I concur in the decree holding that the plaintiffs in these consolidated cases are without interest to maintain their suits.
Plaintiffs right of action is based wholly upon the provisions of Act No. 100 of 1928. In my view, that statute is unconstitutional. My reasons for this view are set forth in the dissenting opinion which I have filed in the Borden Case,123 So. 655,1 decided contemporaneously with the decision in the present case. And, I may add, the statute cannot be sustained as to the public schools and annulled as to private and sectarian schools. This is so, because the statute is not only indivisible in its terms, but also because its meaning and effect is made certain by the action of the Legislature itself in expressly refusing to limit its application solely to the children attending public schools.
Therefore, in no event could the plaintiffs, or the public school fund that they are seeking to protect or augment, be benefited by a judicial declaration that Act No. 143 of 1928 is invalid. It is clear that such a declaration or decree would not have the effect of transferring the severance tax fund to the public school fund, but would merely leave it in the state treasury subject to the legislative will as limited by the organic law.
1 Ante, p. 1005. *Page 1037