dissenting.
I expressly reaffirm my position which is set out in the dissents in DeBacker v. Brainard, 183 Neb. 461, 161 N. W. 2d 508. It is possible, however, that the issues there raised may be moot because the proceedings attacked occurred before May 20, 1968.
Petitioner has raised three new issues. Two of them are mentioned in the present opinion. The third issue, which is not discussed therein, raises the invalidity of a part of Article V, section -2, Constitution of Nebraska, which provides:" “No legislative act shall be held unconstitutional except by the concurrence of five judges.” Petitioner alleges that this sentence is itself unconstitutional, in'that it'hampers the assertion of a federal right ánd unreasonably discriminates against' litigants asserting the constitutional invalidity of legislation. ■ If this-*356is true, as I believe it is, the previous opinion of the majority should be controlling herein.
The Enabling Act of Congress, permitting the people of Nebraska to adopt a Constitution and form a state government, required a republican form of government not repugnant to the Constitution of the United States and the principles of the Declaration of Independence. As the Supreme Court of Colorado said in People v. Western Union Telegraph Co., 70 Colo. 90, 198 P. 146, 15 A. L. R. 326: “The original Constitution of Colorado was a solemn compact between the State and the Federal government, a compact which stipulated that it should never be altered save in the manner therein provided, and that all amendments and all revisions thereof would conform to the supreme law. The whole people of the state have no power to alter it save according to their contract. They cannot do so, even by unanimous consent, if such alteration violates the Constitution of the United States. Should they make the attempt their courts are bound by the mandate of the Federal Constitution, and by the oath they have taken in conformity therewith and with their own Constitution, to declare such attempt futile, to disregard such violation of the supreme compact, and decline to enforce it. There is no sovereignty in a state to set at naught the Constitution of the Union, and no power in its people to command their courts to do so. That issue was finally settled at Appomattox.”
It is to be noted that the provision in question limits not only the authority of this court to declare an act unconstitutional if it is in violation of the state Constitution, but also prohibits such declaration without five votes if it is unconstitutional under the federal Constitution. Any dilution of the judicial power destroys the equality among the three coordinate branches of government: Executive, legislative, and judicial, and shatters the fundamental principle of a republican form of government.
*357It goes without saying that if it is possible to require more than a majority vote, it is also possible to require a unanimous vote. There are certain acts which even the state Constitution cannot abrogate. One of these is the exercise of the sovereign and inherent power of the judicial branch of government within the framework required by a republican form of government.
In other jurisdictions, a simple majority may hold a legislative act unconstitutional. Because Nebraska requires five of seven judges to so hold, a citizen of Nebraska therefore is not entitled to all of the privileges of citizens in the several states. By this provision, a minority of the citizens of Nebraska, as represented by three judges upon this court, are permitted to thwart the will of the majority.