In re Opinion of the Justices

• Decision Date: 31 July 1939
• Parties: In re OPINION OF THE JUSTICES.
• Court: New Hampshire Supreme Court

8 A.2d 597

In re OPINION OF THE JUSTICES.

Supreme Court of New Hampshire.

July 31, 1939.

Opinion of the Justices in response to an inquiry contained in a resolution by the Governor and Council, concerning their authority over the removal by the labor commissioner of one of his authorized representatives.

Walter A. Calderwood, Jr., of Nashua, for Commissioner of Labor.

Donald Knowlton, of Concord, for Mrs. Elkins.

The Governor and Council on June 29, 1939, adopted the following resolution:

Whereas on August 30, 1935, the Labor Commissioner appointed Elisabeth R. Elkins as his authorized representative under chapter 87 of the Laws of 1933 with a title of Minimum Wage Administrator, as appears in Appendix "A" attached hereto and made a part hereof, and

Whereas on the same date the records of the Governor and Council show the following action was taken in respect to said appointment:

"The Governor and Council appointed Elisabeth R. Elkins as Minimum Wage Director in the Bureau of Labor, at a salary of two thousand two hundred dollars ($2200.00) less the 5% salary reduction, as recommended by Commissioner of Labor Davie."

Whereas the Labor Commissioner has removed the said Elisabeth R. Elkins as Administrator of the Minimum Wage Division, effective August 15, 1939 and the latter has requested the Governor and Council to review the action of the Labor Commissioner, and

Whereas the Governor and Council are in doubt as to their authority or jurisdiction to review, approve or disapprove the action of said Labor Commissioner.

Now, therefore, be it resolved that the opinion of the Justices of the Supreme Court be requested upon the following important question of law:

What authority in the premises do the Governor and Council have over the removal by the Labor Commissioner of one of his authorized representatives, under the provisions of chapter 87 of the Laws of 1933?

Appendix "A" referred to in the resolution is a copy of a letter from the Commissioner of Labor to the Governor and Council dated August 30, 1935, and containing paragraphs as follows:

"On August 1st the administration of the minimum wage law, Chapter 87, Laws of 1933, which for the past two years was conducted as an independent unit under the name of 'Minimum Wage Office' and the supervision of a 'Minimum Wage Director' by what authority I have never been able to discover, returned to the office of the Labor Commissioner which is by statute the administering authority.

"In enlarging the scope of the department of labor I most respectfully request your approval of the appointment of Mrs. Elisabeth R. Elkins as authorized representative of the labor commissioner under this law with the title of Minimum Wage Administrator, at a salary of twenty-two hundred dollars per annum, less five percent. authorized by the 1935 legislature.

"The appointment of any subordinates or any expenditures made under this law shall be with the consent of the Labor Commissioner subject to the approval of the Governor and Council."

The following answer was returned:

To His Excellency the Governor and the Honorable Council:

The undersigned Justices of the Supreme Court have considered the inquiry presented by your resolution of June 29, and furnish this opinion in response thereto. Judge PAGE asks to be excused from expressing his views, for reasons which in his belief disqualify him.

Examination of the Act for Minimum Wage for Women and Minors, Laws 1933, c. 87, shows clearly that the administration of the act belongs under the direction, control and supervision of the Commissioner of Labor. It assigns to him the exclusive regulatory charge of executing the act in the manner and under the procedure it provides. It confers upon him various specified powers, authority and duties, and, except for court appeals, final discretionary decision upon all matters arising under it rests with him.

Certain of his powers are enumerated in Section 3 of the act, titled Powers of Commissioner. This section gives him "or any representative duly authorized by him * * * full power and authority" to investigate, examine, inspect and require information in cases inviting attention, in furtherance of efficient operation of the act. While in literal reading of the section a representative has equally with the Commissioner the powers and authority vested by the section, a representative is to be regarded as a subordinate of the Commissioner. The act in its entirety manifests the requirement of this interpretation.

It was under this section that Mrs. Elkins was appointed a representative of the Commissioner, with the title bestowed of Minimum Wage Administrator. No fair doubt exists that he made the appointment. In his letter of August 30, 1935, to the Governor and Council he requested their "approval of the appointment" of her as his authorized...