1 Reported in 296 N.W. 506. By L. 1939, c. 431, art. 2, § 20 (3 Mason Minn. St. 1940 Supp. § 53-18s), the legislature attempted to impose upon the "taxes and *Page 432 fees" received by certain departments of state government a charge of five per cent. The purpose was to compel the stated contribution to the expense of maintaining the offices of "the governor, the secretary of state, the state treasurer, the state auditor, the attorney general, the department of administration, the public examiner, the courts, and the legislature." The assigned justification is the legislative estimate that five per cent of the receipts of each of such departments "does not exceed the reasonable cost and value of the services" rendered to each of them by the enumerated officers of the executive and judicial branches and the legislature.2
Section 20, as to "taxes and fees" received by the highway department, includes only "all motor vehicle registration taxes" and "all gasoline taxes" credited to the trunk highway fund. There is no attempt to touch the automobile license taxes credited to the highway sinking fund. The two funds are created by the constitution, art. 16, § 2, the sinking fund to "consist of the proceeds of any tax imposed on motor vehicles as herein authorized." That fund is thereby irrevocably devoted to "the payment of the principal and interest of any bonds which may be issued under the authority of this article." Section 2 goes on to declare that "any moneys in excess" of the sinking fund requirements "shall be transferred to a fund which is hereby created and which shall be known as the trunk highway fund." Follows this presently determinative constitutional mandate: "The trunk highway fund shall *Page 433 be used solely for the purposes specified in section 1 of this article."
The purposes "specified in section 1" are the establishment, construction, and maintenance "forever" of "a trunk highway system."
Art. 16, § 3, demands that the proceeds of taxes of motor vehicles on the "more onerous basis" authorized "shall be paid in to said trunk highway sinking fund." Art. 9, § 5, authorizing the levy of excise taxes on gasoline, provides (as amended in 1928) that the state "shall place two-thirds of the proceeds of such tax in the trunk highway fund." With reference to the unequivocal restriction upon the use of the highway fund found in art. 16, § 2, appellant challenges that part of c. 431 which seeks to impose its charge upon all motor vehicle registration taxes and gasoline taxes credited to that fund.
We hold the challenge of the law well-founded. The constitutional demand that the highway fund be used "solely" for highway purposes is explicit prohibition of their use for any other. The inhibition of their use to defray any of the general cost of government could not be more plain.
There is nothing to the contrary in State ex rel. Holm v. King, 184 Minn. 250, 238 N.W. 334. There, a legislative appropriation from the highway fund to cover the expense of the secretary of state in issuing motor vehicle licenses and collecting the license tax was sustained. We considered the conclusion obvious that the cost of collecting that tax was a cost of constructing and maintaining the highways and so properly chargeable to the highway fund. It is a mere accident of organization that our automobile licenses are issued and the tax collected by the secretary of state rather than the highway department. Had the legislature, instead of charging to the highway fund the cost of issuing the licenses and collecting the tax, placed the duty with the highway department, no one would have questioned the propriety of charging the attendant expense to the highway fund.
Collection of the motor vehicle tax is functionally part of the maintenance of the highway system. On the other hand, the *Page 434 services in respect to highways of the other departments sought to be benefited by this five per cent charge are but general governmental functions of those departments. Sound is appellant's argument that, when art. 16 was adopted all concerned had in mind that other governmental departments would continue and necessarily render service to the highway department. Notwithstanding, the unequivocal dedication to highway purposes of highway funds was incorporated.
Here, as already stated probably beyond the need of repetition, the legislative attempt is to go so far even as to charge the highway fund with a portion of the maintenance generally, not only of the stated executive activities, but also those of the legislature and courts.
Certain executive agencies such as the state highway patrol are properly incorporated with the highway department and the expense of their maintenance properly charged to the highway fund. It is equally plain, we assume, that the highway fund may, in a proper case, be required to reimburse other departments for special services to it. For example, when the public examiner makes an official audit of the highway department, we assume that there may be no legal objection to charging that department with the cost.
Such services are administrative in nature and so might be performed by the department itself and paid for out of the highway fund. Performed by other departments (as audits should be), there is no constitutional prohibition to their being charged against the highway fund. That is because the expense is directly chargeable to maintenance of highways.
But, as to the chief executive, legislature, and courts, it is just impossible to say that any of their constitutional functions could properly be delegated to the highway department. So no part of the expense of their maintenance is chargeable to the highway fund as against the plain constitutional requirement that it be used for none other than highway purposes. *Page 435
Minnesota's permanent school funds enjoy a similar constitutional protection. The principal of the funds must remain "inviolate." Minn. Const. art. 8, § 2. The income must be devoted solely to educational purposes. It is beyond the reach of fancy even to suppose that anyone would seriously urge that a part of the income of such funds, to say nothing of the principal, could be arbitrarily diverted from the stated constitutional purpose and used to defray a part of the cost of maintaining the offices of governor, legislature, and courts.
We refuse to sanction disobedience of a statute, whether it be by way of direct attempt or evasion by erroneous construction. Scott v. Prudential Ins. Co. 207 Minn. 131, 134,290 N.W. 431. All the more imperative is our duty to preserve constitutional mandates against similar attrition, even though the error be that of the legislature itself. One such abrasion might be harmless, or even beneficial in result, were it not for the baleful infection of its invitation to repetition, and thereby ultimate destruction of the whole fabric by the slow but effective process of erosion.
As to all motor vehicle taxes and the two-thirds of gasoline taxes constitutionally put into the trunk highway fund, L. 1939, c. 431, art. 2, § 20, is unconstitutional. Present consideration and decision go no further.
Order reversed.
2 Following this preliminary legislative determination, § 20 provides:
"There is hereby imposed upon the gross receipts beginning July 1, 1939, from (1) all fishing licenses, (2) all hunting licenses, (3) all motor vehicle registration taxes credited to the trunk highway fund, (4) all gasoline taxes credited to the trunk highway fund, a charge of five per cent, such charge to be determined at the end of each quarter on the gross receipts for such period. The proceeds of such charge shall be paid into the state treasury and credited to a special fund to be known as the general administration fund. All moneys in said fund shall be subject to appropriations by the legislature for salaries and other regular maintenance expenses for the offices of the governor, the secretary of state, the state treasurer, the state auditor, the attorney general, the department of administration, the public examiner, the courts, and the legislature."