dissenting.
I respectfully dissent. The effect of the majority opinion is to permit repeal of any existing ordinance by the initiative process rather than by referendum alone. It thus abolishes in many respects the distinctions between initiative and referendum. This has grave consequences which I do not believe the court has taken into consideration.
The fundamental distinction between initiative and referendum goes far beyond the 30-day limitation on referendum, § 18-112, R. R. S. 1943, and postponement of the effective date of the ordinance enacted by the governing body, § 18-116, R. R. S. 1943. If the only difference between the two procedures were the above, the consequences would not be so grave. However, as I will attempt hereafter to demonstrate, the logical and legal consequences of the opinion are that it effectively eliminates all the exemptions from referendum contained in section 18-117, R. R. S. 1943. This could effectively eliminate all municipal government. I will now attempt to demonstrate the above propositions by (1) analysis of the statutes, and by (2) authority on point.
(1) There are no exemptions or exceptions to the initiative power. If, by initiative, the voters can repeal any ordinance at all, rather than just “propose ordinances for the government” of the city, etc., § 18-101, R. R. S. 1943, the exemptions from the refer*370endum power contained in section 18-117, R. R. S. 1943, are of no consequence and are in effect eliminated, because, what cannot be accomplished by referendum, can be by initiative. Such could not have possibly been the legislative intention. Such consequences do violence to the language of the initiative and referendum provisions themselves. If the majority opinion is adhered to, there is no way that the court can logically, or by following any canon of construction, at some later time when it will inevitably be confronted with the problem, read into the initiative provisions the exemptions of the referendum provisions of the statute. The exemptions, by the very words of the statute, section 18-117, R. R. S. 1943, apply only to referendum. We cannot by construction say that section 18-117, R. R. S. 1943, are exemptions from section 18-101, R. R. S. 1943, because this simply is contrary to the plain language of the statute.
The ultimate consequences of the opinion, therefore, are to make all the following which are specifically exempt from referendum, § 18-117, R. R. S. 1943, subject to repeal by initiative:
(1) Urgent ordinances as defined by section 18-117, R. R. S. 1943;
(2) Ordinances in furtherance of or carrying out a policy of the city or relating to projects previously established or approved by an ordinance which itself was subject to sections 18-112 to 18-116 or which may have been approved by the voters at an election;
(3) Ordinances relating to the acquisition, construction, installation, improving and enlarging, including the financing or refinancing of the costs, of public ways, public property, utility systems and other capital projects, including industrial development projects;
(4) Ordinances establishing or changing utility system rates and charges and pay rates and salaries *371for city employees other than the mayor and city council; or
(5) Ordinances taking action as to which the statutes applicable thereto provide other means or procedures for voters or persons interested to object to the action taken or proposed.
The likelihood, of course, is that if the problem outlined above arises, the court will do one of two things: (1) Overrule what it has done in this case, or (2) by exercise of raw judicial power read the referendum exemption into the initiative. The first alternative I would obviously advocate; the second could not be done except by complete disregard of the language of the statutes.
Furthermore, I read the language above, “Ordinances ... an ordinance which itself was subject to sections 18-112 to 18-116” to mean that referendum is a one-shot procedure, i.e., if approved or defeated, you cannot simply turn around and repeat the process. Neither can the council itself, within 1 year from the date of action either by initiative or referendum, modify what the voters have done. § 18-120, R. R. S. 1943. These points give added force to the position that there are real and fundamental differences between the initiative and the referendum.
The exemptions from referendum under section 18-117, R. R. S. 1943, were adopted by the Legislature in 1974. Laws 1974, L. B. 1026, § 1. Previously the only exemption was emergency ordinances. The 1974 amendments were apparently adopted in response to a division opinion of this court, Hoover v. Carpenter, 188 Neb. 405, 197 N. W. 2d 11, Smith, J., in which it was implied that under some circumstances ordinances setting utility rates were subject to referendum. The other exemptions were apparently introduced to remove other areas from tampering by this court. The Legislature, or at least the sponsors of the amendment, whose ideas the Legislature adopted, obviously must have thought that such *372items were free from interference by the initiative because that was not available to change existing ordinances. The majority opinion, if adhered to, will change all that.
(2) The constitutional provisions for initiative and referendum pertain only to acts of the Legislature and, of course, have no applicability to the statutes we are discussing. See, Carlberg v. Metcalfe, 120 Neb. 481, 234 N. W. 87; Schroeder v. Zehrung, 108 Neb. 573, 188 N. W. 237. A comparison with the constitutional provisions, Article III, sections 2 and 3, is, I think, instinctive, to wit, “The first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people independently of the Legislature. . . .” Art. Ill, § 2, Constitution of Nebraska. “The second power reserved is the referendum which may be invoked, by petition, against any act or part of an act of the Legislature, . . .” Art. Ill, § 3, Constitution of Nebraska. The constitutional provision contains exceptions as to referendum. The constitutional provision for initiative contains no exceptions. The exceptions from referendum are “except those making appropriations for the expense of the state government or a state institution existing at the time of the passage of such act.” Art. Ill, § 3, Constitution of Nebraska. The principle which is announced in the majority opinion has logical applicability to the constitutional provisions. Are we willing to say that by initiative the people may repeal “appropriations for the expense of the state government or a state institution existing at the time of the passage of such act?”
Various courts have considered the reasons for the exceptions and exemptions from referendum. The same reasons apply with equal force to the initiative, yet the initiative contains no such exemptions. This would not be true if the same were equivalent. Subjecting some items to referendum or initiative, *373for example, such as appropriations for existing institutions, might cripple or destroy the administration of government affairs to the extent of requiring the legislative, executive, or the judicial branches of the government, or all of them, to cease to function. State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 P. 841; State ex rel. Wegner v. Pyle, 55 S. D. 269, 226 N. W. 280. This court has already had occasion to consider the meaning of exemptions from the referendum contained in the Constitution. Bartling v. Wait, 96 Neb. 532, 148 N. W. 507. We held an appropriation for a “memorial armory” was not an expense of government, but, as an illustration, that the cost of maintaining the National Guard would be as it was a state institution.
I would point out that Klosterman v. Marsh, 180 Neb. 506, 143 N. W. 2d 744, involved only the “referendum” power. Its reference to the “initiative” is pure dictum. When that case pointed out that “either,” i.e., the Legislature or the people, may repeal acts of the other, it was referring solely to referendum, that was the only thing that was involved. We repeated the dictum in State ex rel. Andersen v. Leahy, 189 Neb. 92, 199 N. W. 2d 713, but added: “We do not reach that question . . . .” We then decided the case on the basis that the voters cannot enact any ordinance which is beyond the powers of the governing body to enact.
Apparently practically all constitutions and statutes contain exemptions or exceptions in the referendum section and none in the initiative. These exceptions generally pertain to one or more of three categories: (1) Provisions for the support of governmental institutions; (2) tax and appropriation measures; and (3) laws for the protection of the public peace, health, and safety. See Initiative and Referendum, 42 Am. Jur. 2d, §§ 14, 15, 16, pp. 664 to 666.
The reasons for exemptions in one and not in the other are, as the language of the Constitution and *374statutes earlier quoted suggest, that initiative and referendum accomplish fundamentally different things.
The essential difference between initiative and referendum is generally recognized by the law review writers, i.e., the initiative is for proposing new legislation, the referendum is for attacking legislation already on the books. 49 Wash. L. Rev. 55 (1973); 54 Cal. L. Rev. 1717 (1966).
It is to be noted that the appellees cite no authorities, save Klosterman, for the proposition that existing ordinances may be repealed by initiative. The opinion in this case cites two Ohio opinions and one from New Jersey: State ex rel. Sharpe v. Hitt, 155 Ohio St. 529, 99 N. E. 2d 659 (1951); Storegard v. Board of Elections of Cuyahoga County, 22 Ohio Misc. 5, 50 Ohio 2d 240, 255 N. E. 2d 880 (1969); and Smith v. Township of Livingston, 106 N. J. Super. 444, 256 A. 2d 85 (1969). Sharpe involved repeal by initiative of a parking meter ordinance previously enacted. I think it is arguable whether the case is on point. The statutory language in that case was: “Section 4227-1, General Code, as amended in 1914, recites in part:
“ ‘Ordinances and other measures providing for the exercise of any and all powers of government granted by the constitution or now delegated or hereafter delegated to any municipal corporation, by the general assembly, may be proposed by initiative petition. . . .’
“Section 4227-2, General Code, reads in part: ‘Any ordinance, or other measure passed by the council of any municipal corporation shall be subject to the referendum except as hereinafter provided. . . .’
“Then Section 4227-3, General Code, describes the ordinances which are not subject to referendum, including ‘emergency ordinances’ passed by a two-thirds vote of those comprising the legislative body involved and which go into immediate effect.”
The specific issue in that case revolved around *375the question whether the ordinance was exempt from referendum (and initiative) because it was declared to be an emergency ordinance. The Ohio court, as does this court in the opinion, intermingled the concept of initiative and referendum as if they were one. A previous Ohio case, State ex rel. Smith v. City of Fremont, 116 Ohio St. 469, 157 N. E. 318, had categorically held that initiative is not a substitute for referendum. In Sharpe, the previous case was distinguished, however, I do not think it was in fact distinguishable.
In any event, I think the Sharpe case is distinguishable from what we have at hand. I point out: (1) Broad language of the Ohio statute, (2) the confusion of thought in the opinion, and (3) the ultimate decision really rested upon a determination of whether there was a bona fide emergency and hence, despite the court’s discussion of initiative, the court was really deciding the emergency question which was actually a part of the referendum portion of the statute. The other Ohio case cited was that of an intermediate appellate court and was simply an adherence to Sharpe. The New Jersey opinion cited by this court in the opinion is, so far as the point here involved is concerned, mere dictum as is Klosterman. The New Jersey case involved the question whether an amendment of a zoning ordinance could be changed by initiative. It was held it could not be. Our own court held similarly in Kelley v. John, 162 Neb. 319, 75 N. W. 2d 713, stating that an amendment of a zoning ordinance (as distinguished from the original overall zoning ordinance and plan) was an administrative, as distinguished from a legislative, matter and so not subject to initiative or referendum. This court modified Kelley v. John, supra, in Hoover v. Carpenter, supra, implying apparently that administrative matters are subject to initiative and referendum. I certainly disagree with that implication. Both of the above cases were handed *376down before the amendment to the referendum statute which brought about the exemptions in question.
Cases on point and contrary to the opinion are Heider v. Common Council of City of Wauwatosa, 37 Wis. 2d 466, 155 N. W. 2d 17; Landt v. City of Wisconsin Dells, 30 Wis. 2d 470, 141 N. W. 2d 245; Wyatt v. Clark, 299 P. 2d 799 (Okla., 1956); Hughes v. Bryan, 425 P. 2d 952 (Okla., 1967); and In re Initiative Petition No. 1 of Midwest City v. Melton, 465 P. 2d 470 (Okla., 1970).
The language of the Oklahoma Constitution, which reserves initiative and referendum to municipalities as well as the Legislature, is in substance the same as our Constitution and statutes. In Wisconsin the initiative, so far as a municipality is concerned, is by statute and is there called “direct legislation.” Both the Wisconsin and the Oklahoma cases clearly point out the fundamental difference between initiative and referendum. In Heider, supra, the court said that initiative proceedings cannot be used to repeal existing legislation. Similarly, Landt, supra. In Wyatt, supra, the court said that the power of referendum does not apply to any law which has already become effective. There the court also said: “ ‘Initiative’ means the power of the people to propose bills and laws, and to enact or reject them at the polls, independent of legislative assembly, whereas ‘referendum’ is right of the people to have submitted for their approval or rejection an act passed by the legislature.”
The Wisconsin legislation is somewhat different than ours. As noted, initiative is referred to as “direct legislation.” 'Thus in Wisconsin there is no longer any general statute of referendum although there are numerous specific statutes subjecting particular matters to referendum. The Wisconsin cases are nonetheless on point as may be noted from the following quotations: “We conclude that when a common council has adopted an ordinance or resolu*377tion dealing with a particular subject, sec. 10.43, Stats., does not authorize the filing of petitions to compel the council to repeal such ordinance or resolution, or, in default of repeal, to submit the ordinance or resolution to popular vote. It is true that in a broad sense a repeal of an existing measure is an act of legislation, just as is the adoption of a new measure upon a subject not previously dealt with. Nevertheless, traditional concepts in the field of direct popular legislation, and the history of sec. 10.43, Stats., and its predecessor statutes, convince us that the two types of legislation are not the same in the context of sec. 10.43, Stats.
“Usually the procedure for consideration by the voters of new legislation is referred to a,s the initiative, and for review by the voters of existing legislation as the referendum.
“ ‘Generally speaking, the initiative, in the case of municipal legislation, is initiation of municipal legislation and enactment or rejection thereof by the municipal electorate in event the proposed measure is not enacted by their elected representatives.’
“ ‘The referendum is essentially a referral to the voters of a municipality for their direct vote on an existing ordinance, or at least one that has been passed by the municipal legislative body and that is or may become law except for the successful intervention of referendum procedure. It usually is utilized, practically speaking, with the object in view of defeating municipal legislation that exists, is in process of being enacted, or has been enacted with its effective date in the future, although it is designed obviously to determine the will of the electorate as to such legislation.’
“The source of present sec. 10.43, Stats., was ch. 513, Laws of 1911, creating ‘sections 39 i to 39 1, inclusive, of the statutes, relating to the initiative and referendum on acts of municipal councils and of boards of county supervisors. . . .’
*378“It is true that to some extent several of the statutes just referred to authorize the use of the initiative procedure under sec. 10.43, Stats., to accomplish what is essentially a repeal. The fact that such express authorizations exist in specific areas, does not convince us that the general authority to initiate repeal measures pursuant to sec. 10.43 is implied within that section. The express provisions for the special cases may as well imply that sec. 10.43 would be inapplicable to repeal proposals in the absence of the express provisions.” Landt v. City of Wisconsin Dells, supra.
It seems apparent to me that all legislative activity is not subject to popular election. If representative governments are to function, there must be some areas in which representative action will be final. In Nebraska, this includes those which are specifically exempted under the provisions of section 18-117, R. R. S. 1943. The effect of the opinion, if followed in the future, will, for the reasons I have outlined earlier, eliminate those exemptions.