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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE EX REL. PETERSON v. SHIVELY

Cite as 310 Neb. 1

State of Nebraska ex rel. Douglas J. Peterson, 

Attorney General of the State of Nebraska, 

appellant, v. David J. Shively, in his official 

capacity as Lancaster County Election 

Commissioner, et al., appellees, and Pete 

Ricketts, in his official capacity as 

Governor of the State of Nebraska, 

and Robert B. Evnen, in his official 

capacity as Secretary of State 

of the State of Nebraska, 

intervenors-appellees.

___ N.W.2d ___

Filed August 20, 2021. No. S-21-066.

1. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted, and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a statute is a question of law, and the Nebraska Supreme Court is 

obligated to reach a conclusion independent of the decision reached by 

the trial court.

4. Constitutional Law: Appeal and Error. Constitutional interpretation is 

a question of law on which the Nebraska Supreme Court is obligated to 

reach a conclusion independent of the decision by the trial court.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/29/2021 01:07 AM CDT
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE EX REL. PETERSON v. SHIVELY

Cite as 310 Neb. 1

5. Judgments: Appeal and Error. An appellate court may affirm a lower 

court’s ruling that reaches the correct result, albeit based on different reasoning.

6. Constitutional Law: Statutes: Presumptions. A statute is presumed 

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

its constitutionality.

7. Constitutional Law: Statutes: Proof. The party challenging the constitutionality of a statute bears the burden to clearly establish the unconstitutionality of a statutory provision.

8. Constitutional Law: Statutes. It is not the province of a court to annul 

a legislative act unless it clearly contravenes the constitution and no 

other resort remains.

9. Judgments. Although an Attorney General’s opinion is entitled to substantial weight and is to be respectfully considered, it nonetheless has no 

controlling authority on the state of the law discussed in it and, standing 

alone, is not to be regarded as legal precedent or authority of such character as is a judicial decision.

10. Constitutional Law: Intent. The words in a constitutional provision 

must be interpreted and understood in their most natural and obvious 

meaning unless the subject indicates or the text suggests that they are 

used in a technical sense.

11. ____: ____. If the meaning of a constitutional provision is clear, the 

court will give to it the meaning that obviously would be accepted and 

understood by laypersons.

12. Constitutional Law: Statutes. Constitutional provisions are not subject 

to strict construction and receive a broader and more liberal construction 

than do statutes.

13. Constitutional Law: Courts: Intent. It is the duty of courts to ascertain and to carry into effect the intent and purpose of the framers of the 

constitution or of an amendment thereto.

14. Constitutional Law: Legislature: Initiative and Referendum. The 

Nebraska Constitution vests complete legislative authority of the state 

in the Legislature, subject only to the rights of initiative and referendum 

reserved by the constitution to the people and to any specific restrictions 

on the legislative authority found in the constitution itself.

15. Constitutional Law: Legislature. The Nebraska Constitution is not a 

grant, but, rather, a restriction on legislative power, and the Legislature 

may legislate on any subject not inhibited by the constitution.

16. Constitutional Law: Courts. Courts can enforce only those limitations 

which the Nebraska Constitution imposes.

17. Statutes: Words and Phrases. The word “necessary,” especially 

when used in a statute, may mean anything from “indispensable” to 

“convenient.”
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STATE EX REL. PETERSON v. SHIVELY

Cite as 310 Neb. 1

18. Legislature: Public Officers and Employees. The number and character of county offices that may be created rests in the discretion of 

the Legislature.

19. ____: ____. The Legislature enjoys broad discretion in creating and 

defining county offices, and deciding who is a county officer is a matter 

generally within the Legislature’s authority.

20. ____: ____. The Legislature possesses the discretionary authority to 

create and define county offices, a power which includes the ability to 

define or identify who is a county officer.

21. Statutes. Statutory interpretation begins with the text, and the text is to 

be given its plain and ordinary meaning.

22. Statutes: Appeal and Error. An appellate court will not resort to interpretation of statutory language to ascertain the meaning of words which 

are plain, direct, and unambiguous.

23. Statutes: Intent. When interpretation of a statute is necessary, a court 

will look to the statutory objective to be accomplished, the evils and 

mischiefs sought to be remedied, and the purpose to be served.

24. ____: ____. A court must reasonably or liberally construe a statute to 

achieve the statute’s purpose, rather than construing it in a manner that 

defeats the statutory purpose.

25. Constitutional Law: Statutes: Legislature. Legislative construction of 

a statutory or constitutional provision, although not conclusive on the 

courts, when deliberately made is entitled to great weight.

26. Statutes: Legislature: Intent. The intent of the Legislature may be 

found through its omission of words from a statute.

27. Legislature: Public Officers and Employees: Intent. The Legislature 

did not intend for election commissioners or chief deputies to be classified as county officers.

Appeal from the District Court for Lancaster County: Lori 

A. Maret, Judge. Affirmed.

Douglas J. Peterson, Attorney General, James A. Campbell, 

Solicitor General, L. Jay Bartel, and Lynn A. Melson, for 

appellant.

Marnie A. Jensen and David A. Lopez, of Husch Blackwell, 

L.L.P., for appellees and intervenors-appellees.

Beth Bazyn Ferrell for amicus curiae Nebraska Association 

of County Officials.
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STATE EX REL. PETERSON v. SHIVELY

Cite as 310 Neb. 1

Andre R. Barry and John F. Zimmer, of Cline, Williams, 

Wright, Johnson & Oldfather, L.L.P., for amicus curiae Civic 

Nebraska.

Joshua R. Woolf, Deputy Douglas County Attorney, Eric W. 

Synowicki, Deputy Lancaster County Attorney, and Andrea 

V. Gosnold-Parker, Deputy Sarpy County Attorney, for amici 

curiae Douglas, Lancaster, and Sarpy Counties.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Freudenberg, JJ., and Arterburn, Judge.

Funke, J.

The Attorney General of the State of Nebraska appeals the 

determination of the district court for Lancaster County that 

Nebraska statutes authorizing the Governor to appoint election commissioners in Lancaster, Douglas, and Sarpy Counties 

are constitutional. The Attorney General argues that election 

commissioners and their chief deputies are county officers 

and that article IX, § 4, of the Nebraska Constitution requires 

county officers to be elected. In affirming the decision of the 

district court, we conclude that article IX, § 4, respects the 

Legislature’s broad discretion and legislative authority to create and define county offices and officers.

BACKGROUND

Honest Election Law of 1913

The Nebraska Legislature created the office of the election commissioner in the Honest Election Law of 1913, now 

known as the Election Act. 1 Under the Honest Election Law 

of 1913, the primary job of the election commissioner was to 

enforce Nebraska’s election laws. 2 The Honest Election Law of 

1 See Neb. Rev. Stat. §§ 32-101 to 32-1551 (Reissue 2016 & Cum. Supp. 

2020).

2 Neb. Rev. Stat. §§ 2314 and 2315 (1914).
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STATE EX REL. PETERSON v. SHIVELY

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1913 empowered the Governor to appoint the election commissioner in certain counties, based on population, and empowered the appointed election commissioner to appoint a chief 

deputy election commissioner of the opposing political party. 3

Today, the Election Act requires that the Governor appoint an 

election commissioner for counties with a population of over 

100,000 inhabitants. 4 As a result, in Lancaster, Douglas, and 

Sarpy Counties, the Legislature has provided that election commissioners are to be appointed.

Attorney General’s Opinion

On September 24, 2019, at the request of a Nebraska state 

senator, the Attorney General issued an opinion answering 

two questions: (1) whether election commissioners are county 

officers within the meaning of article IX, § 4, of the Nebraska 

Constitution and (2) if election commissioners are county 

officers, whether the appointment of election commissioners 

and the chief deputies violates that provision of the Nebraska 

Constitution.

In answering the first question, the Attorney General quoted 

language from State, ex rel. O’Connor, v. Tusa,

 5 where we 

stated that “[i]t may be said that the almost universal rule 

is that, in order to indicate office, the duties must partake 

in some degree of the sovereign powers of the state.” The 

Attorney General noted that in discussing a public office, we 

stated in Tusa that “‘[a]n office is a public station or employment, conferred by the appointment of government . . . .’” 6

We further stated that it “‘embraces the ideas of tenure, duration, emolument, and duties.’” 7 The Attorney General found 

3 See § 32-209.

4 § 32-207.

5 State, ex rel. O’Connor, v. Tusa, 130 Neb. 528, 535, 265 N.W. 524, 528 

(1936).

6 Id.

7 Id.
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STATE EX REL. PETERSON v. SHIVELY

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that election commissioners and chief deputies are county 

officers, emphasizing that their authority derives from statute, 

they are appointed for a fixed term, they are required to take 

an oath and furnish a bond before taking office, and they are 

responsible for the enforcement of the Election Act as it relates 

to his or her office. The Attorney General explained that its 

findings were consistent with this court’s opinion in State, ex 

rel. Meissner, v. McHugh,

 8 where we identified the respondents 

in the case, the Douglas County election commissioner and his 

chief deputy, as public officers.

Regarding the second question, the Attorney General found 

that the appointment statutes were unconstitutional pursuant 

to Tusa. In Tusa, this court held that a county manager was 

a county officer as the term is used in article IX, § 4, and 

that as a result, the Nebraska statute authorizing the appointment of a county manager was unconstitutional. The Attorney 

General also relied upon our decision in State, ex rel. Harte, 

v. Moorhead,

 9 where this court noted that “[t]he Constitution 

makers had something definite in mind when they provided 

that county officers should be elected.”

Based on these authorities, and its conclusion that election commissioners and chief deputies are county officers, the 

Attorney General opined that Nebraska’s statutes requiring or 

authorizing the appointment of an election commissioner or 

chief deputy are constitutionally suspect and would be found 

unconstitutional by a court.

Court Proceedings

On September 30, 2019, Pete Ricketts, Governor of the 

State of Nebraska, responded to the Attorney General’s opinion in a letter stating that he would refuse to exercise his 

statutory appointment authority, and therefore would decline to 

8 State, ex rel. Meissner, v. McHugh, 120 Neb. 356, 233 N.W. 1 (1930).

9 State, ex rel. Harte, v. Moorhead, 99 Neb. 527, 534, 156 N.W. 1067, 1069 

(1916).
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appoint a Douglas County election commissioner, necessitating litigation under Neb. Rev. Stat. § 84-215 (Reissue 2014). 

Section 84-215 provides that when the Attorney General opines 

that an act of the Legislature is unconstitutional, and a state 

officer charged with the duty of implementing the act refuses 

to implement the act in reliance on that opinion, the Attorney 

General must file an action to determine the validity of the act. 

Pursuant to § 84-215, the Attorney General sought leave to 

file an original action in the Nebraska Supreme Court against 

the Secretary of State of the State of Nebraska. Leave to commence an original action was denied after the parties were 

unable to reach a complete stipulation of the facts.

Thereafter, the Attorney General filed a lawsuit in district 

court against the election commissioners and the chief deputies of Lancaster, Douglas, and Sarpy Counties (collectively 

Respondents). Governor Ricketts and Secretary of State Robert 

B. Evnen (collectively Intervenors), in their official capacities, 

intervened on the side of Respondents. In a motion for summary judgment, the Attorney General asked the court to declare 

unconstitutional, in violation of article IX, § 4, §§ 32-207 

and 32-209, and any related provisions of the Election Act. 

The Attorney General also requested the court to declare any 

statutory appointments void. In response, Respondents and 

Intervenors moved for summary judgment, asserting that election commissioners and their chief deputies are not county officers and that article IX, § 4, does not deprive the Legislature 

of its authority to provide for the appointment of election commissioners in counties with a certain population.

The court entered judgment in favor of Respondents and 

Intervenors. The court concluded that election commissioners 

are not “county officers” under article IX, § 4. The court cited 

Tusa and acknowledged that in order to be an article IX, § 4, 

“officer,” the duties of the post must “partake in some degree 

of the sovereign powers of the state.” 10 The court was not 

10 Tusa, supra note 5, 130 Neb. at 535, 265 N.W. at 528.
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persuaded by the Attorney General’s argument that “officers” 

under article IX, § 4, should generally take an oath or give a 

bond. The court explained that under this interpretation, the 

Legislature could avoid the election requirement by amending 

the statutes to no longer require an oath or a bond for a county 

job. The court further explained that an oath does not distinguish county officers from mere county employees, because in 

Nebraska, all public employees are required by statute to swear 

an oath. Additionally, the court noted that any person who is 

entrusted with county funds is required to give a bond or an 

equivalent insurance policy.

The court found that the Attorney General’s position swept 

too broadly and that courts must look to an “interpretation of 

the constitution [that] will carry out the framers’ intent and 

purpose.” The court determined that election commissioners 

have been appointed by the Governor in Nebraska for more 

than 100 years and that, if anything, election commissioners 

exercised even broader powers when the office was created a 

century ago. Thus, the court concluded that the statutes allowing the Governor to appoint election commissioners in the 

State’s most populous counties do not violate the Nebraska 

Constitution. Instead, the court explained, the appointment statutes reflect a settled understanding of the Nebraska Constitution 

for over a century.

After judgment was entered, upon an unopposed motion, the 

court amended the judgment, clarifying that all claims were 

resolved. Additionally, the court entered a nunc pro tunc order 

clarifying its evidentiary rulings and stating that exhibits 1 

through 3 and 7 through 18 were received into evidence during 

the proceedings. The Attorney General appeals.

Three amicus briefs were filed in this appeal. The Nebraska 

Association of County Officials filed an amicus brief in support of Respondents. Lancaster, Douglas, and Sarpy Counties 

also filed a joint amicus brief in support of Respondents. 

Additionally, Civic Nebraska filed an amicus brief in support 

of the Attorney General.
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STATE EX REL. PETERSON v. SHIVELY

Cite as 310 Neb. 1

ASSIGNMENTS OF ERROR

The Attorney General assigns, summarized and restated, that 

the district court erred in (1) concluding that the election commissioners are not county officers under article IX, § 4, and (2) 

failing to declare Nebraska’s appointment statutes unconstitutional and void any appointments made under those statutes.

STANDARD OF REVIEW

[1,2] An appellate court affirms a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter 

of law. 11 In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted, and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence. 12

[3,4] The constitutionality of a statute is a question of law, 

and this court is obligated to reach a conclusion independent 

of the decision reached by the trial court. 13 Constitutional 

interpretation is a question of law on which this court is obligated to reach a conclusion independent of the decision by the 

trial court. 14

[5] An appellate court may affirm a lower court’s ruling that 

reaches the correct result, albeit based on different reasoning. 15

ANALYSIS

[6-8] We begin by noting that a statute is presumed to 

be constitutional, and all reasonable doubts are resolved in 

11 Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934 N.W.2d 186 (2019).

12 Id.

13 Pony Lake Sch. Dist. v. State Committee for Reorg., 271 Neb. 173, 710 

N.W.2d 609 (2006).

14 Hall v. Progress Pig, Inc., 259 Neb. 407, 610 N.W.2d 420 (2000).

15 Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
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favor of its constitutionality. 16 The party challenging the constitutionality of a statute bears the burden to clearly establish 

the unconstitutionality of a statutory provision. 17 It is not the 

province of a court to annul a legislative act unless it clearly 

contravenes the constitution and no other resort remains. 18

[9] In the present matter, the district court granted 

Respondents’ motion for summary judgment and determined 

that election commissioners are not “county officers” under 

article IX, § 4. The Attorney General disagrees and argues 

election commissioners and chief deputies fall under the definition of the word “officer” and serve a county, thus making 

them “county officers.” The Attorney General further contends 

that because article IX, § 4, requires county officers to be 

elected, the statutes authorizing the appointment of election 

commissioners and chief deputy election commissioners are 

unconstitutional. Although an Attorney General’s opinion is 

entitled to substantial weight and is to be respectfully considered, it nonetheless has no controlling authority on the state 

of the law discussed in it and, standing alone, is not to be 

regarded as legal precedent or authority of such character as is 

a judicial decision. 19

[10-13] The words in a constitutional provision must be 

interpreted and understood in their most natural and obvious meaning unless the subject indicates or the text suggests 

that they are used in a technical sense. 20 If the meaning of a 

constitutional provision is clear, the court will give to it the 

meaning that obviously would be accepted and understood 

by laypersons. 21 Constitutional provisions are not subject to 

strict construction and receive a broader and more liberal 

16 State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).

17 Pony Lake Sch. Dist., supra note 13.

18 Id.

19 State v. Coffman, 213 Neb. 560, 330 N.W.2d 727 (1983).

20 State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007).

21 Id.
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construction than do statutes. 22 It is the duty of courts to ascertain and to carry into effect the intent and purpose of the framers of the constitution or of an amendment thereto. 23

Upon this court’s review of the record, we conclude that 

under the plain text of article IX, § 4, the Legislature has 

broad discretion and authority in creating and defining county 

offices and officers. While this discretion is not wholly unfettered, the statutes challenged here lie well within constitutional bounds.

Legislative Authority

[14-16] Article III, § 1, of the Nebraska Constitution vests 

complete legislative authority of the state in the Legislature, 

subject only to the rights of initiative and referendum reserved 

by the constitution to the people and to any specific restrictions on the legislative authority found in the constitution 

itself. In other words, the Legislature has plenary legislative 

authority limited only by the state and federal Constitutions. 24

The Nebraska Constitution is not a grant, but, rather, a restriction on legislative power, and the Legislature may legislate on 

any subject not inhibited by the constitution. 25 Consequently, 

courts can enforce only those limitations which the Nebraska 

Constitution imposes. 26

[17] Article IX, § 4, states, in pertinent part, “The Legislature 

shall provide by law for the election of such county and township officers as may be necessary . . . .” Although we have not 

had the opportunity to define the meaning of § 4’s phrase “as 

may be necessary,” we have explained that the word “necessary,” especially when used in a statute, may mean anything 

22 Id.

23 Id.

24 Dwyer v. Omaha-Douglas Public Building Commission, 188 Neb. 30, 195 

N.W.2d 236 (1972), citing Swanson v. State, 132 Neb. 82, 271 N.W. 264 

(1937).

25 Lenstrom v. Thone, 209 Neb. 783, 311 N.W.2d 884 (1981).

26 Id.
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from “indispensable” to “convenient.” 27 The U.S. Supreme 

Court, in Maggio v. Zeitz,

 28 used the phrase “‘as may be necessary’” and the phrase “wide discretion[]” when discussing 

enforcement under the federal Bankruptcy Act; in doing so, the 

Court explained that a bankruptcy court is given a “wide discretionary jurisdiction to accomplish the ends of the Act,” or, 

in the words of the statutes, to “‘make such orders, issue such 

process, and enter such judgments . . . as may be necessary for 

the enforcement of the provisions of this title.’” This nexus 

between the phrase “as may be necessary” and discretionary 

authority is confirmed by similar language in our precedent of 

Dinsmore v. State.

 29

[18,19] In Dinsmore, the defendant was convicted of first 

degree murder and claimed that there was no warrant in the 

Nebraska Constitution for electing county attorneys, so that, 

therefore, his conviction, which was secured by a county 

attorney, was void. 30 This court disagreed and acknowledged 

that the office of the county attorney was created by legislative enactment, not by the constitution. 31 We also explained 

that the power of the Legislature to create a county attorney office cannot be doubted in light of Neb. Const. art. X, 

§ 4, the predecessor to Neb. Const. art. IX, § 4. 32 We further 

emphasized that the “number and character of county offices 

that may be created rests in the discretion of the lawmaking 

body.” 33 Thus, under the plain text of article IX, § 4, and our 

historic precedent of Dinsmore, the Legislature enjoys broad 

27 In re Application A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990), citing 

Banks v. Board of Education of Chase County, 202 Neb. 717, 277 N.W.2d 

76 (1979).

28 Maggio v. Zeitz, 333 U.S. 56, 62, 68 S. Ct. 401, 92 L. Ed. 476 (1948).

29 Dinsmore v. State, 61 Neb. 418, 85 N.W. 445 (1901).

30 Id.

31 Id.

32 Id.

33 Id. at 429, 85 N.W. at 448.
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discretion in creating and defining county offices, and deciding who is a county officer is a matter generally within the 

Legislature’s authority.

[20] The 1866 Nebraska Constitution vested the state’s legislative authority in the Legislature without any reservation to 

the people of either initiative or referendum, but made no reference to counties. 34 However, counties were seemingly already 

in existence prior to the 1866 constitution, pursuant to territorial law. 35 Then, in 1873, the Legislature exercised its legislative authority by confirming the boundaries of these existing 

counties and by creating others. 36 It also created legislation to 

provide for the government of these counties and defined the 

powers and duties of those counties and their respective officers. 37 Further, since 1866, the Legislature has, at will, added to 

the powers and duties of counties and occasionally taken away 

certain powers. 38 Moreover, the Legislature has previously 

exercised its power and authority to create subdivisions of 

government to perform special governmental functions on several occasions, such as sanitary districts, 39 rural fire protection 

districts, 40 airport authorities, and housing authorities. 41 Thus, it 

is clear that the power and authority to create counties and provide for county governance rests with the Legislature, which it 

has exercised long before the 1875 Nebraska Constitution was 

ratified. The case before us does not require that we articulate 

the outer boundaries of that discretion. Therefore, pursuant 

34 Dwyer, supra note 24.

35 Id.

36 Id.

37 Id.

38 Id.

39 See Whedon v. Wells, 95 Neb. 517, 145 N.W. 1007 (1914).

40 See Seward County Rural Fire Protection Dist. v. County of Seward, 156 

Neb. 516, 56 N.W.2d 700 (1953).

41 Dwyer, supra note 24.
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to the plain text of article IX, § 4, our holding in Dinsmore, 

and the history of legislative authority in the state, we hold that 

the Legislature possesses the discretionary authority to create 

and define county offices, a power which includes the ability 

to define or identify who is a county officer.

Election Commissioner and Chief 

Deputy Not County Officers

Following our conclusion that the Legislature wields the 

power and authority to create and define county offices and 

officers, we now turn to the merits of the case and discuss 

whether the Legislature has defined election commissioners 

and chief deputy election commissioners as county officers. 

The Attorney General argues election commissioners and chief 

deputy election commissioners are county officers because they 

are public officers who serve a specific county. In support of its 

argument, the Attorney General synthesizes case law from other 

jurisdictions and enunciates a list of indicia which, it argues, 

identifies who is a county officer. We disagree and decline to 

adopt the Attorney General’s reasoning. Upon a review of the 

law and the record, it is apparent that the Legislature did not 

intend for election commissioners and deputy chief election 

commissioners to be recognized as county officers.

[21-24] Statutory interpretation begins with the text, and 

the text is to be given its plain and ordinary meaning. 42 An 

appellate court will not resort to interpretation to ascertain 

the meaning of words which are plain, direct, and unambiguous. 43 However, when interpretation is necessary, a court will 

look to the statutory objective to be accomplished, the evils 

and mischiefs sought to be remedied, and the purpose to be 

served. 44 The court must then reasonably or liberally construe 

42 See, Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018); Kozal v. 

Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 (2017).

43 See Heiden, supra note 42.

44 Id.
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the statute to achieve the statute’s purpose, rather than construing it in a manner that defeats the statutory purpose. 45

[25] In Dwyer v. Omaha-Douglas Public Building Commission,

 46 this court heard a constitutional challenge to a statute 

authorizing certain cities and counties to establish a public 

building commission. In Dwyer, we emphasized that “[l]egislative construction of a statutory or constitutional provision, 

although not conclusive on the courts, when deliberately made 

is entitled to great weight.” 47

[26,27] Neb. Rev. Stat. §§ 23-1114.01 to 23-1114.07 (Reissue 

2012) amount to what can be described as the Legislature’s list 

of county officers. These sections list various county officers 

and their salaries, classified by county population size. These 

statutes classify positions such as the county clerk, treasurer, 

sheriff, attorney, appointive full-time veterans service officer, 

and clerk of the district court as county officers. However, 

these statutes make no mention of or reference to an election 

commissioner and a chief deputy election commissioner. Thus, 

because the intent of the Legislature may be found through its 

omission of words from a statute, 48 we find that through its 

omission of election commissioners and chief deputy election 

commissioners from the language contained in §§ 23-1114.01 

to 23-1114.07, the Legislature did not intend for election commissioners or the chief deputies to be classified as county 

officers. 49 In fact, in § 32-217, the Legislature specifically 

identifies the election commissioner, the chief deputy election 

commissioner, and all employees of the office of the election 

commissioner as county employees. We view the statutory 

45 Id.

46 Dwyer, supra note 24.

47 Id. at 36, 195 N.W.2d at 241, citing State ex rel. Johnson v. Chase, 147 

Neb. 758, 25 N.W.2d 1 (1946).

48 See Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723 

(2016).

49 See id.
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scheme adopted by the Legislature as compelling evidence that 

if the Legislature had intended for election commissioners and 

the chief deputies to be county officers, the Legislature would 

have identified them as county officers.

Further, it is clear that the Legislature did not intend to make 

election commissioners county officers, as shown by the fact 

that the Legislature created separate and distinct processes for 

removing county officers and election commissioners. Neb. 

Rev. Stat. § 23-2001 (Reissue 2012) provides that all county 

officers may be removed from office for (1) habitual or willful neglect of duty, (2) extortion, (3) corruption, (4) willful 

maladministration in office, (5) conviction of a felony, (6) 

habitual drunkenness, or (7) official misconduct as defined 

in Neb. Rev. Stat. § 28-924 (Reissue 2016). Further, Neb. 

Rev. Stat. §§ 23-2001 to 23-2013 (Reissue 2012) provide that 

county officers are removed by judicial proceedings. On the 

other hand, § 32-214 provides that an election commissioner or 

a chief deputy shall be removed when (1) he or she has been 

derelict in the performance of the duties of the office; (2) he 

or she is incompetent; (3) his or her conduct is prejudicial to 

the public interest; (4) he or she has appointed incompetent, 

negligent, or corrupt precinct or district inspectors, judges of 

election, clerks of election, or deputy registrars; (5) a fair and 

impartial registration of voters was not obtained in any district 

of the county; or (6) the act was not enforced in the county. 

Further, § 32-214 provides that the Governor has the authority 

to remove the election commissioner or the chief deputy when 

either is subject to removal under the statute. If the Governor 

fails to do so, any citizen of the county may institute an action 

to order the Governor to remove the election commissioner or 

the chief deputy.

From the plain text of the Nebraska Revised Statutes, it is 

clear that the Legislature did not intend election commissioners and chief deputies to be considered county officers. The 

Legislature has the sovereign authority and prerogative to create and define county offices. As such, in light of article IX, 
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

STATE EX REL. PETERSON v. SHIVELY

Cite as 310 Neb. 1

§ 4, we find that §§ 32-207 and 32-209 are constitutional. 

Accordingly, we conclude that the Attorney General’s assignments of error are without merit.

CONCLUSION

The restrictions imposed upon the Legislature by Neb. Const. 

art. IX, § 4, recognized a broad discretion to determine the 

necessity of choosing county and township officers by election. 

Here, the Legislature has determined that election commissioners and chief deputies are not county officers. Because its 

determination does not fall outside of that broad discretion, the 

judgment of the district court must be affirmed. The framers 

intended for the Legislature to hold this power. The Legislature 

has made it clear through its exercise of legislative authority, per the plain and unambiguous language of the Nebraska 

Revised Statutes, that it did not intend for election commissioners and chief deputies to be considered county officers. The 

Attorney General’s arguments are without merit.

Affirmed.

Papik, J., not participating.