concurring and dissenting. I concur with the opinion of Justice George Rose Smith, but in addition, I think that I should point out the inconsistency of the majority opinion on rehearing.
As I understand the majority opinion on rehearing, it is holding among other things that subsections 6(b) (2) and 6(b) (3) of the Act violate , Article 5, § 2.9 and Article 16, § 12 of the constitution. I submit that if the money to be paid out under those sections is unconstitutional, then the provisions of subsection 6(a) authorizing the Commissioner of Revenues to use 3% of the tax collected without an appropriation is also invalid.
Furthermore, in view of the court’s holding that the Commissioner must hold the money to be used under subsections 6(b) (2) and 6(b) (3) in the bank, contrary to the language at the beginning of section 6, we must also strike the words from that section which allows him to withdraw the funds, “from time to time.” Of course this creates a problem in leaving the authority to the Commissioner for purposes of subsections 6(a) and 6(b) (1).
When all of the invalid provisions of Section 6 are struck out it looks like this:
“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 tions 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 ' ' of Revenues in administering the- provisions---of--this Act, including the-eosts-of designing and printing — the documentary — stamps, the — preparation and printing of — information ma tcrial-and of any-regulations whieh- he may-promulgate — with—respect to the use of such stamps-and their — safekeeping,—and—for reimbursing t-hc — State Treasury for any such expenses of administration hereunder which were- paid by the use of State appr opriated -f unds.
(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 are -hereby specifically declared to- be-eash funds -and- shall not be-deposited in the State Treasur-y but -shall — be deposited-in trust in a bank- er banks in this--State, as the Colony Board may from rime to time-select and -used- by the Colony — Board,-as- it shall — deten mine? — to operate, maintain, develop and improve institutional and community......facilities and services for the- mentally-retarded — and-aH—or- any part may be-pledged to and used for- the payment of revenue bonds issucd-by the Colony Board pursuant to Act 186 of — 1963,- as — and -to — the—same—extent—as—the charges referr-ed- in Section 7 of Act 186 of 1963. So long as any -revenue bends-are outstanding — -to the payment 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 — shall—continue—te—be deposited as provided -ua-t-his-Act and to be pledged to -and used - for the payment- of the outstanding bonds, principal and- interest, until the outstanding bonds arc 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-te be cash funds and shall not--be-deposited in the State- Treasury-but-s-ha-ll-be -deposited in trust in^a bank — or ba-ftk» in -this — State as the — Commission may select, and used by-thc -Gommission-as- it shall determine, to operate, maintain, — develop and irn prove-the Public Parks System of the......-State; — and all or any part- may be pledged and used for the payment of revenue -bonds issued- by the — Commie si on pursuant to Act No. 539 of — 1953, as-amended, as and to-the same extent as revenues derived fren* the properties and equipment of the State Parks System. So-long as any-revenue-bonds are outsta-nd ingr-to the-payment-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-shall continue to be deposited- as -provided in this Act and to -be pledged to and used- for the payment-of--the out standing bonds, principal and interest; — until—the outstanding bonds are-fully paid-or adequate-pro vision- made- therefor.’’
Thus when we strike the invalid portions it is at once obvious to me that the residue is so mutually connected with and dependent on the invalid portions as to warrant the belief that the Legislature would not have passed the residue independently.
This disposition makes unnecessary a determination as to the validity of Section 6 under Article V, § 29, (see Gipson v. Ingram, supra,) as suggested by one brief but not fully argued by any party to this litigation.
Reversed and remanded.
Brown & Fogleman, JJ., dissent in part.