Opinion No. (1976) ( 1976 )

REQUESTED BY: Dear Senator:

This is in response to your inquiry of December 8, 1976, as to the constitutionality of a proposed legislative bill, the first two sections of which would, in certain instances, authorize the transfers of roads from the State to counties or vice versa without first hard surfacing them, and which would also provide a monetary payment from the transferor to transferee. Section 3 of the proposed bill would amend Section 39-2402, R.R.S. 1943, to effect preservation of the makeup fund in the event of a gas tax increase, and Sections 4 to 6 of the bill would amend various sections so as to increase the gasoline tax.

The test whether a statute is unconstitutional as containing two subjects, is a subjective one. Therefore, a review of past court decisions is not terribly helpful in determining whether two matters contained in a particular bill are sufficiently similar and germane as to constitute one subject of legislation, or whether they constitute two subjects, making the bill unconstitutional.

You also inquire as to a substitute proposed amendment to Section 39-2402, R.R.S. 1943. This proposal would also have the effect of preserving the makeup fund in the face of a gasoline tax increase, and appears to be virtually the same, in effect, as the one contained in Section 3 of the proposed bill.