In re Opinion of the Justices-Adjutant Gen.

• Decision Date: 16 July 1920
• Citation: 112 A. 525
• Court: New Hampshire Supreme Court
• Parties: In re OPINION OF THE JUSTICES-ADJUTANT GENERAL.

112 A. 525

In re OPINION OF THE JUSTICES-ADJUTANT GENERAL.

Supreme Court of New Hampshire.

July 16, 1920.

(Syllabus by the Court.)

The Adjutant General cannot be removed from office except upon address by the Legislature.

(Additional Syllabus by Editorial Staff.)

Answers to Questions Propounded to the Justices of the Supreme Court by the Governor and Council.

G. F. Morris, of Lancaster (Drew, Shurtleff, Morris & Oakes, and Irving A. Hinkley, all of Lancaster, on the brief), for Adjutant General.

Oscar L. Young, Atty. Gen., for the State.

PER CURIAM. July 2, 1919, the Governor and Council adopted the following resolution:

Resolved, that the Supreme Court be requested to render an opinion as soon as possible as to whether, under the Constitution and laws of the state of New Hampshire, the Governor can legally remove the Adjutant General at his pleasure, and for such further interpretation of any of the provisions of the Constitution and laws bearing on the matter as it may be the pleasure of the Supreme Court to render.

The Justices being informed by the Secretary of State of this action of the Governor and Council heard the parties at Concord July 11, 1919, and subsequently submitted the following To his Excellency the Governor and the Honorable Council:

As has been frequently said by the justices of this court our constitutional advisory power is limited to the expression of opinion upon important questions of law necessary to be determined by the body requiring advice. 67 N. H. 600, 43 Atl. 1074. The resolution which we have been informed has been adopted by you requiring our opinion upon the question "whether the Governor can legally remove the Adjutant General of the state" fails to make clear what action of your body is dependent upon the answer to that question. But upon the assumption that our opinion may be of use to you in the performance of the duties legally imposed upon you we herewith respectfully answer.

Our opinion is that the Governor has not the power to remove the Adjutant General, a duly commissioned officer of the militia, except upon the address of both houses of the Legislature. Const. pt. 2, art. 52(53); 62 N. H. 706.

While the Secretary of State is the recording officer of the council, the verity of the record is established by the signatures of the members of the council. Const. pt. 2. art. 46(47), 63(64).

The informality by which information of your action has reached us has not been permitted to prevent prompt...