(concurring in part; dissenting in part).
In my opinion, this is a clever raid upon the state treasury.* It is a series of bills, lobbied through the State Legislature, which attempts to overcome the constitutional provisions in our state. These unconstitutional bills favor a single private industry, the ethanol producers, by appropriating tax dollars to them. Ethanol producers are but one segment of South Dakota’s private enterprise system. To subsidize them directly by state law, runs afoul of Art. XI, § 2 of the State Constitution: “Taxes ... shall he levied and collected for public purposes only.” (Emphasis supplied mine). HB 1009 furnishes up to $5 million per year of credit to private ethanol producers. It is a monumental discrimination against the taxpayers of this state.
Basically, Art. XI, § 8 states that the fuel used to propel motor vehicles over or upon public highways in South Dakota is subject to taxation for improving highways and bridges. If the fuel is not used for that purpose, then it is not subject to this tax. The problem is that the tax is collected on certain fuels that are used in both highway and nonhighway use vehicles. To keep in line with the constitution, the Legislature created a system whereby people who have used the fuel for nonhighway use, but were required to pay the tax at the point of purchase, may receive a refund for essentially paying a tax they were not required to pay. SDCL 10-47A-46. Apparently, charging the tax to all, and then refunding the tax to those completing the nonhighway use affidavit, is a better method than having the fuel seller make the determination. Otherwise, each motor fuel seller would have to be responsible for differentiating the tax burden of customers. In the end, the Legislature estimates that 35% of the refunds are never collected.
Thus, the tax is initially collected for the sole purpose of benefitting highways and bridges. Citing the exception language in Art. XI, § 8, the State wants to divert this 35% to other areas not connected to bene-fitting highways and bridges. This 35% figure by declaration of HB 1098, is based upon “assumptions” and “estimates.” It is not a fact. All persons paying motor fuel tax for non-highway agricultural uses are entitled to a full refund pursuant to SDCL 10-47A-46. The refund claim must be made under oath pursuant to SDCL 10-47A-48. The claim is subject to audit pursuant to SDCL 10-47A-51. HB 1098 is based on the assumption that not all per*927sons who are entitled to do so claim their motor fuel tax refunds, at least to the extent of 35%. Quantification for this assumption is sadly lacking. The State adopts federal statistics as to how much gasoline may have been purchased for agricultural use in South Dakota. The next assumption is that 50% of such gasoline is used on the highways and 50% is used off the highways by the agricultural purchasers. It is then estimated that approximately $1.5 million of motor fuel tax, for which entitlements to refunds exist go unclaimed. The federal statistics utilized were for the year 1987. Based on certain assumptions, an average cost of 93<t per gallon in 1987 is utilized for the calculations.
The average actual refunds for non-highway agricultural use over the last four years is approximately $4.2 million. It is ultimately determined that the estimated unclaimed non-highway agricultural refunds constitutes approximately 35% on average of the actual refunds. Lost in these estimates is the right of the taxpayers to claim their rightful refund. Neither the framers of the 1940 amendment, nor the electorate, could have intended or contemplated that the Legislature would declare some arbitrary percentage of the highway fund as “unclaimed non-highway agricultural refunds.”
In simpler terms, the State levied a tax for purpose X. Some taxpayers were entitled to a refund from the proceeds collected pursuant to purpose X. However, not all so-entitled taxpayers collected their refund. The Legislature now assumes these unclaimed refunds are free from purpose X and can be allocated elsewhere. Wrong. These funds were collected for purpose X. The test, as the history of the 1940 amendment indicates, is to focus on why the tax was levied.
Initially, the motor fuel tax is collected pursuant to the 1940 amendment. The funds that became unclaimed refunds were also collected under the same amendment. Therefore, the State is left with two uses for the funds collected under this mandate of the people: To benefit highways and bridges or refund the proceeds to those people who were exempt from the tax. Nowhere does this amendment give the Legislature the right to take money collected for one purpose and transfer it to another. Furthermore, the funds are presumed to be from fuel sold for highway use vehicles until a taxpayer follows the proper channels to receive a refund. The Legislature cannot presume otherwise. The key is why was the tax levied, not why it became exempt.
The Legislature cannot skirt around the purpose constitutionally mandated for collecting the tax. This Court has held that we should give effect to the intent of the framers of the people who adopted a constitutional provision. State ex rel. Payne v. Reeves, 44 S.D. 568, 184 N.W. 993 (1921). A holding followed that words in a constitutional amendment must be construed in the sense most obvious to the common understanding of the people at the time of ratification or adoption. State ex rel. Oster v. Jorgenson, 81 S.D. 447, 136 N.W.2d 870 (1965); accord: State ex rel. Mills v. Wilder, 73 S.D. 330, 42 N.W.2d 891 (1950). Over sixty years ago, when the Legislature attempted a similar re-appropriation of motor fuel taxes, this Court stated:
[W]e are of the opinion that monies now on hand or hereafter to be received as the result of payment of taxes whether motor fuel tax or other tax already levied, and the proceeds of which have already been appropriated, must be applied to the purposes for which they were levied and to which they have already been appropriated, and we think the same could not now be diverted, even by legislative action, to any other purpose.
In re Opinion of the Judges, 59 S.D. 469, 240 N.W. 600 (1932); In re Opinion of the Judges, 50 S.D. 324, 210 N.W. 186 (1926); White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614 (1925). Other cases followed wherein this Court emphatically denied legislative encroachment upon the Highway Trust Fund: *928South Dakota Automobile Club, Inc. v. Volk, 305 N.W.2d 693 (S.D.1981); In re Opinion of the Supreme Court, 257 N.W.2d 442 (S.D.1977); Northern Improvement Co. v. S.D. State Highway Comm., 87 S.D. 71, 202 N.W.2d 861 (1972); G.H. Lindekugel & Sons, Inc. v. S.D. State Highway Commission, 87 S.D. 32, 202 N.W.2d 125 (1972); State ex rel. Mills v. Wilder, supra; State ex rel. Parker v. Youngquist, 69 S.D. 423, 11 N.W.2d 84 (1943). Parker, Volk, and the 1977 Opinion case were all attempts to transfer a percentage of the highway fund and each attempt was rejected.
The majority states: “The-tax proceeds at issue herein are those collected for ‘non-highway agricultural use,’ defined as ‘the use of fuel off of public highways for agricultural purposes.’ ” This is not accurate. The tax was collected for “maintenance, construction and supervision of highways and bridges of this state.” However, if the purchaser used this same taxed fuel for nonhighway purposes, that purchaser was entitled to a refund under SDCL §§ 10-47A-46, 10-47A-47, and 10-47A-48. In other words, if the money does not go for highways and bridges, it must be returned to the taxpayers. If the State takes the position that these unclaimed funds can be used elsewhere, then the State has, in fact, collected taxes without a purpose. Said another way, without an object.
Under Art. XI, § 8, taxes may be applied only to the object for which they were levied. If the object of a levy is completed or can no longer be used, only then may these funds be diverted to any public purpose. Douglas Ind. Sch. Dist. No. 3 v. Bell, 272 N.W.2d 825 (S.D.1978). The sole and exclusive object of the tax in question is to benefit highways and bridges. However, due to the collection method utilized, the State apparently collected more revenue than it should have collected, via unclaimed refunds. Possession of these unclaimed earmarked funds does not grant the State a license to divert funds unrelated to their collected purpose. If the ethanol entrepreneurs now, where does this end? Who is next? Where is the ending of such a beginning? Justification of various pet projects would be birthed in the minds of the watchful eye over this proceeding. This money was collected under the authority of the motor fuel tax to benefit highways and bridges. This Court, as well as the Legislature, should look to the purpose as to why the tax was collected.
Again and again in its briefing to this Court, the State focuses on the exception clause. Under this logic, then the tax, from the beginning, was collected in violation of the constitution for it was collected without a purpose. It was collected under the guise of benefitting the highways and bridges, a purpose, under the State’s theory, that would not attend. Thus, it could be reasoned that the tax should never have been collected. Regardless, this Court should judge the constitutionality of the tax appropriations under its definition or purpose before determining whether it falls within an exception. Parker, supra; Schomer v. Scott, 65 S.D. 353, 274 N.W. 556 (1937); Opinion of the Judges, 240 N.W. at 602; Opinion of the Judges, 210 N.W. at 186; White Eagle Oil, supra. The exception language does not create a back door to reallocate funds that were collected for a specific purpose. These funds were collected “exclusively for the maintenance, construction and supervision of highways and bridges of this state.” If the monies are not refunded, then they should be utilized for the purpose for which they were collected.
I concur with the majority holding that HB 1009 is an unconstitutional diversion of tax proceeds. In point of fact, this enactment authorizes a diversion of up to $5 million dollars a year. HB 1009 provides a subsidy to private producers of ethanol of 20$ per gallon of ethanol produced in South Dakota. As I read the limited record, it is suggested that as of May, 1992, there were two plants in extreme eastern South Dakota and two “program participants” desiring to construct facilities and *929to attract investors. Were these tax credits effectuated, these businesses would secure a windfall of gigantic financial proportion. Yet, I must go one step further and state that all six laws challenged, for the reasons cited, are fruits of the same unconstitutional application of Art. XI, § 8.
Nevertheless, I still address the constitutionality of the issue of whether public funds can be appropriated for private purposes. The majority correctly notes the presumption of constitutionality lies with the Legislature while the heavy burden is upon the challenger. Thus, we look to Art. XIII, § 1, which states in pertinent part:
For the purpose of developing the resources and improving the economic facilities of South Dakota, the state may ... loan or give its credit to, or in aid of, any association, or corporation ... [But] shall be subject to regulation and control by the state as may be provided by law
[[Image here]]
The Legislature has broad discretion in defining a public purpose. Clem v. City of Yankton, 83 S.D. 386, 160 N.W.2d 125 (1968). The wisdom of its decision is a matter of legislative policy, not of judicial discretion. Torigian v. Saunders, 77 S.D. 610, 97 N.W.2d 586 (1959). However, the promotion of the interests of individuals, although it may result in the advancement of the public welfare, is a private, not a public, object. An incidental advantage to the public which results from the promotion of private interests, and the prosperity of private enterprises or business, does not justify their aid by the use of public funds raised through taxation. Opinion of the Judges, 240 N.W. at 602. These credits have nothing to do with either the purchase or consumption of motor fuel by the ethanol producers. It is a pure subsidy. Although the Legislature is generally left with the task of drawing the line between public and private purpose, this is not a carte blanche power.
Under Art. Ill, § 23(9), the Legislature is prohibited from enacting laws which grant special or exclusive privileges, immunities or franchise to individuals, associations or corporations whatever. Precisely, the State Legislature, through this scheme of statutes, accomplished the very purpose which it was forbidden to do. Furthermore, this Court can interfere with the legislative determination of public policy if its actions are “clearly evasive.” Clem, supra. For an appropriation of public money to be constitutional, the use must directly or indirectly materially aid in the proper functioning of some governmental agency. Mackey v. Reeves, 42 S.D. 340, 175 N.W. 359 (1919). Perhaps the holding of Mackey may have been too broad. I fear that any purpose may (indirectly) materially aid some agency. Our State Legislature is unquestionably given a lot of rope to determine “public good,” but this time they roped the wrong critter. Not only have a handful of various South Dakota businesses reaped the rewards of free money, but the Legislature had the audacity to allocate funds to interests outside this State as well. The State might as well send tax dollars to the Far East so that manufacturers can improve the technology of passenger safety in vehicles imported to car dealers in Watertown. Public good, you see, under the same theory.
At the turn of the century, the brethren of the Michigan high court wisely evaluated the fine line between public and private purpose.
But it is not the business of the state to make discriminations in favor of one class against another, or in favor of one employment against another. The state can have no favorites. Its business is to protect the industry of all, and to give all the benefit of equal laws. It cannot compel an unwilling minority to submit to taxation in order that it may keep upon its feet any business that cannot stand alone. Moreover, it is not a weak interest only that can give plausible reasons for public aid.... we shall not fail to discover that the strong and powerful interests are those most likely to control legislation, and that the *930weaker will be taxed to enhance the profits of the stronger. [We] shall not question the right of the people, by their constitution, to open the door to such discriminations; but in this state they have not adopted that policy, and they have not authorized any department of the government to adopt it for them. (Emphasis supplied mine).
Michigan Sugar Co. v. Auditor General, 124 Mich. 674, 83 N.W. 625, 628 (1900), writ of error dismissed, 185 U.S. 112, 22 S.Ct. 581, 46 L.Ed. 829 (1901). Although state funds have in the past subsidized private industries under the public purpose doctrine, this is not an automatic right.
Taxation for private purposes is no more legal than robbery for private purposes. And where an enterprise is conducted by private persons for their own private benefit the public authorities have no control over the expenditure, and no share in the profits ... No enterprise can properly be regarded as a public enterprise in which the public has no voice. For the expenditure of public money the constitution and laws provide public officers, and put them under adequate control and security. The money of the people belongs in the custody of the agents of the people. Governments cannot delegate public responsibilities to private and irresponsible hands. (Emphasis supplied mine).
Id. This Court should take heed of these words. As an example, the Northern Crops Institute in Fargo, North Dakota, is a private crop institute and the taxpayers of this state, who have paid money into the Highway Trust Fund, owe no responsibility to financially shore it up. “Equal laws” were not passed in this package.
Finally, I wish to state that in 1990, our same Governor asked this Court if the State could become a part owner of an agricultural processing facility. We held:
(1) State may not appropriate money to buy, construct, and operate corn wet-milling plant; (2) State may not become part owner of agricultural processing facility; (3) State may not acquire equity position in agricultural processing facility; and (4) State may not incur indebtedness to finance privately owned agricultural processing facility.
Matter of Advisory Opinion, 456 N.W.2d 546 (S.D.1990). We reached this holding by applying the following 4-part test:
1. the enterprise must be for the purpose of developing the resources and improving the economic facilities of the State;
2. no money of the State is to be appropriated or any indebtedness incurred for the enterprise unless approved by a two-thirds vote of each branch of the Legislature;
3. the indebtedness of the State for Article XIII, § 1 purposes must remain within the stated limit; and
4. the enterprise must be “proper” for the State to conduct.
Id. at 548. Under this test, the State must maintain control. We expressed:
[T]he limitations of Article XIII, § 1 concerning regulation and control would apply because in developing the state’s resources, the state is incurring indebtedness to finance a privately-owned agricultural processing facility. It is our conclusion that the requirement that “any such association or corporation shall be subject to regulation and control by the state as may be provided by law” implies more regulation and control than a private corporation is subject to under the South Dakota Business Corporation Act. SDCL Title 47. Being subject to regulation and control by the state as may be provided by law is inconsistent with being a “privately-owned” agricultural processing facility.
Id. at 550. As our Constitution, our case law, and the advice from Michigan suggest, the first hurdle for public funding of private concerns is subjecting the recipient to regulation and control by the State. To further safeguard our lawmakers from the error of funding private industry “in *931sheep’s clothing,” the above 4-part test should also apply. However, I hasten to point out that HB 1311 and SB 204 never reach this test because they stumble before the first hurdle and are therefore unconstitutional.
Having fully treated HB 1009 (subsidy to ethanol producers), HB 1311 (ethanol production credits), and SB 204 (Northern Crops Institute in Fargo, North Dakota), I would also hold that:
1. HB 1098 for conservation commission grant programming;
2. SB 143 for Lake Menno Dam reconstruction; and
3. HB 1174 for transportation assistance funding
are all entities under control of the State. It is not within my prerogative to express that these appropriations are wise — that decision lies within the wisdom of our State Legislature. However, any funding for these projects must emanate from the general funds of this State and not from these dedicated funds. Though the presumption of constitutionality lies with the Legislature, AGC has met the burden of refuting the presumption. In the Matter of Application No. 5189-3 to Extend Time, 467 N.W.2d 907 (S.D.1991).
Therefore, I concur in part and dissent in part.
Intervenor’s brief advocates that “the tax is never collected by the State, and appropriation out of the Highway Trust Fund never happens." False. The motor fuel tax is collected at the pump by agents of the state; at this moment, the tax becomes dedicated by the State Constitution.