Opinion of the Justices

• Court: New Hampshire Supreme Court
• Writing for the Court: EDWARD J. LAMPRON
• Citation: Opinion of the Justices, 83 A.2d 738, 96 N.H. 517 (N.H. 1950)
• Decision Date: 16 March 1950
• Parties: OPINION OF THE JUSTICES.

Page 738

83 A.2d 738

96 N.H. 517

OPINION OF THE JUSTICES.

Supreme Court of New Hampshire.

March 16, 1950.

On February 28, 1950, the Governor and Council adopted the following resolution:

'Whereas certain questions have been raised concerning the constitutionality of Chapter 43, Laws of 1949, entitled 'An Act To Provide For A Reorganization Plan For The Departments And Agencies Of The State Government'; and

'Whereas it is necessary that such questions be resolved in order that the Governor may determine whether to transmit to the General Court with his approval certain reorganization plans proposed thereunder and whether to call the General Court into special session for such purpose prior to July 30, 1950, being the date of expiration of said act:

'Resolved by the Governor and Council assembled in executive session that the opinion of the Justices of the Supreme Court be respectfully requested upon the following important question of constitutional law:

'Does said act or any provision thereof conflict with the Constitution of the State of New Hampshire?'

The following answer was returned:

To His Excellency the Governor and the Honorable Council:

The undersigned Justices of the Supreme Court make the following answer to the inquiry contained in your resolution filed February 28, 1950, with respect to chapter 43, Laws of 1949: 'Does said act or any provision thereof conflict with the Constitution of the State of New Hampshire?' In our opinion sections 4, 5, 8 and 10 of the act conflict with the Constitution.

The act in question provides for the preparation and transmittal of certain reorganization plans to the houses of the General Court under authority which expires July 30, 1950. The session of the Legislature at which the act was adopted has been adjourned in accordance with custom to the last Wednesday in December, 1950, at which time it is required to dissolve, Const. Pt. II, Art. 3. Under Article 50, Part II of the Constitution 'the governor, with advice of council,' is authorized to call the General Court together 'sooner than the time to which it may be adjourned, or prorogued, if the welfare of the state should require the same.' In view of the time limitation established by the act to which the inquiry relates, the question of its constitutionality may be thought to be pertinent to a decision as to whether the General Court should be called together before July 30, 1950. This inquiry is thus related to action awaiting the consideration of the inquiring body in the course of its executive duty, and may properly be answered. Const. Pt. II, Art. 74.

In our opinion chapter 43, Laws 1949, is in conflict with the Constitution in certain respects hereinafter indicated. It is entitled 'An Act To Provide For A Reorganization Plan For The Departments And Agencies Of The State Government.' It purports however to go beyond the purpose indicated by the title and to provide not only for a plan of reorganization, but for reorganization as well. The expression of views by both proponents and opponents of the act has been of material assistance to the Justices. To a considerable extent these views have related to the question of the constitutionality of an assumed delegation of legislative power to the executive, although the view that no authority of a legislative character is delegated by the act has not gone unnoticed. We accordingly first advert to the issue of whether the act does or does not delegate to the Governor authority to legislate. In our opinion it does not.

The first section of the act, in stating its purposes, declares that the public interest requires with respect to all agencies of State government, as later defined in the act, section 6, that expenditures shall be reduced and economy promoted 'to the fullest extent consistent with the efficient operation of the state government' and that the efficiency of the government be increased 'to the fullest extent practicable within the revenues available to the state.' The act further states that the public interest requires this to be done by coordination and consolidation of agencies and functions as nearly as possible according to major purposes, and by abolition of unnecessary agencies or functions. It declares that these purposes may be accomplished 'more speedily and effectively' under the act than 'by the enactment of specific, individual pieces of legislation covering each agency affected.' It provides: 'The governor is authorized to commence forthwith an examination of the organization of all agencies of the state government and to determine what changes are necessary therein' to accomplish the purposes stated. Section 1.

By section 2 the Governor is directed, whenever he finds it necessary in order to accomplish the stated purposes that any on of five specified types of organizational changes should be made, to 'prepare one or more reorganization plans * * * and transmit such plan or plans to the general court'. The plans are to be accompanied by a declaration of his findings. Section 3 contains provisions specifying particular types of changes which the Governor is authorized to propose as he deems necessary.

By section 9 of the act, as amended by chapter 86, Laws 1949, provision is made for a commission to cooperate with and advise the Governor in the preparation of plans. Each plan is to be 'in the form of a statute' and to be transmitted to each house of the Legislature at the session at which the act was adopted, at an adjournment thereof, or at a special session. Section 2. The authority vested in the Governor and the commission expires on July 30, 1950. Section 11.

Section 4 provides the time and manner in which reorganizations specified in the plan or plans submitted by the Governor shall 'take effect and become law'. These provisions we shall presently consider in greater detail. If the plans first transmitted to the General Court do not become law the Governor is authorized to transmit an amended plan or part thereof which is thereafter to be 'subject to the provisions of this act the same as an original plan'. Section 5. Should such an amended plan fail to become law so far as the act provides the responsibilities of the Governor are terminated. No provision for further amended plans appears.

Plainly the procedure thus far outlined contains no delegation of legislative authority. The sections by which the powers and duties of the Governor are prescribed, sections 1, 2, 3, 5, contain no authority to take action having the force of law. The authority granted is to make an examination of organization and to determine necessary changes, section 1, but not to make them. Plans are to be prepared by the Governor and transmitted to both houses of the General Court at the same time. While each plan is to be 'in the form of a statute', there is no suggestion that prior to transmittal any plan shall become a statute, or that repeal of any existing statute shall occur. The Governor is granted no power or authority 'to make, ordain [or] establish' any 'orders, laws, statutes, ordinances, directions [or] instructions'. Const., Pt. II, Art. 5. In what is authorized to be done by the Governor and his advisory commission under sections 1, 2, 3, 5 and 9 we perceive no violation of the Constitution. Their function differs in no material respect from that of interim commissions appointed by the same Legislature. Laws 1949, cc. 325, 335, 339, 348, 349, 350. The performance of the duties imposed calls for no exercise of legislative power.

Section 4 of the act contains the provisions which specify the time and manner in which the 'reorganizations specified in each plan shall take effect and become law'. In this section the Governor is not mentioned, nor by it is he granted any authority. It is provided that the reorganizations shall become law (1) upon the expiration of the first period of twenty-five legislative days following transmittal of the plans to the General Court, 'but only if' during the period specified 'there has not been passed by the two houses a concurrent resolution stating in substance that the general court does not favor the reorganization plan'; or (2) upon the earlier adjournment of the General Court, or its prorogation sine die.

Thus the enactment of any reorganization plan or plans into law is made to depend not upon any act of the Governor, but on the contrary wholly upon the conduct of the Legislature, whether that conduct be action or inaction, during a period of twenty-five legislative days following the date of transmittal. We do not conceive that these provisions constitute a delegation of legislative authority to the Governor. Rather the authority is withheld entirely to the Legislature to determine whether the plans which he submits shall or shall not become law. They do not become law upon transmittal, nor by the lapse of time merely. Only the lapse of twenty-five 'legislative' days, coupled with inaction on the part of the Legislature, or its adjournment during the period, is sufficient under the act to give to the plan or plans the character of law. When filed they are no more than proposals, even though in the form of statutes. They become statutes only as the character of statutes is imparted to them by the Legislature. That under one alternative this may be accomplished by inaction does not alter the truth of the proposition, since the Legislature has provided that it may be accomplished in that way. Regardless of how many plans or amended plans may be filed by the Governor, if they are disapproved by the Legislature no law is enacted, and there is no suggestion that the Legislature considered that exercise of the reserved authority of disapproval would constitute a repeal of any previously existing law promulgated by the Governor. Cf. R.L. c. 240, §§ 10-12; Laws 1949, c. 272, § 2.

The question is thus presented whether the procedure for enactment provided by sections 4 and 10 of the act...