No. 85-447

INTHE SUPREMECOURT OF THE STATE OF MONTANA

1986

JOHNL. HOLLOW, Plaintiff

STATE OF MONTANA,MONTANA ECONOMIC DEVELOPMENT BOARD,D. PATRICKMcKITTRICK, YVONNE SNIDER, JEREMIAH R. SULLIVAN,G. STEVENBROWN,KAREN R. LOCKE,JOHNC. ORTH, JACKSONL. SCHUTTE, asmembers of saidMontana EconomicDevelopment Board, MONTANA STATEDEPARTMENTOF COMMERCE, and KEITH COLBO,Director of said Department of Commerce, Defendants

ORIGINAL PROCEEDING:

COUNSEL OF RECORD: For Plaintiff: Hull & Sherlock;JeffreyM. Sherlock, Helena,Montana,Argued

For Defendants: Dorsey & Whitney; Mae Nan Ellingson, GreatFalls,Montana,Argued

Submitted:March 12, 1986 Decided: August 8, 1986

Filed: 

### 3 'YB6Mr. Justice John C. Sheehy delivered the Opinion of the Court.

In this case we determine and hold that the provisions of § 17-6-308, MCA, which permit the use of in-state investment fund monies ($ 17-6-306, MCA) derived from taxation to guarantee loans or bonds of private individuals

or private entities either directly or through the capital reserve account (S 17-5-1515, MCA) or through the economic development guaranty fund ( 17-5-1520, MCA) are unconstitutional from the viewpoint of our state constitution. I. This isan originalproceeding in this Court,broughtby John L. Hollow, a citizen, resident of Helena, Montana, and taxpayer,voter and property owner in this state. His action is brought under the Uniform Declaratory Judgments Act 

### (5 27-8-101, MCA, et seq.) for the purpose of obtaining from this Court a declaration that certain provisionsof S.B. 349, Ch. 640, Laws of Montana (1985), enacted by the 49th Legislative Assembly are invalid as offending the State Constitution. We ordered responses from counsel representing the defendants, which responses were served and filed. Thereafter, oral argument was had before the Court on March 12, 1986 concerning the contentions raised by the complaint and the responses. There is no dispute between the parties as to whether this Court has jurisdiction to proceed, but in an original proceeding, we must, of course, find jurisdiction under our granted powers. To be sure about it, the same facts and factors that excited our acceptance of original jurisdictionand caused us to find standing for the taxpayer in Grossman

v. State Department of Natural Resources (Mont. 1984), 682 P.2d 1319, 41 St.Rep. 804, are present in this case. Here Hollowchallengesthe constitutionalityofvarious aspects of the in-state investment program; the issuanceofbondsby the state under the program is delayed because underwriters or investors who would purchase bonds require a final court resolutionof the constitutional issues involved; the program involves major segments of the state's population, and has great impact upon its economy; requiring the case toproceed first to the District Court and then here on appeal for a final resolution will require a lapse of time almost intolerable; and the proceedings here are designed to obtain a final judgmenton thevalidity of thebondswhich might be issued thereunder, so if valid, the bonds would be marketable. As we stated in Grossman, the issues here are fairly stated, fully explored and vigorously contended so that we have a justiciable controversy suitable for final resolution. Thereforewe assume jurisdiction.

The Montana Economic Development Board was createdby § 2-15-1805, MCA; its individual members at the time of the complaint here are the defendants McKittrick, Snider, Sullivan, Brown, Locke, Orth, and Schutte. The Board is administratively attached to the Montana Department of Commerce, an administrative agency of the state which is directed by the defendant Colbo. The Board ispurporting to and intends to issue bonds within the limits prescribed by S.B. 349 (the title of the legislation in the legislature;we will refer as we proceed in this discussion to pertinent parts of S.B. 349 as the said parts arenow enumerated in thecode sections of the Montana Codes Annotated). The Board adopted a resolution on August 8, 1985 declaring its intention to issue the total principal amount of bonds permitted under the legislation. However, theBoard hasbeen advised by its bond counsel that there are several constitutional issues raised by the legislation which have not been specifically addressed by this Court in prior decisions and that a final resolution of those issues would be required by the investors to effectuate the sale of bonds issuedby the Board. 111. A short statement ofwhat S.B. 349 accomplished is that the legislation authorized the Board to utilize the in-state investment fund to guarantee loans or bonds otherwise authorized to be made or issued by the Board under the provisions of the Montana Economic DevelopmentBond Act, the Municipal Finance Consolidation Act, or the Montana Health Facility Authority Act; and to make and agree to make loans from the in-state investment fund to the capital reserve account and guarantee funds which secure certainbonds issued by the Board. While that short statement may suffice to advise the reader of the effectof the legislation, itdoesnotbegin to lead the reader through the maze of statutory provisions attending the activitiesof the Board. Thesewemust explore in somedetail forbackground to our decisionhere. The legislature adopted the "Montana Economic DevelopmentBond Act of 1983" 

### (517-5-1501,MCA, et seq.) for the purposes of promoting the general welfare of the people of the state, to increase job opportunities, and to retain existing jobs by making available funds for industrial,commercial, agricultural and other uses for economic development. The Board was given power to issue bonds and notes for "projects"and "major projects" (S17-5-1506, MCA) and to maintain necessary accounts (S 17-5-1514, MCA)

# . One of such accounts is the capital reserve account, of which

more later. The Board was also given power to engage in a project guarantee program (S 17-5-1519, MCA) and to guarantee payments required by a loan, lease, or other credit arrangement for any project funded as authorized. Particularly with respect to itsguarantee program, the Board

was also empowered to create an economic development guarantee fund (S17-5-1520,MCA). IV. The capital reserve account establishedby the Board is provided in 

### 5 17-5-1515, MCA. It consists of funds appropriated andmade availableby the state for the purposes of the account,proceeds from the sale of notes or bonds to the extent provided in the resolutions or indentures of the Board authorizing their issuance and such other funds asmay be available fromother sources. Funds held in the capital reserve account must be used solely for the payment of principal of or interest on bonds secured by the account and must be maintained in a minimum amount sufficient to meet obligations ofprincipal, interest and redemption premiums and debt service for such bonds and notes. No bonds issued by the Board, and funded through the capital reserve account are a debt, liability or obligation of the faith and credit of the sta.te,but are payable solely from the revenue or assets of the Board (S 17-5-1523, MCA).Nonetheless, the governor must include in the executive budget submitted to the legislature any sums required to restore the capital reserve account to the sum of minimum capital reserve requirements (S17-5-1516,MCA)

# . This latter provision isdenoted the "moralobligation" clause. 

### v. The Board is further empowered to establish a project guarantee program (S 17-5-1519, MCA). The Board may make commitments to guarantee payments required by a loan, lease

or other credit arrangement for any project funded under the Montana Economic Development Bond Act, or under industrial development projects as outlined in § 90-5-101,MCA, et seq. To fund this program, the Board is authorized to create an economic guarantee fund (S 17-5-1520,MCA)

# . It consists of insurance fees,premiums and other revenue and assets as the Board considers necessary to comply with any contract or agreement entered into by the Board and of borrowings up to $7.5 million fromany available state funds. Funds in the Economic Development Guarantee Fund must be used to satisfy any claim resulting from a defaulted loan lease or any other credit agreement. Once again the credit of the state isnotpledged with respect to this fundbut the governor is required to include in the executive budget submitted to the legislature sums required to restore the economic guarantee fund to the minimum reserverequirements, which is an amount not in excess of the aggregate annual payments due under the loans, leases, or other credit agreements guaranteed by the Board ((SS 17-5-1520(3 

## , (4 

## , MCA)

# . The projects for which the funds produced by Economic Development Bonds may be used are broadly defined. A "majorproject" is one whose cost or appraised value exceeds $800,000 (517-5-1503(6)

## ,MCA)

# . Otherwise a "project"means, under S 17-5-1503(7), MCA, those projects outlined in S 90-5-101(6)

## ,MCA, which follow: "Project" means any land; any building or other improvement; and any other real or personal properties deemed necessary in connection therewith,whether or not now in existence, which shall be suitable for use for commercial, manufacturing, agricultural, or industrial enterprises; recreation or tourist facilities; local, state, and federal governmental facilities; multifamily housing, hospitals, long-term care facilities, or medical facilities; small-scale hydroelectricproduction facilitieswith a capacity of 50 megawatts or less; and any combination of theseprojects. VI. The provisions of S.B. 349 that create constitutional problems, asweview it,arise out of the use of the in-state investment fund. The 1972 Montana Constitution, in Art. VIII, 5 13, directs that the state engage in a unified investment program. Accordingly, 5 17-6-201,MCA, directs that public funds be administered by the Board of Investments and the Montana Economic Development Board. The power of the Board of Economic Development, however, is limited to investmentof the in-state investment fund (517-6-201(4),MCA)

# . The Montana in-state investment fund is derived partly from the taxation of the severance of coal in Montana. The Montana in-state investment fund consists of (1) 25% of the

revenuedeposited after June 30,1983 into thepermanent coal tax trust fund established in S 17-6-203(5), MCA; (2) the principal payments on all investments made from the Montana in-state investment fund; and, (3) 15% of the annual income and earnings on the Montana in-state investment fundappropriated to the coal severance permanent fund by § 17-5-704(2)

## ,MCA. (Section17-6-306,MCA.) At this point, it is necessary to set out in full the perimeters of 

### 5 17-6-308, MCA, respecting authorized investments of the in-state investment fund. The statute follows: (1) The Montana in-state investment fund must be invested as authorized by rules adopted by the board. For purposes of this section, "investment" includes the guaranty of loans or bonds in consideration for a fee, in lieu of the actual acquisitionof such loans orbonds.

(2) Theboard may use the in-state investment fund to guarantee loans or bonds issued under the provisions of 17-5-1501 through 17-5-1529, Title 17, chapter 5, part 16, or Title 90, chapter 7. Each guaranty must be given in consideration of a fee. The fees must be paid to the board. The guaranty must provide directly or by separate agreement that theboard is fully subrogated to the rights of the obligee under the loan or bond. The board shall by rule establish the maximum ratio between guaranty funds available and loans or bonds to be guaranteed. The board may covenant in bond issues tomaintain such ratio. Unless bonds issued to finance a project are secured by a common capitalreserve accountand a common guaranty fund, the maximum amount of the guaranty authorized by this sectionmay not exceed $3,000,000 with respect to thebonds or loans to finance theproject.

(3) The board may make loans from the in-state investment fund to the capital reserve account createdpursuant to 17-5-1515 and the guaranty fund createdpursuant to 17-5-1520 to establish balances or restore deficiencies therein. The board may agree in connection with the issuance of bonds or notes secured by such account or fund tomake such loans. Loans must be on such terms and conditions as the board determines and must be repaid from revenues of theboard realized from the exerciseof its powers under 17-5-1501 through 17-5-1529, subject to the prior pledge of the revenues to the bonds and notes. Under S.B. 349, the legislature in 1985 amended subdivision (1) of 17-6-308, MCA, to provide that an "investment" includes the guaranty of loans or bonds in consideration of a fee, in lieu of the actual acquisition ofsuch loans orbonds. Such a provisiondid not exist prior to the amendment to define an investment. The concept that undertaking to guaranty the private debt or obligation of another is an "investment," is peculiar, to put itmildly. It is akin to co-signing a note at the bank for a friend,which as Shakespeare noted, "oft loses both itself and friend." The defendants contend that guaranties on loans authorized under the statutes here are nothing more than additional types of investments and that the act of investing by guaranty does not create a debt on the part of the state. They rely on an informal opinion of the Montana Attorney General to that effect, and on provisions of $ 17-6-308,MCA that theguarantymust be given in consideration of a fee; that it must provide that the Board is subrogated to the rights of the obligee; that there must be a maximum ratio between guaranty funds available and loans to be guarantied; that the maximum amount of the guaranty may not exceed $3million in any project unless the bond is secured by a common guaranty fund and that the loans must be repaid from the revenuesof the Board. An "investment" is defined in Webster's New Collegiate Dictionary (1981 ed.) as "the outlay of money usually for income or profit; a capital outlay." When an investment is by guaranty,the outlaywill comewhen theproject has failed

or the income is lost. A guarantor agrees to answer for the debt,default or miscarriage of another. Section 28-11-101, MCA

# .The provisions of $ 17-6-308, MCA, which permits the Board to establish a maximum ratio between guaranty funds available and loans to be guarantied have prompted the Boardto adopt by resolution an administrative rule, A.R.M. S 8.97.413, which reads inpertinent part: (2) The total principal amountof loansguarantied under A.R.M. 8.97.410 and bonds guarantied under 17-6-308(1), MCA, and of outstanding loans and obligations to make loans to the Capital Reserve Account and Guaranty Reserve Account shall not exceed, as of the date of the guaranty, loan or obligation, eight times the Guaranty and LoanBase.

(3) The Guaranty and Loan Base shall, at the time of determination,be an amount equal to 25% of the current market value of all assets of theboard in the InvestmentFund. Thus, the potential liability of the state is for the full amount of all guaranties made by the Board which canbe

as great as two times the amount of the in-state investment fund. Ina worst case scenario,guarantyholdersmay look to the state for full satisfaction for when "the legislature validly acts to establish a debt under Art. VIII, S 8, that indebtedness becomes a state obligation extending over the life of the indebtedness, and every succeeding legislative assembly has an unavoidable duty to provide for it, in the manner requiredby the authorizing law." Grossman, 682 P.2d at 1332, 41St.Rep. at 819-20. The strictures which protect the credit of the state with respect to bonds issued by the Board are not present with respect to the use of the in-state investment funds under S 17-6-308,MCA. With respect to bonds, S 17-5-1523, MCA,provides that such obligationsdonot constitute a debt, liability, obligationorpledge of the faith or creditof the state. To the contrary, under S 17-6-308,MCA, the Board may use the in-state investment fund to pay obligations of guaranty of loans or bonds. In so doing, the Board would apply that portion of the in-state investment fund that derives from 25% of the coal severancetax revenuesprovidedin S 17-6-306, MCA. When such funds are used to satisfy guaranties of private debts or obligations its use offends Art. VIII, § 1 of the Montana Constitution which provides taxes shall be levied by general laws for public purposes; Art. V, S ll(5) that no appropriation shall be made for industrial or benevolent purposes to any private individual

or private corporation not under the control of the state; and Art. VIII, S 13(1)

## , providing for a unified investment program, insofar as S 17-6-308, MCA allows guaranties of private obligations as permissible investments. See Veteran's Welfare Commissionv. V.F.W. and D.A.V. (1963), 141 Mont. 501, 379 P.2d 107. In like manner, the provisions of subdivision (3) of § 17-6-308, MCA, are constitutionally impermissible. Under that subdivision, the Board may make loans from the in-state investment funds to the capital reserve account we have described above and the economicguaranty fund also described above to establish balances or restore deficiencies therein. The loans are repayable from revenues of the Board realized from the exercise of its power and the issuance ofbonds but subject to theprior pledge of the revenues to the bonds and thenotes. As we noted, under § 17-5-1523,MCA, the credit of the state isnotpledged to secure thebonds issuedby theBoard. Section 17-6-308(3), MCA, sidesteps that provision by providing that the Board may agree in connection with the issuance of bonds to make loans out of the in-state investment fund to the capital reserve account and the economic guaranty fund. The effect is,without the further action of the legislature, that tax monies derived from the coal severance tax will be loaned from the in-stateinvestment fund and used to secure the obligations of the bonds. Such a procedure impermissibly offends the same provisions of the constitution we have referred to above. This Court is aware that in Huber v. Groff (1976)

## , 171 Mont. 442, 558 P.2d 1124, we held that the credit of the state was not pledged under the provisions of the Montana Housing Act of 1975. That act provides that the Board of Housing may issue bonds for the purchase of loans used for housing frombanks and other financialinstitutions. Wewere careful to point out in Huber, however, that the act specifically said that the credit of the state was not pledged as securityof thebonds so issued,even though there

was a "moral commitment" much aswe have at the case atbar, that the governor would request the legislature to appropriate necessary funds to supplement the reserve accounts. That avenue of redress for deficiencies, if any exist, in the capital reserve account and the economic development bond fund is still open under this decision. What we do not and cannot condone is the direct use of tax monies by legislative provision which in effect directly pledges the credit of the state to secure thebonds involved in this case. VI

# . There are a number of other issues raised by Hollow in his complaint,but whatwe have said foregoing is sufficient to demonstrate that the use of the in-state investment fund

as provided in S 17-6-308, MCA, is constitutionally impermissible. We will not undertake to discuss the other issuesraised by Hollow. This opinion shall be and constitute a declaratory judgment in favor of Hollow to the effect that the use ofin-state investment funds to guaranty loans or tomake loans to the capital reserve account and the economicguaranty fund as provided in B 17-6-308,MCA, is invalid under the Montana Constitution. This opinion, without the filing of further instruments or orders shall be and constitute such a declaratory judgment. Except for activities related to the in-state investment fund,nothing in this opinion affects the validity of state actions through the capital investment fund or the economic development guaranty fund. Under Huber, supra,the "moral commitment" statutes of the latter two funds do not constitute a pledge of the state's credit to underpin the funds.

i \... ,; J 

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, Justice

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We concur:

ChiefJustice

JusticesMr. Justice Frank B. Morrison, Jr. dissents as follows: Irespectfully dissent. I find no real problem with the procedural and factual discussion found in the majority opinion. My first disagreement beginswithwhether aguarantee is an investment

or adebt. Inholding a guarantee tobe a debt, themajority relies

on Webster s definition of "investment"asbeing "theoutlay ofmoney usually for income or profit; capitaloutlay." Some reliance isalso placed upon 5 28-11-101,MCA,which provides

aguarantor agrees to answer for the debt of another. The majority fails to discuss the October 18, 1984, informal opinion of the Attorney General determining that a guarantee of a bond is a security and the purchase of a security is an investment; therefore, the guaranteeof a bond is an investment. The opinion states: Neither "guarantee" nor "investment" is defined in the Montana Code. However,Black's LawDictionary 741 (5th Ed. 1979), defines "investment" as "to purchase securities of a more or less permanent nature 

# .

# .. Security is defined by the Montana Code as the guarantee of a bond. Section 30-10-103(11)

## ,MCA. Themajority opinion also ignores the obvious

## - there is less risk associatedwith a guaranteeofa bond thanwith the issuance of a bond. The State may collect from a solvent principal any money expended by the State as guarantor. Furthermore, according to S 17-6-308(2)

## , MCA, the guarantee must provide that theboard is fully subrogated to the rights of the obligee under the bond. A bond is not a debt under 5 17-5-1523, MCA. This was affirmed in Huber v. Groff

(1976), 171 Mont. 442, 558 P.2d 1124. If a bond is not a debt surely a guaranteeof

### abond isnot a debt. Finally,a guarantee is a contingent liability. Doorly

v. Butte and Western SilverMines (1924),71Mont. 529, 533,230 P. 779, 780. The guarantee depends on a future uncertain event, the failure of the principal to pay the debt. Contingent liabilities are not debts. In Hanson v. City of Havre, et al., (1941), 112 Mont. 207, 212, 114 ~.2d 1053, 1056,this Court said: The possibility that part of the bonds may have to be paid with monies obtained from the revolving fund which in turn is created by a tax levy on the property of the city does not create a city debt but is merely an arrangement whereby the city, through the revolving funds, loans money to the district, and for which it holds security in the formof a lien. Themajority opinion finds the statutory scheme here at issue to be unconstitutionalbecause: 1) It uses coal tax monies for private purposes, as opposed topublic purposes; 2) Itgivesprivate individuals appropriations for industrialandbenevolent purposes; and 3) It violates the Unified Investment program by allowing guarantiesofprivate obligations. This sweeping holding by the majority opinion is not supported by authority and runs contrary to well established law in this state. In Grossman v. State of Montana (1984), 682P.2d 1319,we said: The constitutional provision is not violated because the legislature may in making appropriations or other provisions in some way benefit incidentally various private individuals, associations or corporations not under the control of the state. As long as the provisions relating to the expenditures of the funds derived from the proceeds of the bonds are under the control of the state, the constitutional mandate [No appropriations shall be made for religious, charitable, industrial, educational, or benevolent purposes to any private individual, private association, or private corporation not under controlof the State] is satisfied. Likewise, inHuber, supra,the appropriationswere found to go to a public purpose despite benefit to private homeowners, because the Housing Board, which controlled the money, was a public corporation, not a private corporation.We said: "It received all its powers directly from the legislature and its duties and responsibilities are set out clearly by the statutewhich created it.

### " 171Mont. at 457. The same can be sa.idabout the Montana Economic Development Board in this instance. Therefore, under relevant precedent, the purpose of the legislation ispublic, notprivate. Likewise, the coal tax money is going to a public purpose. Our language in Grossman is instructive. We said: The question of whether a particular purpose for which taxesmay be levied and collected is a public purpose is for the legislature in the first instance, and the courts will indulge every reasonable presumption in favor of the legislative decision in this respect. Lewis and Clark County v. Industrial Accident Board (1916), 52 Mont. 6, 155 P. 268. Grossman,41St.Rep. at 822. Unfortunately, the effect of the majority opinion casts serious doubt on whether any different program could pass constitutionalmuster. The plaintiff contends that S.B. 349 is not a valid appropriation in that it does not specify a fixed amount of loans or guarantees that may be made by the Board and therefore does not comply with Article VIII, Section 14, of the 1972Montana Consitution whichprovides: Except for interest on the public debt, no money shall be paid out of the treasury unless upon an appropriation made by law and a warrant drawn by theproper official inpursuance thereof. Defendant argues that an appropriation by the legislature is not required tovalidly authorize the In-State Investment Fund to be invested in a guarantee or loan as contemplated by S.B. 349 in that an investment is neither a debt nor an expenditure. Twenty-five percent of the coal severancetax trust fund constituting the in-state investment fund has been appropriatedby actof the legislature. Thedefendant arguesthat the investment thereof,as opposed to the expenditure of the principal, does not require an appropriation. I agree. Just as a legislative appropriation isnot required each time the Board of Investments invests each of the funds subject to its control under the Unified Investment Progam, neither should one be required each time the Montana Economic Development Board purchases a loan or issues its guarantee. The majority opinion fails to discuss the important constitutional issue of whether the legislature unconstitutionally delegated its authority to the Board in allowing it to set the limits of liability. The test is found in Douglasv. Judge (1977), 174Mont. 32, 39, 568 P.2d 530, where this Court said:



# ... a statute is complete and validly delegates administrative authority when nothing with respect to a determination of what is the law is left to the administrative agency, and its provisions are sufficiently clear,definite,and certain to enable the agency to know its rights and obligation. Here the Board has been given specific guidelines for the investment of the in-state investment fund. Investments from the fund should: a) diversify, strengthen and stabilizethe Montana economy, b

### 1 increase Montana employment and business opportunities, c) maintain a clean and healthful environment,and d) give preference to business investments that i) are for locally owned enterprised that are either expanding or establishing new operations; ii) provide jobs that will be substantially filled by Montana residents; iii) encourage or benefit the processing, refining, marketing and innovative use and promotion of Montana's agricultural products; or iv) benefit small and medium-sized businesses.Section 17-6-309,MCA. With respect to amounts, the Legislaturehas prohibited theuse of the fund for: a) direct loans; b) investments that would result in one business enterprise receiving a benefit from or incurring a debt to the fund in excess of 10% of the prior fiscal year's coal severance tax revenue deposited in the fund;and c) participation in loans to an extent greater that 80%of the loan. Sections 17-6-310 through 312,MCA. I believe the guidelines are sufficiently definite and the delegation is lawful. In Grossman v. State of Montana, supra,we said: Here the enactmentsof the legislatureare complete and delegate to the Board ofNatural Resources and Conservation and the Department of Natural Resources and Conservation administrative authority which is sufficiently clear, definite and certain to enable the agencies to know their respective rightsand obligations. Huberv. Groff (19761,171 Mont. 442, 558 P.2d 1124; Montana Milk Control Board v. Rehberg (1962), 141 Mont. 149, 376 P.2d 508. Determinations of economic and environmental feasibility are far more appropriate in the administrative sector than in the legislative branch. There is nothing improper, constitutionally or otherwise, in the legislature making its authorizations contingent upon administrative decisions properly made in the executive sideof the state government. I find Grossman to be controlling here. We should determine that thedelegationofauthority is constitutional. Theplaintiff had theburden ofpersuasion in this case. Hemust showbeyond a reasonabledoubt that S.B. 349violates

some specific requirement of the Montana Constitution. If the constitutionality of an act is doubtful the court should resolve all doubts in favor of the validity of the act. Tipton v. Erickson (1933), 93 Mont. 446, 19 P.2d 227. The only troublesome feature I find is administrative rule,A.R.M. 5 8.97.413. After quoting the administrative rule the majority opinion states that: The potential liability of the state is for the full amount of all guaranties made by the Board which can be as great as two times the amount of the in-state investment fund. The administrative rule can not invalidatethe statutory scheme. The heavy presumption in favor of constitutionality has not been overcomeby plaintiffs. If themajority wished to find. the administrative rule to be an improper construction of the statutes it should have done so but should have preserved the integrity of the statutes themselves. Under previous decisions of this Courtherein cited the basic statutory framework passes constitutional muster. I would issue a declaratory judgment upholding the statutory scheme.