concurring in part; dissenting in part. I concur in the opinion by Mr. Justice Jones, except that I adhere to the views expressed in my original dissenting opinion, Ark. 248, 1050A, 460 S. W. 2d 28. I recognize that if it can be said that the funds involved ever have reached or will reach the state treasury (and I understand that a majority of the court shares this view), then the funds must remain in the treasury awaiting appropriation for the purposes expressed in the act under the decision in Moore v. Alexander, 85 Ark. 171, 107 S. W. 395.
Statements relating to the powers of the legislature to determine whether funds are paid into the “state treasury” contained. in Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595, and McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 428, are not expressions of a vagrant idea, conjured up by this court to satisfy the exigencies of the particular situations presented in those cases. It seems to me that this idea is a fundamental view of constitutional law shared rather commonly by courts of last resort in states having identical, or virtually identical, constitutional provisions. For example:
Louisiana
Louisiana State Department of Agriculture v. Sibille 207 La. 877, 22 So. 2d 202 (1945)
An act imposed a tax of one cent per bushel on all sweet potatoes shipped in the state to be collected by the State Department of Agriculture and Immigration for the benefit of the Louisiana Sweet Potato Advertising Agency. This agency created by the act was charged with the duty of planning and conducting a campaign for promoting increased consumption of sweet potatoes. The. tax was held to be an excise or license tax. The Louisiana Supreme Court said:
Appellees’ fourth complaint, listed in Paragraph (d) of their plea, is that the statute violates Article 4, Section 1 of the Louisiana Constitution, by providing for the disbursement of public money from the State Treasury without any specific appropriation and by undertaking to distribute the proceeds of the tax for a longer period than two years. The referred to constitutional provision reads in part: “No money shall be drawn from the treasury except in pursuance of specific appropriation made by law; nor shall any appropriation of money be made for a longer term than two years.” According to Section 6 of the statute, the proceeds of the tax must be deposited in a special fund and all used by the Louisiana Sweet Potato Advertising Agency in conducting its publicizing and promotion campaign. By this method there is created a dedication, not an appropriation, and the mentioned constitutional provision is not violated.
Kansas
State v. Kansas State Highway Commission 139 Kan. 391, 32 P. 2d 493 (1934)
The legislature, pursuant to specific constitutional authority, levied special taxes for road and highway purposes on motor vehicles and on motor fuels. The funds had been held to be state funds in State v. Kansas State Highway Commission, 138 Kan. 913, 28 P. 2d 770. When the commission undertook to draw anticipation warrants to borrow federal funds, constitutional provisions were invoked to prevent the action. The Kansas Supreme Court said:
Second, it is contended the act violates article 2, § 24, of our Constitution, which reads: “No money shall be drawn from the treasury, except in pursuance of a specific appropriation made by law, and no appropriation shall be for a longer term than two years.”
Answering this contention, we note, first, that the statute in question makes no appropriation for any length of time. The two acts together provide a method of conducting certain state business, which includes the borrowing of money for certain purposes and provisions for its repayment, but neither of them makes a specific appropriation. Another answer to the suggestion, much more fundamental, is this: Article 2, § 24, of our Constitution applies only to moneys that find their way into the state treasury. When our people, by amending article 11, § 8, of our Constitution, making two sections of it — 8 and 9 (as renumbered 9 and 10) — so that the state could construct and maintain a state system of highways and levy special taxes on motor vehicles and motor fuels for that purpose, they made no specific provision that the moneys so raised and used should necessarily find their way into the state treasury, but left the Legislature free to provide for the collection and disbursement of such funds in the way it deemed best. What the Legislature did was to provide that these moneys, as collected, should be transmitted to the state treasurer and by him placed in the highway fund and disbursed on proper orders by the highway commission. Sections 17, 18, c. 225, Laws 1929, as amended by Laws 1933, c. 241, now R. S. Supp. 1933, 68 — 416, 68 — 417. Since these funds are not required by the Constitution to find their way into the state treasury, and by statute do not do so, article 2, § 24, requiring appropriation of moneys from the state treasury, has no application. These funds are collected for a specific purpose. The Legislature wopld have no authority to appropriate them for other purposes. They are collected, segregated, set aside, and can be used for one purpose only, namely, the construction and maintenance of state highways. This is not the only fund the state has, which, although deposited with the state treasurer and disbursed by him under proper directions of other officials, does not find its way into the state treasury, and therefore does not require specific appropriation every two years by the Legislature.
Montana
Cottingham v. State Board of Examiners 134 Mont. 1, 328 P. 2d 907 (1958)
An initiative measure provided for payment of honorariums to veterans of World War II and levied a cigarette tax to be used to fund a bond issue for that purpose. The state legislature amended the act to include Korean War Veterans and levied an additional tax on cigarettes. The taxes collected were required to be paid into the state treasury and credited to a special fund entitled “War Veterans’ Bond Redemption Fund.” The Montana Supreme Court rejected the contention that this latter act, insofar as it attempted to appropriate proceeds of the cigarette tax for more than two years, was unconstitutional under sections of their constitution virtually identical with Article 5, Section 29 and Article 16, Section 12 of our Constitution.
Oklahoma
State ex rel Hawkins v. Oklahoma Tax Commission 462 P. 2d 536 (Okla. 1969)
A legislative enactment levied gasoline excise taxes and apportioned same for specific purposes. A constitutional provision stated that “[n]o money shall ever be paid out of the treasury of this State, nor any of its funds, nor any funds under its management* * * unless such payments be made within two and one-half years after the passage of such appropriation act* * *.” The court stated that it had previously approved the expenditure of special funds earmarked for a special purpose more than two and one-half years and held the constitutional provision inapplicable to revenues levied and earmarked for a specific purpose which have accrued in a special fund. The Oklahoma Supreme Court relied upon an earlier decision [Edwards v. Childers, 102 Okla. 158, 228 P. 472 (1924)] holding that the limitation did not apply to a case where the appropriation is that of a special fund created by a continuing special tax, the whole of which is dedicated to a special purpose.
Illinois
People v. Handzik 410 III. 295, 102 N.E. 2d 340 (1951)
A provision of the Medical Practice Act that all fines imposed for practice of medicine without license shall inure to the Department of Registration and Education was held not to be in violation of the constitutional provision that no money shall be drawn frcm the treasury except pursuant to an appropriation made by law.
Then there are numerous cases holding that disbursement of workmen’s compensation and unemployment compensation funds financed by means of collection which can only be justified as excise, license or privilege taxes can be disbursed without any appropriation. See, e. g., Tatum v. Wheeless, 180 Miss. 800, 178 So. 95 (1938); Commonwealth v. Perkins, 342 Pa. 529, 21 A. 2d 45 (1941); Friedman v. American Surety Co. of New York, 137 Tex. 149, 151 S. W. 2d 570 (1941); Department of Industrial Relations v. West Boylston Mfg. Co., 253 Ala. 67, 42 So. 2d 787 (1949).
I note that our provisions for an unemployment compensation fund fall into this category. See Ark. Stat. Ann. § 81-1101 et seq. (Repl. 1960 and Supp. 1969). I also call attention to the provision for distribution of the state severance tax to counties. Ark. Stat. Ann. § 84-2112 (Repl. 1960).
To hold that an appropriation is necessary to release the funds allocated to a specific purpose and paid into a special fund outside the state treasury is to say that the legislature cannot effectively dedicate and make immediately available the proceeds of a particular tax or revenue to a particular agency when it has no means of accurately forecasting the revenues to be received or increases or declines of the source from time to time, even though it can never appropriate the revenue to any other purpose. Article 16, Section 11, Arkansas Constitution. I have not been able to perceive the purposes to be served by such a requirement. Such a fund, in the absence of appropriation, could only remain on deposit, forever, I assume.
While the decision in Moore v. Alexander, 85 Ark. 171, 107 S. W. 395, left a tax fund in just such a status, and gave some plausible reasons why a legislature might do so, I emphasize that there is no doubt that the special tax funds there involved were paid into the state treasury and moneys expended were to be paid upon warrants drawn by the state auditor upon the treasury. Sections 7 and 13, Act 132 of 1901; Sections 6 and 10, Act 146 of 1903.
Even if an appropriation is necessary before the funds can be spent because they are in the state treasury, Section 6 of the Act would not be materially affected. It would read:
SECTION 6. All revenues derived from the tax levied by this Act shall be paid over to the Commissioner of Revenues and shall be deposited in one or more banks selected by him and from time to time withdrawn from such banks in the proportions indicated for use for the following purposes;
(a) An amount not exceeding three per cent (3%) of such deposits for payment of the expenses of the Commissioner of Revenues in administering the provisions of this Act, including the costs of designing and printing the documentary stamps, the preparation and printing of information material and of any regulations which he may promulgate with respect to the use of such stamps and their safekeeping, and for reimbursing the State Treasury for any such expenses of administration hereunder which were paid by the use of State-appropriated funds.
(b) The remainder thereof, but not less than ninety-seven per cent (97%) shall be deposited by the Commissioner of Revenues as follows:
(1) Twenty per cent (20%) shall be deposited by the Commissioner of Revenues in the State Treasury and credited to the County Aid Fund and distributed at the end of each month to the respective counties from which the revenues originated.
(2) Forty per cent (40%) thereof to the Arkansas Children’s Colony Board (the "Colony Board”). Funds so remitted to the Colony Board arc hereby specifically declared to be cash funds and shall not be deposited in the State Treasury---but shall be deposited in trust in a bank or banks in this State, as the Colony Board may from tíme to time select and used by the Colony Board, as it shall deter* mine, to operate, maintain, develop and improve institutional and community facilities and services for the mentally retarded, -and ■ alb -or any -par-t-maybe-pledgcd to and used for-the- -payment — of-^cvcrme bonds issued by the Colony Board-pursuant to Act 186 of 1963, -as — and to — the—same—extent—as—the charges referred in Section 7 of Act T86 of 1963. Se-4-o-rtg--as-a-ny revenue bonds arc — outstanding, to the- payment of which revenues — derived—f-r-om—the tax- levied by this Act are -plcdgedr the-tax levied by-this Act shall continue to be~ collected and the revenues — derived.......-therefrom—shah—continue—te—be deposited as provided in this Act and to be-pledged to--and used for the payment of-the--outstanding bonds, principal and interest, until — the -outstanding bonds are fully paid or adequate provision made therefor; and
(3) Forty per cent (40%) thereof to the State Parks, Recreation and Travel Commission of the State of Arkansas (the “Commission”). Funds so remitted to the Commission -are hereby -specifically declared to-hc cash funds-and-shall not be deposited- in-the State Treasury but shall be deposited in trust in a bank or banks in this State as the Commission may select, and used by the Commission as-it shall determine, to operate, maintain, develop and improve the Public Parks System of the State, and all or-any part may-be-pledged-and-u-sed for- the pay ment of revenue-bends- issued -by the Commission pursuant to Act--No: -5-39 of 1953, — as amended,--as ■and: to the same extent as revenues derived-f-r-om the properties and - equipment- of the State -Parks ■ ■System-. So long as any revenue bonds are outstanding,— to-the-piayment- of which revenues derived from the-tax levied by-this Act-are pledged, the--tax levied by — this Act - shall continue — to -be collected-and- the revenues — derived—therefrom—shah—continue—to—be deposited as provided in this Actrand to-be pledged te — and- used for the payment -of the outstanding bonds^-principaf-and interest, until-the outstanding bonds arc fully paid or adequate provision made t-heref-er
See Moore v. Alexander, 85 Ark 171, 107 S. W. 395.
Under the most extreme construction, of the majority opinion possible the section would read:
SECTION 6. All revenues derived from the tax levied by this Act shall be paid over to the Commissioner of Revenues and shall be deposited in one or more banks selected by him * * * for use for the following purposes;
(a) An amount not exceeding three per cent (3%) of such deposits for payment of the expenses of the Commissioner of Revenues in administering the provisions of this Act, including the costs of designing and printing the documentary stamps, the preparation and printing of information material and of any regulations which he may promulgate with respect to the use of such stamps and their safekeeping, and for reimbursing the State Treasury for any such expenses of administration hereunder which were paid by the use of State-appropriated funds.
(b) The remainder thereof, but not less than ninety-seven per cent (97%) shall be deposited by the Commissioner of Revenues as follows:
(1) Twenty per cent (20%) shall be deposited by the Commissioner of Revenues in the State Treasury and credited to the County Aid Fund and distributed at the end of each month to the respective counties from which the revenues originated.
(2) Forty per cent (40%) thereof to the Arkansas Children’s Colony Board (the “Colony Board”) * * * to operate, maintain, develop and improve institutional and community facilities and services for the mentally retarded * * *
(3) Forty per cent (40%) thereof to the State Parks, Recreation and Travel Commission of the State of Arkansas (the "Commission”) * * * to operate, maintain, develop and improve the Public Parks System of the State * * *Brown, J., joins in the preceding opinion.