*1
lаw,
at
parking deficiency
Under
Gateway.
Nebraska
while
need not be
damages
with
proved
mathematical certainty, they
cannot be established by speculation or conjecture. Lone Cedar
Jandebeur,
Ranches v.
Absent request monetary damages, Simon’s contention that it will not be made whole without an order granting mandatory injunction is an argument specific performance of its lease with agreement LJV. Even assuming Simon’s suffers from a 68-space deficit at parking Gateway, equity disallows the when it requested remedy is too extreme. Specific of a performance contract will not be where granted enforcement of the contract would be unjust. v. Wallroff Dougherty, 212 Neb. 322 N.W.2d
Affirmed. Callan, appellant, Balka, Clair v. M. Berri State Tax appellee. Commissioner, August
Filed 1995. No. S-94-354. *2 M. Casson for
Joseph appellant. General, Don Stenberg, and Attorney L. Steven Grasz for appellee. Zwart, Evnen,
Robert T. Grimit and David D. of Baylor, Curtiss, Witt, Grimit & for amici curiae American Corn Assoc, Growers et al.
White, C.J., Caporale, Fahrnbruch, Lanphier, Wright, JJ., Connolly, Buckley, and D.J. and Wright, J.
Clair Callan filed a petition declaratory and injunctive relief, a determination seeking the ethanol tax credit provisions of Neb. Rev. Stat. (Cum. 66-1326 and §§ 66-1329 1992) 3, are in Supp. violation of article Nebraska Constitution. The district granted court summary and Callan judgment, appeals.
SCOPE OF REVIEW
law,
of a
constitutionality
statute is a
question
and the
Supreme Court
is
to reach a conclusion
independent
Inc.,
of the decision reached
the trial
court.
v.
State
Popco,
440,
FACTS Laws, On L.B. known as the April Neb. Act, Ethanol into law. It and Authority Development signed was codified at Neb. Rev. Stat. 66-1301 66-1329 through §§ 1992) (Cum. and at Neb. Rev. Stat. later recodified Supp. 1993). 66-1330 66-1348 Effective through (Supp. §§ and were recodified 66-1326 66-1329 September §§ 1993) as 66-1344 66-1347 and (Supp. §§ Hereinafter, Laws, we refer to the L.B. shall their statutory citations current designations.
M. Berri Balka state Tax duly appointed acting Commissioner of the State of Nebraska and is with the charged state, the revenue laws of the duty administering including of the Ethanol Act. The act provisions requires Development Nebraska of Revenue to Department adopt rules promulgate for the issuance of regulations transferable motor provide fuel tax credit certificates to ethanol in Nebraska producers to enter into with ethanol on behalf of agreements producers *3 State of Nebraska furnish tax credits to as producers mandated by 66-1344. § 1993,
On June Callan filed a in petition the district court relief, for declaratory judgment injunctive seeking Balka permanently enjoin implementing administering of enforcing 66-1344 and 66-1347. In provisions his §§ Const, answer, Balka denied that the statutes violate Neb. art. XÜI, 3. Balka filed a motion for subsequently summary the district court found judgment, following there hearing, was no issue of material fact that 66-1344 genuine §§ 66-1347 serve a valid and do violate public not purpose Const, XIII, 3. The art. court dismissed Callan’s petition. Constitution,
The section of the Nebraska article under which this action is provides: brought of
The credit the state shall never be or loaned in given individual, association, aid of any or corporation, except the state or make may guarantee long-term, loans low-interest to Nebraska residents seeking adult or post school education high public for and the Qualifications in this state. institution of such loans shall be as prescribed repayment Legislature. as to be unconstitutional provided
The statutes alleged follows: receive a credit
(1) Each of ethanol shall producer of cents of twenty per gallon to this section Nebraska, ethanol which credit shall be produced of a transferable motor fuel tax credit certificate. form 1, 1994, credit shall be for July After no such at an ethanol which was facility ethanol produced 1, 1992, unless on or on or before January production 1, 1994, the name for the July plate design capacity before ethanol, of before at the has facility production denaturing, at least two times the name equal plate been expanded ethanol, of before capacity production design at the as of 1992. denaturing, facility January existing (2) ethanol which is in at the Any facility production rate of at least of its name twenty-five percent plate design ethanol, for the before capacity production denaturing, 31, 1992, before December shall receive a credit of on or cents of ethanol twenty per gallon produced beginning the first which it with month for to receive such eligible credit and not later than December 1997. ending (3) ethanol which is not in Any fаcility on production 31, 1992, or before December but which inis production at the rate of at least twenty-five its name percent plate ethanol, for the before design capacity production 31, 1995, on or before December denaturing, shall receive a credit cents twenty of ethanol per gallon produced months sixty with first month for which it beginning to receive such credit and not later than eligible ending December
(4) Any facility for a credit under eligible *4 (1), (2), (3) subsection of this section shall also receive twenty a credit of cents of ethanol per gallon produced the excess of name original plate which design capacity results from of the expansion facility on or completed before December 1995. Such credit shall for sixty be months with the first for month which beginning production from the to receive expanded facility eligible such credit and not later than ending December (5) The shall credit be for only produced fermentation, at a in Nebraska which plant all distillation, and dehydration takes Not less than two place. million and not than gallons more million twenty-five of ethanol gallons produced at an annually ethanol facility credit, shall be for the and the credit eligible may only be claimed by the producer period specified (3), (2), (4) subsectiоn this section.
(6) The Department of Revenue shall an prescribe and application form the procedures claiming and shall adopt rules and to promulgate regulations out section. carry this 66-1344.
(1) There is hereby created the Ethanol Production Incentive Fund Cash which be the shall used board to by pay credits created in section 66-1344 to the extent provided in this section. in the fund Any money available for investment shall be invested by state investment officer pursuant sections 72-1237 to 72-1276. On or 1, 1993, before September State Treasurer shall transfer to the Ethanol Production Incentive Cash Fund the entire balance of the Ethanol Authority Development Cash Fund and thereafter shall transfer such additional money (a) as shall be Ethanol appropriated Production Incentive Cash Fund (b) Legislature, given as or other gifts, bequests, grants, contributions to the Ethanol Production Incentive Cash from public Fund sources, (c) or private made available due to failure to fulfill conditional requirements to investment 30, 1992, entered into agreements (d) prior April received as return on investment Ethanol Authority Fund, (e) Cash Development otherwise credited to the Ethanol Production Incentive Fund Cash sources deemed appropriate Legislature. 1, 1993,
(2) Commencing January Department shаll, at each Revenue the end of calendar notify quarter, *5 the State Treasurer of the amount of motor fuel tax that was not collected calendar due to preceding quarter the credits in section provided 66-1344. The State Treasurer shall transfer from the Ethanol Production Incentive Cash Fund to the Trust Fund an amount Highway to such credits less the amounts: equal following 1993, 1994, 1995, (a) For and the amount generated the calendar a during one-cent tax on motor quarter by 66-605.07; fuel to pursuant sections and 66-489 1996, (b) For the amount the calendar generated during quarter by tax on three-quarters-cent fuel sections; to such pursuant 1997,
(c) For the amоunt the calendar generated during quarter by one-half-cent tax on motor fuel to pursuant sections; such and 1998,
(d) 1999, 2000, For no reduction. The amounts shall be transferred December through 2000. For 1993 if the through amount generated (a), (b), to (c) subdivisions of this subsection and the amount transferred pursuant (1) to subsection this section are not sufficient to fund the credits provided 66-1344, in section then the credits shall be funded through Ethanol Production Incentive Cash Fund but shall not be funded either the through Cash Fund Highway 1998, 1999, or the Trust Highway Fund. For the credits provided such section shall be funded the Ethanol through Production Incentive Cash Fund but shall not be funded either the through Cash Fund Highway or the Trust Highway Fund.
(3) On February the State Treasurer shall transfer any unexpended and funds from the unobligated Ethanol Production Incentive Cash Fund to the Highway Trust Fund. 66-1345.
The Tax Commissioner and the producer to eligible receive credit under section 66-1344 shall enter into a written ’agreement. The producer shall agree produce ethanol at. the designated facility any expansion Commissioner, thereof. The Tax on behalf of the State of Nebraska, shall to furnish the the tax agree producer credits as and limited in such section in effect provided on the date of the The agreement. agreement produce ethanol in return for the credit shall be sufficient cоnsideration, and the shall be agreement binding upon state. No credit shall be producer which fails to ethanol in Nebraska produce compliance with the shall include: agreement. agreement (1) The name of the producer; *6 (2) The address of the ethanol facility; (3) The date of the initial of the ethanol eligibility credits; to facility receive such
(4) The name of the ethanol plate design capacity facility as of date of its initial to receive such eligibility credits; and
(5) The name plate facility which the is design capacity intended to have after the any of completion proposed If no at the time of expansion. expansion contemplated the initial agreement, may be amended to agreement include any proposed expansion. 66-1347. Balka, Commissioner,
It is that as the Tax undisputed has entered into an with one or agreement more ethanol producers located in the State of Nebraska to 66-1344 and §§ 66-1347 and has issued and continues to issue transferable motor fuel tax credit certificates to ethanol producers.
ASSIGNMENT OF ERROR Callan as error the district court’s assigns' finding Const, XIII, 66-1344 and 66-1347 do not violate Neb. art. §§ 3.§
ANALYSIS Constitutionality To establish the of a act under unconstitutionality legislative Const, XIII, 3,
Neb.
art.
that the
party.must рrove
individual,
of the state was
or loaned in aid
given
of any
association,
Marsh,
or
Haman
corporation.
v.
237 Neb.
(1991).
question reached the trial of the decision conclusion independent Inc., v. Popco, court. State
(1995). Haman, the losses to as a response the Legislature, the failure of the Nebraska Depository because of depositors enacted Guaranty Corporation, private corporation, Institution Laws, authorized the L.B. 272A. This law 1990 Neb. $30,000 fulfill the and Finance to Banking Department of the failed Commonwealth every Savings depositor guaranty Haman, a Nebraska resident nondepositor taxpayer, Company. unconstitutional, because, L.B. 272A declared to have sought alia, inter it the credit of the state. pledged (1) three elements: We stated that the must plaintiff prove (2) (3) in aid any The credit of the state or loaned association, individual, that the We also stated corporation. of article is to the state or of its prevent purpose the state’s credit to subdivisions governmental extending United Services v. The citing Community private enterprise, Bank, Omaha Nat. N.W.2d 576 “It the state from as a designed prohibit acting surety Haman, of the debt of another.” 237 Neb. at guarantor We noted that the first question N.W.2d involving statute was whеther it involved the “credit of the state.” “The *7 levy state’s credit is the to taxes and involves inherently power the fund.” Id. at of its 467 N.W.2d at obligation general the distinction between the of state funds noting loaning credit, and the of the state’s we stated that a loan of loaning creditor, state funds the state in the of a and the places position loan of credit the state in the of a debtor. Since places position L.B. 272A made the state forever liable for the losses of industrial and future company depositors obligated present XIII, 3, fund contrary taxes from the state’s to article general § Haman, the we found statute unconstitutional. See supra. Haman, In contrast to ex State rel. v. Nebraska Douglas Fund, (1979), Finance Mortgage the of a fund assisted upheld constitutionality which lenders mortgage providing mortgage financing residences at reduced The rates. fund single-family mortgage the bond sales and was money through responsible acquired We held was the those bonds. the fund constitutional payment the state because credit of the was not or loaned in given being the The only aid of individual and fund was involved. fund bonds, the sale of and it moneys the acquired through repaid it bonds revenue In the event there was through acquired. bonds, which insufficient revenue with to the state in reрay no manner became or liable. The act provided debt, would bonds not be a liability, general obligation state.
Here, we 66-1344 examine to whether determine it § involves credit of the state which is loaned to ethanol The of Janet producers. affidavit A. administrator of the Stege, Revenue, fuels division of the Nebraska Department provides procedure for the ethanol tax background program. Stege’s Affidavit that the
Siege’s affidavit recites Production Ethanol Incentive 66-1345, (EPICF), Fund Cash created by funded initially $11 a transfer of million from the Ethanol Authority The Development Cash Fund. Authority Ethanol Cash Fund was funded Development a chеckoff on program sold in Nebraska. Additional grain are transferred into moneys the EPICF statute to from which pursuant money be may by the received appropriated Legislature; money as gifts, or other bequests, grants, public contributions from or private sources; money made available due failure to to fulfill conditional to requirements investment agreements 30, 1992; into entered received as return prior April money fund; and on investment of the credited to money otherwise fund sources deemed appropriate by Legislature. 66-1345(1). stated that in it Stege January duty became of the Revenue at end of each calendаr Department quarter notify the State Treasurer amount of the motor fuel tax that was not collected in the calendar due to quarter preceding the ethanol tax credits provided by 66-1344. State then Treasurer is directed transfer from the EPICF to the *8 478 less the amount to the credits Trust Fund an equal
Highway 66-1345(2). in amounts mandated the EPICF’s balance As of September $16,746,500. moneys fund have been appropriated No general The ethanol tax credits cannot' the EPICF since its inception. Cash Fund or the Highway funded from either the Highway be 66-1347, 66-1344 and upon meeting Trust Fund. Under §§ conditions, to receive a the ethanol is producer eligible certain of ethanol in Nebraska. produced crеdit of 20 cents per gallon in for ethanol at a only produced plant The credit is given fermentation, distillation, and dehydration all Nebraska which credit for all take A receives producer qualified gallons place. with the first month for which the for 60 months beginning Credits will not be after December granted is producer eligible. in the form of a transferable motor fuel 2000. The credit is certificate, an ethanol can then tax credit which producer which entity transfer to individual or any responsible law, motor fuel taxes under Nebraska stated. Stege paying tax credit affidavit an of the ethanol provided example Stege’s 1 If аn ethanol million program. producer produces gallons per month, to the submits a form producer department' the amount of indicating qualified production previous of 1 million and a credit of month. Based on production gallons $200,000 cents a credit of to the applied per gallon, The ethanol producer. producer designates company $200,000 in individual to which the motor fuel tax credits shall the credits are to an “oil be assigned. Typically, assigned to reduce the oil motor fuel tax If the jobber” jobber’s liability. $200,000, oil fuel tax is less than the credit jobber’s monthly can'be carried over until it is depleted. jobber, transаction, remits to the ethanol a check separate producer $200,000 fee. The less State of Nebraska negotiated with any surety does not enter into guarantee agreement to the issuance of the credits. estimated that sales respect Stege gasoline containing oxygenate composed of all sold Nebraska in 1992. percent gasoline Argument Callan’s that the transferable fuel tax credits Callan argues *9 an create assumed the state to the collection obligation by forgo of motor fuel which have been levied. He claims already taxes credits, tax by that the the state is in of a issuing thе position debtor and that payment the of the is the of a subsidy making to loan He the private enterprise. credit is to argues dispensed taxes, the offset collection of levied fuel the motor credits reduce the taxes otherwise dedicated to the Cash Fund Highway Fund. Highway Trust Callan, to the definition of the term “credit of the According ” “ “ state” Toan includes a as well ‘the creation money’ as ” state, of debt of a the either or brief Reply direct contingent.’ He the appellant claims that subsidy by authorized 66-1347, 66-1344 and as the well as fund transfer mandated §§ 66-1345, a by constitutes direct debt of the state to without The private enterprisе valuable consideration. debt is by paid the collection of levied motor fuel taxes which forgoing are otherwise the due to state. Debtor or Creditor
The in our key determination of the question constitutionality 66-1344 and 66-1347 is whether the state acts as a debtor §§ the state’s to extending private corporations, associations, or individuals. In cases where the state prior became debtor in the interest we held private parties, See, Marsh, statutes unconstitutional. Haman v. 237 (1991); 467 N.W.2d County 836 Chase v. Douglas, York, 241 (1976); N.W.2d 334 State ex rel. Beck v. City of , Neb. 223 The ethanol tax credits to may be used Nebraska motor pay (6th 1990) taxes. Law fuel Black’s ed. defines Dictionary as a debt fixed certain to money some obligation pay “[a] valuable in other either or in thing things, present fuel future.” motor taxes are fixed and certain obligations or in future money present to the state. Black’s pay further defines a as who owes debtor a debt to another “[o]ne who is called the creditor.” Id. at 404. It is clear that taxpayer motor fuel taxes is a debtor the State responsible paying and, of Nebraska state is a conversely, creditor of the The redemption of the motor fuel tax credit taxpayer. requires the state to the collection of that forgo portion of the motor fuel tax which ais debt owed to the state. The state is the position of a creditor fuel excusing payment tax debtor. The tax credit merely offsets a debt owed to the state. the motor fuel taxes Although collected are reduced because of credits, the ethanol the ethanol tax credit does not program the state in the place of a debtor or position Until the guarantor. tax,- state is owed the motor fuel the tax credit cannot be used by the party who has the tax credit. The credit is only redeemable a debt that against is owed aby to the state. party indebtedness, The state an forgives but is never to pay any money or extend a credit of the state. Contrary Callan’s the state does not argument, create or incur an indebtedness. The state always remains a creditor relation to the motor fuel *10 debtor, tax. We therefore conclude that the state is not a surety, or of the debt guarantor of another with to the respect tax credits authorized by 66-1344.
Many provisions the Nebraska Revenue Act of Neb. Rev. 77-27,135.01 Stat. 77-2701 (Reissue through §§ &1990 1994), Cum. allow Supp. taxpayers decrease their tax liability by the use See, of various types credit. e.g., 77-2715.07, 77-2704.12(3), See, also, §§ 77-2734.03. 77-27,188 Neb. Rev. Stat. 77-1736.08 and (Cum. §§ Supp. 1994) and (Reissue 77-4105 1990). cases, In аll these the revenues of the state are reduced from the level at which they, would be if the tax However, credits were not allowed. in none of these instances tax credits involving does the state guarantee payment lend its credit to the transaction. If the issuance of EPICF, the credits exhausts the the state cannot fund the credits Fund, from the Highway Trust Fund, the Cash Highway otherwise. There is no on the obligation general fund of the state.
It is true that 66-1345 directs the State Treasurer to transfer money periodically the EPICF to the Highway Trust Fund in an amount to the equal number of tax credits redeemed, less certain amounts as specified the statute. Mоney from a state fund administered by the Nebraska Ethanol Board is transferred to a state fund administered by the Department Revenue. The Legislature has chosen to
[481] the internally reimburse of Revenue for income that Department was not received the usual fuel tax. transfer through of money from one state another cannot be considered agency the of the state’s credit to The EPICF loaning private industry. does not the credit of the implicate state.
Nor does the fact that the Trust Fund not be Highway might reimbursed if the EPICF is article depleted implicate There is no revenue obligation replace uncollected because of credits, a tax credit. the case of other the tax has Legislature case, chosen to allow the income to remain uncollected. In this revenue, if the ethanol fund is insufficient to replace lost case, Trust Fund Highway remains unreimbursed. In either state has chosen to the collection of revenue. In forgo neither case is the state a debtor to any party. constitutional,
A statute is presumed to be and all reasonable doubts should regarding constitutionality be resolved in favor of its See validity. Servs., Slack Nsg. Home v. Department Soc. 247 Neb. 528 N.W.2d (1995). 285 The party asserting unconstitutionality of a statute has the burden оf this overcoming presumption by clearly demonstrating statute is See, Inc., unconstitutional. State v. 247 Popco, Neb. A-16642,
N.W.2d 281 (1995);
In re Application
463 N.W.2d
When a
statute
challenged
susceptible
construction,
more than one reasonable
a court
uses the construction that will achieve the purposes of the
statute and preserve the statute’s validity. Ehlers v.
Perry,
Although amount of motor fuel taxes collected state is reduced by the ethanol tax credit the state program, *11 not placed position a debtor. The tax credit is used to offset a debt to the owing state. The credit of the state is not involved. We find that Callan’s are arguments not persuasive. Since Callan has failed to meet the first prong of the Haman test, further analysis is unnecessary.
Summary is to judgment be when there granted is no genuine issue of material fact and the moving party entitled to Raines, as a matter judgment of law. v. Tompkins Neb. N.W.2d 244 We find that there is no genuine issue as to material any fact as to the constitutionality
tax credit and that Balka is entitled to a as a program judgment law. affirm matter of We therefore of the district judgment court. Affirmed. J., dissenting.
Lanphier, “The credit state shall never be or loaned in aid given individual, association, of any or . . . .” corporation Const, XIH, Marsh, art. Haman v. Relying upon (1991), the main states that to opinion XIII, a violation of article prove must show that plaintiff (1) (2) the credit (3) state or in loaned aid of individual, association, or Those corporation. joining main conclude that the opinion credit of the state was not debtor, involved because the state did not become a surety, fuel guarantor by tax credit certificates. I issuing case, dissent. In respectfully this the credit of the state is being given. issue is whether primary by the issuance of motor fuel
tax credit
(i.e.,
certificates the
fund)
state’s credit
the general
becomes
“The state’s credit
obligated.
inherently
power
taxes аnd
levy
involves the
of its
fiind.”
obligation
general
Marsh,
Haman v.
of the debt of another in this those the main joining opinion assert that the state always remains a creditor in relation to taxpayers motor fuel tax credit holding certificates. The opinion states that the accurately between the relationship state taxpayers responsible motor fuel paying taxes is that of a creditor and a debtor. The then opinion states that sinсe the does not use the taxpayer tax credit until the motor fuel taxes due, are the state remains a creditor and never assumes the debt because taxpayer’s the tax credit out that wipes debt. The main states the opinion 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 the collection forgoes of levied *12 taxes, motor fuel credit state in the is Dealers implicated. (oil motor fuel must taxes on sold. fuel jobbers) fuel Motor pay tax the state. liability is a debt owed oil to the by jobbers Qualified ethanol motor fuel tax receive credits which producers can a they assign jobbers to oil fee. Collected negotiated motor fuel taxes The placed are Trust Fund. Highway Trust Highway Fund then reimbursed from the Ethanol Cash (EPICF) Production Incentive Fund for the amount lost of due 66-1345(2) revenue to the tax credits. See Rev. Stat. § 1993). The that (Supp. fact the Trust Fund must be Highway reimbursed the amount of lost revenue the undermines in conclusion the main the fuel opinion that tax credits reduce the amount the rather owed state than create a that debt the state owes or guarantees.
The transferable motor fuel tax cеrtificates create an assumed the state to credit the fuel obligation bearer’s motor tax liability an amount the amount of the certificate. equal The issuance of tax the credit certificates results in legally enforceable on the obligation the state to the part forgo collection motor fuel taxes have already which been levied. The state’s of the tax credit them guarantee certificates makes marketable items that ethanol are able to transfer for producers value. The that very fact the state must honor the tax credit when certificates that properly рresented by bearer proves there is a debt. an enforceable debt creates Forgiving income the benefit of the of that debt. There obligor follows here, a loss of that consequently same amount to the obligee, the state. definition of income includes the “discharge Munn, indebtedness.” Glenn G. Encyclopedia Bankers (8th us, 1983). Finance 459 ed. scheme statutory before that income state’s committed generated following having discussed, suffer loss. As that commitment guarantees Thus, of the certificate. the credit of the state negotiability was or loaned.
Although moneys fund have never been general credits, used to fund the mоtor tax fund directly fuel general can via become the EPICF. The EPICF is funded investment, return on through appropriations, gifts, money transferred from the Ethanol Authority Cash Development
Fund. The Ethanol Fund was Authority Cash Development funded a checkoff on sold Nebraska and program grain source of in the EPICF. The main primary money states that no fund have opinion general moneys been *13 to the fund appropriated since its inception.
However, the motor fuel tax credits must be funded through 66-1345(2). the EPICF. One source of funds for the EPICF § 66-1345(l)(a). from the fund. If appropriations general fund are article general moneys would appropriated, be violated. Fund,
In State ex rel.
v.
Douglas Nebraska
Finance
Mоrtgage
(1979),
204 Neb.
In this fund general may become event that the EPICF is insufficient to reimburse the Highway Trust Fund for the lost motor fuel taxes. XIII, 3, order to a violation of article prove the plaintiff
must show the state’s credit was or loaned in given aid of any individual, association, or corporation. The and amici appellee curiae that since argue the еthanol credit producer has for its objective health, the promotion of public prosperity, security, and the general welfare of all the inhabitants of the State of Nebraska, it therefore serves a public It is true purpose. that we have previously held that the expenditure of public funds for building had plants a public purpose, then-current crisis and the energy need to promote use of agricultural products by them converting to alcohol. See State Thone, ex rel. v. Douglas
However, Marsh, Haman v. 237 467 N.W.2d (1991), we rejected an argument public purpose necessarily saved a statute which violated thе prohibition against or giving lending state’s credit where the pledge individual, benefits a association, private or corporation. We stated that of the state’s credit prohibition against pledge
[t]he
does not
on whether the
achieves a
hinge
legislation
when the
benefits a
“public purpose”
pledge
private
individual, association,
Hall,
v.
McGuffey
or corporation.
1977).
557 S.W.2d
is whether the
(Ky.
key
state
stands as a creditor
through
expenditure
public
funds or as a debtor
the extension of the
credit
state’s
associations,
or individuals.
private corporations,
Human,
Therefore, concluded that the state stands аs a debtor having transferable fuel tax credit certificates which issuing individual, association, benefit a I would private corporation, find that the statute is unconstitutional of its regardless public purpose. ethanol, but,
The issue is not the benefits of with apologies to Marshall McLuhan: the method is the The issue is message. whether this court will sanction what is by any other name a raid on the in violation of the public treasury constitutional prohibition the state’s against giving loaning *14 here, If it can purposes. be done it can be done for other The door purpose. has been opened.
A method to promiscuously purloin public purse has now been gain judicially sanctioned. The prohibition in article of our Constitution has been eviscerated. Caporale JJ., Buckley, D.J., Fahrnbruch, join this dissent.