ON MOTION FOR REHEARING It is strongly urged that we have overlooked an important consideration, namely, that the constitutional inhibition applies only to the state's money; and that we have applied it to money not the state's, though in its treasury. By failing to notice this distinction we have, as counsel argue, rendered a sweeping decision which makes it impossible for the state to carry on ordinary business transactions, authorized and required by statute and indispensable to administration. Remittances accompanying applications for lease or purchase of state lands, certified checks to accompany bids on contracts for public works, court costs paid in advance, are given as illustrations of ordinary business practices rendered henceforth impracticable. Distribution of the proceeds of motor vehicle licenses, and of the state school levy are given as illustrations of statutes disclosed by this decision to be unconstitutional. Payment *Page 251 of expenses of the board of bar examiners out of the special fund arising from examination fees is cited as an instance of numerous statutes creating special funds devoted to particular purposes. It is even suggested that it will no longer be possible for the state treasurer to invest the trust funds as the enabling act directs.
Counsel are mistaken in assuming that we overlooked the possibility that the broad constitutional provision might require interpretation, to avoid hampering necessary and legitimate transactions, and still to prevent the evils the Constitution makers aimed at. But we did not and do not think that the present case calls for such interpretation. It does not remotely resemble any of the cases suggested by way of illustration. We are not dealing with moneys paid in to a state agency "on deposit, in escrow, or in evidence of good faith * * *" not yet "earned so as to become the absolute property of the state," situations contemplated in the Public Moneys Act, 1929 Comp., § 112 — 102. The commissioner has determined that these moneys are the "absolute property of the state"; not that they "should be returned, repaid or refunded." 1929 Comp. § 112 — 122. Nor are we dealing with special funds accumulated in the treasury for specific purposes. The constitutionality of the Public Moneys Act and of the various other statutes is not before us. We are concerned with 1929 Comp. § 132 — 110, upon which appellee relies. In so far as that statute assumes to authorize repayments of moneys covered into the treasury and funded, as the property of the state, on the mere say-so of an administrative officer, we hold it unconstitutional.
We need not here deny that in many instances the proper test may be whether the moneys sought to be paid out are the property of the state. But where the proper administrative officer has received the money as the property of the state and has covered it into the treasury as such, it is thenceforth conclusively state property. Only the Legislature may determine that it was erroneously exacted and may be returned. To hold otherwise would be to inaugurate a system of continuous review by administrative officials of their own and their predecessors' acts. It would not only lead to great confusion in the administration of *Page 252 the state's business, but it would open the door to fraud and to the irresponsible and irregular dissipation of the state's funds — evils the Constitution makers obviously intended to prevent.
The motion for rehearing is denied.
SIMMS and WATSON, JJ., concur.
PARKER and CATRON, JJ., did not participate.