Dear Mr. Bradford:
You have requested a formal legal opinion on the following question:
"Does the Missouri State Highway Commission have the legal authority to expend monies from the state road fund for the purpose of paying the state's membership dues and expenses to the Mississippi River Parkway Planning Commission?"
In 1939 the General Assembly enacted what are now §§ 226.280-226.430,RSMo. (L.Mo. 1939, p. 667) which contain the following provisions that we deem pertinent to your question:
"In order to carry out the requirements of an act of Congress of the United States heretofore or hereafter to be enacted, with respect to parkway areas within the state for a national Mississippi River Parkway, and to obtain the benefits thereof and of federal funds and aids for its construction, maintenance and administration to the fullest extent of state constitutional limitations, the following rights, powers and duties are hereby conferred upon the state highway department. . . § 226.300
"The state highway department is hereby designated, authorized and directed as the state agency of this state to acquire by gift, purchase, condemnation or otherwise, as public property and convey to the United States such parkway areas and easements as and when required by aforesaid act of congress and as determined by surveys and maps hereafter approved by the Secretary of the Interior. § 226.310
"No power, right or duty except such as be necessary to conduct surveys as herein outlined, shall be exercised by the state of Missouri, or any agency or subdivision thereof until appropriate and sufficient grants of funds shall be made by the United States for the carrying out of the project contemplated by sections 226.280 to 226.430." § 226.430
This legislation contained no reference to a Mississippi River Parkway Planning Commission. This Commission was apparently a subsequent creation of the Executive Branch. We find it the subject of appropriation acts as a distinct activity of the State Park Board for the periods July 1, 1961-June 30, 1963 (L.Mo. 1961, p. 75); July 1, 1963-June 30, 1965 (L.Mo. 1963, p. 29); July 1, 1965-June 30, 1966 (L.Mo. 1965, p. 25); July 1, 1966-June 30, 1967 (L.Mo. 1965, p. 846); July 1, 1967-June 30, 1968 (L.Mo. 1967, p. 29); July 1, 1968-June 30, 1969 (L.Mo. 1967, p. 823); July 1, 1969-June 30, 1970 (L.Mo. 1969, p. 29); July 1, 1970-June 30, 1971 (L.Mo. 1969, 2d Ex. Sess., p. 29); July 1, 1971-June 30, 1972 (L.Mo. 1971-1972, p. 32); and July 1, 1972-June 30, 1973 (L.Mo. 1971-1972, p. 520). All of these appropriations for the maintenance of the Mississippi River Parkway Planning Commission were made from the state's general revenue fund. For the periods July 1, 1973-June 30, 1974 (L.Mo. 1973-1974, p. 13) and July 1, 1974-June 30, 1975 (L.Mo. 1973-1974, p. 600) the appropriations for the Commission were likewise made from the state's general revenue fund but were made to the Office of the Governor. For the periods July 1, 1975-June 30, 1976 (§ 4.670, H.B. No. 4 (1975)) and July 1, 1976-June 30, 1977 (§ 4.958, H.B. No. 1004 (1976)), the appropriation for this purpose was made to the Department of Natural Resources out of the state's general revenue fund. For the 1978 fiscal period (July 1, 1977-June 30, 1978), the appropriation for the Mississippi River Parkway [Planning?] Commission was made to the State Highway Commission from the State Road Fund (L.Mo. 1977, pp. 42-43). For Fiscal Year 1979 (July 1, 1978-June 30, 1979), the appropriation has been made to the "State Highway Department-Mississippi River Parkway Commission" from the general revenue fund. (§ 8.030, H.B. No. 1008 (1978)).
We are not aware of any Executive Order of a governor of this state that purports to establish the Mississippi River Parkway Commission.
On June 9, 1967, Governor Warren E. Hearnes promulgated an Executive Order assigning the Mississippi River Parkway Commission to the State Park Board. On August 11, 1976, Governor Christopher S. Bond promulgated an Executive Order transferring the Mississippi River Parkway Commission "to the Missouri Highway Commission and to the Department of Highways." We note in this latter Executive Order the statement that the Mississippi River Parkway Commission was established by the United States Congress in Section IV of the Federal Highway Aid Act of 1954 and by the General Assembly in Sections 226.280 through 226.430, RSMo. We do not believe this statement in either aspect is correct.
We note that several of the other states bordering the Mississippi River have legislated Parkway Commissions into existence. §§ 308.1 etseq., Ia. Code Ann. (1959); § 161.419, Minn.Stat.Ann. (1963); § 14.85,Wis.Stat.Ann. (1959); §§ 76-1801, et seq., Ark.Stat.Ann. (1961);§§ 55-5-51, et seq., Miss. Code Ann. (1962).
Thus, as far as we can determine, the Mississippi River Parkway Planning Commission has never been properly established by law in Missouri and since it is axiomatic that appropriation measures cannot enact laws of a substantive or general nature, State ex rel. Gainesv. Canada, 113 S.W.2d 783, 790 (Mo. Banc 1938), the Commission does not appear to have any valid legal existence. We therefore believe the appropriation to the Mississippi River Parkway Planning Commission regardless of the fund in the state treasury that is its source is a nullity and should be disregarded.
It is our view that the Mississippi River Parkway Planning Commission has no valid legal existence and that the appropriation for its maintenance and activity is null and void.
Very truly yours,
JOHN ASHCROFT Attorney General