5717, the purpose of the Act is “to protect the public health and welfare by prohibiting smoking in 

public places and places of employment.” The Legislative 

history makes it clear that the impetus for the Act was the 

Legislature’s concern about the negative health effects of secondhand smoke.34

The district court concluded that the Act’s purpose was “to 

protect the public health and welfare by prohibiting smoking 

in public places and places of employment and thereby protect employees and the public from the hazards of secondhand 

smoke.” We view the purpose as slightly broader. Based on the 

language of § 71-5717 and the legislative history, the purpose 

of the Act is to protect the public health and welfare by protecting employees and the public from the hazards of secondhand smoke. The means the Legislature chose to accomplish 

this purpose was by prohibiting smoking in all “public places 

and places of employment.”35 Thus, the purpose was not to 

33 Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 938-39, 663 

N.W.2d 43, 65 (2003).

34 See, e.g., Introducer’s Statement of Intent, L.B. 395, Health and Human 

Services Committee, 100th Leg., 1st Sess. (Feb. 1, 2007).

35 § 71-5717.
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prohibit smoking, but, rather, to provide protection from the 

hazards of secondhand smoke.

(ii) Guestrooms

Guestrooms and suites that are rented to guests and designated as smoking rooms are exempt from the smoking ban.36

This exemption was part of the bill when it was originally 

introduced and was the subject of almost no legislative debate. 

The legislative history indicates, however, that the exemption 

was included in the bill because hotels are similar to apartments or private residences37 in which the Act does not prohibit smoking.38

The district court essentially reasoned that even if guestrooms are akin to private residences and thus there is a reason 

to classify them as something other than “public places,” they 

remain “places of employment” and there is no substantial 

difference in circumstances between them and other places 

of employment regulated by the Act. But the legislative history shows that the issue of employees being exposed to secondhand smoke in private residences was considered by the 

Legislature,39 and ultimately it concluded that a private residence is a place of employment only when it is being used “as 

a licensed child care program and one or more children who 

are not occupants of such residence are present.”40

We have noted that “when the Legislature seeks to inaugurate reforms in the area of economics or social welfare, it 

need not choose between attacking every aspect of the problem 

or not attacking the problem at all.”41 Arguably, secondhand 

smoke is equally harmful whether it is encountered in a private 

36 § 71-5730(1).

37 See Health and Human Services Committee Hearing, L.B. 395, 100th 

Leg., 1st Sess. 73 (Feb. 1, 2007).

38 § 71-5726.

39 See Floor Debate, L.B. 395, 100th Leg., 1st Sess. 6, 15, 28-29 (Feb. 13, 

2007).

40 § 71-5724.

41 Bergan Mercy Health Sys. v. Haven, 260 Neb. 846, 856, 620 N.W.2d 339, 

347 (2000).
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residence or a public place, but the Legislature chose not to 

prohibit smoking in private residences except those used for 

conducting a licensed childcare program. That was a legitimate policy decision. Likewise, there is a logical basis for the 

Legislature to conclude that guestrooms are akin to private 

residences, and thus there is a substantial difference in circumstances between guestrooms and other public places and places 

of employment. Based upon our independent review of the 

record, we conclude that the evidence does not overcome the 

presumption of constitutionality with respect to the exemption 

for guestrooms and suites. This exemption does not constitute 

special legislation.

(iii) Tobacco Retail Outlets

The exemption for tobacco retail outlets was not part of the 

bill when it was originally introduced. Instead, it was proposed 

by committee amendment.42 One senator stated the exemption was added because it was “reasonable that a business that 

deals in nothing but tobacco products be able to allow smoking within their facility”43 and that it made “sense to let people 

try out the wares in the smoke shop.”44 In addition, the owner 

of a tobacco shop testified during the committee hearing that 

ideally, customers would be able to sample his products before 

purchasing, “like going to the supermarket to sample various 

foods that [it] offer[s].”45 There was no testimony or discussion 

about whether such sampling is necessary to the operation of 

a tobacco retail outlet or why any such sampling had to occur 

indoors, as opposed to outdoors.

We conclude that there is no difference in circumstances 

between tobacco retail outlets and all other public places 

and places of employment so as to justify the expediency of 

diverse legislation and that the exemption in § 71-5730(3) is 

42 See Floor Debate, Amend. 276, L.B. 395, 100th Leg., 1st Sess. 20-22 

(Mar. 5, 2007).

43 Id. at 20.

44 Id. at 23.

45 Health and Human Services Committee Hearing, L.B. 395, 100th Leg., 1st 

Sess. 66 (Feb. 1, 2007).
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therefore unconstitutional special legislation. The mere fact 

that tobacco retail outlets sell only tobacco products does not 

distinguish them in any substantial way from other public 

places or places of employment. And allowing patrons of 

such shops to smoke simply because it is convenient does 

not comport with the purpose of the Act, which is to protect the public and employees from the dangers of secondhand smoke.

(iv) Cigar Bars

The exemption for cigar bars was not part of the Act as it 

was originally enacted. Instead, it was enacted by subsequent 

legislation in 2009.46 The Introducer’s Statement of Intent on 

the proposed bill specifically stated that the purpose of the 

exemption was “to provide protection for businesses currently 

operating in the state as ‘cigar bars.’”47 During debate, the 

senator who introduced the bill argued that cigar bars should 

be exempt from the Act because they existed for the purpose of 

allowing smoking.48

There is no substantial difference in circumstances between 

cigar bars and other public places or places of employment 

that justifies treating cigars bars differently. Indeed, the exemption is directly contrary to the purpose of the Act, which is to 

protect the public health by limiting exposure to secondhand 

smoke. The exemption in § 71-5730(4) for cigar bars is unconstitutional special legislation.

(b) Severability

The district court found that the unconstitutional exemptions were severable from the other provisions of the Act 

and that the Act separated from these exemptions was valid 

and enforceable. Big John’s challenges this finding in its 

cross-appeal.

46 See L.B. 355.

47 Introducer’s Statement of Intent, L.B. 355, General Affairs Committee, 

101st Leg., 1st Sess. (Feb. 9, 2009).

48 General Affairs Committee Hearing, L.B. 355, 101st Leg., 1st Sess. 50-51 

(Feb. 9, 2009), and Floor Debate, 101st Leg., 1st Sess. 20-21 (Mar. 20, 

2009).
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At the outset, we note that the cigar bar exemption was 

enacted after the other exemptions, and in legislation that was 

separate from the rest of the Act. Because that exemption was 

not part of the original enactment, we need not engage in a 

severability analysis as to it. Our analysis is therefore limited 

to whether the Act remains valid and enforceable if the tobacco 

retail outlet exemption is severed from it.

[12,13] The general rule is that when part of an act is held 

unconstitutional, the remainder must likewise fail, unless the 

unconstitutional portion is severable from the remaining portions.49 To determine whether an unconstitutional portion of 

a statute may be severed, an appellate court considers (1) 

whether a workable statutory scheme remains without the 

unconstitutional portion, (2) whether valid portions of the statute can be enforced independently, (3) whether the invalid portion was the inducement to passage of the statute, (4) whether 

severing the invalid portion will do violence to the intent of 

the Legislature, and (5) whether the statute contains a declaration of severability indicating that the Legislature would have 

enacted the bill without the invalid portion.50

Big John’s contests only the district court’s finding that 

the exemptions were not the inducement to passage of the 

entire Act. It relies on language from a 1935 decision of this 

court, stating:

“One of the tests used to determine whether a statute 

is or is not severable so that a portion may be rejected 

is that it ought not to be held wholly void unless the 

invalid portion is so important to the general plan and 

operation of the law in its entirety as reasonably to lead 

to the conclusion that it would not have been adopted if 

the legislature had perceived the invalidity of the part so 

held to be unconstitutional; but where the valid and the 

invalid parts are so bound together that the invalid part 

is a material inducement to the valid portion, the whole 

is invalid. This test is merely a means of ascertaining 

49 State ex rel. Bruning v. Gale, 284 Neb. 257, 817 N.W.2d 768 (2012).

50 Id.; State ex rel. Stenberg v. Omaha Expo. & Racing, 263 Neb. 991, 644 

N.W.2d 563 (2002).
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and carrying out the presumed intention of the legislature. If it appears that the invalid portion was designed 

as an inducement to pass the valid, the inference is that 

the legislature would not have passed the valid portion alone.”51

Essentially, Big John’s argues that the legislative history shows 

the introducer did not have the votes to pass the Act without 

the exemptions and that therefore, the exemptions were an 

inducement to the passage of the Act.

The legislative history certainly shows that some compromise was necessary to pass L.B. 395. But compromise is an 

inherent part of the lawmaking process. Nothing in the legislative history demonstrates or even implies that the tobacco 

retail outlet exemption was critical to passage of the entire 

bill. And in any event, the inducement test, properly understood, asks, “Did the Legislature intend to pass the bill only 

as it existed with the unconstitutional exemptions?” and not 

“Was the Legislature able to pass the bill only because it 

contained the unconstitutional exemptions?” As the district 

court reasoned, to hold otherwise would mean that any time 

Legislative compromise was necessary, that compromise was 

an inducement that prevents unconstitutional portions of an 

act from being severed. And the Legislative history certainly 

does not demonstrate that the Legislature intended to enact 

the Act if, and only if, the exemption for tobacco retail outlets 

was included.

Further, we consider all five factors when determining 

whether unconstitutional provisions of a statute can be severed from it. Here, the Act is workable and its valid portions 

can be enforced without the exemption for tobacco retail 

outlets. Severing the exemption would not do violence to the 

Legislature’s intent of protecting the public health and welfare by limiting exposure to secondhand smoke. And, finally, 

the Legislature expressly declared its willingness to enact the 

bill absent the invalid portion, as L.B. 395, § 21, contained 

a severability provision stating, “If any section in this act or 

51 State, ex rel. Taylor, v. Hall, 129 Neb. 669, 691-92, 262 N.W. 835, 846 

(1935), quoting 6 R.C.L. Constitutional Law § 123 (1915).
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any part of any section is declared invalid or unconstitutional, 

the declaration shall not affect the validity or constitutionality 

of the remaining portions.” We agree with the district court 

that the Act is valid and enforceable without the unconstitutional exemptions.

2. Impairment of Contract

Big John’s also argues the Act violates article I, § 16, of the 

Nebraska Constitution because it impairs the obligations of the 

lease agreement Big John’s entered into with its landlord. The 

lease was entered into prior to the smoking ban imposed by 

the Act.

[14] Article I, § 16, provides, “No . . . law impairing the 

obligation of contracts . . . shall be passed.” A three-part test 

is applied to determine whether a contract has been unconstitutionally interfered with.52 Pursuant to that test, a court must 

examine (1) whether there has been an impairment of the contract; (2) whether the governmental action, in fact, operated as 

a substantial impairment of the contractual relationship; and (3) 

whether the impairment was nonetheless a permissible, legitimate exercise of the government’s sovereign powers.53

The district court found Big John’s allegations failed all 

three prongs of this test. Because failure to meet the first prong 

necessarily means that the test fails, we need go no further 

than that if we find the contract was not impaired as a matter 

of law.54

Big John’s asserts that it relied on revenues generated from 

smoking customers when it entered into the lease agreement, 

that its revenues decreased due to the smoking ban imposed 

by the Act, and that this decrease in revenue impaired its ability to make payments on its lease and continue its operations. 

Even assuming these facts are true, the Act did not impair 

Big John’s obligations on its contract. The Act did not alter 

the terms of Big John’s lease in any way or make any term 

52 See, Lamar Co. v. City of Fremont, 278 Neb. 485, 771 N.W.2d 894 (2009); 

Miller v. City of Omaha, 253 Neb. 798, 573 N.W.2d 121 (1998).

53 See id.

54 See id.
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of that lease invalid or unenforceable.55 Instead, any effect the 

Act has on Big John’s revenue is completely incidental and 

not related to the lease agreement between Big John’s and the 

landlord. There is no unconstitutional impairment of the contract as a matter of law.

3. Regulatory Taking

Big John’s also argues that the Act amounts to a regulatory 

taking because it damages its property rights without granting 

compensation. Article I, § 21, of the Nebraska Constitution 

provides: “The property of no person shall be taken or damaged for public use without just compensation therefor.”

[15] Payment of just compensation pursuant to article I, 

§ 21, applies only to vested property rights.56 Big John’s claims 

that its vested right was “its ability to operate a premises that 

allowed smoking”57 and that the Act took away this vested 

right without compensating it.

[16-20] The Legislature is free to create and abolish rights 

so long as no vested right is disturbed.58 The type of right that 

“‘vests’” can be described generally as “‘an interest which it is 

proper for the state to recognize and protect and of which the 

individual may not be deprived arbitrarily without injustice.’”59

To be considered a vested right, the right must be “‘fixed, 

settled, absolute, and not contingent upon anything.’”60 With 

respect to property, a right is considered to be “‘vested’” if it 

involves “‘an immediate fixed right of present or future enjoyment and an immediate right of present enjoyment, or a present 

fixed right of future enjoyment.’”61 A vested right “‘must be 

55 See Lincoln Federal Labor Union v. Northwestern Iron and Metal Co., 

149 Neb. 507, 31 N.W. 2d 477 (1948).

56 Tracy v. City of Deshler, 253 Neb. 170, 568 N.W.2d 903 (1997).

57 Brief for appellee on cross-appeal at 45.

58 United States Cold Storage v. City of La Vista, 285 Neb. 579, 831 N.W.2d 

23 (2013).

59 Id. at 592, 831 N.W.2d at 33, quoting 16B Am. Jur. 2d Constitutional Law

§ 746 (2009).

60 Id.

61 Id.
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something more than a mere expectation based upon an anticipated continuance of the existing law; it must have become a 

title, legal or equitable, to the present or future enjoyment of 

property.’”62 A vested right can be created by statute.63 But it 

is presumed that a statutory scheme is not intended to create 

vested rights, and a party claiming otherwise must overcome 

that presumption.64

Simply stated, there is no vested right at issue here. The only 

“right” Big John’s had to allow its customers to smoke was 

created by statute—the prior version of the Act, under which 

smoking in billiards parlors was regulated but not prohibited. 

That Act created nothing more than a mere expectation based 

upon continuance of the existing law and did not create a 

vested right. There was no regulatory taking here as a matter 

of law.

V. CONCLUSION

There is a difference in circumstances between guestrooms 

and other public places which justified diverse legislation, 

because guestrooms are akin to private residences. We therefore conclude that the exemption for guestrooms is not special 

legislation. We agree with the district court, albeit for somewhat different reasons, that the exemptions for tobacco retail 

outlets and cigar bars are unconstitutional special legislation. 

The Act is valid and enforceable when the unconstitutional 

exemptions are severed from it. The Act is not an unconstitutional impairment of contract or an unconstitutional regulatory taking.

Affirmed in part, and in part reversed.

Wright, J., not participating.

62 Id., quoting 16B Am. Jur. 2d, supra note 59, § 748.

63 United States Cold Storage, supra note 58.

64 Id.

Cassel, J., dissenting in part.

I respectfully dissent from the part of the majority opinion 

holding the exemption for tobacco retail outlets to be unconstitutional as special legislation. Although the majority recites 
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the correct standard of review, the court fails to heed it. A 

statute is presumed to be constitutional, and all reasonable 

doubts are resolved in favor of its constitutionality.1 As to the 

tobacco retail outlets exemption, the majority fails to discern 

the reasonable doubt that seems so plain to me.

In every other respect, the majority opinion strikes the right 

note. It recites the correct law. It correctly resolves the parties’ 

dispute over how the court should examine the legislation. 

And it reaches the correct results regarding the exemptions for 

guestrooms and cigar bars. Thus, I focus on the single issue 

where I part company with the majority—the exemption for 

tobacco retail outlets.

If, in the light of common sense, the statutory text reveals 

a reasonable doubt whether there is a substantial difference in 

circumstances between a tobacco retail outlet and other public 

places and places of employment, our precedent mandates that 

we defer to the Legislature. Because that reasonable doubt 

clearly exists, I would uphold the exemption.

The majority articulates the purpose of the Nebraska Clean 

Indoor Air Act (the Act)2 as “to protect the public health 

and welfare by protecting employees and the public from 

the hazards of secondhand smoke.” And I agree with this 

articulation.

But tobacco retail outlets, as defined by the Act, have several unique and substantial circumstances which inherently 

distinguish these outlets from other public places and places 

of employment. First, the product being sold necessarily produces the smoke that the Act is generally attempting to eliminate. Second, a tobacco retail outlet’s purpose is to promote 

“firsthand” exposure to tobacco smoke. Finally, the exemption’s prohibition on sales of other products demonstrates the 

Legislature’s intent to limit the size and number of businesses 

qualifying for the exemption.

1 Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012); Sarpy 

Cty. Farm Bureau v. Learning Community, 283 Neb. 212, 808 N.W.2d 598 

(2012).

2 Neb. Rev. Stat. §§ 71-5716 to 71-5734 (Reissue 2009 & Cum. Supp. 

2012).
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As the majority observes, under the Act, a tobacco retail 

outlet sells only tobacco and products directly related to 

tobacco.3 And such products do not include alcohol, coffee, 

soft drinks, candy, groceries, or gasoline.4 Thus, members of 

the public who enter tobacco retail outlets necessarily do so 

for the sole purpose of purchasing tobacco or products directly 

related to tobacco.

These patrons have already chosen to expose themselves 

to the risks of firsthand smoke. The Legislature could rationally determine that the dangers of secondhand smoke are 

insignificant in comparison to the risk these patrons already 

encounter firsthand. The exemption for tobacco retail outlets 

is distinguishable from the exemptions this court found to be 

unconstitutional special legislation in Hug v. City of Omaha.

5

Unlike stand-alone bars, keno establishments, and horseracing simulcast locations (and cigar bars in the present case), 

there is no rationale for a patron to enter a tobacco retail 

outlet other than to facilitate his or her access to firsthand 

smoke. Such public places do not sell alcohol or offer other 

forms of entertainment. They exist solely to facilitate patrons’ 

access to tobacco and its related risks. Thus, the purpose of 

the Act in protecting the public from secondhand smoke is 

contradicted by the nature of the product sold by tobacco 

retail outlets.

Additionally, the Legislature could rationally conclude 

that the narrow scope of the exemption makes it less likely 

that nonsmokers, including potential nonsmoking employees, 

would be exposed to secondhand smoke. By limiting the 

definition of tobacco retail outlets to establishments that sell 

only tobacco and products directly related to tobacco, the text 

demonstrates that the Legislature intended this as a very limited exemption.

The Legislature was not required to “choose between attacking every aspect of the problem or not attacking the problem 

3 See § 71-5728.

4 See id.

5 Hug v. City of Omaha, 275 Neb. 820, 749 N.W.2d 884 (2008).
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at all.”6 This principle, which the majority quotes in upholding 

the guestrooms exemption, also applies to the tobacco retail 

outlets exemption. As to guestrooms, the majority concedes 

that secondhand smoke is equally harmful in public and private 

places. The majority also concedes that this was a legitimate 

policy decision. And the majority recognizes a “logical basis 

. . . to conclude that guestrooms are akin to private residences.” In enacting the tobacco retail outlets exemption, the 

Legislature merely limited the otherwise broad reach of the 

Act from locations already dominated by the much greater risk 

of firsthand smoke. Given the mandate to resolve reasonable 

doubts in favor of the legislation, I would conclude that this 

was an equally legitimate policy decision.

I recognize that the exemption may not be perfect, in that 

some nonsmokers may be exposed to secondhand smoke. But 

the Legislature is presumed to have acted within its constitutional power despite that, in practice, its laws may result in 

some inequality.7 When I apply the principles of law articulated 

by the majority, I conclude that there is at least a reasonable 

doubt whether the exemption is unconstitutional. Thus, those 

principles require that I uphold the exemption despite my 

personal distaste for or objection to firsthand or secondhand 

tobacco smoke. I therefore respectfully dissent from the portion 

of the court’s opinion finding the tobacco retail outlets exemption unconstitutional.

Pirtle, Judge, joins in this dissent.

6 See Bergan Mercy Health Sys. v. Haven, 260 Neb. 846, 856, 620 N.W.2d 

339, 347 (2000).

7 See Connelly, supra note 1.