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December 14, 2018

Request:  Is the transfer of funds from the highway tax distribution fund to the ethanol production fund for the purposes of providing incentive payments to ethanol plants permitted under the state’s Constitution?

Conclusion: The highway tax distribution fund serves as the depository for multiple revenue sources. Although most of the revenue deposited in the highway tax distribution fund consists of funds dedicated by Art. X, § 11, there are also non dedicated funds that are deposited in that fund.  In enacting a statute, it is presumed that the Legislature intended to comply with the constitution and any doubt must be resolved in favor or the statute’s validity. Whether the funds appropriated pursuant to N.D.C.C § 39-04-39 are dedicated funds is a question of fact and this office cannot issue an opinion to resolve questions of fact rather than questions of law.


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