Opinion of the Justices, In re

• Decision Date: 30 April 1957
• Parties: In re OPINION OF THE JUSTICES.
• Court: New Hampshire Supreme Court

Page 818

131 A.2d 818

101 N.H. 518

In re OPINION OF THE JUSTICES.

Supreme Court of New Hampshire.

Submitted April 18, 1957.

Answer Returned April 30, 1957.

The following resolution adopted by the House of Representatives on March 28, 1957 was filed in this court on April 3, 1957:

'Whereas there is now pending before the House of Representatives House Bill No. 187, entitled 'An Act to redistrict the state into senatorial districts; and

'Whereas, a question has been raised concerning its constitutionality; therefore be it

'Resolved, That the Justices of the Supreme Court be respectfully requested to give their opinion upon the following questions of law:

'1. What is the proper interpretation to be given to Article 26, Part II of the Constitution of New Hampshire in making the division of senatorial districts?

'2. What taxes are to be considered and included as direct taxes in fulfilling the provisions of Article 26, Part II, in making the division of senatorial districts?

'3. Does House Bill No. 187 violate Article 26, Part II, of the Constitution of New Hampshire in that the redistricting of senate districts was based on the equalized valuation figures of the state tax commission and as provided under the provisions of RSA 76:1 (See House Journal of January 30, 1957, page 4).

'4. Does House Bill No. 187 violate in any respect the Constitution of New Hampshire? and be it further

'Resolved, That the Speaker of the House transmit a copy of this resolution, together with a copy of House Bill No. 187, and House Journal of January 30, 1957, to the Clerk of the Supreme Court for consideration by said Court.'

The following answer was returned:

To the House of Representatives:

The undersigned Justices of the Supreme Court submit the following answers to the questions contained in your resolution filed April 3, 1957 with reference to House Bill 187, entitled 'An Act to redistrict the state into senatorial districts.'

The first two questions relate to the interpretation of Article 26, Part II of the Constitution of New Hampshire which provides as follows: '[Art. 26.] And that the state may be equally represented in the senate, the legislature shall, from time to time divide the state into twenty-four districts, as nearly equal as may be without dividing towns and unincorporated places; and in making this division, they shall govern themselves by the proportion of direct taxes paid by the said districts, and timely make known to the inhabitants of the state the limits of each district.'

The first question seeks the 'proper interpretation' to be given to Article 26 in making the division contemplated. The second question is directed specifically to 'what taxes are to be considered and included as 'direct taxes" in so doing.

The phrase 'direct taxes' was incorporated in Article 26 of the Constitution by amendment in 1792 (10 N. H. State Papers 145); and it is reasonably plain that by 'direct taxes' was meant the taxes which the General Court was then authorized to levy by what is now Article 6, Part II of the Constitution, namely: taxes 'on polis and estates.' 9 N. H. State Papers 904.

Prior to the amendment of 1792, Article 26 quoted above, was in substantially the same form as now, except that the words 'public taxes' appeared where the words 'direct taxes' are now used (9 N. H. State Papers 896, 904), and the number of districts was required to be 'never more than ten, nor less than five.' See RSA: Const. Pt. II, Art. 26, note.

Amendments of Article 26 were twice submitted to the people by the Constitutional Convention of 1791. The first would have changed the number of districts to 'thirteen,' to be established according to the proportion of 'public taxes' paid by the districts. See 10 N. H. State Papers 116, amendment No. 12. This proposal failed of ratification by the people, and a second amendment was submitted which would fix the number of districts at twelve and for the first time used the language 'direct taxes paid.' Ibid., 145, 153. This amendment was ratified in 1792. The Journal of the Convention does not disclose what prompted the change, since it was made in committee. See Ibid., p. 143. We are therefore left to a consideration of other sources to determine the singificance of the change.

Both before and after the adoption of the amendment of 1792 rates and assessments for purposes of taxation were fixed from time to time by legislative act (5 Laws of N.H. 603 (1791); 6 Laws of N.H. 171 (1793)), providing the manner in which 'public taxes' should be assessed on 'polls and rateable estates.' See Robinson: History of Taxation in New Hampshire, pp. 86, 87; 5 Laws of N.H. 429. Also from time to time, the Legislature determined the 'proportion to every thousand pounds of the public taxes which every town [should] annually pay.' 5 Laws of N.H. 420 (1789); 6 Laws of N.H. 165 (1794). The latter acts were used to apportion the public taxes required to support the expenditures of state and counties. See 5 Laws of N.H. 500 (1790). At least as early as 1803, one of the acts establishing rates and assessments was entitled 'An act to Establish the Rates at which Polls and Rateable Estates Shall be Valued in Making and Assessing Direct Taxes,' although the body of the act continued to refer to 'public taxes.' 7 Laws of N.H. 187 (1803). (Italics supplied.)

Use of the word 'direct' in the amendment of Article 26 may have been thought desirable because of the distinction made in the then recently adopted Constitution of the United States, between 'direct taxes' on the one hand, and 'duties, imposts, and excises' on the other. The Constitution of the United States had been ratified by New Hampshire on June 21, 1788, and declared in effect in 1789.

Article 1, section 2, clause 3 of the Constitution of the United States provided that 'Representatives and direct taxes shall be apportioned among the several States * * *'; and by Article 1, section 9, clause 4 it was provided: 'No capitation, or other direct tax shall be laid, unless in Proportion to the Census or Enumeration hereinbefore directed to be taken.' Duties, imposts and excises on the other hand were required to be uniform throughout the United States. Const. Art. 1, § 8, cl. 1. In Veazie Bank v. Fenno, 1869, 8 Wall. 533, 19 L.Ed. 482, the United States Supreme Court was called upon to consider what were 'direct taxes' as the term was used in the Constitution of the United States; and it was there said that 'the words direct taxes comprehended only capitation taxes, and taxes on land, and perhaps taxes on personal property, by general valuation and assessment of the various descriptions possessed within the several States.' Ibid., 8 Wall. 546. See also, Cooley's Const'l Limitations (7th ed.) 708-710.

Hence it is apparent that 'direct taxes,' at least in the sense in which the words were used in the Constitution of the United States, were the taxes which Part II of the Second Constitution of New Hampshire (1784), under the head of 'The General Court' directed to be assessed 'on polls and estates in the manner that has heretofore been practiced' for the raising of the 'public charges of government.' 9 N. H. State Papers 904. Cf. Const. Pt. II, Art. 6. It will be remembered that taxation 'upon * * * other classes of property, including franchises and...