Eugene M. Van Loan III, of Manchester, filed a memorandum in support of affirmative answers to the questions.
Tarbell Professional Association, of Concord (Edward C. Mosca on the memorandum) filed a memorandum on behalf of Granite State Taxpayers, Inc. in support of affirmative answers to the questions.
Representative Frank V. Sapareto, of Derry, filed a memorandum in support of affirmative answers to the questions.
Representative Peter Hoe Burling, of Cornish, filed a memorandum in support of negative answers to the questions presented.
Senator Clifton C. Below, of Lebanon, filed a memorandum in support of negative answers to the questions presented.
Francis M. Henry, of Nashua, filed a memorandum in support of affirmative answers to the questions.
Joseph S. Haas, Jr., of Ashland, filed a memorandum in support of affirmative answers to the questions presented.
Kenneth E. Blevens, of Bow, filed a memorandum.
The following Resolution No. 1, requesting an opinion of the justices, was adopted by the Senate on February 11, 1999, and filed with the supreme court that day:
"Whereas, Senate Bill 51–FN–A–LOCAL, ‘An act establishing a referendum for a new taxation plan to fund public education,’ is presently pending in the senate; and
"Whereas, Part I, Article 28 of the Constitution of New Hampshire states: ‘No subsidy, charge, tax, impost, or duty, shall be established, fixed, or levied, under any pretext whatsoever, without the consent of the people , or their representatives in the legislature, or authority derived from that body,’ N.H. CONST. pt. I, art. 28 (emphasis added); and
"Whereas, in Claremont School District v. Governor , 142 N.H. 462, 703 A.2d 1353 (1997) (Claremont II ), the New Hampshire Supreme Court held that the current school tax as presently structured is disproportionate and unreasonable in violation of the Constitution of New Hampshire; and
"Whereas, the decision in Claremont II necessitates a major change in the tax structure of the state of New Hampshire that will have a substantial impact on the people of New Hampshire; and
"Whereas, Senate Bill 51–FN–A–LOCAL establishes a procedure whereby the legislature may submit a question regarding the imposition of statewide taxes for the funding of a constitutionally adequate education to the vote of the people by ballot and would allow the New Hampshire people to choose among tax plans enacted by the legislature; and
"Whereas, that portion of Part I, Article 28 stating ‘without the consent of the people, or their representatives' appears to reserve a right for the people of New Hampshire to consent to taxation, and that this right is distinct from and in addition to the authority of the legislature to establish taxes; and
"Whereas, Part II, Articles 2 and 5 of the Constitution of New Hampshire generally vest the power and authority to enact laws in the New Hampshire Senate and House of Representatives; and
"Whereas, a public hearing has been held before the senate committee on public affairs on SB 51–FN–A–LOCAL, and a question has been raised as to whether a referendum to secure the consent of the people as to a tax plan enacted by the legislature, offered under the apparent right vested in the people in Part I, Article 28, is precluded by the power and authority vested in the legislature under Part II, Articles 2 and 5 ; and
"Whereas, SB 51–FN–A–LOCAL raises an important question of law awaiting further consideration and action in the New Hampshire Senate; now, therefore, be it
"Resolved by the Senate:
"That the Justices of the Supreme Court be respectfully requested to give their opinion as expeditiously as possible on the following questions of law:
1. Would the process contained in SB 51–FN–A–LOCAL, providing for a referendum enabling the New Hampshire people to choose a tax plan enacted by the legislature to fund a constitutionally adequate public education, based on the authority and right of Part I, Article 28, be in any way repugnant or contrary to the Constitution of New Hampshire?
2. Would the process contained in SB 51–FN–A–LOCAL, providing for a referendum enabling the New Hampshire people to choose a tax plan enacted by the legislature to fund a constitutionally adequate public education be an unconstitutional delegation of legislative authority that is repugnant or contrary to the Constitution of New Hampshire?
"That the clerk of the senate transmit copies of this resolution and SB 51–FN–A–LOCAL, as introduced, to the Justices of the New Hampshire Supreme Court."
The following response is respectfully returned:
To the Honorable Senate :
The undersigned justices of the supreme court now submit the following replies to your questions of February 11, 1999. Following our receipt of your questions, we invited interested parties to file memoranda with the court on or before March 1, 1999.
SB 51–FN–A–LOCAL (the bill) contains a preamble declaring: 1 Findings and Purpose. The general court finds that:
I. In light of the New Hampshire Supreme Court's holding that providing an adequate education is a duty of state government expressly created by the New Hampshire constitution and its finding that the current property tax system is unconstitutional for funding public education and may not be collected after March 31, 1999, it is necessary for the general court to enact a new and constitutional taxation plan to fund public education.
II. A new taxation plan to fund public education may take the form of a tax assessed throughout the entire state, payable by all citizens, all income-earners, or all property owners.
III. The general court has been granted general power to enact all manner of wholesome and reasonable laws by the constitution, but this general power is limited by specific provisions of the constitution. Among the limitations on legislative authority is the power to tax in a manner that is other than proportional and reasonable.
See, e.g. , Opinion of the Justices , 4 N.H. 565, 567 (1829).
IV. The power of taxation is an attribute of sovereignty inherent in the people. See State v. Express Co. , 60 N.H. 219, 236 (1880) (Stanley, J.); Mack v. Jones , 21 N.H. 393, 395 (1850) ; see alsoBrewster v. Hough , 10 N.H. 138, 143 (1839).
V. By its express terms, the New Hampshire constitution provides that "No subsidy, charge, tax, impost, or duty, shall be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people, or their representatives in the legislature, or authority derived from that body." Pt. 1, Art. 28. This provision should be construed to authorize the legislature to seek the consent of the people, through a binding referendum, for a newly established tax.
VI. The general court should not attempt to avoid its responsibility for enacting wholesome and reasonable laws. Therefore, the consent of the people should be sought only after the general court has determined that more than one new form of taxation is consistent with constitutional authority and limitations and in pursuit of the public good. The consent of the people would therefore be to one of 2 constitutionally permissible plans of taxation. The binding referendum should be used only for approval of the imposition of constitutionally enacted taxation, and not as a mechanism to defer or re-delegate the legislative authority delegated from the people to the general court by the constitution.
The bill proposes to amend RSA chapter 663 (1996) by inserting after section 8 a new subdivision to read:
2 New Subdivision; Imposition of Statewide Taxes for Funding of Constitutionally Adequate Education. Amend RSA 663 by inserting after section 8 the following new subdivision:
Imposition of Statewide Taxes for Funding of Constitutionally Adequate Education
663:9 Question.
I. The legislature may, by general law, submit a question regarding the imposition of statewide taxes for funding of constitutionally adequate education to the vote of the people by ballot. The question shall be printed on the ballot to be used at the state general election next following enactment by the legislature, or at a special referendum called by the legislature for the purpose of voting on the question which shall be held in a manner and at a time determined by the legislature.
II. The legislature may submit a question pursuant to paragraph I only upon enacting into law 2 different tax plans for funding of constitutionally adequate education in the same session. One such tax plan shall be designated the "statutory plan" and the other shall be designated the "ballot option plan."
III. The secretary of state shall prepare and distribute a voter's guide providing details and analysis of the 2 tax plans
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