(special concurrence in part; dissenting in part).
I specially concur in that portion of the Third Question which specifically holds that the holders of the outstanding bonds issued to build the Turnpike Projects will not have an accrued and vested contract right in and to the continued apportionment of a portion of the motor fuel tax as provided in the Act and will not have a vested contract right which would preclude a future legislature from repealing, reducing or otherwise changing the levy or rate of levy of the motor fuel tax, for these additional reasons.
Article X, Section 23, of our Constitution provides that the State shall never create or authorize the creation of any debt or obligation. Therefore, if any and all future legislatures were obligated to continue the apportionment of the motor fuel tax as provided in the Act for so long as *700any of the bonds are outstanding, or a sufficient amount shall have been set aside in trust for such purposes, that portion of the Act attempting to bind or obligate the State, acting through its legislature to continue such apportionment, would be unconstitutional.
I concur in the Fourth Question for the reason the Application of Oklahoma Turnpike Authority, Okl., 348 P.2d 510, which construed the Act in question, specifically determined and established the rule of law that the revenues of the “paid out projects” could be pledged. (See my dissenting views expressed in 348 P.2d 510, relating to this specific question)
Proposition Six and Seven as set forth in the Authority’s application are as follows:
Proposition Six is whether the said agreements between the Oklahoma Department of Highways and the Authority pursuant to which the said Department has agreed to undertake and complete within the time stipulated therein the portions of the Southwestern Route, including said bridges, with approaches thereto, over the South Canadian River and the Red River, and the portions of the Eastern Route described in said agreements are valid and binding upon the parties thereto and otherwise in conformity with the Enabling Act and other applicable law and may performance of said Department’s obligations thereunder be legally enforced against the Department of Highways by the Authority, the Trustee under the Trust Agreement or the holder of any of the Bonds?
Proposition Seven is whether the obligation assumed under said agreements by the Oklahoma Department of Highways to construct, and will its construction of, portions of the Southwestern Route and the Eastern Route and said bridges with approaches thereto and the expenditure therefor of State of Oklahoma highway funds, which may benefit the Southwestern Turnpike Project and the Eastern Turnpike Project and the holders of the Bonds, result in making the Bonds issued by the Authority debts or obligations within the meaning of Sections 23 and 25 of Article X, of the Constitution of Oklahoma?
The obligations the State Highway Commission has agreed to undertake and complete within a specified time relate to the construction by the State Highway Department certain highway facilities, including bridges and approaches thereto, on or near the two turnpikes in question. In this connection, the Highway Commission, by resolution, agreed that upon sale of the revenue bonds the Highway Commission would proceed with the construction of the specified highways, including bridges and approaches thereto, and open the same to-traffic within-a certain time.
I concur in that portion of the majority opinion which holds that said agreements, of the State Highway Commission are not binding upon the parties thereto and the perfoi'mance of sttch agreements, contracts- or commitments by the State Highway Department or the State Highway Commission may not be legally enforced by the Authority, the Trustees under the Trust Agreement or the holder of any of the bonds.
I concur for the reasons set forth in the majority opinion and also for these additional reasons.
In exercising its discretion in planning and projecting in the future a highway program, the State Highway Commission’s-authority and power to enter into valid and binding contracts is not only governed by Legislative enactments but such contracts-must he within the confines of the Constitution.
Title 69 O.S.1951 § 27.7, provides that expenditures and obligations of the State Highway Commission cannot exceed the appropriations and that expenditures or contracts in excess of appropriations are void. Section 27.7 states:
“It is hereby declared to be the intent of the Legislature of this State that such Highway Commission, and the individual members thereof, shall so conduct and operate the affairs of *701the Commission that no expenditures shall be made in any department in any fiscal year, or obligation contracted therefor, in excess of the specific amount appropriated therefor by fhe Legislature. Any expenditure made, cr contract of whatsoever nature entered into by said Commission in any one fiscal year, for any purpose, in excess of the amount appropriated therefor by the Legislature or allocated or contributed by the Federal Government, shall be considered and is hereby declared to be void and of no force and effect; provided however, that a pledge of funds to match Federal aid shall not constitute a violation of this Section; provided further, that this Section shall become effective and be in full force and effect as of July 1, 1939. Laws 1939, p. 276, § 7.”
The Constitutional limitations are expressed in Article X, Sec. 23, which, inter alia, provides:
“ * * * Any department, institu- ’ tion or agency of the State operating on revenues derived from any law or laws which allocate the revenues thereof to such department, institution or agency, shall not incur obligations in excess of the unencumbered balance of surplus cash on hand * * * (Emphasis added).
“The State shall never create or authorize the creation of any debt or ob-' ligation * * * against the State, or any department, institution or agency thereof, regardless of its form or the source of money from which it is to be paid * * * ”
It is apparent that any contract entered into by the State Highway Commission in excess of its appropriations for any fiscal year is null and void and of no force and effect under the Legislative enactment and it would be in contravention of the Constitution for Highway Commission to incur obligations in excess of the unencumbered balance of surplus cash on hand.
The Authority does not contend or even suggest that the State Highway Commission has sufficient unobligated funds or a surplus of cash on hand for the fiscal year ending June 30, 1961, to construct the highway facilities it agreed to construct on or near the two turnpike projects in question. Therefore, if the contracts, agreements and commitments of the State Highway Commission are presently operative, that is, operative within the fiscal year ending June 30, 1961, they are null and void and of no force and effect as such contracts are specifically prohibited by Legislative enactment and the Constitution.
On the other hand, if the contracts are to become operative and effective after June 30, 1961, the contracts would be unconstitutional as such would be incurring obligations in excess of the unencumbered balance of cash surplus on hand and would be pledging and allocating funds to be appropriated by future legislatures. In effect, the Department of Highways, which Article XVI, Sec. 1 of the Constitution directs the legislature to establish, would be attempting to do that which the legislature could not do, namely, laying its mandate on a future legislature. In Boswell v. State, 181 Okl. 435, 74 P.2d 940, 947, this Court said:
“As we conceive it, the constitutional provisions dealing with the ‘debt limit' of the state were adopted for the purpose of fixing the power and responsibility of legislation relating to the fiscal affairs of the state upon the existing legislative assembly, and to prevent one legislative assembly from laying its mandate upon a future one. The effect of these provisions is that one legislative assembly cannot guarantee the span of life of its legislation relating to the fiscal affairs of the state beyond the period of its biennium.”
I can only conclude that if we construe the agreements or commitments made by the State Highway Commission to be contractual obligations, effective immediately *702or to become effective in the future, they are null and void and of no force and effect as they would be in contravention of Legislative enactments and the Constitution.
On the other hand, if they are not contractual obligations which could be legally enforced, as set forth in the majority opinion, they have no more force and effect than any other road project contemplated to be constructed by the State Highway Commission.
Title 69 O.S.1959 Supp. § 655, subdivision (4), provides:
“All access roads interchanges, or lead roads connecting such turnpikes with existing highways must be built by funds furnished by the Turnpike Authority.”
In my judgment there is insufficient evidence before this Court to consider whether or not the roads to be constructed by the State Highway Commission are access roads, interchanges, or lead roads connecting such turnpikes with existing highways.
I am authorized to state that Mr. Justice DAVISON concurs in the views herein expressed.