ANSWER OF THE JUSTICES TO THE SENATE.

On January 5, 1978, the Justices submitted the following answer to questions 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 response to the questions set forth in an order adopted by the Senate on November 10, 1977, and transmitted to us on November 17, 1977. The order recites the pendency before the General Court of a bill, House No. 6574, a

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copy of which was transmitted with the order. The bill is entitled, "An Act controlling executive impoundment of appropriated funds."

The order recites that "[i]t has become a growing practice for officers, employees, departments and agencies of the executive branch of the government of the commonwealth to refuse to expend or to expend only in part monies appropriated by the General Court for the purposes, objectives and programs enacted by the General Court, thereby obstructing, hindering or preventing the accomplishment of said purposes, objectives and programs . . . ." This concern is also reflected in the emergency preamble to the bill which declares that "[t]he deferred operation of this act would tend to defeat its purposes, which are to ensure the proper separation of powers between the executive and legislative branches of government, to ensure that the executive branch fully uses appropriations to carry out the purposes for which the appropriations were enacted, to prevent the executive branch from impounding appropriations in ways which obstruct or hinder achieving the purposes for which the appropriations were enacted, and to establish certain express limitations on the authority of the executive branch to impound or withhold appropriations duly made by the general court . . . ."

The order recites further that the bill raises important questions concerning the separation of legislative and executive powers relating to the appropriation and executive powers relating to the appropriation and expenditure of public funds and poses the following questions:

"1. Does the Governor, the officers, employees, departments or agencies of the executive branch of the government of the commonwealth have the authority, under any provision of the Constitution of the commonwealth, whether by impoundment, allotment or otherwise, to expend, from monies that have been duly appropriated by act of the General Court, amounts less than the amounts so appropriated, such that the provisions of section 14A of chapter 29 of the General Laws,

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as that section is proposed to be enacted by the House Bill No. 6574, would be an unconstitutional infringement upon such authority of the said executive branch?

"2. Is the said section 14A, as that section prescribes a procedure for the reduction of the amounts to be expended from sum duly appropriated by act of the General Court, a constitutionally permissible means for the reduction of such expenditures, it not being provided in the said section 14A that there be any enactment of law by the General Court reducing the sums so appropriated?

"3. Does section 9C of chapter 29 of the General Laws, as that section is proposed to be amended by House Bill No. 6574, impose a constitutionally permissible requirement upon the executive branch insofar as it would require the governor and the officers, employees, departments and agencies of the executive branch of the government of the commonwealth to `submit to the General Court specific proposals to raise additional revenues' in amounts equal to certain deficiencies in anticipated revenues?"

We invited the submission of briefs on or before December 12, 1977. We received several briefs on and after that date. [Note 1] By operation of law the 1977 legislative session ended on January 3, 1978. Art. 10 of the Amendments to the Constitution of the Commonwealth. Consequently the bill referred to in the order is no longer pending in the General Court. Therefore no solemn occasion exists authorizing and requiring us to render our opinions. Part II, c. 3, art. 2, of the Massachusetts Constitution, as amended by art. 85 of the Articles of Amendment. Answer of the Justices,

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371 Mass. 902 (1976). Answer of the Justices, 360 Mass. 903 (1971). Answer of the Justices, 358 Mass. 833 (1970). Regretfully, we must decline to answer the questions.

The questions may well present serious constitutional issues regarding which either House of the 1978 Legislature may wish advice. In that event, a new order requesting our opinion may be adopted.

The foregoing answer is submitted by the Chief Justice and the Associate Justices subscribing hereto on fifth day of January, 1978.

EDWARD F. HENNESSEY

FRANCIS J. QUIRICO

ROBERT BRAUCHER

BENJAMIN KAPLAN

HERBERT P. WILKINS

PAUL J. LIACOS

RUTH I. ABRAMS