dissenting.
I respectfully dissent from the majority opinion because I believe that the court has gone beyond the issues as defined by the parties in this original action.
The issue before the court was “[w]hether an individual who teaches at a state college and who also serves in the Nebraska Legislature exercises the powers of both the executive and the legislative branches of state government in contravention of Article II Section 1 of the Nebraska Constitution.” Brief for *790relator at 1. Put another way, “[t]his is an original action in which the Attorney General seeks to determine whether the Respondent can constitutionally serve in the Nebraska Legislature and, at the same time, teach at Wayne State College.” Id. at 2.
As I understand the claim, the relator seeks to have respondent removed from his position as a member of the faculty of a state college because “being one of these departments” (a member of the Legislature) he exercises the power “properly belonging to either of the others” (the executive department). See Neb. Const, art. II, § 1. I do not believe respondent exercises the powers of the executive department as a member of the faculty of Wayne State College and certainly the relator does not ask that the respondent, “being one of these departments” (executive), be removed for exercising the power “properly belonging” to the legislative branch.
The powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.
Neb. Const, art. II, § 1. There is no question that the respondent, as a member of the Legislature, is a “person or collection of persons being one of these departments,” i.e., the legislative department. The crucial question is whether the respondent “being one of these departments ... exercise[s] any power properly belonging to either of the others,” in this case, powers belonging to the executive department.
The purpose of this constitutional provision is to establish “the permanent framework of our system of government and to assign to the three departments their respective powers and duties, and to establish certain fixed principles upon which our government is to be conducted.” State, ex rel. Randall, v. Hall, 125 Neb. 236, 242, 249 N.W. 756, 759 (1933). By adhering to this structure of government the preservation of liberty is best served. See The Federalist No. 47 (J. Madison).
However, “[a] rigid adherence to it [separation óf powers] in *791all cases would be subversive to the efficiency of the government and result in the destruction of the public liberties.” 1 J. Story, Commentaries on the Constitution of the United States § 529 at 371 (3d ed. 1858). Furthermore, a justice of the U.S. Supreme Court has stated that while the doctrine of separation of powers “diffuses the power [of each branch of government] to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government.” Youngstown Co. v. Sawyer, 343 U.S. 579, 635, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) (Jackson, J., concurring). A hermetic seal around each branch of government would preclude the establishment of an effective government. Buckley v. Valeo, 424 U.S. 1, 121, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
A senatorial position in the Nebraska Legislature is a part-time position. Therefore, it is not uncommon for senators to have additional sources of income and careers. An uncompromising interpretation of the separation of powers would inhibit the ability of a part-time legislature to attract qualified members.
Moreover, “the concept of separation of powers is not one that is capable of precise legal definition yielding clear solutions to intragovernmental disputes.” Stolberg v. Caldwell, 175 Conn. 586, 596, 402 A.2d 763, 769 (1978). Consequently, the doctrine of separation of powers is not always clear in its application to the day-to-day functions of the government.
It is clear, however, that the executive branch is generally described as the branch of government that executes the laws of the state.
The members of the executive branch of government are divided into two categories: the executive officers and the employees. See, State, ex rel. O’Connor, v. Tusa, 130 Neb. 528, 265 N.W. 524 (1936); Home Savings & Loan Ass’n v. Carrico, 123 Neb. 25, 241 N.W. 763 (1932). According to the Nebraska Constitution, the executive officers of the state who are responsible for carrying out the laws of the state are the “Governor, Lieutenant Governor, Secretary of State, Auditor of Public Accounts, Treasurer, Attorney General, and the heads of such other executive departments as set forth herein or as may be established by law.” Neb. Const. art. IV, § 1. See *792Neb. Rev. Stat. § 49-1436 (Reissue 1988). An assistant professor is not named therein.
Mere exclusion of a specific government position does not dictate the person’s status as an officer or employee.
State v. Loechner, 65 Neb. 814, 91 N.W. 874 (1902), was one of the first cases to recognize the division of employment in the executive branch of government. Loechner divided the executive branch into two categories: the ministerial officers and the executive officers. A ministerial officer is an officer with
no power to judge the matter to be done, and [whose office requires] him to obey some superior. An executive officer, in the proper sense of the term, is one whose duties are mainly to cause the laws to be executed; such as the president, the governor of a state, or the chief executive officer of a city.
Loechner, supra at 818, 91 N.W. at 875. In Home Savings & Loan Ass’n v. Carrico, supra at 30, 241 N.W. at 765, an employee was described as “one who is bound, in some degree, to the duty of service, and who is subject to the master’s command as to how to do the work.” An officer has “the right, duty and authority conferred by law, by which, for a given period, an individual is invested with some portion of the sovereign functions of government for the benefit of the public.”/#.
The crucial factor in determining whether a position is an executive office is whether the duties of the office include exercising some degree of the sovereign power of the state. See, State, ex rel. O’Connor, v. Tusa, supra; Home Savings & Loan Ass’n v. Carrico, supra. A precise definition of “sovereign power” is elusive. However, it has been defined as follows:
“If specific statutory and independent duties are imposed upon an appointee in relation to the exercise of the police powers of the state, if the appointee is invested with independent power in the disposition of public property or with power to incur financial obligations upon the part of the county or state, if he is empowered to act in those multitudinous cases involving business or political dealings between individuals and the public, wherein the *793latter must necessarily act through an official agency, then such functions are a part of the sovereignty of the state.”
State ex rel. Webb v. Pigg, 363 Mo. 133, 138, 249 S.W.2d 435, 438 (1952). Often, the degree of independence of a governmental position has helped determine whether the position is an executive office exercising sovereign power. The greater the position’s independence, the more likely it is to be categorized as an executive office. See, State ex rel. Barney v. Hawkins et al., 79 Mont. 506, 257 P. 411 (1927); Aldine Ind. Sch. Dist. v. Standley, 154 Tex. 547, 280 S.W.2d 578 (1955). One in a position in the executive branch that does not exercise the sovereign powers of the state is normally referred to as an “employee.”
Here, as a professor, Conway does not have independent control over the education policies of the state. It is true that Conway does have control over his students in a classroom setting; however, this control is limited. Conway structures the class syllabus, grades tests, and assigns homework. The independence Conway has in the classroom is illusory because at all times he is under the direct supervision of the department chairman. The chairman also decides what classes Conway will teach and evaluates his performance.
Teachers have generally been categorized as employees. See, e.g., Jackson v. Roberts, 774 S.W.2d 860 (Mo. App. 1989); Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App. 1976); Duncan v. Koustenis, 260 Md. 98, 271 A.2d 547 (1970); Main v. Claremont Unified School Dist., 161 Cal. App. 2d 189, 326 P.2d 573 (1958); State, ex rel. Scarl, v. Small, 103 Ohio App. 214, 145 N.E.2d 200 (1956); Coble, Appellant, v. Metal Twp. Sch. Dist., 178 Pa. Super. 301, 116 A.2d 113 (1955); Seher v. Woodlawn School Dist., 79 N.D. 818, 59 N.W.2d 805 (1953); Leymel v. Johnson, 105 Cal. App. 694, 288 P. 858 (1930); State ex rel. Board of D. S. D. No. 306 v. Preston, 120 Wash. 569, 208 P. 47 (1922).
In Ruiz v. State, supra, the Texas Court of Civil Appeals stated that a public school teacher has “ [n]o sovereign function of government . . . conferred upon him for the benefit of others, largely independent of the controls of others.” 540 S.W.2d at 812. “No matter how highly we [the court] regard the *794profession of teaching, we cannot conclude that this teacher is exercising some of the sovereign powers of the State . . . Id. See, Main v. Claremont Unified School Dist., supra; Leymel v. Johnson, supra.
At the college level of public education a professor is still considered an employee. See, Boyett v. Calvert, 467 S.W.2d 205 (Tex. Civ. App. 1971); Tilley v. Rogers, 405 S.W.2d 220 (Tex. Civ. App. 1966); Martin v. Smith, 239 Wis. 314, 1 N.W.2d 163 (1941); Hartigan v. Board of Regents, 49 W. Va. 14, 38 S.E. 698 (1901).
In Hartigan v. Board of Regents, supra, a college professor contested his dismissal from a state university. Although this case was decided at the turn of the century, its rationale has not aged and it retains its vitality. The court expressed that it is the Board of Regents that is charged with carrying out the public function. In carrying out this public function it employs professors. The court further held that “a professor in the university wields no particle of sovereign governmental authority.” Hartigan, supra at 22, 38 S.E. at 701.
A more recent Texas case held that a professor at a state university is an agent of the board of directors, the members of which are in turn the executive officers. Boyett v. Calvert, supra.
Wisconsin has further strengthened the view that a college professor is not an executive officer. In Martin v. Smith, supra, the president of the University of Wisconsin, a public institution, was deemed an employee for the Board of Regents. The court declared that the president of the university is subject to the actions of the Board of Regents and is subordinate to it. Because of the president’s lack of independence, he did not exercise the sovereign power of the state. It is the Board of Regents that exercises the sovereign power of the state. Martin v. Smith, supra.
It is clear from the relevant case law that the position of a public school teacher or that of a professor of a public college or university is that of an employee of the state and not an executive officer. However, some jurisdictions prohibit a professor of a state university from being a member of the legislature of the state. These cases involve statutory *795prohibitions; thus they are distinguishable from the case at bar.
In Stolberg v. Caldwell, 175 Conn. 586, 402 A.2d 763 (1978), the Connecticut Supreme Court held that a member of the faculty at a state college is a member of the executive branch of government and therefore could not retain his position as a tenured professor and still be a member of the state’s Legislature. In reaching this conclusion the court recognized that the separate branches of government do overlap and a clear distinction cannot always be made. However, unlike Nebraska, Connecticut had a statute that declared that the state board of higher education was within the executive branch of government. Furthermore, according to the Connecticut Constitution, the board of trustees is free to exercise independent judgment in carrying out the education policies of the state. Stolberg, supra.
Finally, the Connecticut Supreme Court also used a statutory dual-job ban as a basis for declaring a teacher an officer. The statute stated that “ ‘ [n] o member of the general assembly shall . . . be . . . appointed ... to any position in the judicial, legislative or executive department of the state government... .’ ” Stolberg, supra at 593, 402 A.2d at 768. The court pronounced that the position of a teacher is an “appointive position.” The court reached this conclusion by broadly defining the meanings of “appointment” and “position.” The court stated:
The fact that the position to which the plaintiff was appointed was not, in the legal sense, an office but merely an employment does not render the dual-job ban inapplicable under the facts presented since an employee can be said to have been assigned or designated to do a certain job_Moreover, the term “position” ... dealing with state employees, is defined as “a group of duties and responsibilities currently assigned or designated by competent authority to require the services of one employee.” Hence ... a “position or office,” cannot be said to be limited to office-holding alone — it was clearly intended to encompass state employment generally.
Stolberg, supra at 594, 402 A.2d at 768.
In view of the fact that the board of trustees is able to appoint *796teachers to their position, that position is an “appointive position,” and teachers are therefore executive officers. Stolberg, supra.
In Galer v. Regents of Univ. System, 239 Ga. 268, 236 S.E.2d 617 (1977), the Supreme Court of Georgia held that a statute making it unlawful for members of the state’s Legislature to hold office or employment in the executive branch was constitutional. The constitutional provision for separation of powers justified the statute. The statute, Ga. Code Ann. § 2309 (1972) states: “ ‘It shall be unlawful for (a) members of the General Assembly to accept or hold office or employment in the executive branch of the State Government, or any agency thereof ....’” (Emphasis supplied.) Galer, supra at 269, 236 S.E.2d at 618. Thus, the court held that a college professor at a state university could not maintain his teaching position. Although the court made no formal ruling on whether a professor was an officer or an employee (the statute applied equally to an officer or an employee), the terminology used by the court when referring to the teaching position was that of “employee.” Galer, supra.
Contrary to the weight of decisions before it and the cases since its publication, Eason v. Majors, 111 Neb. 288, 196 N.W. 133 (1923), held that the head of the department of English at the state normal school at Peru was an executive officer of the state. In Eason, the State Board of Education dismissed the teacher without following the statutory guideline for dismissal. The president of the school board then appointed a new teacher to fill the vacancy. Eason brought a quo warranto action to determine whether the new teacher had the right to hold his position and whether Eason’s dismissal was proper. Eason defined the term “office” as “any position where authority is coupled with duty ... for a public purpose.” Eason, supra at 290, 196 N.W. at 133. This broad definition of a public or executive office allowed the court to rule that the head of a department was an executive officer and, therefore, a person’s right to exercise the powers of that office may be challenged by a quo warranto proceeding.
The Eason court consisted of Chief Justice Morrissey, Judges Rose and Good, and District Judge Shepherd, the last of *797whom authored the opinion. That court apparently ignored prior Nebraska case law holding that a public school teacher is not an officer, nor is the position itself an office. See, State v. Smith, 49 Neb. 755, 69 N.W. 114 (1896). See, also, Bays v. The State, 6 Neb. 167 (1877). (State v. Loechner, 65 Neb. 814, 91 N.W. 874 (1902), held that a member of a board of education was not an executive officer.)
Furthermore, roughly 30 years after the decision in Eason, this court held once again that a public school teacher is not an executive officer of the state. In Greer v. Chelewski, 162 Neb. 450, 455, 76 N.W.2d 438, 442 (1956), this court stated:
As to teachers’ contracts, we have said: “The contract to teach in the common or free schools of the grade of the one in the district in which this controversy arose is one of employment, and the relative positions occupied- by the district represented by the board and the teacher are those of employer and employee. A teacher in the schools of the ordinary district is not a public officer, nor is his position an office.” State ex rel. Lewellen v. Smith, 49 Neb. 755, 69 N.W. 114.
I find no distinction in principle between the present case and those just cited. Eason stands alone in its holding.
Eason is also factually different from the case at bar. In Eason, the teacher was the head of his department. Here, Conway is not the head of the department. Conway serves under the direct control of the chairman of the business division. If one carries the layer of responsibility to its ultimate end, “[a]ll teachers and other subordinates in each state college shall be under the direction of the president thereof, subject to the general regulations of the board.” Neb. Rev. Stat. § 85-306 (Reissue 1987). Preceding that language in § 85-306 is the following: “The president of each school shall be the chief executive officer thereof and shall be responsible to the board for the control and management of the same.” Proceeding backward, so to speak, to Neb. Rev. Stat. § 85-301 (Reissue 1987), one finds that
[t]he general government [of the state colleges] shall be vested, under the direction of the Legislature, in a board of seven members, to be known as the Board of Trustees of *798the Nebraska State Colleges, six of whom shall be appointed by the Governor, with the advice and consent of the Legislature....
In the final analysis, Conway lacks the independence that would accompany a higher position. This independence, or rather the lack thereof, factually distinguishes this case from Eason.
Although this action does not deal with conflict of interest as such, i.e., the constitutional provision on its face does not prohibit one person from being a member of two branches of government, concern is raised whether Conway, as a state legislator, would have a personal interest when voting for school funding. The Nebraska Political Accountability and Disclosure Act, Neb. Rev. Stat. §§ 49-1401 to 49-14,140 (Reissue 1988 & Cum. Supp. 1990), outlines the proper procedure to be followed if there is a conflict of interest. Section 49-1493(5) (Reissue 1988) states that members of the state Legislature must file a statement of financial interests. Thus, as a legislator, Conway is required to file a statement. However, if Conway were only a professor, he would not be obligated to file any statement of interests under this statute. The only persons required to file statements in the education field are individuals holding an office, such as the Commissioner of Education, members of the State Board of Education, or members of the Board of Regents of the University of Nebraska. § 49-1493(2). Interestingly enough, members of the Board of Trustees of the Nebraska State Colleges are not specifically named, and it is doubtful that they would be included in the “catchall” sections.
When a conflict of interest arises or is about to arise, a legislator must submit a written statement describing the conflict and whether or not he will participate in the vote. § 49-1499 (Reissue 1988). The statute does not require a senator to abstain from voting. Accordingly, Conway must file such a statement when school funding is being discussed or voted upon.
The Legislature has taken steps to remedy any possible conflicts of interest. Whether the procedures are adequate is a question not before us at this time.
*799In order for a part-time Legislature to run efficiently, it may be necessary to allow some overlap between the different branches of government. Generally, people who are government employees may serve as members of the Legislature if their duties do not conflict. Here, Conway is in a unique position to serve in the Legislature, as well as to be an employee of the executive branch. In his capacity as a professor he is not in a position to make policy judgments, he does not exercise independent power over the curriculum, and he does not receive any compensation when he takes the required leave of absence when the Legislature is in session. By allowing this degree of overlap between the executive branch and the legislative branch, the central purpose behind the rationale of separation of powers will not be grossly undermined.
I would deny and dismiss relator’s petition in quo warranto.