In re School-Law Manual

• Decision Date: 12 March 1886
• Citation: 63 N.H. 574,4 A. 878
• Parties: In re SCHOOL-LAW MANUAL.
• Court: New Hampshire Supreme Court

4 A. 878

63 N.H. 574

In re SCHOOL-LAW MANUAL.¹

Supreme Court of New Hampshire.

March 12, 1886.

Opinion of the court as to its duty under chapter 144, Laws 1885.

DOE, C. J. Chapter 144 of Laws of 1885, entitled "joint resolution providing for the appointment of a commissioner to revise, codify, and amend the statute laws of the state relating to schools," authorized the governor, with the advice of the council, to appoint a commissioner "to compile the public statutes of this state relating to schools, * * * and frame rules and forms of proceeding in towns under said statutes, which rules and forms, when approved by the supreme court, or a majority of the judges thereof, shall be deemed valid and sufficient." The rules and forms drawn by the commissioner have been submitted to the court. The resolution is not framed in the style prescribed by the ninety-second article of the constitution for making laws, is not an enactment of the commissioner's work, and does not require or contemplate a submission of any part of it to the senate and house for legislative action. As the legislature have not passed, and do not propose to pass, upon the question of enactment, and legislative power could not be delegated to the commissioner or court, (Gould v. Raymond, 59 N. H. 260, 276,) the legal construction of the resolution is that it does not sanction an alteration of the school law. The compilation of public statutes relating to schools, and the draft of rules and forms, are to be an advisory manual of the class of the justice and sheriff, probate directory, and town officer. Although they have not the statutory force given to some forms of writs and processes by Gen. Laws, c. 222, §§ 14-20, c. 235, §§ 12, 13, and c. 243, § 8, these books, written by learned and able men, are practically indispensable. Upon them depends the expeditious, economical and correct transaction of a large amount of public and private business; but they may not be wholly free from error. Spinney v. Portsmouth H. Co., 25 N. H. 9, 18-20.

The provision that the rules and forms shall be deemed valid and sufficient when approved by the court does not authorize a decision of the judicial questions of their sufficiency until those questions arise in cases not mooted by the court, but brought by parties into court for trial and judgment. As a retrospective act divesting private rights is not legislation, so a prospective determination of the validity of these rules and forms, without notice and opportunity of hearing given to persons whose interests may be involved in the facts and the law of a particular case, would not be an exercise of judicial power. Cooley, Const. Lim. 91, 353, 354; Merrill v. Sherburne, 1 N. H. 199, 203, 204. Who will be entitled to notice, and what objections will be presented, cannot now be ascertained. Questions which cannot be anticipated may arise, in cases that cannot be foreseen, concerning rights not yet accrued, and persons not yet in existence.

While the act of interested voters making a law, or electing interested agents to make it, without trial or notice, is an exercise of the right of self-government, (Bill of Rights, arts. 7, 8, 11, 12; Const. arts. 13, 27, 28, 30; Dorchester v. Youngman, 60 N. H. 385,) the administration of justice requires the separation and independence of legislative and judicial powers, (Bill of Rights, art. 37; Ashuelot R. R. v. Elliot, 58 N. H. 451,) an opportunity for a trial, and the judicial disinterestedness and candor without which a trial cannot be fair. These common-law essentials of a trial are comprised in the constitutional definition and duty of the tribunal. A controversy would be continued, and not adjudicated, by one of the parties stating, in the form of a judgment, the conclusion reached by him upon his view of the facts and the law of the case; and a party's interest is but one of several instances and degrees of judicial disability. As the jury trial of the constitution is the jury trial of the common law of the state, (41 N. H. 550,) so, without an express provision on the subject, the reasonable and practicable degree of impartiality required by the common and the natural law would be a necessary constitutional qualification of a juror or other judge. "It is essential...