374 Mass. 861

January 5, 1978

Constitutional Law, Opinions of the Justices, Supreme Judicial Court, Opinions of the Justices.

The Justices declined on January 5, 1978, to answer questions by the Senate as to the constitutionality of two bills which ceased to be pending before the General Court when the 1977 legislative session ended on January 3, 1978. [862-863]

On January 5, 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 response to the question set forth in an order

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adopted by the Senate on November 10, 1977, and transmitted to us on November 17, 1977. The order recites that there are pending in the General Court two bills, House No. 5950, providing for appropriation of Federal grants by the General Court, and Senate No. 1941, providing for the regulation and payments of certain Federal grants. Transmitted with the order were copies of the bills. The order states that Federal grants are being expended by and in a manner determined by the Governor and State agencies without appropriation by the General Court, contrary to the Constitution of the Commonwealth of Massachusetts, which gives to the General Court alone the power to appropriate money to be expended by the Commonwealth. This power, the order further declares, is being thwarted by direct payments of Federal grants from Federal agencies to their State counterparts rather than to the State Treasurer as special funds.

Having grave doubts as to the authority of the General Court to enact either of the bills, the Senate requested the opinion of the Justices 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?"

On receipt of the order we invited interested persons to file briefs on or before December 19, 1977. [Note 1] By operation of

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law the 1977 legislative session ended on January 3, 1978. Art. 10 of the Amendments to the Constitution of the Commonwealth. Consequently the bills referred to in the order are no longer pending in the General Court. Therefore no solemn occasion exists authorizing and requiring us to render our opinion. Part II, c. 3, art. 2, of the Massachusetts Constitution, as amended by art. 85 of the Articles of Amendment. Answer of the Justices, 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 question.

The question 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 the fifth day of January, 1978.









[Note 1] Briefs were filed by the Governor and the University of Massachusetts. On December 16, 1977, Southeastern Massachusetts University requested additional time to file a brief.