concurring.
I concur in the opinion adopted by the court. In addition to the discussion of the attempt to delegate legislative powers to an administrative board and to the congress of the United States, as set out in the main opinion, I desire to emphasize another phase of the attempted legislation.
While certain smaller amounts could be used, under Senate File No. 367, for assistance in the payment of pensions, unemployment insurance, health of mothers and children, or related matters, in any county of the state, yet the bulk of the funds was to be used in direct relief and work relief, and in this concurring opinion I will only discuss that phase of the legislation.
It is provided that such relief funds shall be allocated to the county boards of the several counties which cooperate with certain welfare agencies of the state and nation. The funds shall be distributed on the basis of need in such counties when, after reasonable effort, they are unable to furnish necessary and adequate assistance for *667dependent persons residing in such counties. The act does not provide for relief to any county unless and until the governing body shall adopt a resolution accepting its provisions. Therefore, the acts are not for the distribution of these funds for relief of needy persons in all the counties of the state uniformly, but are specifically restricted for distribution in those counties which certify to the authorities that they are unable to meet the needs of the relief burden in their counties.
In the briefs before this court, 23 counties appear, joined together as plaintiffs, insisting that these acts are void, and nearly all of their county attorneys were present at the time of the arguments to resist this legislation, for the reason that such counties have so far handled all of the poor relief in each of their counties by their own tax funds, and have not, and insist that they will not, ask the state for any assistance; therefore, they will be excluded from any benefit of this state assistance fund. The counties resisting the enforcement of these laws are Antelope, Arthur, Banner, Butte, Cass, Cuming, Dawson, Grant, Keith, Kimball, Merrick, Nemaha, Saline, Sarpy, Phelps, Seward, Sioux, Hooker, Colfax, Gosper, Saunders, Stanton, and Wayne.
This law clearly authorizes a one-cent tax on gasoline to be collected in each of these 23 counties of our state and expended for relief in the other 70 counties of the state which have already applied to the state for assistance. This legislation taxes, in this way, the people of these 23 counties who are carrying the entire load of supporting their own poor and unfortunate by their own funds, raised by the taxpayers of their county, and expends this one-cent gas tax so raised entirely in other counties who have failed to carry their own relief burden.
It may be argued that money raised by the state for highway purposes, and to erect bridges and build and maintain state highways, might be so disposed of that money raised in one county might be expended for a bridge in another county, although such funds could not be so traced, *668but all of such funds can only be spent on a highway which has been'designated by the legislature as a state highway which under our law is accepted as a public purpose for the benefit of the entire state.
• On the other hand, it is generally held that the relief of the poor is primarily a burden on the county of which such persons are legal residents. The proceeds of this tax, when appropriated to each of the 70 counties sharing therein, will be expended only by the officials of each county, showing it is not for a state-wide public purpose, but for relief in some 70 counties only, and must be expended by such counties according to rules adopted by an outside agency. This taxing of all the people of the entire state, and expending the proceeds for relief only in certain counties, is not considered a public purpose of state-wide extent.
Of the guaranteed rights, that of equality holds high place in the list. “Discrimination of one citizen in favor of another is beyond legislative authority to make, whether legislation expresses it in terms or produces it in result. Classification must be reasonably adapted to secure a legitimate public interest.” Woolf v. Fuller, 87 N. H. 4.
I cannot agree that the distribution of funds from this one-cent gasoline tax is a general or public purpose when it cannot be used under the very terms of the legislation except in certain counties. Such a law violates the letter and the spirit of our Constitution, which declares that no person shall be deprived of his property without due process of law. Const. art. I, sec. 3.
It is not even sufficient that a tax be levied for a public purpose, but it must be levied for the use of the public of the district taxed. 26 R. C. L. 72, sec. 51.
It isi convincing to me that, while a state-wide tax for the benefit of all needy persons throughout the state would be for a public purpose, yet when the benefits of a statewide tax are limited, and can only be expended in a definite portion of the state, to the exclusion of the balance of the state, it is not a public purpose, and is clearly illegal for that reason.