Topics:

SCHOOLS.
APPROPRIATIONS.
CONSTITUTIONAL LAW.

Summary conclusion

1. That the Governor may not constitutionally veto an appropriation bill for free public schools. 2. That the Governor may not constitutionally veto any portion of an appropriation bill for free public schools. 3. That the Governor may not reduce any portion of an appropriation for public schools. 4. That the Governor, at his discretion, may constitutionally control by allotment or other means and thereby reduce the expenditure of funds below their appropriations only when the actual revenues are less than the revenue estimates upon which the appropriations were based. 5. The phrase "not reduce" for free public schools, as found in Article IV, Section 28, Constitution of Missouri, 1945, is a prohibition against executive reduction of any amount appropriated by the Legislature to free public schools. 6. The phrase "revenue estimates upon which appropriations were based" refers to those amounts as set forth in the budget submitted to the General Assembly, except in those instances in which the General Assembly has by its appropriation bill, set forth its estimate of revenues for the period during which the appropriation was made, or, if not specifically stated in the appropriation bills, then the total of the appropriations as passed by the Legislature, would represent the estimated revenue upon which appropriations were based. 7. That the Governor may control the expenditure rates without being required to reduce all appropriations by a pro rata percentage.

May 22, 1970

Honorable Warren E. Hearnes
Governor, State of Missouri
Executive Office
Jefferson City, Missouri 65101

Dear Governor Hearnes:

This is in response to your request for an official opinion of this office with respect to the following questions presented by you:

"1. May the Governor veto an appropriation bill for free public schools?

"2. May he veto any portion thereof?

"3. May the Governor reduce any portion of an appropriation for public schools without vetoing that portion?

"4. May the Governor control by allotment and thereby reduce. the distribution of such funds?

"5. Does 'not reduce' for public schools refer only to not going below the constitutional requirement of one-fourth of general revenue for free public schools?

"6. Does 'revenue estimates upon which appropriations were based' refer to the official estimates presented to the General Assembly by the executive budget and his budget staff or perhaps other estimates?

"7. Does control of expenditure rates apply as to any single appropriation without being required to reduce other appropriations by the same percentage?

"8. If the Governor is without power to veto an appropriation to schools or any portion thereof, and without power to reduce such appropriation or to control the expenditure, how then would he comply with the constitutional ban on deficit spending should the General Assembly appropriate, to public schools, more money than exists in the entire general revenue fund?"

For reasons which we shall develop in the course of this opinion, we conclude:

1. That the Governor may not constitutionally veto an appropriation bill for free public schools.

2. That the Governor may not constitutionally veto any portion of an appropriation bill for free. public schools.

3. That the Governor may not reduce any portion of an appropriation for public schools.

4. That the Governor, at his discretion, may constitutionally control by allotment or other means and thereby reduce the expenditure of funds below their appropriations only when the actual revenues are less than the revenue estimates upon which the appropriations were based.

5. The phrase "not reduce" for free public schools, as found in Article IV, Section 28, Constitution of Missouri, 1945, is a prohibition against executive reduction of any amount appropriated by the Legislature to free public schools.

6. The phrase "revenue estimates upon which appropriations were based" refers to those amounts as set forth in the budget submitted to the General Assembly, except in those instances in which the General Assembly has by its appropriation bill, set forth its estimate of revenues for the period during which the appropriation was made, or, if not specifically stated in the appropriation bills, then the total of the appropriations as passed by the Legislature, would represent the estimated revenue upon which appropriations were based.

7. That the Governor may control the expenditure rates without being required to reduce all appropriations by a pro rata percentage.

8. Because of our foregoing conclusions and answers, we deem it unnecessary to further respond to your eighth question.

As previously indicated, we have concluded that the Governor may not veto an appropriation bill for free public schools. Article IV, Section 26, Constitution of Missouri, 1945.

A similar prohibition did not exist in the Constitution of 1875. Article V, Section 13 of that Constitution provided:

"If any bill presented to the Governor contains several items of appropriation of money, he may object to one or more items while approving other portions of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and the appropriations so objected to shall not take effect. If the general assembly be in session, he shall transmit to the House in which the bill originated a copy of such statement, and the items objected to shall be separately reconsidered. If it be not in session,, then he shall transmit the same within thirty days to the office of Secretary of State, with his approval or reasons for disapproval."

Subsequently, an amendment of that provision was proposed by initiative petition. At the general election of November 8, 1932, that constitutional amendment was adopted. Laws, 1933, Page 480:

"'Constitutional Amendment No. 3. Submitted by initiative petition. -- Repealing Section 13, Article 5 and adopting a new Section 13, in lieu thereof. An amendment providing for an itemized executive budget of estimated revenue and recommended expenditures to be submitted to the general assembly within fifteen days after it convenes, and permitting the Governor, except in the case of appropriations for free public school purposes, to approve some items in an appropriation bill and object to others, and providing for the transmittal thereof, together with his reasons for disapproval of the rejected items, to the House in which the bill originated, if it be in session, or within thirty days to the office of the Secretary of State.

"For Constitutional Amendment No. 3, 931,429; against, 213,667.

"The full text of this constitutional amendment, as adopted at the November 8, 1932, election, is as follows:

"Section 1. Repealing and reenacting Section 13, Article V, --That Section 13, Article V, of the Constitution of Missouri is hereby repealed, and a new section adopted in lieu thereof, to be known as Section 13, and to read as follows:

"Sec. 13. Executive budget -- contents -- submission to legislature. -- The Governor shall, not later than fifteen days after the convening of the General Assembly in each biennial session, submit a budget showing estimated available revenues of the state for the ensuing biennium and recommending a complete plan of expenditures. All recommended expenditures and appropriations shall be itemized. If any bill presented to the Governor contains several items of appropriation of money, he may object to one or more items or portions of items while approving other portions of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items, or portions of items, to which he objects, and tie appropriations, or portions thereof, objected to shall not take effect. If the General Assembly be in session, he shall transmit to the house in which the bill originated a copy of such statement, and the items or portions thereof objected to shall be separately reconsidered. If it be not in session, then he shall transmit the same within thirty days to the office of the Secretary of State, with his approval or reasons for disapproval. Provided, however, nothing herein contained shall be construed as authorizing the Governor to reduce any appropriation for free public school purposes."

These constitutional provisions evolved as our present constitutional provision, Article IV, Section 26, which provides as follows:

"The governor may object to one or more items or portions of items of appropriation of money in any bill presented to him, while approving other portions of the bill. On signing it he shall append to the bill a statement of the items or portions of items to which he objects and such items or portions shall not take effect. If the general assembly be in session he shall transmit to the house in which the bill originated a copy of the statement, and the items or portions objected to shall be reconsidered separately. If it be not in session he shall transmit the bill within fortyfive days to the office of the secretary of state with his approval or reasons for disapproval. The governor shall not reduce any appropriation for free public schools, or for the payment of principal. and interest on the public debt." (Emphasis ours).

Our conclusion in this respect is supported by the constitutional debates. We should note that at the time of the adoption of this constitutional provision, that the legislature had historically appropriated funds for free public schools by appropriation bills which authorized payment into the State School Moneys Fund a percentage of the state revenue. Subsequently, funds for free public schools were appropriated by bills which provided for a lump sum amount to be paid into the State School Moneys Fund in addition to a stated percentage of state revenue. It is apparent that the delegates to the Constitutional Convention did not contemplate appropriations to the State School Moneys Fund other than by the appropriation of a stated percentage of the state revenue. However, the language of the constitutional provision, ". . . the Governor shall not reduce any appropriation for free public schools, or for the payment of principal and interest on the public debt" is clear and unambiguous so that its interpretation and effect is not altered by any deviation from the historical method in appropriating; funds for free public schools.

The debates relevant to this issue involve Sections 5 and 6, relating to the budget system as recommended. by the committee.

Section 5, as originally submitted to the Convention, provided:

"If any bill presented to the Governor contained several items of appropriation of money, he may object to one or more itemssor portions of items while approving other portions of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items, or portions of items, to which he objects and the appropriations, or portions thereof, objected to shall not take effect. If the General Assembly be in session he shall transmit to the House in which the bill originated a copy of such statement and the items, or portions thereof, objected to shall be separately reconsidered. If it be not in session then he shall transmit the same within thirty days tO the office of the Secretary of State with his approval or reasons for disapproval. Provided, however, nothing herein contained shall be construed as authorizing the Governor to reduce any appropriation for free public school purposes nor for the payment of principal and interest on the public debt." (Page 2)20)

Section 6, as submitted to the Convention, provided:

"The Governor shall have authority to reduce expenditures of state departments, offices and agencies under the amount of the appropriations actually made whenever actual revenues fall below the revenue estimates upon which the appropriations were based and through allotments or otherwise to control the rate at which such appriations are expended during the fiscal year." (Page 2420)

Mr. McCluer, speaking in support of the sections offered, stated:

"... We ... adopted what might be described as an executive budget, the chief responsibility for the budget being placed upon the Governor. We believe .... that the type of budget in which the executive has chief responsibility is the better financial control for the state, and we believe, therefore, that that type of budgetary control should be set up in the Constitution. You will find then, that this section freezes into the Constitution a system of executive budget control very much in accord with the present system of budgetary control in the State of Missouri." (Page '2421)

Adoption of Section 5 occurred only after considerable debate and a proposed amendment to that section had been defeated. When Section 5 was submitted to the Convention for their consideration, the following discussion occurred:

"MR. JULIAN: Doctor, in Section 5 beginning in line 14, I notice that the Committee has put in there that the Governor cannot reduce any appropriation for public schools or for the payment of principal and interest on the public debt. I notice that public schools provision is copied from the last lines of Section 13 of Article 5.

"Mr. Julian: And you are blocking out two things in the State of Missouri Government that says the Governor can't do, but you are giving his [sic] authority to approve or disapprove?

"MR. MC CLUER: That is right, Mr. Julian." (Pages 2422-2423)

Thereafter, an amendment was offered which deleted from Section 5 the words "for free public school purposes nor" (Page 2424). The adoption of the amendment was moved and seconded and discussion was then had on the amendment (Page 2424);

"MR. DAMRON: I offer it for the reason that I can see no reason why there should be an exception made with respect to the power of the Governor to reduce appropriations even for school purposes. It has been the policy of the Legislature of this state from time immemorial to appropriate a third of the revenues for educational purposes going beyond the constitutional limit which requires appropriations of at least twenty-five per cent.

"I also offer it for the purpose of bringing this section into harmony with the section, with Section 11, File 16 of the Executive Department. I think there might be occasions, at times, when it might be practical for the Governor to have the power to reduce appropriations for school purposes. . . . (Page 2424 )

* * * 

"MR. LINDSAY: . . . Do you, Mr. Damron, see any difference in appropriations made for the public schools and that that is made for other departments? (Page 2425)

"MR. LINDSAY: . . . I mean if the other department had a certain lump sum appropriated to it and the funds didn't come in, there might be some reason for the Governor cutting those appropriations later on, whereas the school appropriation being a per cent appropriation merely cuts itself without any action on the part of the governor, doesn't it?

"MR. DAMRON: Well, it might. I can see how that would be true.

"MR. LINDSAY: Well, why should the Governor then want to cut it twice?

"MR. DAMRON: He might think that the General Assembly appropriated too much for school purposes. (Pages 2425-2426)

* * *

"MR. DAMRON: I want to leave some discretionary power with the Governor for that that respect, in that matter, as. well as others pertaining to appropriations. I don't want the Legislature to have the power under the pressure of the school lobby to run wild with the funds of this state. (Page 2426)

"MR. HEMPHILL: . . . So we decided on the same figure, twenty-five per cent, and as Mr. Lindsay says, that is a percentage basis, not a total appropriation. And the Governor should not have any right to change the appropriation that is determined on the percentage basis by the Legislature. (Pages 2426-2427)

* * *

"MR. MC REYNOLDS: Mr. President, I am in hopes that the Damron amendment will be adopted. . . .

* * *

". . I do not hesitate to say that no more valuable purpose could be accomplished in the expenditure of public funds that [sic] the expenditure for education but along with it I assert that along with all other expenditures, when you get to the budget system, there is no sound reason why your Budget Control Officers and Governor should not have the same discretion that he has in every other expenditure. .

". . . Now, I can see no sound reason, . . . why should you start out with a proposition that you cannot exempt them from the emergencies which the state government may be called upon to meet. . . . but on the other hand, when free government supports public education, the fiscal controls which apply to every other department of government on it, with like urgency, apply to the educational department'. . . . (Pages 2427-2430)

* * *

"MR. JULIAN: . . . but I still say that you should vote for the Damron amendment for this reason. You say to the Governor of the State of Missouri that we are taking away from you your veto power over any appropriation for school purposes. I say to you that no delegate in, a Constitutional Convention should say to the state executive that you're taking away the veto power . . . (Page 2432)

* * *

"MR. JULIAN: Because we are saying that you can veto everything else that the General Assembly passes except for school purposes and the interest in the bonds. (Page 2434)

"MR. MOORE: . . . Now, I point out that the Legislature of Missouri is best able to determine the needs of the free public schools of Missouri much better than the chief executive. I point out, . . . that in case such an emergency arises, the schools do meet their part of it because their revenue is decreased due to the fact that it is on a percentage basis. I cannot bring myself to believe that we should write anything into the Constitution that would place the free public schools of Missouri in the hands of one man and when you give one man the control of the purse strings you are giving him the control of the educational system. . . . (Page 2436)

"MR. HARGIS: . . . So far as giving that power to the Governor to reduce the appropriations I would very much disapprove of that. (Page 2437)

"MR. BROWN (OF CARROLL): The only question in your mind is as to whether the system of government should have power to veto those two items. Is that the only thing that is bothering you?

"MR. JULIAN: It is just fundamental that if we are going to give him veto power over any item we should give him the veto power over. all items. (Page 2438)

* * *

"MR. ALLEN: . . . But it seems to me that this provision which they are attempting to strike from Section 5, in my humble opinion is a very appropriate provision as a part of the limitation on the broad powers that we are extending to the Governor for partial vetoes. That section reads, Mr. President, 'Provided, however, nothing herein contained shall be construed as authorizing the Governor to reduce any appropriation for free public school purposes nor for the payment of principal and interest on the public debt.'

* * *

"Now, Mr. President, the Damron Amendment should be defeated for these two reasons. First it's a moral obligation to the state and properly belongs in the hands of the Legislature. Second, if we gave the Governor power to make piecemeal appropriations it would be entirely inconsistent with the provisions we have already adopted in the consideration of the Education File of this state. I am opposed to the Damron amendment. (Pages 2442-2443)

* * *

"MR. POTTER: . . . but I think the people of the state through the exercise of the democratic process in 1932 have created this exception and I think it is one which we should give heed to their advice given to us at that time in the adoption of this amendment which contained this restriction upon the item veto power insofar as it relates to the funds for free public schools. (Page 2447)

* * *

"MR. FORD: . . . The only criticism I have to make is that only about one-tenth of it threw any light on the subject and that is the constitutional right of the Governor to make this veto.

* * *

"Those unfortunates have the first claim on the state of Missouri, in my judgment. Suppose he assumes that $200,000,000 will adequately care for them. He knows, to begin with that the public schools occupy a favored position because the Constitution itself appropriates twenty-five of that $100,000,000 to the public schools. He has no control over the twenty-five millions of dollars. The Legislature has no control over it. He must fix his budget on the basis that he has but seventy-five millions of dollars to deal with for all other purposes, because that one twenty-five million he can't touch.

"Now, suppose he assumes that in as much as the twenty millions will adequately care for the hospitals and that so much money will take care of everything else, that in addition to that million, that twenty-five million, he can allow the public schools fifteen millions more, or suppose the Legislature makes that assumption on the basis of the budget, the estimate of the revenue that the Governor must submit to them. Suppose the Legislature assumes, well, we can appropriate $15,000,000 more to the public schools and therefore they fix the appropriation to the public schools at 40% which would be forty millions of dollars on the debt.

"Now, suppose a contingency arises when the Governor is confronted with the situation that he is not going to have that $75,000,000 that he thought he would have and that as a result he's only going to have fifteen million to take care of these unfortunates in the hospitals, if he still gives that forty million to the public schools. Now, I want someone to tell me why the Governor should be permitted to cut down the appropriation to the hospitals because he is not going to have as much money as he thought he was going to have. Why should he have the right to cut down that appropriation, but can't touch the fifteen million that was appropriated to the public schools? Why the schools, after being put in the favored position of $25,000,000 of their money can't be touched, why they can't touch the other, that's the principle involved.

"Now, if we want to leave it to the Legislature and say, 'The Governor shall not interfere at all with any of it,' then let's cut out the section that allows the Governor to reduce any ,appropriation to meet an emergency, but that's what it means. All in the world that section amounts to when you give that power to the Governor is that if the Governor finds himself and the state of Missouri in a situation that was not anticipated when his budget was presented to the Legislature and when the appropriation was made, he must reduce some appropriationsto meet that emergency and if we don't want to give him that power to reduce any appropriation, let's cut it out altogether and not allow him to reduce the appropriations for state hospitals, but if we are going to make exceptions, I say that is the exception that should be made first of all. You're not making that exception.

"Now, will somebody explain to me on principles, and not site [sic] me to a lot of facts as to what they are doing in other states and how much school teachers are paid and all that, somebody explain to me on principles, why the Governor should be allowed to reduce the appropriations of the state hospitals and not be allowed to reduce the appropriations to public schools? That's what I want to hear somebody explain. (Pages 2447-2448)

* * *

"MR. PHILLIPS (OF ST. LOUIS CITY): I would like to attempt to answer Senator Ford on the. question of principles. Now, in the first place, there's this difference between an appropriation for the support of the state hospitals and an appropriation for the public schools. When you appropriate for the state hospital you appropriate a certain given amount of money, but when you appropriate for the free public schools, you don't appropriate a. definite sum, you appropriate a proper rate, a share of your income, no matter what your income is.

"Now, if you shouldn't have as large an income as you anticipate in your budget, why you won't have the money to pay that definite sum that you have appropriated for the public institutions, but the reduction is taken care of automatically in the case of the public schools because it is a definite share, one-fourth or onethird or whatever it is, of the amount that comes in. I think you have answered your own argument when you said that the appropriation was not made by the General Assembly. It's made by the Constitution itself. That definite amount is appropriated by the Constitution and the Governor of this state shouldn't be permitted to veto the appropriation that's made by the people themselves any more than he should be allowed to veto the action of this Assembly, or this Convention on the new Constitution. (Pages 2448-2449)

"MR. LINDSAY: The free public schools receive and have been receiving thirty-three and onethird percent of the revenues of this state by legislative appropriations. The Governor has never had the power to reduce that appropriation as far as I know, in this state, at any time. It was the purpose of this provision that that power shall not be extended to the Governor now . . . (Pages 2449-2450)

* * *

"MR.HEMPHILL: . . In Section 13 of Article 5, I believe it is, the Section winds up by reading this way, 'Provided however' and this is dealing with the budget and the powers of the Governor for veto etc., 'Provided however, nothing herein contained 'shall be construed as authorizing the Governor to reduce any appropriations for free public school purposes.' Now, that is a special amendment submitted to the people in 1932 and adopted at that time. I believe the Committee in considering that would hesitate a great deal to take that provision out of the Constitution.

"Now then, I believe the people of the state also feel that this is a 'must' matter providing such a way that the Governor cannot veto appropriations for the public schools, and it is in the Constitution and it was put there by amendment. . . . So I hope very much that we will vote down Mr. Damron's amendment. (Page 2452)

* * *

"MR. DAMRON: . . . I said earlier that I offered this amendment for two purposes, to bring it in harmony with File No. 6, and because I could see no reason for making a discrimination with respect to the power of the Governor to veto when you came to matters pertaining to appropriations for education. . . . (Pages 24522453)

* * *

"Now, much of what I have said is beside the point here, the issue that is now before this Convention. If this principle of giving the Governor the right of 'I can veto' is good and sound and we have had it in this state for some years and I believe it is good and sound, then it certainly is sound and applicable as to the question of vetoing items of appropriation for educational system for educational purposes. I can't see any reason on earth for making the discrimination.

"Now, I can't see, I can't see for the life of my why you should give the Governor the right to veto items affecting Eleemosynary and the penal institutions and the governmental functions of this state, the courts, the state officers' salaries, etc. and yet say that he shouldn't be allowed to exercise that right with respect to the appropriation for school purposes. (Pages 2453-2455)

* * *

"PRESIDENT: Result sixteen aye, thirty-eight no. The amendment fails. Are there other amendment to Section 5?" (Page 2455)

Thereafter, the amendment was defeated (Page 2455). Consequently, Sections 5 and 6 were adopted (Pages 2455-2456). Thus, on the basis of the constitutional provision and the framers' intent as expressed in the constitutional debates, we conclude that the Governor may not veto all or any portion of an appropriation bill for free public schools, nor may he reduce any portion of an appropriation for public schools.

The next question presented is whether the Governor may control by allotment and thereby reduce the distribution of such funds. The issue to be resolved is whether the provision of Article IV, Section 26 prohibiting the Governor from reducing ". . . any appropriation for free public schools, . . ." applies only to an appropriation bill presented to the Governor for his approval or disapproval, or does that prohibition deprive him of authority to control the rate of or to reduce expenditures? We conclude the Governor may control the rate at which an appropriation for free public schools is expended during the period of the appropriation by allotment or other means.

There has been no judicial determination interpreting the two provisions and their relationship. Our conclusion is compelled by a common sense reading of the two provisions, Article IV, Section 26 specifically provides, in part:

"The governor shall not reduce any appropriation for free public schools, . . ."

Article IV, Section 27 uses not restrictive, but rather all inclusive language:

"The governor may control the rate at which any appropriation is expended during the period of the appropriation by allotment or other means, and may reduce the expenditures of the state or any of its agencies below their appropriations whenever the actual revenues are less than the revenue estimates upon which the appropriations were based." (Emphasis ours)

The use of the words "any appropriation" together with the failure to specifically exempt appropriations for free public schools from the operation of this section compels this conclusion.

The stated conclusion is consistent with the intent expressed in the constitutional debates.

"MR. JULIAN: My inquiry is this, Doctor. Say we have -- I noticed -- I make this further statement for the information of the members of the Convention that this provision about not reducing the school was adopted in 1932, the new provision in the present Constitution. Now, my inquiry is this: then in this Section 5 [sic] you did give the Governor the right to reduce appropriations when money is not available in the treasury for the various departments or the anticipated revenue does not come in for other things than the school or the payment of principal or interest on the public debt, isn't that right?

"MR. MC CLUER: Well, not quite, Mr. Julian, Section 6 deals on that point. Section 5 deals with the Governor's disapproval of the appropriation.

"MR. JULIAN: Oh, now Section 6 -- My point is this; under Section 6, now if the revenue does not come in, the anticipated revenue, he could keep and disapprove and hold back from the public schools just the same as any other part.

"MR. MC CLUER: On Section 6.

"MR. JULIAN: I know, but he could do it under Section 6. Under Section 5 there is a specific provision that you just read that he may not reduce the appropriations of the schools or for interest on public debt.

"MR. MC CLUER: He may cause disapproval of those items for appropriation (Page 2422)

"Mr. Julian: And you are blocking out two things in the State of Missouri Government that says the Governor can't.do, but you are giving his [sic] authority to approve or disapprove?

"MR. MC CLUER: That is right, Mr. Julian. (Pages 2422-21423)

"MR. BROWN (OF CHRISTIAN): Doctor, in view of the provisions of Section 6, the Governor shall have authority to reduce expenditures in State departments, offices and agencies under the appropriations actually made whenever actual revenues fall below the revenue estimates upon the appropriations were based and through allotments or otherwise to control the rate at which such appropriations are expended during the fiscal year, do you not believe that the lines 14, 15, 16 and 17 are contradictory of Section 6 to some extent?

"MR. MC CLUER: No.

"MR. BROWN (OF CHRISTIAN): Why?

"MR. MC CLUER: Section 5 deals with the right of the Governor to disapprove an item on the appropriations calendar of the Legislature, to disapprove it, not because revenues fall below and it would be necessary to pay it, but because he disapproves that action. Section 6 deals with the lack of revenue when the revenues fall below the estimates upon which the appropriations were based. Section 5 deals with the Governor's discretionary power in this budgetary system, this budget system. (Page 2423)

* * *

"MR. DAMRON: With reference to the provision in line 16 of Section 5 to which Mr. Julian called your attention, that would prohibit the Governor from reducing the appropriation for school purposes. Did you notice that there is conflict in that respect with Section of File Number 16?

"MR. MC CLUER: Yes, sir.

"MR. DAMRON: On the Executive Department? "MR. MC CLUER: Yes, sir.

"MR. DAMRON: The Executive Department section would permit the Governor to reduce the appropriation for school purposes.

"MR. MC CLUER: That is right, sir." (Pages 2423 2424)

Therefore, we conclude that the Governor may control by allotment or other means, and reduce the expenditure below the appropriation whenever the actual revenues are less than the revenue estimates upon which the appropriations are based, consistent with our previous opinion. Opinion of the Attorney General No. 407, issued to the Honorable Warren E. Hearnes, December 18, 1966 (copy enclosed).

You also inquire whether "control of expenditure rates apply as to any single appropriation without being required to reduce other other appropriations by the same percentage?" The applicable constitutional provision, Article IV, Section 27, Constitution of Missouri, 1945, provides:

"The governor may control the rate at which any appropriation is expended during the period of the appropriation by allotment or other means, and may reduce the expenditures of the state or any of its agencies below their appropriations whenever the actual revenues are less than the revenue estimates upon which the appropriations were based."

It is apparent this provision contains no restrictions as to the manner in which the Governor shall control the rate at which any appropriation is expended, and by the use of the language "any," we conclude that the Governor may control the expenditure rates of a single appropriation without being required to reduce all appropriations by a pro rata percentage.

We have concluded that "revenue estimates upon which appropriations were based" refers to the official estimates presented to the General Assembly by the Executive budget, except in these instances in which the General Assembly has by its appropriation bill set forth its estimates of revenues for the period during which the appropriation was made. However, when appropriations are made by the Legislature in excess of the estimated revenue as set forth in the Executive's budget message and without specifying the estimated revenues in the appropriation bill, it is our opinion that the total amount of such legislative appropriations represents the revenue estimates upon which appropriations were based.

Article III, Section 37 of the Missouri Constitution provides:

"The general assembly shall have no power to contract or authorize the contracting of any liability of the state, or to issue bonds therefor, except . . ."

Article IV, Section 28 of the Missouri Constitution provides:

"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 the payment of money be incurred unless the comptroller certifies it for payment and certifies that the expenditure is within the purpose of the appropriation and that there is in the appropriation an unencumbered balance sufficient to pay it. . . ."

The courts have consistently adhered to the principle that it will be presumed the Legislature acted consistent with its constitutional authority and limitations. Therefore, assuming that the Legislature is acting in compliance with the constitutional provisions, we would then conclude that the total amount of the appropriations as passed by the Legislature, unless otherwise specifically stated in an appropriation act, represents the estimated revenue.

In your opinion request, you made specific reference to the veto message of Governor Donnelly which is recorded. at Page, 35 of the 1953 Session Laws of the 67th General Assembly. We deem it appropriate to consider that veto, the applicable statutory provisions and the litigation which ensued as a result thereof.

The 67th General Assembly, in its appropriations bill, House Bill No. 324, provided:

"Section 2.250. One-third of General Revenue Fund set aside for the State School Moneys Fund.-- The state comptroller is hereby authorized and directed to set aside one-third (1/3) of the state revenue paid into the state treasury for the period beginning July 1, 1953, and ending June 30, 1955, into a fund to be known as the state school moneys fund; the same to be used for the support of the free public schools.

"Section 2.255. Support of free public schools -- Postwar Reserve Fund.-- There is hereby appropriated out of the state treasury chargeable to the Postwar Reserve Fund, the sum of Nine Million Two Hundred Fifty Thousand Dollars ($9,250,000.00) to be paid into the state school moneys fund; the same to be used for the support of the free public schools; said sum to be apportioned and distributed for the support of free public schools, as provided by law, for the pert6d beginning July 1, 1953, and ending June 30, 1955."

The Governor's veto was with respect to Section 2.255. Laws, 1953, Pages 35-37.

Thereafter, two petitions for writs of mandamus were filed in the Supreme Court of Missouri on January 12, 1954. Both petitions sought to compel distribution of the Nine Million Two Hundred Fifty Thousand Dollars ($9,250,000) appropriated by the Legislature from the Postwar Reserve Fund to the State School Moneys Fund under Section 2.255, Laws, 1953, Page 35. At issue was the Governor's veto of Section 2.255, House Bill No. 324. See: State of Missouri ex rel. Springfield Reorganized School District No. 12 of Greene County, Missouri, a corporation, Relator, v. Mrs. True (Helen) Davis, et al., as Members of the State Board of Education of Missouri; Newton Atterbury, Comptroller of the State of Missouri; Haskell Holman, State Auditor of the State pf Missouri, and G. H. Bates, State Treasurer of the State of Missouri, Respondents, No. 44197; and State of Missouri ex rel. The Board of Education of the City of St. Louis, Missouri, a corporation, Relator v. Mrs. True (Helen) Davis, et al., as Members of the State Board of Education of Missouri, Neil Atterbury, Comptroller of the State of Missouri, Haskell Holman, State Auditor of the State of Missouri, and G. H. Bates, State Treasurer of the State of Missouri, Respondents, No. 44198.

One of the allegations contained in the petitions was:

"That the action of the Governor in attempting to veto and disallow Section 2.255 of House Bill No. 324 was a nullity and constitutes no bar to the appropriation contained in said section, for the reason that it was an attempt to reduce an appropriation made by the General Assembly for the free public schools in violation of Section 26 of Article IV of the Constitution of the State of Missouri. . ."

The constitutional provisions considered in that proceeding are the same as are here in question. (Article IV, Section 26). However, the statutory provisions considered in that proceeding have since been amended. Section 26.030, RSMo 1949, provided:

"The governor may veto any item or portion of any item of any appropriation bill or the whole thereof, provided, however, that as to appropriations made for free public school purposes or for the payment of principal and interest on the public debt, the governor may approve or veto such appropriations, but shall not have power to reduce any such appropriation."

The history of this section indicates that after the adoption of the constitutional amendment on November 8, 1932, Senate Bill No. 227, establishing an executive budget system, was adopted. Laws, Missouri, 1933, Page 459, et seq. Section 11 thereof provides:

"The governor may veto any item or portion of any item of any appropriation bill or the whole thereof, provided, however, that as to appropriations made for tree public school purposes, the governor may approve or veto such appropriations, but shall not have power to reduce any such appropriation." Laws, Missouri, 1933, Page 462.

This provision was contained in the Revised Statutes of Missouri, 1939, as Section 10905, and continued in this form until 1945. The provision was amended to provide:

"The governor may veto any item or portion of any item of any appropriation bill or the whole thereof: Provided, however, that as to appropriations made for free public school purposes or for the payment of principal and interest on the public debt, the governor may approve or veto such appropriations, but shall not have power to reduce any such appropriation." Laws, Missouri, 1945, §58, at Page 1447.

This provision was amended in 1959. House Bill N9. 121, Sixtyfifth General Assembly, repealed Section 26.030, and enacted in lieu thereof a new section which provided:

"The governor may veto any item or portion of any item of any appropriation bill or the whole thereof; except that the governor shall not reduce any appropriation for free public schools or for the payment of principal and interest on the public debt." Laws, Missouri, 1959, House Bill No. 121, Section 1

Any possible conflict between the constitutional limitations imposed upon the Governor by Article IV, Section 26 of the Constitution of Missouri, 1945, and authority granted to him by Section 26.030, RSMo 1949, has been eliminated by the amendment of that section in 1959.

The court, in its order denying the petitions for alternative writs of mandamus, stated:

"The petition for an alternative writ of mandamus is denied. The alternative writ is refused because no clear, definite and certain right to the relief sought can be shown in view of the admitted facts. It is further apparent that the Governor's express veto and disapproval of the $9,250,000 appropriation provided by Sec. 2.255 of House Bill No. 324, even if the invalidity of the veto be conceded, could never be construed as an approval of Sec. 2.255, so as to make the section effective as a law since the General Assembly had then adjourned. Nor could said section of said bill be construed as having become a law under Secs. 31, 32, or 33 of Article 3 of the Constitution, nor under Section 26, of Article 4, in view of the Governor's designation of said section as being 'specifically vetoed and not approved,' the General Assembly having previously adjourned. For the above and other reasons, it is clear to the Court that a peremptory writ of mandamus should not issue in any event and that the issuance of an alternative writ at this time would only result in delay and further expense to the litigants without any resulting benefit to the complaining school districts. The alternative writ of mandamus is accordingly denied."

Thus it would appear that even though a Governor may not constitutionally veto an appropriation for free public schools, his failure to specifically approve the appropriation bill will prevent it from becoming law absent compliance with either Section 31, 32 or 33 of Article III of the Constitution of Missouri.

Article III, Section 31 of the Constitution of Missouri, 1945, provides:

"All bills and joint resolutions passed by both houses shall be presented to and considered by the governor, and within fifteen days after presentation he shall return them to the house of their origin endorsed with his approval or accompanied by his objections. If the bill be approved by the governor, it shall become law. When the general assembly adjourns, or recesses for a period of thirty days or more, the governor may return within forty-five days any bill or resolution to the office of the secretary of state with his approval or reasons for disapproval."

Article III, Section 32 of the Constitution of Missouri, 1945, provides as follows:

"Every bill presented to the governor and returned with his objections shall stand as reconsidered in the house to which it is returned. The objections of the governor shall be entered upon the journal and the house shall proceed at its convenience to consider the question pending, which shall be in this form: 'Shall the bill pass, the objections of the governor thereto notwithstanding?' The vote upon this question shall be taken by yeas and nays and if two-thirds of the elected members of the house vote in the affirmative the presiding officer of that house shall certify that fact on the roll, attesting the same by his signature, and. send the bill with the objections of the governor to the other house, in which like proceedings shall be had in relation thereto. The bill thus certified shall be deposited in the office of the secretary of state as an authentic act and shall become a law."

Article III, Section 33 of the Constitution of Missouri, 1945, provides as follows:

"Whenever the governor shall fail to return a bill presented

Very truly yours,

John C. Danforth
Attorney General