*59 Opinion of Justices BROWN, FOSTER, and LIVINGSTON
The Governor’s inquiry calls for an interpretation and application of the last paragraph of § 16, Tit. 51 оf the Code of 1940, which said section purports to provide for a “property tax relief fund.”
Said section of the Code contemplates that the Governor shall act promptly on the 30th of September of each year, when the comptroller draws the warrants payable out of said fund in amount sufficient to reimburse the general fund, the state soldiers’ relief fund and the public school fund, reimbursing each of said funds “for revenuеs lost by the exemption of homesteads,” the levy to be reduced is the levy of twenty-five cents on each hundred dollars of assessed value “for the use of the state and to raise revenue therefor,” made by subsection (c) of § 19, Title 51, Code of 1940.
The reduction is to be made by proclamation of the Governor under existing law, Code of 1940, Tit. 51, § 16, in pari materia with § 19, which makes the levy and fixes the percentage thereof, upon the ascertainment of a fact — the relation or percentage the existing surplus bears to total revenue *60 produced by said levy. This is not the delegation of legislative power by the Legislature to the Govеrnor but is the delegation of power to ascertain a fact upon which the statute operatеs to reduce the percentage of the levy.
The question arises, can this statute be effectively applied without violating the letter and spirit of §§ 100 and 217 of the Constitution of 1901 ?
The following pertinent information of fаct, matters of judicial knowledge, has been furnished by the State Commissioner of Revenue:
“For the fiscal year which commenced October 1, 1940 and ended September 30, 1941 the ad valorem taxes collected for the general fund, amounting to 25^ on each $100 of the assessed value of taxable property (subsection (c), Section 19, Chapter 3, Title 51, Code of 1940) amounted to $1,-928,483.89. These collections were made on assеssments made by the tax assessor during the assessment year commencing October 1, 1939 and ending September 30, 1940 and rеpresent net collections after the allowance of all homestead exemptions, errоrs, insolvencies, and commissions to assessors and collectors.
“During the current fiscal year (October, 1941 tо September 30, 1942) the several tax collectors are collecting ad valorem taxes based on assessments made by the several tax assessors during the assessment year October 1, 1940 to September 30, 1941. These assessments, exclusive of the exempted homesteads and also exclusive of the motor vehicles, the assessments of which have not yet been reported, total $799,934,426. It is estimated that the assessed value оf motor vehicles will amount to $32,000,000, making a total valuation which is subject to the levy for general State taxes amounting to $831,934,426. This valuation would produce taxes for the State general fund in the gross amount of $2,079,836.06. If we allow fоr the commissions of the assessors and collectors and also allow for errors and insolvencies it is еstimated that the net collection for the general fund, based on these known assessments, will be apprоximately $2,050,000.00.”
It is apparent from the foregoing that such reduction can not be applied to the levy for the tax year, 1940-1941, for the reason that the taxes under said levy have, in the main, been collected and nо provision of law exists for a return of the money so paid to the taxpayers for whose benefit the reduction was intended to operate, and some of the taxes arising from said levy-— the ad valorem levy on motor vehicles— has come into the state treasury through payments prior to November 15, 1940. Such paymеnts represent more than one-third of the state levy. To reduce the twenty-five per cent of levy on оther property, not including motor vehicles would result in violating, in spirit at least, the provisions of § 217, which require uniformity in the levy. Moreover, a large per cent of the tax from such levy applied to property other than motor vehicles has been paid since the 1st of October, 1941, and can not be refunded because there is no provision of law therefor. To refund without existing law, that is law enacted prior to the attеmpted reduction of the levy, would violate the letter and spirit of § 100 of the Constitution.
The statute can not bе applied to the 1941-1942 levy for the reason that the taxes, on motor vehicles have, in the main, been рaid prior to November 15, 1941, and for like reason can not be refunded to the-taxpayer.
It can not be applied to the levy on other than motor vehicles, because the' amount of the tax that will arisе therefrom, can not be definitely ascertained, so as to. make a pro rata reduction as сontemplated by the law, and can not be so applied because such application would violate the uniformity provision of the Constitution. Therefore, we are of the opinion that said statute is inсomplete and the last clause thereof is unenforceable, now or in future in its present form. It does not contemplate a permanent reduction but a reduction from year to year, depending upon the,condition and amount of surplus in the “tax relief fund” on September 30th of each year.