J. PHILIP MITCHELL & others [Note 1] vs. SECRETARY OF ADMINISTRATION & another. [Note 2]

ABRAMS, J. The plaintiffs challenge the legality of the comptroller's transfer of $234,828,463 from the Highway Fund to the General Fund in order to balance the Commonwealth's books for Fiscal Year 1991 (FY91). The plaintiffs seek a declaration that the transfer violates arts. 48, 63, and 78 of the Amendments to the Massachusetts Constitution. [Note 3] A single justice reserved and reported this action to the full court on a statement of agreed facts. We conclude that the transfer was authorized by statute, and is constitutional.

Background. Article 78 mandates that certain revenues, principally automotive registration fees and gasoline taxes, be expended only for specified transportation purposes. [Note 4] In FY91, $776,879,980 in revenues were subject to restrictions on expenditures imposed by art. 78. Nearly all of these art. 78 revenues were credited to the Highway Fund, one of the three principal operating funds of the Commonwealth. During

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the same fiscal year, $371,843,989 from the General Fund, another of the Commonwealth's principal operating funds, were expended for transportation-related purposes.

In December, 1991, the comptroller determined that, as of the end of FY91, the "undesignated component" [Note 5] of the balance of the Highway Fund reflected a surplus of $267,967,701, which included $117,329,963 allocated to a "subfund" known as the Infrastructure Fund. The comptroller also determined that the "undesignated component" of the General Fund reflected a deficit of $234,828,463 at the end of FY91. The comptroller therefore transferred the funds at issue from the Highway Fund to the General Fund to offset the deficit in the latter, pursuant to St. 1991, c. 145, Section 5, the final supplemental appropriation act for FY91. [Note 6]

The monies comprising the General Fund and the Highway Fund are pooled together for banking and investment purposes. Expenditures charged to either fund are made from these pooled accounts without regard to the original source of cash in any particular account. The transfer of $234,828,463 from the Highway Fund to the General Fund was completed

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on the books of the Commonwealth by charging that amount to the Highway Fund and crediting that amount to the General Fund. The transfer was retroactive to June 30, 1991. The transfer was not accompanied by any transfer between any of the bank or investment accounts in which Highway Fund and General Fund revenues are maintained.

Discussion. The plaintiffs argue that Section 5 violates art. 78, because it allegedly directs the transfer of money from the Highway Fund to defray expenditures made from the General Fund for purposes not permitted by art. 78. [Note 7] We disagree.

Nothing in art. 78 addresses the transfer of money between statutory "funds," such as the General Fund and the Highway Fund, located within the treasury. Article 78 requires only that art. 78 revenues be expended for certain transportation-related purposes, and contains a broad delegation of power to the Legislature to "direct" the "manner" in

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which this goal shall be attained. As long as, in any given fiscal year, expenditures for art. 78 purposes at least equal revenue received from art. 78 sources, it is of no constitutional significance to and from which funds these amounts were credited and spent. In FY91 the Legislature appropriated more money for art. 78 purposes than it received from art. 78 sources; the transfer, therefore, was consistent with art. 78.

The plaintiffs also argue that Section 5 modified the previously enacted mass transit appropriation "fund splits" in the FY91 General Appropriation Act. [Note 8] This modification, argue the plaintiffs, altered the legislative purpose, and therefore constituted an unconstitutional exercise of legislative authority on the part of the comptroller.

Assuming, without deciding, that Section 5 may be properly construed as an amendment to a prior appropriation act, [Note 9] "[t]here is no constitutional limitation on the general power of the Legislature to amend a prior enactment making appropriations." Answer of the Justices, 406 Mass. 1220, 1225 (1989). See Opinion of the Justices, 373 Mass. 911, 913-914 (1977); Opinion of the Justices, 294 Mass. 616, 621-622 (1936); G. L. c. 29, Section 15 (1990 ed.). Further, "[t]he Legislature may delegate to a[n] . . . officer the working out of the details of a policy adopted by the Legislature." Massachusetts Bay Transp. Auth. v. Boston Safe Deposit & Trust Co., 348 Mass. 538, 544 (1965). Here, the authority delegated to the comptroller to transfer funds is expressly limited by Section 5, as well as the two statutes cited therein, G. L. c. 29, Sections 1 and 5C.

The plaintiffs alternatively argue that, even if we were to hold that the transfer is proper because General Fund expenditures on transportation-related purposes exceed the

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amount of money transferred from the Highway Fund, the transfer is nevertheless improper -- at least as to the money transferred from the Infrastructure Fund. General Laws c. 29, Section 2O (1990 ed.), which establishes the Infrastructure Fund, provides in part that "[e]expenditures from the Infrastructure Fund shall, subject to appropriation, be made . . . (iii) for direct expenditures [on transportation purposes, excluding the MBTA] . . . and (iv) for capital projects and capital assistance funds for regional transit authorities." The transfer of money from the Infrastructure Fund was improper, argue the plaintiffs, because "virtually all of those [transportation-related] expenditures [from the General Fund] were made on the MBTA, despite the fact that [Section 2O] specifically excludes expenditures on the MBTA from Infrastructure Fund revenues."

Under Section 5, the comptroller was required to calculate the "undesignated component of fund balance" in the operating funds, and to transfer only "undesignated" amounts. The parties' dispute on this issue centers around the meaning of "undesignated" amounts. There is no statutory or regulatory definition of the term "undesignated component of fund balance." The plaintiffs argue that the money in the Infrastructure Fund was not "undesignated" because Section 2O "details the limited and defined purposes on which `special receipts' may be expended." However, the Highway Fund and the Local Aid Fund, too, receive specific revenues, to be used, subject to appropriation, for specific purposes, see G. L. c. 29, Section 2D (1990 ed.); G. L. c. 90, Section 34 (1990 ed.); yet other statutes recognize that the Highway Fund and the Local Aid Fund may contain "undesignated" balances that may be transferred to other funds. See G. L. c. 29, Section 1 (defining "[c]onsolidated net surplus in the operating funds" as "the sum of the undesignated fund balances in the General Fund, the Local Aid Fund, and the Highway Fund"); G. L. c. 29, Section 5C (directing transfers of amounts contributing to the "consolidated net surplus in the operating funds," including amounts "from the Local Aid Fund").

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If the plaintiffs were correct that a fund cannot be "undesignated" if it receives specific revenues to be used, subject to appropriation, for specific purposes, then not only Section 5, but also G. L. c. 29, Section 1, and G. L. c. 29, Section 5C, would be rendered partially or wholly ineffective, because the Highway Fund and the Local Aid Fund could never contain any "undesignated" fund balances. "An intention to enact a barren and ineffective provision is not lightly to be imputed to the Legislature." District Attorney for the N. Dist. v. Lowell Div. of the Dist. Court Dep't, 402 Mass. 511, 514 (1988), quoting Commonwealth v. Neiman, 396 Mass. 754, 758 (1986). See Ben Elfman & Sons v. Home Indem. Co., 411 Mass. 13, 18 (1991) ("Construing a statute in a way that nullifies one of its provisions is inappropriate if there is a reasonable alternative").

We agree with the comptroller's classification of money as "designated" only if it is "set aside by legislative mandate and is not subject to further appropriation." Only if public monies have been specifically appropriated, as opposed to being "subject to appropriation," is "the decision how to spend them [removed] from the control of the Legislature," Associated Indus. of Mass. v. Secretary of the Commonwealth, ante 1, 6 (1992). See Opinion of the Justices, 297 Mass. 577, 580 (1937) (where money has been specifically appropriated Legislature is "powerless to appropriate any revenue from that source to any other public use"). There is nothing in the language of either Section 5 or Section 2O that exempts the Infrastructure Fund from the transfer provisions applicable to the Highway Fund as a whole, and Section 2O expressly states that the money in the Infrastructure Fund is "subject to appropriation"; accordingly, it was undesignated and could be transferred to the General Fund pursuant to Section 5.

Last, the plaintiffs argue that Section 5 is an unconstitutional "outside section" [Note 10] of an appropriation act because it appends

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"general legislation" to a "general appropriation act," in violation of arts. 48 and 63. Appending Section 5 to an appropriation bill improperly insulates it from referendum petition, argue the plaintiffs, because art. 48, The Referendum Part III, Section 2, expressly excludes from referendum any law "that appropriates money for the current or ordinary expenses of the commonwealth or for any of its departments, boards, commissions or institutions," and "a law is not subject to referendum if any significant part relates to an excluded matter." Powell v. Cole-Hersee Co., 26 Mass. App. Ct. 532, 535 (1988). The plaintiffs further argue that, because Section 5 is a "general provision[ ] of law," appending it to the appropriation bill violates art. 63 because "[t]he plain language, history, and purposes of [art.] 63 compel the conclusion that only appropriations, and conditions and restrictions thereon, may be included in an appropriation bill."

We have declined to decide the constitutional question whether nonappropriation matters may be included in an appropriation bill where the "outside section" is "sufficiently related to the subject of the appropriation of funds." Brookline v. The Governor, 407 Mass. 377, 382, 384 (1990). So, too, in this case, because Section 5 relates to the appropriation of funds, we do not consider the plaintiffs' constitutional challenges. General Laws c. 29, Section 1, defines an "[a]ppropriation" as an "authorization . . . of the expenditure of state revenues from a specified fund." Sections 2 and 4 of art. 63 require that appropriation bills specify the "means" by which expenditures shall be "defrayed." The transfer of money from one fund to another, in order to ensure that the receiving fund will contain enough money to "defray" appropriations already made from that fund, is closely related to an appropriation or "directly concerns" it. Id. at 383.

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We remand this case to the Supreme Judicial Court for Suffolk County for the entry of a declaration that the transfer was proper and constitutional. [Note 11]

So ordered.