State ex inf. Danforth v. Merrell

Citation530 S.W.2d 209
Decision Date25 November 1975
Docket NumberNo. 59075,59075
PartiesSTATE of Missouri ex inf. John C. DANFORTH, Attorney General, Relator, v. Norman L. MERRELL et al., Members, State Fiscal Affairs Committee, and J. Neil Nielsen, Commissioner of Administration, Respondents.
CourtMissouri Supreme Court

John C. Danforth, Atty. Gen. of Mo., Walter Nowotny and C. B. Burns, Jr., Asst. Attys. Gen., for relator.

Cullen Coil, Carson, Monaco, Coil & Riley, P.C., Jefferson City, for respondents Merrell, and others.

Charles E. Valier, Jefferson City, for respondent Nielson.

HENLEY, Judge.

This is an original proceeding in quo warranto by the State on the information of the Attorney General (informant). The primary question presented is whether respondents have authority to charge, alter or amend the purpose for which money appropriated by the general assembly may be used. We hold they do not.

The background out of which this case arose is as follows. In August, 1972, the people adopted an amendment of Article IV of the constitution of Missouri, providing, 1 in general, for the reorganization of the executive department of state government into not more than 14 departments, an office of administration, and the six existing state elective offices. Section 28 of the amended Article is as follows:

'No money shall be withdrawn from the state treasury except by warrant drawn in accordance with an appropriation made by law, nor shall any obligation for that payment of money be incurred unless the commissioner of administration certifies it for payment and certifies that the expenditure is within the purpose as directed by the general assembly of the appropriation and that there is in the appropriation an unencumbered balance sufficient to pay it. At the time of issuance each such certification shall be entered on the general accounting books as an encumbrance on the appropriation. No appropriation shall confer authority to incur an obligation after the termination of the fiscal period to which it relates, and every appropriation shall expire six months after the end of the period for which made.' The 77th General Assembly, at the First Extraordinary Session of its First Regular Session, implemented the 1972 amendment of Article IV by enacting what is known as the 'Omnibus State Reorganization Act of 1974' (hereinafter the Act or Reorganization Act). It became effective May 1, 1974. Section 1.6(2) of the Act is, in part, as follows:

'The purpose of appropriations made to any department in the executive branch of government shall not be altered without the prior approval of the fiscal affairs committee and the concurrence of the commissioner of administration.' 2

Thereafter, the general assembly enacted laws appropriating money to the several departments (and to elective offices) of the executive branch for specified purposes. Some sections of these laws contained these words:

'The purpose of this appropriation shall not be altered without the prior approval of the Fiscal Affairs Committee and the concurrence of the Commissioner of Administration and any monies not spent specifically as directed shall lapse.'

In general, the appropriations were to a department for a named division thereof for three separate purposes: 1. personal service; 2. equipment purchase and repair; and 3. operation. Some of the appropriation laws divided the third purpose, 'operation,' into more specific purposes (or detailed classes), such as: (1) 'travel and transportation, office supplies and equipment, communications, data processing expenses, printing and publication, institutional services, and other expenses'; (2) 'building and grounds expense'; (3) 'professional and technical services'; (4) 'data processing and professional and technical services'; (5) 'institutional services, other expenses, and building and grounds expenses'; and others.

After enactment of appropriation laws the respondents, Norman L. Merrell, and others, as members of the committee on state fiscal affairs (hereinafter the Committee), determined (in several instances) that it was necessary to change the purpose of particular appropriations and authorized or directed the respondent, commissioner of administration (hereinafter the Commissioner), to make the change by transferring a specified amount of money from one purpose to another. An example of this type of transaction is a letter dated March 20, 1975, from the Committtee to the Commissioner, the content of which is as follows:

'(1) 'Mr. Chairman, I move that in accordance with the provisions of Section 1, Subsection 6, of Senate Bill 1, as enacted in the First Extraordinary Session of the 77th General Assembly, and Article 4, Section 28 of the Constitution of the State of Missouri, this Committee authorizes the Commissioner of Administration to change the purpose of Section 3.010 of House Bill 1003, as enacted in the Second Regular Session of the 77th General Assembly as follows:

(a) $12,000 General Revenue may be transferred from class seven operation to class nine operation.'

'(2) 'Mr. Chairman, I move that in accordance with the provisions of Section 1, Subsection 6, of Senate Bill 1, as enacted in the First Extraordinary Session of the 77th General Assembly, and Article 4, Section 28 of the Constitution of the State of Missouri, this Committee authorizes the Commissioner of Administration to change the purpose of Section 4.405 of House Bill 1004, as enacted in the Second Regular Session of the 77th General Assembly as follows:

(a) $115,000 General Revenue may be transferred from class four operation to class five operation.'

'(3) 'Mr. Chairman, I move that in accordance with the provisions of Section 1, Subsection 6, of Senate Bill 1, as enacted in the First Extraordinary Session of the 77th General Assembly, and Article 4, Section 28 of the Constitution of the State of Missouri, this Committee authorizes the Commissioner of Administration to change the purpose of Section 4.145 of House Bill 1004, as enacted in the Second Regular Session of the 77th General Assembly as follows:

(a) $22,357 General Revenue may be transferred from class seven operation to class two equipment purchase and repair.'

'(4) 'Mr. Chairman, I move that in accordance with the provisions of Section 1, Subsection 6, of Senate Bill 1, as enacted in the First Extraordinary Session of the 77th General Assembly, and Article 4, Section 28 of the Constitution of the State of Missouri, this Committee authorizes the Commissioner of Administration to change the purpose of Section 6.360 of House Bill 1006, as enacted in the Second Regular Session of the 77th General Assembly as follows:

(a) $113,381 General Revenue may be transferred from class four operation to class five operation.'

'(5) 'Mr. Chairman, I move that in accordance with the provisions of Section 1, Subsection 6, of Senate Bill 1, as enacted in the First Extraordinary Session of the 77th General Assembly, and Article 4, Section 28 of the Constitution of the State of Missouri, this Committee authorizes the Commissioner of Administration to change the purpose of Section 9.500 of House Bill 1009, as enacted in the Second Regular Session of the 77th General Assembly as follows:

(a) $60,000 Revenue Sharing Trust Fund appropriated in Section 9.500 for Sewer Line on West Compus may be sued for roof repairs, parking lots and service roads, and air conditioning systems repair.'

We are forwarding copies of the above to the agencies involved.' An example of another type of transaction to effect such a change is a letter dated July 19, 1974, from the Committee direct to the director of the department of social services, with a copy to the Commissioner, which letter is, in pertinent part, as follows:

'Please be advised that the Committee on State Fiscal Affairs in its July 16, 1974 meeting agreed that you should make the necessary shift in the Federal Soldiers Home, Operation Appropriation, in order that the $128,000 be placed in the Building and Grounds Expense account. This shift is to be made in lieu of a request for an emergency or supplemental appropriation.'

The Commissioner, in his return to our show cause order and in his brief, takes the position and asserts that he has, under authority and compulsion of an opinion of the attorney general and State ex rel. State Board of Mediation v. Pigg, 244 S.W.2d 75, 78(3--4) (Mo.banc 1951), refused to concur in the Committee's direction to alter the purpose of appropriations, but will concur if the court determines that he has authority to do so.

It is clear from the pleadings that the Committee claims that it has the authority, with the concurrence of the Commissioner, to alter the purpose of appropriations made to a department of the executive branch by transferring money 'earmarked' (appropriated) for a specified purpose from that purpose to another within a department. The Committee asserts that the general assembly had the power to and did grant it this authority by enactment of § 1.6(2) of the Reorganization Act, a general law enacted in accordance with the legislative process (Mo.Const. Art. III, §§ 21--33); that this law delegates to the Committee legislative power to make such transfers. We note that the Committee does not claim authority to transfer appropriated money from one department to another within the executive branch.

Section 23 of Article IV, the constitution, fixes the state's fiscal year, requires the general assembly to make appropriations therefor, and directs that '(e)very appropriation law shall distinctly specify the amount and purpose of the appropriation * * *.'

One purpose of this section is to provide the members of the legislative body with specific information from which each may determine whether he will approve or disapprove the amount and purpose of a proposed expenditure.

Section 36 of Article III, limits the legislative power to withdraw money from the state treasury in these words: 'the general assembly shall...

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