(dissenting). I concur in the dissenting opinion of Mr. Justice Stevens and agree that the provision in the Pari-Mutuel Revenue Law for the establishment of a so-called construction account is unconstitutional. In so doing, I recognize that the Legislature very properly might have, after the 1955 total base tax was collected, allotted part of the pool — made up from the 15 cents deducted from every dollar wagered — for track improvements and divided the remainder between the Tax Commission and the track in any proportion it wished.
However, it did not adopt this procedure.
Obviously, the provisions they did enact concerning this account were designed deliberately to leave title to the funds *220in a state of suspension until December 31 of each year in order to avoid constitutional invalidity. But, the applicability of the constitutional limitations regarding the use of State funds must be determined on the basis of the property interests of the State and the track at the moment of allocation. Here allocation occurred when a deposit account was opened under subdivision 5 of section 45-a representing the proceeds of one half of the percentage the State was receiving as tax money under subdivision 4 of that section. At that instant there was a vesting of a property interest in the State, although subject to a divestiture. The inherent nature of the funds govern rather than the ex post facto determination at the end of the calendar year predicated on what the track may or may not have done by way of construction or the contingency of collection of the 1955 total base tax. But once the funds vested in the State — as they did here when the allocations were made — all provisions for limiting or defeating the interest of the State in those funds had to conform to constitutional standards. For example, there could not validly be an invasion of the State’s title without audit by the Comptroller.
Reservation of control and management of the funds by the Racing Commission was not a valid substitute for the controls demanded by the Constitution. In fact, that reservation accentuates the State’s vested interest in the funds. Where the Constitution directly prohibits certain action, the mandate should not be permitted to be circumvented by indirection. Since that was the evident purpose of the provisions under review, they must be struck down no matter how ingenious the subterfuge may be.
Botein, P. J., Rabin and Noonan, JJ., concur in Per Curiam opinion; Stevens, J., dissents and votes to reverse and dismiss in opinion; Valente, J., concurs with Stevens, J., in a separate opinion.
Order appealed from affirmed, without costs.