Atty. Gen. Ex Rel. Boulanger County Com'rs v. Morin.

• Decision Date: 07 December 1943
• Citation: 35 A.2d 513
• Parties: WHEELER, Atty. Gen. ex rel. BOULANGER et al., County Com'rs, v. MORIN.
• Court: New Hampshire Supreme Court

35 A.2d 513

WHEELER, Atty. Gen. ex rel. BOULANGER et al., County Com'rs,

v.MORIN.

Supreme Court of New Hampshire.

Dec. 7, 1943.

Transferred from Superior Court, Coos County; Blandin, Judge.

Information in the nature of quo warranto by Stephen M. Wheeler, Attorney General, on the relation of Arthur D. Boulanger and others, Commissioners of Coos County, against Paul Morin and another to test the constitutionality of the act authorizing the appointment of a fiscal agent for the County of Coos. All questions of law raised by the information and answer were reserved and transferred by agreement of the parties without ruling by the trial judge.

Information quashed.

Information, in the nature of quo warranto to test the constitutionality of the act authorizing the appointment of a fiscal agent for the county of Coos, Laws 1943, c. 117. That act provides as follows:

“1. Fiscal Agent. The Superior Court, acting as a body, is hereby authorized and directed to appoint a Fiscal Agent for the County of Coos. He shall serve during the pleasure of the court and shall have the powers and duties set forth in this act.”

Section 3 of the act provides that “no obligation of said County shall be incurred by an officer thereof and no funds of said County shall be expended without the approval of said fiscal agent.” He is also authorized, with the approval of the Superior Court, to “borrow such sums as shall be deemed necessary to meet the demands upon the county treasurer and give the note of the county therefor.”

Section 4 of the act provides as follows:

“4. Reports. The fiscal agent shall submit a quarterly report in writing to each member of the superior court, to the chairman of the county convention and to each member of the delegation covering all financial transactions including an itemized account of all personal expenses for the preceding quarter.”

In his answer the defendant says that “he holds and executes the office of fiscal agent for the county of Coos by virtue of his appointment by the Superior Court made in accordance with the statute mentioned in such Information.

“Wherefore the said Paul Morin prays that this Information be dismissed and for his costs.” All questions of law raised by the Information and answer were reserved and transferred by agreement of the parties without ruling by Blandin, J.

Jean L. Blais and Crawford D. Hening, both of Berlin, for relators.

Arthur J. Bergeron, of Berlin, and Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Eliot U. Wyman, of Manchester, orally), for defendant.

BRANCH, Judge.

Article 37 of the New Hampshire Bill of Rights provides as follows: “In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.”

The position of the relators is thus stated in their brief: “Primarily, judicial power connotes the disposition of litigation according to principles of law or equity, or of statutory rights or liabilities or administration of the criminal law.” “The function of the judges ‘is to determine controversies between litigants.’ *** They speak ‘the rule or sentence.”’ In re Richardson, 1928, 247 N.Y. 401, 160 N.E. 655, 658, Cardozo, C. J.

“The legislature therefore acts ultra vires when it attempts to impose upon the judicial department duties and powers which are inconsistent with or antagonistic to the exercise of judicial power as meant by Art. 4, Part II, for such imposition is forbidden by Art. 37, of the Bill of Rights.”

The soundness of this position must be tested in the light of the principle, which has been frequently stated by this court, that the language of the constitution is to be understood in the sense which it was used when the constitution was adopted in June, 1784. “We regard it as a well settled and unquestioned rule of construction that the language used by the legislature, in the statutes enacted by them, and that used by the people in the great paramount law which controls the legislature as well as the people, is to be always understood and explained in that sense in which it was used at the time when the constitution and the laws were adopted. Opinion of the Justices, 41 N.H. 550, 551; Id., 44 N.H. 633, 635; State v. Griffin, 66 N.H. 326, 327, 29 A. 414.

[2] In construing the constitution, as in the case of any other writing, “it is the duty of the court to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in the light of the surrounding circumstances.” Weed v. Woods, 71 N.H. 581, 583, 53 A. 1024, 1025.

“While the Constitution as it now stands is to be considered as a whole as if enacted at one time (Drew v. Tifft, 79 Minn. 175, 81 N.W. 839, 47 L.R.A. 525, 79 Am.St.Rep. 446), to ascertain the meaning of particular expressions, it may be necessary to give attention to the circumstances under which they became parts of the instrument.” Thompson v. Kidder, 74 N.H. 89, 91, 65 A. 392, 393, 12 Ann.Cas. 948.

Clearly our problem calls upon us “to ascertain the meaning” of the constitutional declaration that “the three essential powers” of the State Government, “to wit, the legislative, executive and judicial”, ought to be kept separate from each other, and in solving this problem “it may be necessary to give attention to the circumstances under which [the foregoing declaration] became part of the instrument.” Thompson v. Kidder, supra. If when read in the light of surrounding circumstances the meaning of this declaration is not doubtful, then it is to be given effect without further argument, but if the meaning is doubtful, recourse must be had to other evidence to resolve the doubt. “When its meaning is not reasonably and morally certain, the contract is not altered for that reason. However inconclusive the evidence, it is to be weighed. However doubtful the intention, a preponderance of probability is enough to establish it.” Smith v. Furbish, 68 N.H. 123, 135, 44 A. 398, 403, 47 L.R.A. 226.

It cannot be assumed, in the absence of evidence, that “powers *** judicial” meant to the framers of the Constitution in 1784, the same thing that “the function of the judges” meant to Judge Cardozo in 1928. “It often happens, however, that the expressed intention, when applied to external objects, becomes doubtful and ambiguous; the sense of the language as used in the writing is not clear in the absence of extraneous proof of the sense attached to it by the parties seeking to express their purposes thereby. There exists what is usually denominated a latent ambiguity. That the parties intended to express some purpose is not open to doubt, but in such cases it cannot be practically applied without the aid of extraneous evidence.” Jones v. Bennett, 78 N.H. 224, 230, 231, 99 A. 18, 22. As pointed out by Walker, J., in the same opinion: “Whether [it] is an ambiguity calling for explanation is clearly a question of fact, upon which in a given case, different courts might reach different conclusions. And much of the apparent conflict in the cases is due to the inability of all men to weigh the evidence tending to show an ambiguity in the same way. In Stevens v. Underhill, 67 N.H. 68, 36 A. 370, the opinion of the court is based upon the finding that ‘the testator's intent is left in doubt,’ (67 N.H. at page 71, 36 A. at page 371), while the dissenting opinion proceeds upon a finding that the language of the will is clear, explicit and unambiguous.”

In considering the content of the phrase “powers *** judicial” as used by the framers of the constitution in 1784, two surrounding circumstances should be noted: (1) The nature of the judicial system prevailing in the Province of New Hampshire during the Colonial period then scarcely ended, and (2) the purpose sought to be accomplished by Article 37 of the Bill of Rights as indicated by contemporary records.

In regard to the first of these considerations, it is abundantly clear that the men of 1784 had lived under a judicial system in which the courts were called upon to exercise a wide variety of functions which were chiefly executive, though sometimes legislative in character. In Colonial times the county courts could abate town taxes for poverty (2 Province Deeds, 183), could levy taxes on towns for court charges and audit the court accounts so that all towns should pay on an equal basis. (1 P. D. 100). After 1668, tax equalization was lodged in the Commissioners for Small Claims (appointed by the Court) and two men chosen from the county by the General Court. Colonial Laws of Massachusetts, 239. The county court licensed ferries and controlled the rates of tolls. 1 P. D. 141; 2 P. D. 155b. It granted and revoked licenses for the sale of liquor. 1 P. D. 267; 2 P. D. 9a. Apprentices were bound out by the county courts. 5 P. D. 15, 16, 19. It controlled the building of inter-county highways and issued orders apportioning the expense. 1 P. D. 100; 1 P. D. 26; 2 P. D. 8b. The county court made orders for the support of paupers by the towns. Colonial Laws of Massachusetts, 1672, 123; 2 P. D. 2. The same court could admit immigrants or deport aliens. Colonial Laws of Massachusetts, 1660, 193; Ib. 1672, 143; 2 P. D. 151b, 192; 1 P. D. 98, 100; 2 P. D. 60a; 2 P. D. 202.

By an act passed February 21, 1745, two justices of the peace in any county were empowered to appoint two persons to prosecute violators of the law against killing deer out of season. 3 N. H. Laws, 17. By an act passed March 1, 1758, this duty was transferred to the Court of General Sessions. 3 N. H. Laws, 172. July 26, 1753, the Court of General Sessions was empowered to fix the number of tavern keepers in...