dissenting to Interrogatory No. 2 and concurring in the result only on Interrogatory No. 5:
This court has been asked to answer a number of interrogatories by the General Assembly regarding Senate Bill No. 93-74, and we agreed to answer Interrogatories No. 2 and No. 5. To Interrogatory No. 2, the majority gives an affirmative response, and to Interrogatory No. 5, the majority *27gives a negative response. I join in Justice Vollack’s dissent to the majority’s position on Interrogatory No. 2, concerning lottery revenues and would answer that question “No.” I also find that the response to Interrogatory No. 5 should be “No” and therefore concur with the result reached by the majority, but I write in order to emphasize my belief that gaming revenues are excluded from Amendment l’s coverage. Although the majority states at p. 13, n. 13 of its opinion that it assumes without deciding that limited gaming funds are subject to Amendment 1, its discussion at pp. 14-15 appears to affirmatively decide that issue. I do not join any such analysis.
Interrogatory No. 5 reads as follows:
Can the General Assembly enact limitations on revenues collected by the limited gaming control commission, created in section 9(2) of article XVIII of the state constitution [the “Limited Gaming Amendment”], in order to comply with the limitation on state fiscal year spending set forth in section 20(7)(a) of article X of the state constitution [“Amendment 1”]?
The voters of this state passed the Limited Gaming Amendment in 1990, thereby legalizing limited gambling in Central City, Black Hawk and Cripple Creek. Colo. Const, art. XVIII, § 9. This amendment provides for the creation of a “limited gaming control commission” (the “Commission”), which has as its duties the promulgation of rules and regulations governing the licensing of limited gambling, including the determination of the percentage of adjusted gross proceeds that must be paid annually by each licensee.1 Adjusted gross proceeds are defined as the total amount of all wagers less payments to players, i.e., net wagers. The percentage determination is made by the Commission using criteria set forth by the General Assembly. Id.
I agree with the majority that, under the plain meaning of the Limited Gaming Amendment language, only the Commission, and not the General Assembly, has the power to establish the percentages of net wagers to be paid. Amendment 1 provides no authority for the General Assembly to control the amount of money paid into the limited gaming fund. Justice Vol-lack’s view of the lottery funds collected under Amendment 8 also seems equally applicable to the percentage of net wagers collected here, however. The limited gaming fund, like the lottery, is not within the limitations of Amendment 1. My position is supported by the fact that the pamphlet issued by the Legislative Council of the Colorado General Assembly analyzing the 1990 ballot proposals equates other forms of legalized gambling — pari-mutuel betting, the lottery, and bingo and raffles — with limited gaming in its discussion of the Limited Gaming Amendment.
In 1990, the voters of the state agreed to set aside the gaming revenues for certain specified purposes. The collected proceeds go into the limited gaming fund, are used to pay all ongoing expenses of the Commission and any other agency involved in the administration of this amendment, and payments are not subject to the control of the General Assembly. Colo. Const, art. XVIII, § 9(b)(1). The remainder of the pro*28ceeds are then distributed at the end of the fiscal year in the following manner:
fifty percent shall be transferred to the state general fund or such other fund as the general assembly shall provide; twenty-eight percent shall be transferred to the state historical fund, which fund is hereby created in the state treasury; twelve percent shall be distributed to the governing bodies of Gilpin county and Teller county in proportion to the gaming revenues generated in each county; the remaining ten percent shall be distributed to the governing bodies of the cities of: the City of Central, the City of Black Hawk, and the City of Cripple Creek in proportion to the gaming revenues generated in each respective city.
Colo. Const, art. XVIII, § 9(5)(b)(II). Twenty percent of the moneys in the state historical fund are to be proportionately distributed among the three cities specified above, and the remaining eighty percent is to be used for preservation and restoration of historical sites around the state. Colo. Const, art. XVIII, § 9(5)(b)(III).
Following the analysis set forth in Justice Vollack’s partial dissent, I note that Amendment 1 does not include gaming revenues within its definition of “fiscal year spending,” nor does the Commission fit into the definitions of “district” or “enterprise” for the purposes of the amendment. The collected gaming revenues go into funds that were created solely for the purpose of holding these revenues, and the funds have certain specified purposes for which the moneys contained therein must be used. The Commission has discretion to set the percentage of net wagers to be collected. By enacting the Limited Gaming Amendment, the people of Colorado not only permitted gambling within the state, but also specified who would determine the amount of proceeds and how the proceeds from gaming were to be spent. Thus the funds may even be regarded as “custodial funds” given to the state for a particular purpose, which the state as custodian of the funds must carry out. See Colorado General Assembly v. Lamm, 700 P.2d 508, 524 (Colo.1985). Allowing the General Assembly to set a limit on the proceeds thereby contravenes the will of the people as expressed in the Limited Gaming Amendment and changes the nature of the funds.
It seems to me that given the history and purpose of the Limited Gaming Amendment, the amount or percentage of net wagers collected by the Commission cannot be set by the General Assembly. Therefore, I agree that the answer to Interrogatory No. 5 should be “No,” and I concur with the result reached in the majority opinion.
I am authorized to say that Justice VOL-LACK joins in this concurrence and dissent.
. The relevant portions of the Limited Gaming Amendment read as follows:
(2) The administration and regulation of this section 9 shall be under an appointed limited gaming control commission, referred to in this section 9 as the commission; said commission to be created under such official or department of government of the state of Colorado as the general assembly shall provide by May 1, 1991.... The commission shall promulgate all necessary rules and regulations relating to the licensing of limited gaming by October 1, 1991
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(5)(a) Up to a maximum of forty percent of the adjusted gross proceeds of limited gaming shall be paid by each licensee, in addition to any applicable license fees, for the privilege of conducting limited gaming. Such percentage shall be established annually by the commission according to the criteria established by the general assembly in the implementing legislation to be enacted pursuant to paragraph (c) of this subsection (5). Such payments shall be made into a limited gaming fund that is hereby created in the state treasury.
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(c) the general assembly shall enact, amend, or repeal such laws as are necessary to implement the provisions of this section 9, by May 1, 1991.
Colo. Const, art. XVIII, § 9.