Opinion
No. 4416.
Decided April 27, 1955.
The constitutional provision (Art. 74) authorizing the Legislature to require the opinion of the Justices does not apply to an inquiry concerning the constitutionality of existing law.
Willoughby A. Colby, for the Bar Association of the State of New Hampshire, for the bill.
George F. Nelson also for the bill.
The following resolution adopted by the House of Representatives on April 7, 1955, was filed in this court April 12, 1955.
"Resolved [by the House of Representatives] that the Justices of the Supreme Court be respectfully requested to give their opinion upon the following question of law:
"Are those provisions of House Bill No. 186, An Act relating to the fiduciary powers of trust companies and national banks, as proposed to be amended, which provide that no trust company, similar corporation or national bank shall advertise or circularize the fact that it is authorized to act as executor, in conflict with the Constitution.
"Further Resolved, that the Speaker transmit a copy of House Bill No. 186, with the proposed amendment, 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 reply to your request for advice upon the question of whether stated provisions of House Bill 186 as proposed to be amended conflict with the Constitution.
Your inquiry is whether those provisions of House Bill 186 as proposed to be amended "which provide that no trust company, similar corporation or national bank shall advertise or circularize the fact that it is authorized to act as executor, [are] in conflict with the Constitution."
The provisions prohibiting banks from advertising their authority to act as executors, which appear in your question and in the proposed amendment to the bill, are now law and have been since 1927. R. L., c. 312, s. 13; Laws 1927, c. 135. Enactment of the bill as proposed to be amended would not alter that prohibition. Your inquiry, as submitted to us, is limited to those provisions relating to advertising. It thus brings into question the constitutionality of existing law. Where the constitutionality of existing law is to be brought in question, "those who may deem their rights infringed . . . may have recourse to our courts for the protection of their supposed privileges." Opinion of the Justices, 62 N.H. 704, 705. The constitutional provision for advisory opinions does not apply to such cases. In re School Manual, 63 N.H. 574; Opinion of the Justices, 67 N.H. 600.
For the reasons indicated we respectfully request that we be excused from expressing an opinion upon the question embodied in your resolution.
FRANK R. KENISON. LAURENCE I. DUNCAN. AMOS N. BLANDIN, JR. EDWARD J. LAMPRON. JOHN R. GOODNOW.
April 27, 1955.