AGC seeks a permanent writ of prohibition to prevent State from disbursing funds, claiming the statutes authorizing the expenditures are contrary to our State Constitution.
This is an original proceeding brought to this court under S.D. Const, art. V, § 5, the provisions of SDCL chs. 21-30 and SDCL 15-25-1.
Associated General Contractors and the Trucking Association (hereinafter AGC) filed a verified application for an alternative writ and permanent writ of prohibition contending both HB 1311, appropriating ethanol production payments, and HB 1009, creating ethanol tax credits, violate S.D. Const, art. XI, § 8 and art. XIII, §§ 1 and 2. AGC sought to prohibit Department of Revenue Secretary Ronald Schreiner, State Auditor Vern Larson and State Treasurer Homer Harding (hereinafter State) from expending state highway funds received from vehicle and fuel taxes for ethanol production payments and ethanol tax credits. AGC was granted an alternative writ of prohibition on April 27, 1992. State was given an opportunity to show cause why a permanent writ should not be issued.
On May 6, 1992, AGC filed a verified, amended, supplemental application expanding the list of state officials whose activities it sought to prohibit. AGC also augmented the list of challenged legislation to include SB 143, HB 1174, SB 204, and HB 1098. State filed a motion to quash and filed its verified answer to the application as amended and supplemented, denying any constitutional violations, and seeking dismissal of the application. An amended, supplemental alternative writ of prohibition was granted May 12, 1992.
South Dakota Corn Growers, et ah, filed a motion to intervene on May 8, 1992, asking that the application for a permanent writ be denied and joining in the State’s motion to quash. On May 15, 1992, Gregory B. Branaugh, D & G Concrete Construction, Inc., Pat Tlustos, and Hills Materials Co., applied to intervene as applicants. On May 19, 1992, a motion to intervene was filed on behalf of the South Dakota Association of Conservation Districts. All motions to intervene were granted.
FACTS
The sixty-seventh session of the South Dakota Legislature, 1992, passed six bills which appropriated proceeds from the motor fuel tax for the purpose of subsidizing private ethanol producers and for other agricultural programs.
HB’s 1311 and 1009 were enacted and approved as emergency measures by the Governor and became effective upon execution. SB 143, HB 1174, SB 204, and HB 1098 were enacted and approved by the Governor and became effective July 1, 1992.
(1) HB 1311
This act creates the “Unclaimed Non-highway Agricultural Motor Fuel Tax Fund.” It further provides that up to $80,-000, the amount which the legislature found represents the unclaimed tax refunds for fiscal year (FY) 1992, may be appropriated from the fund to the Department of Revenue to provide for ethanol production payments in April and May, 1992.
(2) HB 1009
This act creates a tax credit program for producers of ethanol. A producer of etha*919nol may receive a credit, in the form of a transferrable motor fuel tax credit certificate, of twenty cents per gallon of ethanol. The credit is allowed only for ethanol produced in a South Dakota plant at which all fermentation, distillation, and dehydration takes place. Annual tax credits to one producer may not exceed the greater of 11,000,000 or an amount equal to $1,000,-000 averaged over the last three years. Cumulatively, the incentive payments may not exceed five million dollars per year. The Secretary of Revenue is to adopt rules for the tax credit program. Producers must be licensed to be eligible to file for the credit. The credit may only be collected for the 120-month period following the producer’s receipt of the first credit certificate.
(3) SB US
This act appropriates money for the reconstruction of Lake Menno Dam. The act allocates $60,000 from the fund to the Commissioner of School and Public Lands in FY 1993 for the purpose of repairing Menno Dam. SB 143 directs the Secretary of Revenue to transfer $57,000 per month, for a period of ten months, into the unclaimed nonhighway agricultural motor fuel tax fund commencing July 1, 1992. Total transfers are not to exceed $570,000.
(4) HB 1174
This act appropriates $460,000 from the fund in FY 1993 to the Department of Transportation for public and special transportation grants. The grants are to assist South Dakota communities in meeting the match requirements of federally funded transportation programs.
(5) SB 204
This act appropriates $50,000 from the unclaimed nonhighway agricultural motor fuel tax fund in FY 1993 to the Department of Agriculture for the purpose of assisting the Northern Crops Institute located in Fargo, North Dakota.
(6)HB 1098
This act clarifies the uses of taxes imposed on motor fuel not used to propel a motor vehicle on public highways. It creates the “Conservation Commission Grant Fund,” and appropriates $850,000 to the fund in FY 1993 and an amount not to exceed $1,500,000 per year thereafter.
The legislature found that not all motor fuel taxes which qualify for the nonhigh-way motor fuel tax refund are, in fact, refunded under the procedure set forth in SDCL §§ 10-47A-46 to 10-47A-53, inclusive. The legislature determined that a certain amount of these unclaimed tax refunds from the sale of motor fuel for non-highway uses should be utilized in a manner which benefits both agriculture and the citizens of the state by preserving South Dakota’s natural resources. Thus, the legislature declared that an amount equal to 35%1 of the claimed refunds, $80,000 in FY 1992, not to exceed $1,420,000 in FY 1993 and not to exceed $1,500,000 in any single fiscal year thereafter, represents the amount of unclaimed tax refunds from the sale of motor fuel for nonhighway uses. The legislature further declared that it is the policy of this state to use these funds to implement the conservation grant program.
The burden is on AGC to prove beyond a reasonable doubt the legislature acted beyond its constitutional authority.
Any legislative act is accorded a presumption in favor of constitutionality and that presumption is not overcome until the unconstitutionality of the act is clearly and unmistakenly shown and there is no reasonable doubt that it violates fundamental constitutional principles.
Independent Community Bankers Ass’n v. State, 346 N.W.2d 737, 739 (S.D.1984); *920South Dakota Ass’n of Tobacco and Candy Distributors v. State, 280 N.W.2d 662, 664-65 (S.D.1979).
ISSUES
I.Whether the transfer of unclaimed nonhighway motor fuel tax refunds to the unclaimed nonhighway agricultural motor fuel tax fund pursuant to HB 143 was an unconstitutional diversion of highway funds under art. XI, § 8 of the South Dakota Constitution.
II.Whether the legislative determination that 35% of the motor fuel tax fund attributable to nonhighway use goes unrefunded based on an estimate, rather than fact, violates art. XI, § 8 of the South Dakota Constitution.
III. Whether the ethanol incentive tax credit created by HB 1009 is an unconstitutional diversion of highway funds under art. XI, § 8 of the South Dakota Constitution.
IV. Whether the ethanol production payments pursuant to HB 1311 and the appropriation to Northern Crops Institute in SB 204 constitute use of public funds for private purposes in violation of art. XI, § 2 of the South Dakota ■Constitution.
V.Whether HB 1311 and SB 204 grant any special or exclusive privilege, immunity or franchise in violation of art. Ill, § 23 of the South Dakota Constitution.
VI.Whether the legislature, in enacting the statutes at issue herein, lent or gave the State’s credit to any association or corporation in violation of art. XIII, §§ 1 and 2 of the South Dakota Constitution.
I.
Whether the transfer of unclaimed non-highway agricultural motor fuel tax refunds to the unclaimed nonhighway agricultural motor fuel tax fund pursuant to SB 143 was an unconstitutional diversion of highway funds under art. XI, § 8 of the South Dakota Constitution.
AGC claims that the legislative creation of the unclaimed nonhighway agricultural motor fuel tax fund violates the portion of art. XI, § 8 of the South Dakota Constitution, which addresses use of gasoline excise taxes for highway purposes:
No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same, to which the tax only shall be applied, and the proceeds from the imposition of any license, registration fee, or other charge with respect to the operation of any motor vehicle upon any public highways in this state and the proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel except costs of ' administration and except the tax imposed upon gasoline or other liquid motor fuel not used to propel a motor vehicle over or upon public highways of this state shall be used exclusively for the maintenance, construction and supervision of highways and bridges of this state. (Emphasis added.)
S.D. Const, art. XI, § 8.
AGC argues that the constitution requires the unclaimed tax refunds go into the state highway fund where they must be used to finance the maintenance, construction and supervision of the highways and bridges of this state.
State first argues that AGC has failed to meet the heavy burden imposed upon those who challenge the constitutionality of a state statute. See Independent Community Bankers Ass’n; Tobacco and Candy Distributors. State further argues that the “highway purpose” restriction found in art. XI, § 8, does not apply to gasoline taxes imposed on gasoline not used to propel vehicles on or over the state’s public highways. State acknowledges legislative attempts to utilize the gasoline excise tax for purposes other than “the maintenance, construction and supervision of highways and bridges” have been unsuccessful. See *921South Dakota Automobile Club v. Volk, 305 N.W.2d 693 (S.D.1981); Opinion of the Supreme Court, 257 N.W.2d 442 (S.D.1977); State ex rel. Parker v. Youngquist, 69 S.D. 423, 11 N.W.2d 84 (1943).
AGC has failed to‘Overcome the heavy burden of showing beyond a reasonable doubt that the legislature’s action was in violation of the constitution.
The tax proceeds at issue herein are those collected for “nonhighway agricultural use,” defined as “the use of fuel off of public highways for agricultural purposes.” SDCL 10-47A-1(22). Those motor fuel taxes are refundable pursuant to the provisions of SDCL 10-47A-46, which provides in part:
Any person, municipal or private corporation or political subdivision of the state may apply for and obtain a refund of motor fuel taxes imposed and paid under the provisions of §§ 10-47A-39 to 10-47A-53, inclusive, for fuel purchased and used in motor vehicles, recreation vehicles and farm equipment used for nonhighway agricultural purposes; or used in vehicles or equipment for a non-highway commercial use, all as defined under §§ 10-47A-1 to 10-47A-37, inclusive. (Emphasis added.)
These monies are refundable because they are not derived from an excise tax on fuel used on the public highways. These funds arise from a “tax imposed upon gasoline ... not used to propel a motor vehicle over or upon public highways of this state[.]” S.D. Const, art. XI, § 8. In short, these are tax receipts included within the exception language of art. XI, § 8:
It is true that in the past the unclaimed refunds arising from nonhighway uses went into the state highway fund pursuant to SDCL 10-47A-11, which provided in part:
At the beginning of each month, the secretary shall make adjustments to the motor fuel tax fund balance in the following manner:
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(5) Transfer the remaining cash balance to the state highway fund.
However, the constitution does not mandate such a transfer. The legislature amended the above provision of SDCL 10-47A-11(5) in HB 1098. The legislature’s action was constitutional as it concerned funds covered by the exception in art. XI, § 8 of the South Dakota Constitution.
II.
Whether the legislative determination that 35% of the motor fuel tax fund attributable to nonhighway use goes un-refunded based on an estimate, rather than fact, violates art. XI, § 8 of the South Dakota Constitution.
AGC argues the legislative determination, based on educated guesswork, that 35% of the motor fuel tax fund attributable to nonhighway uses goes unrefunded, is contrary, to the intent of the people who adopted the amendment and thus, violates art. XI, § 8. This argument is based on the underscored language in art. XI, § 8, which states:
No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same, to which the tax only shall be applied, and the proceeds from the imposition of any license, registration fee, or other charge with respect to the operation of any motor vehicle upon any public highways in this state and the proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel except costs of administration and except the tax imposed upon gasoline or other liquid motor fuel not used to propel a motor vehicle over or upon public highways of this state shall be used exclusively for the maintenance, construction and supervision of highways and bridges of this state. (Emphasis added.)
S.D. Const, art. XI, § 8.
AGC argues that the legislature’s determination was based “on assumptions and estimates as opposed to fact.”
*922State contends that AGC’s argument invites the court to intrude into matters left to the legislature. “[T]he courts should not override the legislature’s conclusion if it can be supported on any reasonable ground.” State v. Smith, 88 S.D. 76, 81, 216 N.W.2d 149, 152 (1974).
AGC’s argument ignores the plain language of the exception clause in art. XI § 8. “[W]e have the right to construe our state constitutional provision in accordance with what we conceive to be its plain meaning.” State v. Opperman, 247 N.W.2d 673, 674-75 (S.D.1976). We find the language indicates the people who ratified the constitutional amendment intended that taxes on fuel not used to propel vehicles on the state highways was excepted from the state highway fund. Further, AGC has failed to show beyond a reasonable doubt that the legislative determination of the unclaimed percentage is unconstitutional. Independent Community Bankers Ass’n; Tobacco and Candy Distributors.
III.
Whether the ethanol incentive tax credit created by HB 1009 is an unconstitutional diversion of highway funds under art. XI, § 8 of the South Dakota Constitution.
AGC argues the incentive tax credit created by HB 1009 unconstitutionally diverts highway funds contrary to the language of art. XI, § 8, which requires certain tax proceeds to be used exclusively for highway purposes. The pertinent constitutional language is underscored below:
No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same, to which the tax only shall be applied, and the proceeds from the imposition of any license, registration fee, or other charge with respect to the operation of any motor vehicle upon any public highways in this state and the proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel except costs of administration and except the tax imposed upon gasoline or other liquid motor fuel not used to propel a motor vehicle over or upon public highways of this state shall be used exclusively for the maintenance, construction and supervision of highways and bridges of this state. (Emphasis added).
S.D. Const, art. XI, § 8.
State agrees that once a gasoline excise tax which is constitutionally dedicated to the exclusive use for highway purposes is levied and collected, it may not be diverted to other uses. See Volk; Youngquist. State argues, however, that the effect of the tax credit is to prevent the “proceeds” from ever coming into existence.
Clearly, the legislature has the power to disburse public revenues for any lawful purpose. “There is no doubt about the right of the legislature to appropriate the proceeds of a revenue law to any lawful purpose, or to place the proceeds in the general fund.” Youngquist, 69 S.D. at 429, 11 N.W.2d at 87 (citing Opinion of the Judges, 50 S.D. 324, 326, 210 N.W. 186, 187 (1926)). This power, however, is not unlimited:
The history of Article XI, § 8 of our Constitution ... and the cases of the South Dakota Supreme Court since the enactment of that constitutional provision, clearly indicates that this is a restricted and impressed fund created by the Constitution that prevents the use of the funds described in the Article for payment of any obligation of the state other than those described in the article.
Opinion of the Supreme Court, 257 N.W.2d at 445.
State argues the ethanol tax credit does not violate the constitution as the prohibition applies only to proceeds and because the credit is applied against tax liability before collection, there are no tax proceeds. This constrained reading of one clause of art. XI, § 8 will not stand. “A Constitutional provision, like a statute, must be read giving full effect to all of its parts.” South Dakota Bd. of Regents v. *923Meierhenry, 351 N.W.2d 450, 452 (S.D.1984). The court, in construing a constitutional provision, must have regard to the whole instrument, and must seek to harmonize the various provisions, and if possible, give effect to all of them. Haggart v. Alton, 29 S.D. 509, 526, 137 N.W. 372, 375 (1912).
The first clause of art. XI, § 8 refers to the levy of fuel taxes while the second clause refers to the proceeds of fuel taxes; the clauses are to be read together. This court, in interpreting the provisions of art. XI, § 8 and § 2 together, stated the first clause of art. XI, § 8, “does prevent the diversion of taxes which have been levied or collected, or which are already on hand and appropriated to other purposes.” Youngquist, 69 S.D. at 431, 11 N.W.2d at 87. “The word ‘levy’, as applied to taxation, is a legislative act, whether state or local, which determines that a tax shall 'be laid, and fixes its amount.” Olson v. Oklahoma Tax Commission, 198 Okl. 607, 608, 180 P.2d 622, 624 (1947). The second clause of art. XI, § 8 limits the use of revenue derived from the taxes levied on motor fuel used in vehicles on the public highways. Art. XI, § 8, read in its entirety, prevents the diversion of taxes on fuel used to propel motor vehicles over or upon the public highways of this state from the time the legislature determines motor vehicle fuel will be taxed.
The legislature, in issuing credits which may be claimed against a restricted fund, is attempting to do indirectly what it is forbidden to do directly. The United States Supreme Court found an attempt by Congress to tax foreign bills of lading violated U.S. Const, art. I, § 9 which prohibits tax or duty on articles exported from the states. Fairbank v. United States, 181 U.S. 283, 21 S.Ct. 648, 45 L.Ed. 862 (1901). In reaching that holding, the court stated, “In other words, that decision affirms the great principle that what cannot be done directly because of constitutional restriction cannot be accomplished indirectly by legislation which accomplishes the same result.” Id. 181 U.S. at 294, 21 S.Ct. at 653, 45 L.Ed. at 867. The legislature is not allowed to directly appropriate the proceeds of the motor vehicle fuel tax for any use other than the maintenance, construction and supervision of highways and bridges. The legislature, through the use of tax credits applied before collection, is attempting to indirectly divert tax proceeds dedicated to the maintenance, construction and supervision of highways and bridges. What the legislature is forbidden to do directly by the constitution it cannot do indirectly. HB 1009 is an unconstitutional diversion of dedicated tax proceeds under S.D. Const, art. XI, § 8.
IV.
Whether ethanol production payments pursuant to HB 1311, and the appropriation found in SB 204 constitute an invalid use of public funds for private purposes in violation of art. XI, § 2 of the South Dakota Constitution.
AGC argues HB 1311 and SB 204 improperly use public funds for private (rather than public) benefit, contrary to art. XI, § 2 of the state constitution, which provides in pertinent part: “Taxes shall be uniform on all property of the same class, and shall be levied and collected for public purposes only.”
State argues the use of unclaimed non-highway agricultural motor fuel tax refunds to promote the ethanol industry is a valid public purpose, even though private individuals may incidentally benefit. Further, State asserts that whether a purpose is public is for the legislature to determine and the legislature’s determination is entitled to great weight before the courts.
Determining whether a statutory purpose is public or private is pretty much a matter of policy and wisdom for the legislature. In making such decision it is vested with a large discretion with which the courts should not interfere unless its action is clearly evasive.
Clem v. City of Yankton, 83 S.D. 386, 396, 160 N.W.2d 125, 131 (1968).
*924This court has found the following to be examples of a public use of public funds: Clem, (cities issuing bonds to provide facilities for private business to promote economic development); Torigian v. Saunders, 77 S.D. 610, 97 N.W.2d 586 (1959) (butter tax to be used to promote the dairy industry); Wheelon v. South Dakota Land Settlement Bd., 43 S.D. 551, 181 N.W. 359 (1921) (issuing of bonds by the State to loan money to settlers of agricultural property).
Here the court is concerned with the power of the legislature to adopt HB 1311; not the wisdom of the action. Clem, 83 S.D. at 397, 160 N.W.2d at 131. The importance of agriculture to the general welfare of South Dakota has been recognized by this court. Wheelon, 43 S.D. at 559, 181 N.W. at 361. Here, the legislature could reasonably conclude that legislation to encourage production and export of ethanol made from corn will achieve the purpose of promoting agriculture in South Dakota.
The Northern Crops Institute is a council which promotes technical and marketing assistance to producers of northern crops. The South Dakota Wheat Commission, an agency of the State of South Dakota, is a member of the Institute’s policy board. Although funding to an out-of-state institute is more attenuated than appropriations within the state, the legislature could still reasonably conclude the act served the public purpose of promoting agriculture in this state.
Further, AGC has not carried the burden of showing the legislature’s actions were “clearly evasive.” Clem, 83 S.D. at 396-97, 160 N.W.2d at 131. HB 1311 and SB 204 do not violate the constitutional provision prohibiting use of public funds for private purposes.
V.
Whether HB 1311 and SB 204 grant any special or exclusive privilege, immunity or franchise in violation of art. Ill, § 23 of the South Dakota Constitution.
AGC argues HB 1311 and SB 204 grant special or exclusive privileges to individuals, associations, or corporations in violation of art. Ill, § 23(9), which provides in part:
The Legislature is prohibited from enacting any private or special laws in the . following cases:
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(9) Granting to an individual, association or corporation any special or exclusive privilege, immunity or franchise whatever.
S.D. Const, art. Ill, § 23(9).
In Behms, this court held:
Article III, § 23, is a prohibition against special or private laws when a general law is applicable. A legislature has successfully avoided this prohibition when a statute is “so framed in good faith that by its terms it should apply to all parts of the state and operate on all members of the class when they come within the scope and purpose of the enactment ...;” Generally, a legislature may define any class it wishes, and so long as all members of that class are treated alike the prohibition against private or special laws is not violated[.]
Behrns v. Burke, 89 S.D. 96, 99, 229 N.W.2d 86, 87 (1975).
HB 1311 is not a special law but a general law in which all ethanol producers within the class created are treated uniformly. All ethanol producers who can meet the criteria are eligible to receive ethanol production payments. Thus, the ethanol production payments do not violate art. Ill, § 23 of the South Dakota Constitution.
HB 204, appropriating $50,000 to the Northern Crops Institute, does not create a class; it is closer to a private benefit. However, even a private benefit may be constitutional if it meets certain criteria. This court has held:
Although it is readily apparent that the franchises described under SDCL 49-34A-42 are exclusive, exclusivity is not in itself prohibited by art. Ill, § 23. The grant of special or exclusive privileges *925for private benefit is within the prohibition of the constitution. Grants of special or exclusive privileges, even those that are essentially monopolistic in character, are not, however, forbidden, where the primary purpose of the grant is the promotion of the public interest and not the private benefit of the grantees.... The courts should not override that legislative conclusion if it can be supported on any reasonable ground.
Matter of Certain Territorial Electric Boundaries, 281 N.W.2d 65, 70 (S.D.1979).
If the challenged statute promotes the public interest, even though it also confers a private benefit, it does not violate art. Ill, § 23(9). We have already decided that HB 204 does serve a public purpose. Therefore, even though there is private benefit, the public purpose of HB 204 saves it from violating art. Ill, § 23(9).
VI.
Whether the legislature in enacting the statutes at issue herein lent or gave the State’s credit to any association or corporation in violation of art. XIII, §§ 1 and 2 of the South Dakota Constitution.
AGC asserts the disputed legislation violates art. XIII, §§ 1, 2 because it constitutes the lending or giving of the State’s credit to or in aid of an association or corporation not regulated and controlled by the State.
S.D. Const, art. XIII, § 1, provides in part:
For the purpose of developing the resources and improving the economic facilities of South Dakota, the state may engage in works of internal improvement, may own and conduct proper business enterprises, may loan or give its credit to, or in aid of, any association, or corporation, organized for such purposes. But any such association or corporation shall be subject to regulation and control by the state as may be provided by law.
State argues that the legislation at issue cannot be construed as constituting a state loan and the State has not given its credit to any of the entities or projects in the form of a guarantee.
The language “loan or give its credit to” in art. XIII, § 1 has been interpreted to refer to the loaning or borrowing of money secured by the State:
These legislative acts by their terms purport to provide for the establishment and maintenance of a system of rural credits for the loaning of money by the state ...; authorizing the state to borrow money on its warrants and bonds, secured by the good faith and credit of the state[.]
Schaaf v. South Dakota Rural Credit Bd., 39 S.D. 377, 382, 164 N.W. 964 (1917). The appropriations contained in HB 1098, HB 1009, HB 1311, HB 1174 and SB 204 are not loans; there is no requirement of repayment expressed or implied in any of appropriations made by the acts. Art. XIII, § 1 does not apply to the challenged legislation.
S.D. Const, art. XIII, § 2, provides in part:
For the purpose of defraying extraordinary expenses and making public improvements, or to meet casual deficits or failure in revenue, the state may contract debts never to exceed with previous debts in the aggregate one hundred thousand dollars[.]
This court determined in 1895 that debt does not include appropriations satisfied out of current revenues or those revenues in the process of collection. In In re State Warrants, 6 S.D. 518, 521, 62 N.W. 101, 103 (1895) we stated:
By general law the legislature has provided for the levy of an annual tax for meeting the ordinary expenses of the state. By so providing, in a constitutional manner, for the levy of a sufficient tax, it has provided a revenue, to the extent of the tax for the payment of the ordinary or current expenses of the state. It may then make appropriation of such revenue for diverse and specific *926purposes ... without incurring an indebtedness therefore, within the meaning of said section 2, art. 13 of the constitution.
Here, each appropriation in the challenged legislation is funded in the fiscal year the money is generated. There is no debt created in HB 1098, HB 1311, HB 1174, SB 143, or SB 204 which violates art. XIII, § 2 of the South Dakota Constitution.
HB 1009, where credits might be applied against tax liability incurred in a different fiscal year, might not fit within our definition of what is excluded as a debt under art. XIII, § 2. As we have held HB 1009 unconstitutional on other grounds, we do not reach this issue.
In conclusion, we uphold the constitutionality of all the challenged statutes, except HB 1009 which we declare to be unconstitutional and grant a permanent writ against State from complying with the provisions of HB 1009.
MILLER, C.J., and AMUNDSON, J., concur. HENDERSON and SABERS, JJ., concur in part and dissent in part.. The 35% figure was determined in advance of the legislative session by the Department of Transportation. This data was relied upon by the legislature in adopting HB 1098. It is this determination, that 35% of refunds from non-highway agricultural uses go unclaimed, up to a fiscal year limit of $1.5 million, that underlies the various appropriations in HB 1311, HB 1098, SB 143, SB 204, and HB 1174.