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06/30/78 OPINION JUSTICES TO SENATE

June 30, 1978

OPINION OF THE JUSTICES TO THE SENATE


Edward F. Hennessey, Francis J. Quirico, Robert Braucher, Benjamin Kaplan, Herbert P. Wilkins, Paul J. Liacos, Ruth I. Abrams.

SYLLABUS BY THE COURT

Constitutional Law, General Court, Appropriation of money, Federal grants, Money received on account of the Commonwealth.

Federal funds received by State officers or agencies subject to the condition that the funds be used only for objects specified by Federal statutes or regulations are impressed with a trust and are not subject to appropriation by the Legislature. [854-855]

Pending legislative bills requiring that the payment of all Federal grants and funds designated to the Commonwealth or to any of its offices, departments or agencies be paid to the State Treasurer and credited to special Federal grants funds subject to appropriation and regulation by the General Court would be unconstitutional under the Massachusetts Constitution. [855]

On June 30, 1978, the Justices submitted the following answer to a question propounded to them by the Senate.

To the Honorable the Senate of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their reply to the question propounded in the order adopted by the Senate on January 25, 1978, and transmitted to us on February 3, 1978.

The order recites that monies from Federal grants received by the Commonwealth, which constitute an appreciable percentage of the budget, are being spent in a manner determined by the Governor or various departments and agencies rather than by appropriation. The order states that only the General Court is constitutionally empowered to appropriate money, no matter what the source. This power is thwarted, the order asserts, by payments of Federal grants being made by Federal agencies directly to their State counterparts, rather than to the State Treasurer.

Transmitted with the order were four bills which are pending in the General Court, Senate No. 321 entitled, "An Act to provide for appropriation by the general court of federal grants," Senate No. 323 entitled, "An Act establishing a federal grants fund and providing for the reimbursement of the Commonwealth for certain state costs related to federal grants and subventions," House No. 394 entitled, "An Act providing for the receipt and expenditure of all monies received on account of the commonwealth from the federal government," and House No. 395 entitled, "An Act providing that federal funds received by the commonwealth shall be expended only after appropriation." Having grave doubts as to the authority of the General Court to enact the bills under its powers of appropriation, under the Constitution of the Commonwealth, the Senate requested our opinions on the following important question of law:

"Is it constitutionally competent for the General Court under Part the First, Article 23; Part the Second, chapter 1, section 1, Article 4, section 3, Article 7, and Article 63 of the Amendments, as well as Article 30 of Part the First of the Constitution to require the payment of all federal grants and funds designated to the commonwealth or to any of its offices, departments or agencies, to be paid to the state treasurer and credited to special federal grants funds subject to appropriation and regulation by the General Court under its general and special appropriation powers granted to the General Court by the Constitution?" *fn1

In response to our invitation that interested persons submit briefs, the Governor and the University of Massachusetts have filed briefs urging us to answer the question in the negative.

The question relates to provisions in the bills requiring that Federal grants and funds be paid to the State Treasurer and be subject to appropriation and regulation by the General Court. Because of the general nature of the question and the absence of any reference to specific provisions in the bills, it is not necessary to summarize each bill.

Fundamental in our system of government is the principle that the power of appropriation lies exclusively in the legislative branch. Opinion of the Justices, ante 827, 833 (1978). Baker v. Commonwealth, 312 Mass. 490, 493 (1942). Opinion of the Justices, 308 Mass. 601, 614 (1941). Opinion of the Justices, 302 Mass. 605, 612 (1939). The Legislature exercises this power by setting apart from public revenues a specific amount of money to be used by officers of the executive branch for particular purposes to implement and maintain programs the Legislature has established. Opinion of the Justices, supra at 832-833. Opinion of the Justices, 373 Mass. 911, 914 (1977). Opinion of the Justices, 297 Mass. 577, 580-581 (1937). It may appropriate money only in the manner prescribed by the Constitution. Opinion of the Justices, supra at 833. Opinion of the Justices, 308 Mass. at 614. Opinion of the Justices, 302 Mass. at 612.

Article 63 of the Amendments to the Constitution sets out the appropriation process. Section 1 directs that "All money received on account of the commonwealth from any source whatsoever shall be paid into the treasury thereof." Section 2 requires the Governor to submit to the Legislature a budget for the fiscal year setting forth proposed expenditures and the means by which the expenditures will be defrayed (taxes, revenues, loans, and other sources). Section 3 provides, in part, that "All appropriations based upon the budget to be paid from taxes or revenues shall be incorporated in a single bill which shall be called the general appropriation bill." Section 4 authorizes the Legislature to enact special appropriation bills, which must specify the means for defraying the appropriations. Section 5 empowers the Governor to "disapprove or reduce items or parts of items in any bill appropriating money." The main functions of art. 63 ...


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