I concur in the judgment directing the state treasurer to deposit in the twenty-five per cent apportionment account of the general fund the funds which chapter 76 provides shall be placed to the credit of that account, namely, one-fourth of the money paid into the state treasury from the ten cent property levy, one-fourth of the gasoline license tax, and all of the truck and passenger mill tax. It is clear that in the passage of this act the sixth legislature intended that all three of these taxes should be collected until a subsequent legislative body should provide otherwise. While it is in all probability true that the act was framed and passed to give the highway department temporary and emergent relief, yet it contains nothing justifying the conclusion, or even suggesting, that it was enacted for a definite period only, or that it would cease to be operative or become functus officio upon the happening of some particular event. Hence I am in full accord with the forceful statement of Judge LOCKWOOD relative to the continuing character of the taxes it directs to be collected.
It is likewise true, as held in this opinion, that the proportion of these taxes which the law directs *Page 261 to be placed in the seventy-five per cent apportionment account, namely, three-fourths of the 10¢ property levy and one-fourth of the gasoline license tax, is appropriated by the terms of the act itself, and therefore that authority exists for its use without further act of the legislature. It is also correct that the fifty per cent of the gasoline license tax apportioned to the counties is appropriated by the terms of the act, and that nothing further is required to authorize its use by the supervisors of the various counties.
The majority are of the view, however, that neither the act itself nor any other provision of the statute appropriates the funds in the twenty-five per cent apportionment account other than the $1,550,000 which it provides shall be paid out for the purposes therein enumerated, and hence that no authority exists for the use of the monies which it is held are to continue to be placed to the credit of this account after this $1,550,000 has been raised and expended. One-fourth of the property and gasoline and all of the mill tax will flow without ceasing into this account, but under the view of the majority they must rest there until their use is authorized by an appropriation in a general or special appropriation bill to be enacted at some future time. The reasoning on this phase of the case is strong, but somehow I am unable to escape the conclusion that it was intended that the funds in the twenty-five per cent apportionment account should, if needed, be used as collected for the purposes of that account and not remain idle until the legislature at some later date should authorize their use in a general or special appropriation bill — perhaps six months or a year after they have begun to accumulate and the highway department has been closed for a lack of operating funds. This would undoubtedly be at the succeeding biennial session, unless a special one were had before *Page 262 that time and the legislature continued the policy inaugurated in chapter 76 of making a special appropriation for the highway department, since the occasion for making general appropriations would not likely arise before that time, the other departments of the state government having been cared for in the previous legislature. The general purview of the act, therefore, and the language used in paragraph 11, are such that it is difficult for me to believe that those responsible for this legislation had in mind that, after the $1,550,000 it specifically appropriates from the twenty-five per cent apportionment account had been expended, the funds thereafter accruing to the credit of this account should not be spent without further authorization for the purpose for which it was created and still exists.
A proper construction of the act as a whole and of paragraph 11 especially, which we quote again for convenience, leads, in my opinion, to this conclusion. It reads:
"Any monies remaining in said 25% apportionment account, in the general fund, after the performance of all things required to be done in this act, and after the construction and completion of all road projects enumerated in this act, and all monies accruing to said 25% apportionment account thereafter, shall be available for the purpose of such account, as authorized by law."
In using the words "all moneys" in the phrase, "all monies accruing to said 25% apportionment account thereafter," the legislature undoubtedly had in mind the property, gas and mill tax which it is agreed should continue to be collected, because there is no other place for it to go, and no other source from which monies could accrue to this account, the performance of the things required to be done in the act having been completed or the funds designated therefor having been expended, and, in *Page 263 the remainder of the sentence, "shall be available for the purpose of such account, as authorized by law," it provided what should be done with these monies after they had been placed in this account. The word "available" has practically the same meaning as the expression "subject to be paid out" in subdivision 1, section 10, which, it is admitted, constitutes an appropriation of the funds in the seventy-five per cent apportionment account. Webster's New International Dictionary gives, among other definitions of it, "usable," and Funk Wagnall's Practical Standard Dictionary "at one's disposal, as funds." Hence it would seem that, when funds are said by the legislature to be available for a certain purpose, or at the disposal of those whose duty it is to handle them, nothing is required to render the spending of them lawful, except to apply them to that purpose, and therefore, when this has been done, they have been expended "as authorized by law" within the meaning of this expression in section 11. It was not, as I view it, intended by the language "as authorized by law" that some other statute appropriating the funds accruing to the twenty-five per cent apportionment account should exist before it could be said that their expenditure is properly authorized. In other words, it was not meant that it should be construed as though it read, "as authorized in some existing or future appropriation bill," because, to my mind at least, it does not convey this impression, and for the further reason that in the very act in which it appears the legislature departed from the policy inaugurated the year before of taking care of the highway department in the general appropriation bill. The members of the legislature realized that the twenty-five-seventy-five per cent system in practically the same form as when it was inaugurated in 1912 was still in full force and effect, and consequently it *Page 264 must have intended by this language that the provisions of the statute which continue this account should be looked to to ascertain the purpose for which the law authorizes the funds placed therein to be spent.
Looking, therefore, to the last expression of the legislature on the subject, namely, section 126, chapter 35, Special Session of the Fifth Legislature, commonly referred to as the Financial Code, we find this purpose described in the following language:
"For the payment of all salaries and expenses of whatsoever kind of the office of state engineer, and for the construction, reconstruction, repair, improvement and maintenance of public highways, roads and bridges."
Hence by reading the last ten words of section 11 in the light of this statement the purpose for which the funds in the twenty-five per cent apportionment account are available becomes plain, and leaves nothing to be supplied to bring the language within the definition of an appropriation given in the majority opinion.
It is therefore clear to my mind that the purpose of the legislature will be effectuated if the taxes which it is held are to be collected and placed in the twenty-five and seventy-five per cent apportionment accounts are applied to the purposes of those accounts until the legislature provides otherwise. To hold that they are to be collected, but that only three-fourths of the property and gasoline tax can be spent without further authorization, is to say in practical effect that none of the tax is appropriated, because, if the one-fourth of the property and gasoline and all the mill tax placed in the twenty-five per cent apportionment account is not available for the purpose of that account without further legislative action, there is nothing with which the highway department can operate, since the law requires that *Page 265 all expenses of this nature shall be paid from this account. It was to prevent such an occurrence as this that the legislature provided in section 11 that, after the things required in the act to be done had been performed, that is, after the $1,550,000 appropriated for special projects had been expended thereon, the monies accruing to this account thereafter should be available for the purpose of this account.
The order of the court, therefore, should direct, not merely that the treasurer place the funds in question to the credit of this account, but that he pay them out in accordance with law.