The opinion
BERRY, Justice
(concurring specially by reason of stare decisis).
For reasons herein set forth I am concurring in the majority opinion.
In my mind the troublesome issues are: (1) the vested pledge of the apportionment of the gasoline tax to the bondholders; (2) the continued and additional burdening as security for the bondholders of the State’s remainder interest in the Turnpikes of this State. These matters were issues in our former holdings and have heretofore been determined, and even though I was not convinced of their soundness prior to their final adjudication, these decisions are the present law of this State.
In 21 C.J.S. Courts § 187, at page 304, we find this language:
“In determining a case the court is not concerned with what the law ought to be, but its sole function is to declare what the law, applicable to the facts of the case, is.”
The protestants’ briefs, as to the two stated issues, concede these points have been determined and adjudicated by this Court, but urge us to now overrule our former holdings. I am aware of the power of this Court to change the law in order to prohibit the perpetuation of error and grievous wrong.
21 C.J.S. Courts § 193, at page 324, reads:
“An established rule or principle will not be departed from, however, except in case of grave necessity, when cogent reasons or consideration of justice or public interests, relative to plain principles of the law, require such departure, and on the fullest conviction that the law has been settled wrongly, and that less injury will result from overruling than from following the earlier decisions. * * ⅜ »
A strong and convincing argument can-be made both to overrule our former decisions and on the other hand to sustain them. I have tried to consider carefully both contentions. I have not been convinced that justice and public interest will best be served in the overruling of our former decisions. In my deliberations I have been cognizant that this proceeding and project was the will of the Legislature of this State, and any doubt as to the legality of these statutes under consideration would be resolved in favor of the legislative act. I feel in the present case bound by the rule of stare decisis.
I disagree with that portion of the majority which states, in reference to the inclusion of the Will Rogers bonds in the refunding program, that
“We believe that the proposition of whether it was, or was not, practical to include such bonds in the refunding would be largely and probably entirely within the discretion of the Authority.”
This statement is dicta, but even so could be misconstrued resulting in unforeseen and uncertain consequences.
In my opinion if the Turnpike Authority would exercise its discretion as requested by one of the protestants, and extend further security or benefits to the bondholders beyond the contractual obligations or without additional consideration from the Will Rogers bondholders they would be in violation of Art. X, § IS of the Constitution of Oklahoma, which reads in part:
“The credit of the State shall not be given, pledged, or loaned to any individual * * *; nor shall the State * * * make donation by gift * * or otherwise * *
*882 Any attempt to give or extend credit beyond contractual obligations or without additional consideration from the bondholders, with or without legislative authority, would be violative of this Section of the Constitution.