dissenting.
I reaffirm my dissent to the three-judge opinion upholding the constitutionality of sections 72-257 and 72-258, R. S. Supp., 1967, and 72-258.01, R. R. S. 1943 (as amended by Laws, 1965, c. 435, §§ 2, 3, and 4, pp>. 1386 and 1387, and Laws 1967, c. 466, § § 10 and 11, p. 1450), found at 184 Neb. 621, 171 N. W. 2d 156. I am authorized to. state that White, C. J. and Carter and Newton, JJ., adhere to that previously declared position.
The controlling opinion in this case states that ■ the only real issue is whether the Legislature is authorized to direct the sale of all school lands. This is not the issue at all. No contention is advanced by anyone that the power to sell school lands is not lodged in the Legislature. The issue is whether the statute implementing the constitutional authorization to sell meets the requirements for. the sale of trust property where, as here, the Constitution declares.it to be such.. The.dissenting *283opinion of Judge Carter points out not only that the statute does not comply, but that it was the intention ofi the Legislature not to comply.
Additionally, I attack the right of three members of this court to override a majority opinion, and state that-the following sentence from Article V, section 2, Constitution of Nebraska, “No legislative act shall be held unconstitutional except by the concurrence. • of five judges,”.is itself unconstitutional.
■ 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.”
This provision does' not limit the authority of this court to declare an act unconstitutional if it is in violation'of the state Constitution .only, but ■ prohibits ■ such *284declaration without five votes, whether it is unconstitutional under the state or the federal Constitution. This is violative of the federal Constitution. Any dilution of the judicial power shatters the fundamental principle that government is divided into three coordinate branches —legislative, executive, and judicial. Any limitation upon what is rightfully a part of the judicial power destroys the republican form of government. If it is possible to require more than a majority vote, is it not also possible to require a unanimous vote? To so hold is foreign and hostile to our republican form of government.
There are certain acts which even the state Constitution cannot abrogate. One of these is to limit the authority of this court to exercise its sovereign and inherent power as the judicial branch of government, free from the dictates of the Legislature.
This constitutional provision as applied in the instant case permits the Legislature to dilute the inherent power of this court, as well as depriving the beneficiaries of the public school lands’ trust of property without due process of law. In other jurisdictions a simple majority may hold a legislative act unconstitutional. Because of this provision, Nebraska requires five of seven judges to so hold. Citizens of Nebraska are not therefore entitled to all of the privileges of citizens in the several states.
The Supreme Court of the United States in Reitman v. Mulkey, 387 U. S. 369, 87 S. Ct. 1627, 18 L. Ed. 2d 830, struck down an act of the State of California which sought to prohibit open housing laws unless first approved by a majority vote of the people of California. The court held that even a majority could not promulgate legislation inherently contrary to rights afforded an individual under the Constitution of the United States. I maintain that our constitutional provision permitting a minority of the citizens of Nebraska, as represented by three judges upon this court, to thwart the will of *285the majority is in violation of the equal protection clause of the Constitution of the United States.