dissenting.
“The credit of the state shall never be given or loaned in aid of any individual, association, or corporation . . . .” Neb. Const, art. XIH, § 3. Relying upon Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991), the main opinion states that to prove a violation of article XIII, § 3, a plaintiff must show that (1) the credit of the state (2) was given or loaned (3) in aid of any individual, association, or corporation. Those joining in the main opinion conclude that the credit of the state was not involved because the state did not become a debtor, surety, or guarantor by issuing motor fuel tax credit certificates. I respectfully dissent. In this case, the credit of the state is being given.
The primary issue is whether by the issuance of motor fuel tax credit certificates the state’s credit (i.e., the general fund) becomes obligated. “The state’s credit is inherently the power to levy taxes and involves the obligation of its general fiind.” Haman v. Marsh, 237 Neb. at 719, 467 N.W.2d at 850. Article XIII, § 3, seeks to prohibit the obligation of present and future taxes from the state’s general fund in aid of private entities. Haman, supra.
In holding that the state is not a debtor, surety, or guarantor of the debt of another in this case, those joining in the main opinion assert that the state always remains a creditor in relation to taxpayers holding motor fuel tax credit certificates. The opinion accurately states that the relationship between the state and taxpayers responsible for paying motor fuel taxes is that of a creditor and a debtor. The opinion then states that since the taxpayer does not use the tax credit until the motor fuel taxes are due, the state remains a creditor and never assumes the taxpayer’s debt because the tax credit wipes out that debt. The main opinion states the conclusion that the motor fuel tax credits reduce the amount owed the state rather than create a debt that the state owes or guarantees.
However, when the state forgoes the collection of levied *483motor fuel taxes, the credit of the state is implicated. Dealers in motor fuel (oil jobbers) must pay taxes on fuel sold. Motor fuel tax liability is a debt owed by the oil jobbers to the state. Qualified ethanol producers receive motor fuel tax credits which they can assign to oil jobbers for a negotiated fee. Collected motor fuel taxes are placed in the Highway Trust Fund. The Highway Trust Fund is then reimbursed from the Ethanol Production Incentive Cash Fund (EPICF) for the amount of lost revenue due to the tax credits. See Neb. Rev. Stat. § 66-1345(2) (Supp. 1993). The fact that the Highway Trust Fund must be reimbursed for the amount of lost revenue undermines the conclusion in the main opinion that the motor fuel tax credits reduce the amount owed the state rather than create a debt that the state owes or guarantees.
The transferable motor fuel tax credit certificates create an obligation assumed by the state to credit the bearer’s motor fuel tax liability in an amount equal to the amount of the certificate. The issuance of the tax credit certificates results in a legally enforceable obligation on the part of the state to forgo the collection of motor fuel taxes which have already been levied. The state’s guarantee of the tax credit certificates makes them marketable items that ethanol producers are able to transfer for value. The very fact that the state must honor the tax credit certificates when properly presented by a bearer proves that there is a debt. Forgiving an enforceable debt creates income to the benefit of the obligor of that debt. There follows consequently a loss of that same amount to the obligee, here, the state. The definition of income includes the “discharge of indebtedness.” Glenn G. Munn, Encyclopedia of Bankers and Finance 459 (8th ed. 1983). In the statutory scheme before us, that income is generated following the state’s having committed to suffer that loss. As discussed, that commitment guarantees the negotiability of the certificate. Thus, the credit of the state was given or loaned.
Although the moneys from the general fund have never been used to directly fund the motor fuel tax credits, the general fund can become obligated via the EPICF. The EPICF is funded through appropriations, gifts, return on investment, and money transferred from the Ethanol Authority and Development Cash *484Fund. The Ethanol Authority and Development Cash Fund was funded by a checkoff program on grain sold in Nebraska and was the primary source of money in the EPICF. The main opinion states that no general fund moneys have been appropriated to the fund since its inception.
However, the motor fuel tax credits must be funded through the EPICF. § 66-1345(2). One source of funds for the EPICF is appropriations from the general fund. § 66-1345(l)(a). If general fund moneys are appropriated, article XIII, § 3, would be violated.
In State ex rel. Douglas v. Nebraska Mortgage Finance Fund, 204 Neb. 445, 283 N.W.2d 12 (1979), we held a bond fund which assisted private mortgage lenders in providing mortgage financing was constitutional. The general fund was not implicated, and in the event that there was insufficient revenue with which to repay the bonds, the state in no manner became obligated or liable.
In this case, the general fund may become obligated in the event that the EPICF is insufficient to reimburse the Highway Trust Fund for the lost motor fuel taxes.
In order to prove a violation of article XIII, § 3, the plaintiff must show the state’s credit was given or loaned in aid of any individual, association, or corporation. The appellee and amici curiae argue that since the ethanol producer credit has for its objective the promotion of public prosperity, health, security, and the general welfare of all the inhabitants of the State of Nebraska, it therefore serves a public purpose. It is true that we have previously held that the expenditure of public funds for building ethanol plants had a public purpose, given the then-current energy crisis and the need to promote the use of agricultural products by converting them to alcohol. See State ex rel. Douglas v. Thone, 204 Neb. 836, 286 N.W.2d 249 (1979).
However, in Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991), we rejected an argument that public purpose necessarily saved a statute which violated the prohibition against the giving or lending of the state’s credit where the pledge benefits a private individual, association, or corporation. We stated that
*485[t]he prohibition against the pledge of the state’s credit does not hinge on whether the legislation achieves a “public purpose” when the pledge benefits a private individual, association, or corporation. McGuffey v. Hall, 557 S.W.2d 401 (Ky. 1977). The key is whether the state stands as a creditor through the expenditure of public funds or as a debtor by the extension of the state’s credit to private corporations, associations, or individuals.
Human, 237 Neb. at 722, 467 N.W.2d at 852.
Therefore, having concluded that the state stands as a debtor by issuing transferable motor fuel tax credit certificates which benefit a private individual, association, or corporation, I would find that the statute is unconstitutional regardless of its public purpose.
The issue is not the benefits of ethanol, but, with apologies to Marshall McLuhan: the method is the message. The issue is whether this court will sanction what is by any other name a raid on the public treasury in violation of the constitutional prohibition against giving or loaning the state’s credit for private purposes. If it can be done here, it can be done for any other purpose. The door has been opened.
A method to promiscuously purloin the public purse for private gain has now been judicially sanctioned. The prohibition in article XIII, § 3, of our Constitution has been eviscerated.
Caporale and Fahrnbruch, JJ., and Buckley, D.J., join in this dissent.