Dissenting Opinion
Staton, P.J.I dissent from the majority opinion for these reasons: (1) the majority has misinterpreted Article 8, § 3 of the Indiana Constitution; (2) accrual to the common school fund depends upon a judicial determination or judgment, and not upon delivery of funds to the state treasurer.
The phrase “. . . shall never be diminished;” in Article 8, § 3 of the Indiana Constitution refers to the principal of the *396common school fund. The principal is made up of funds which have properly accrued as part of the principal. The prohibition against diminishing the principal goes only to those funds which have properly accrued) and constitute the principal. It does not apply to funds which have been mistakenly forfeited and included in the principal. The intent of Article 8, § 3 is not to foreclose a withdrawal of funds from the principal, which never should have been included in the principal. Here, the same judicial determination of forfeiture was rescinded by a second judicial determination. Whether the fund is a part of the principal of the common school fund depends upon the judicial determination of its character as a forfeiture. The judgment which rescinded the previous judgment of forfeiture nullifies the characterization of the fund, and therefore, it is no longer a part of the principal of the common school fund.
Secondly, the majority’s accrual rationale is specious. Assuming that no further action is taken, a fund must accrue to the common school fund when a judicial determination is made that the fund is a forfeiture. The character of the fund, or its accrual, cannot change merely because of a physical delivery of the funds from one custodian to another. The administrative accounting procedures discussed by the majority are merely what they appear to be — accounting procedures. The county auditor is not permitted to change the character of the funds, nor may he determine when the funds shall accrue. If the funds accrue at all, they must accrue when they are characterized by a judicial determination and an accounting entry is made which credits the account to be paid to the treasurer of the State of Indiana.
I would affirm the judgment of the trial court.
Note. — Reported at 357 N.E.2d 276.