Warburton v. Thomas

• Decision Date: 20 November 1992
• Docket Number: No. 92-509,92-509
• Citation: 136 N.H. 383,616 A.2d 495
• Parties: Calvin WARBURTON and others v. Georgie A. THOMAS and others. Harold W. BURNS and others v. John P. ARNOLD, Attorney General.
• Court: New Hampshire Supreme Court

Page 495

616 A.2d 495

136 N.H. 383

Calvin WARBURTON and others v. Georgie A. THOMAS and others.

Harold W. BURNS and others v. John P. ARNOLD, Attorney General.

No. 92-509.

Supreme Court of New Hampshire.

Nov. 20, 1992.

Douglas & Douglas, Concord (Charles G. Douglas, III, on the brief and orally), for Calvin Warburton and others.

Orr and Reno, P.A and Upton, Sanders & Smith, Concord (William L. Chapman and Richard F. Upton, on the brief and orally), for Harold W. Burns and others.

John P. Arnold, Atty. Gen. (George Dana Bisbee, Deputy Atty. Gen., on the brief and orally), for John P. Arnold, Atty. Gen.

BROCK, Chief Justice.

This consolidated interlocutory transfer without ruling from the Superior Court (Manias, J.) involves two constitutional issues, which were first raised below in separate petitions for declaratory judgment. The parties seek rulings on the constitutionality of the passage of House Bill 1026 by the legislature over a gubernatorial veto and on the constitutionality of the bill itself.

The first action, Warburton v. Thomas, involves an interpretation of part II, article 44 of the New Hampshire Constitution. The question presented for review is whether the long-standing practice of the New Hampshire House of Representatives requiring a vote of two-thirds of the representatives present and voting, a quorum being present, meets the requirement of part II, article 44 that a vote of "two-thirds of that house" is necessary to override a veto.

The second action, Burns v. Attorney General, involves the interpretation of part II, article 18-a of the New Hampshire Constitution. The question presented for review is whether House Bill 1026 is a budget bill and, therefore, violates article 18-a because it contains provisions which establish, amend, or repeal non-budgetary statutory law.

I. Background

The Warburton plaintiffs are house member Calvin Warburton; senate members Thomas Colantuono, Roger Heath, Sheila Roberge, Eleanor Podles, Gordon Humphrey, and James R. St. Jean; and Charles G. Douglas, III, a private citizen. The defendants are State Treasurer Georgie A. Thomas, Secretary of State William M. Gardner, and the State of New Hampshire. Harold W. Burns, Caroline L. Gross, and Mary P. Chambers intervened as defendants in Warburton and are the speaker, majority leader, and minority leader, respectively, of the house of representatives. In Burns, the plaintiffs are the same intervenors above, and the defendant is State Attorney General John P. Arnold.

House Bill 1026, "an act relative to a companion bill to the supplemental budget," originally was introduced in the house on February 27, 1992. It established a committee to examine compliance with part II, article 6-a of the New Hampshire Constitution. The house passed HB 1026 on March 5, 1992, and sent it to the senate. On March 26, 1992, the senate passed its substantially amended version of HB 1026. On April 2, 1992, the house appropriations committee held a special public hearing on the senate amendments to HB 1026. Thereafter, the house nonconcurred with the senate amendments and requested a committee of conference. The senate agreed to the request, and HB 1026 was reviewed by a committee of conference, which included sessions open to the public.

The committee of conference issued its report on May 4, 1992, proposing amendments to HB 1026. On May 6, 1992, the report was adopted by the senate but rejected by the house. The house then voted to discharge the first committee of conference and to request a new conference committee. The senate acceded, and HB 1026 was taken up by a second committee of conference, including public sessions.

The second committee of conference issued a report on May 7, 1992, proposing amendments to HB 1026. The report was adopted by both the house and the senate in May 1992. HB 1026, as passed by the legislature, contains provisions which appropriate approximately $13,000,000, as well as provisions which establish, amend, or repeal statutory law.

On June 3, 1992, the Governor vetoed HB 1026. On June 17, 1992, there were 395 elected members of the house. Only 347 members, however, were present and voting on that day. After a quorum was declared present, the house voted 247 to 100 to override the Governor's veto. Plaintiff Warburton voted against the veto override in the house. After the vote, the speaker declared that "the bill passed by the necessary two-thirds."

Thereafter, the senate, which consisted of 24 elected members, voted 17 to 6 to override the Governor's veto. Plaintiffs Colantuono, Heath, Roberge, Podles, Humphrey, and St. Jean voted against the veto override in the senate.

II. Warburton v. Thomas

The Warburton plaintiffs challenge the long-standing veto override practice of the house. They argue that part II, article 44 of our constitution requires a vote of two-thirds of the entire house membership, rather than two-thirds of those present and voting, to override a gubernatorial veto. The plaintiffs therefore contend that the house vote, taken on June 17, 1992, did not comport with part II, article 44, because less than two-thirds of the entire house voted in favor of the bill. In response, intervenors Burns, Gross, and Chambers (house leaders) argue that the veto override practice of the house does not run afoul of part II, article 44, which, they argue, requires the assent of only two-thirds of the house members present and voting to override a gubernatorial veto.

A. Constitutional Construction

The legal principles involved in constitutional interpretation are well-established. In construing a provision of the constitution, we must look to its purpose and intent. See N.H. Munic. Trust Workers' Comp. Fund v. Flynn, Comm'r, 133 N.H. 17, 21, 573 A.2d 439, 441 (1990); Opinion of the Justices, 126 N.H. 490, 495, 494 A.2d 261, 267 (1985). Reviewing the history of the constitution and its amendments is often instructive, and in so doing,

"it is the duty of the court to place itself as nearly as possible in the situation of the parties at the time the instrument was made, that it may gather their intention from the language used, viewed in the light of the surrounding circumstances.

While the constitution as it now stands is to be considered as a whole as if enacted at one time, to ascertain the meaning of particular expressions, it may be necessary to give attention to the circumstances under which they became parts of the instrument."

Attorney-General v. Morin, 93 N.H. 40, 43, 35 A.2d 513, 514 (1943) (quotations and citations omitted); see also Opinion of the Justices, 126 N.H. at 495, 494 A.2d at 266.

For example, we have twice been asked by the house of representatives whether the legislature had the power to change the law to allow petit juries numbering less than twelve persons. See Opinion of the Justices, 121 N.H. 480, 483, 431 A.2d 135, 136 (1981); Opinion of the Justices, 41 N.H. 550, 551 (1860). We examined the meaning of the terms "jury" and "trial by jury" at the time of the adoption of our constitution and concluded that a jury of less than twelve persons was unknown at that time. Opinion of the Justices, 121 N.H. at 483, 431 A.2d at 136; Opinion of the Justices, 41 N.H. at 551. Thus, we opined that a jury of less than twelve persons would be unconstitutional. As for rules governing construction, we said:

" '[W]e regard it as a well settled and unquestioned rule of construction that the language used by the legislature, in the statutes enacted by them, and that used by the people in the great paramount law which controls the legislature as well as the people, is to be always understood and explained in that sense in which it was used at the time when the constitution and the laws were adopted.' "

Opinion of the Justices, 121 N.H. at 483, 431 A.2d at 136 (emphasis added in 121 N.H. at 483, 431 A.2d at 136) (quoting Opinion of the Justices, 41 N.H. at 551).

B. Constitutional History

The Warburton issue calls upon us to ascertain the meaning of the provision of part II, article 44, requiring approval by "two-thirds of that house" in order to override a gubernatorial veto. In its entirety, article 44 states:

"[Art.] 44. [Veto to Bills.] Every bill which shall have passed both houses of the general court, shall, before it becomes a law, be presented to the governor, if he approve, he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it; if after such reconsideration, two-thirds of that house shall agree to pass the bill, it shall be sent, together with such objections, to the other house, by which it shall likewise be reconsidered, and, if approved by two-thirds of that house, it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of persons, voting for or against the bill, shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within five days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it unless the legislature, by their adjournment, prevent its return, in which case it shall not be a law."

To determine the meaning of the phrase "two-thirds of that house," we examine the history that led to the adoption of article 44. New Hampshire adopted its first constitution in 1776 after the State became independent of British rule. This constitution, which was a temporary document, centered all the governing power in the legislature. See L. Anderson, To This Day 64-65 (1981). It provided for no governor or other executive officer, and the judiciary was given no independence. See Richard F. Upton, The Constitution of 1776 From the Viewpoint of the Legislative Branch, Address at the Commemoration of the Adoption of New Hampshire's First State ...