Because of the vital importance of the issues involved in this case, I sought to co-ordinate the issues involved with those construed by this Court in the Edwards case which grew out of the Act of 1939 (193 S.C. 158,7 S.E.2d 526), which directed the diversion of funds from the highway department to the State Treasurer for the general expenses of the State. In some respects that co-ordination could be made, but there is one insurmountable obstacle which I could not overcome.
Section 2 of Article 10 of the Constitution of 1895 provides that:
"Expenses of State Government. — The General Assembly shall provide for an annual tax sufficient to defray the estimated expenses of the State for each year, and whenever it shall happen that the ordinary expenses of the State for any year shall exceed the income of the State for such year the General Assembly shall provide for levying a tax for the ensuing year sufficient, with other sources of income, to pay the deficiency of the preceding year together with the estimated expenses of the ensuing year."
The Act of 1940, which is under construction in the present case, undertakes to provide for the deficiency in the income of the State, then existing, by taking from the funds of the State Highway Department certain portions to be turned over to the State Treasurer to meet the expenses of the State. No special tax is levied for this purpose, but it is argued that the funds derived from the gasoline tax and the motor license fees are derived from a tax levied by the *Page 321 General Assembly, but these are funds derived from a tax the proceeds of which are already pledged to the payment of an obligation created by statute, and the Act does not conform to the provisions of the Constitution above quoted which relates to the levying of a tax to meet a deficiency in the annual budget as passed by the General Assembly.
The Act of 1940 is unconstitutional and, hence, I concur in the result of the main opinion.
It is a matter for the consideration of the General Assembly and hence this Court may not pass upon it, but I, I speak for myself alone, do not hesitate to say that I do not think the Highway Commission has the right to use funds derived from the tax on gasoline and the fees for licenses to pay the obligations due to holders thereof, and immediately re-issue such obligations. This is, in my opinion, contrary to the spirit of the Act which creates the obligations. By this practice the debt is not reduced and may be continued in force indefinitely.
I concur in the result of the main opinion.