Opinion letter to Mr. . Kenneth Carnes

JOHN ASHCROFT ATTORNEY GENERAL January 21, 1977 OPINION LETTER NO. 22 Mr. Wm. Kenneth Carnes, Director Department of Public Safety P. 0. Box 749 Jefferson City, Missouri 65101 Dear Mr. Carnes: This is in response to the request by your predecessor for an opinion of this office on the following question: "Whether the Adjutant General may reimburse the 11nited States Government for the value of , litary property, lost damaged or de- str• :d, from appropriated funds (MO) avail- able to the Adjutant General, or whether sucl1 reimbursement requires a specific ap- propriation by the General Assembly?" The answer to your question necessitates, as a preliminary matter, an analysis of the legal relationship which exists be- tween the United States Government and the Adjutant General of Missouri with respect to the military property issued to the Missouri National Guard. We assume that any military property to which you refer is property contemplated by 32 U.S.C. § 710 and National Guard Regulation 735-11, paragraph 1-11. We fur- thermore assume that the Adjutant General of Missouri has ac- knowledged receipt of all military property issued to the Mis- souri National Guard by the United States Government pursuant (314) 751·3321 to the provisions in Title 32 of the United States Code which provides the conditions upon which the property is issued. Therefore, we assume that the Missouri National Guard, through the Adjutant General of Missouri, has received the property with the knowledge of the conditions upon which it was issued and thus is contractually bound with the United States Government Mr. Wm. Kenneth Carnes to account for that property pursuant to 32 U.S.C. § 710 and National Guard Regulation 735-11. The law in this state has recognized the principle that when a state enters into a validly authorized contract it binds itself to the performance of that contract just as any private citizen would do by so contracting and cannot invoke any privi- lege of sovereign immunity. V. S. DiCarlo Construction Company, Incorporated v. State, 485 S.W.2d 52 (Mo. 1972). See also Sec- tion 490.460, RSMo 1969. We believe, therefore, that the Mis- souri National Guard cannot be excused from the performance of any contractual obligations it has assumed simply because it is an arm of the state government. Accordingly, unless the state of Missouri can assert a valid defense under the law of con- tracts, it is bound to reimburse the United States Government for the value of military property under the terms and condi- tions upon which the property was received and acknowledged by the Adjutant General. Your specific question dealing with the specificity of ap- propriations from which funds may be spent to reimburse the United States Government for this lost, damaged, or destroyed military property requires an analysis of the specific appro- priations for the fiscal year for which such payments are to be made. In this regard, it is clear that every appropriation must specify distinctly the purpose for which moneys are to expended. State ex inf. Danforth v. Merrell, 530 S.W.2d 209 (Mo.Banc 1975). The Missouri General Assembly has a duty to fix the purpose for each appropriation and moneys cannot be paid out except as for the purpose fixed. Article IV, Sections 23 and 28, Constitution of Missouri; Nacy v. LePage, 111 S.W.2d 25, 26 (Mo. 1937); State ex rel. Cason v. Bond, 495 S.W.2d 385 (Mo.Banc 1973). We believe that an appropriation to reimburse the United States Government for the val\-].e of military property lost, dam- aged, or destroyed must be specific to the extent that there is a clear legislative intent seen in the appropriation legislation which identifies the appropriated funds for the purpose of reim- bursement to the United States Government for such property. It is our view that the Adjutant General may reimburse the United States Government for the value of military property re- ceived by the state of Missouri under 32 U.S.C. § 710 and which is lost, damaged, or destroyed if there is an appropriation which provides for payment to the federal goverment for military property lost, damaged, or destroyed. -2- Yours very truly, /".""" ~~~~- ~~~·{A_c,Po~r-:sft t) ASHCROFT Attorney General