Opinion
No. 5163.
Submitted September 4, 1963.
Answer returned September 30, 1963.
1. The advisory duty of the Justices of the Supreme Court under Const., Pt. II, Art. 74 does not ordinarily require them to furnish opinions after the General Court has adjourned. However, opinions may be furnished where requested for guidance at a possible special session of the Legislature or at the next regular one. 2. Where a section of a town was incorporated as an independent town after the apportionment of representatives according to the last general census as provided by the Const., Pt. II, Art. 9th, the Legislature may not constitutionally authorize the election of a representative by such town before the next general census.
The following resolution was adopted by the House of Representatives June 27, 1963 and filed in this court on June 28, 1963:
"Whereas, Senate Bill No. 119, An Act providing for representative to the General Court from the town of Sugar Hill, is pending before the House of Representatives, and
"Whereas, the town of Sugar Hill did not exist in 1960 so as to be included in the federal census, and
"Whereas, the town of Sugar Hill was created by separation from the town of Lisbon and incorporated by act of the General Court of New Hampshire in 1961, and
"Whereas, in the year of 1966 the presently entitled cities, wards and towns may elect a total of 399 representatives, and
"Whereas, it is apparent that there is one or more inhabitants of said town so that it would be entitled to representation in at least one session in every ten years, and
"Whereas, Senate Bill No. 119 would authorize the election of one representative in the year 1966, and
"Whereas, questions have arisen as to the constitutionality of said act, and
"Whereas, it is imperative that the town of Sugar Hill obtain the answers to these questions before the next Constitutional Convention on the second Wednesday of May 1964, so that appropriate action may be taken in the event Sugar Hill is not entitled to a representative until 1970. Now 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. Is it constitutionally competent for the General Court to authorize an election by the town of Sugar Hill for a representative in the year 1966 when there was no census of said town in 1960, under Article 9 of Part Second of the Constitution of New Hampshire?
"2. Is it constitutionally competent for the General Court to authorize said election under Article 9 of Part Second of the Constitution of New Hampshire wherein it is specified — `in making such apportionment no town shall be divided?'
"3. Is the presently unknown number of inhabitants of the town of Sugar Hill as bearing on the requisite number established for one representative a bar under Article 11 of Part Second of the Constitution of New Hampshire? Be it further
"Resolved, that the Speaker transmit seven copies of this resolution and of Senate Bill No. 119 to the Clerk of the Supreme Court for consideration by said court."
The following answer was returned:
To the House of Representatives:
It was evident from your resolution that an answer returned at some reasonable time before the Constitutional Convention of May 1964 would meet the needs of the Legislature, which adjourned on July 1, 1963. Hence no attempt was made to furnish an answer before adjournment.
The advisory duty of the Justices under Article 74, Part II of the Constitution does not ordinarily require them to furnish an opinion after the General Court has adjourned. Opinion of the Justices, 93 N.H. 474, 475. In answering your inquiries after adjournment of the regular session we rely upon precedents in which answers have been given with respect to the constitutional authority of the Legislature "where the opinion has been requested for the guidance of the Legislature at a possible special session or at the next regular one." Opinion of the Justices, supra, 475. In so doing we do not intend to depart from the settled interpretation of Article 74, Part II of the Constitution or to set a precedent for future advisory opinions. Opinion of the Justices, 101 N.H. 549, 559.
The Constitution provides that the House of Representatives shall consist of not less than three hundred seventy-five nor more than four hundred representatives to be apportioned by the Legislature every ten years after 1951, "according to the last general census of the inhabitants of the state taken by authority of the United States or of this state." Art. 9th, Pt. II, N.H. Const.
Pursuant to Article 9th, supra, the Legislature made an apportionment of representatives in 1961 according to the 1960 census, to be effective "until another general census of the state is taken and officially promulgated." Laws 1961, 275:1. The town of Sugar Hill, formerly a section of the town of Lisbon, was incorporated as a town by act of the Legislature adopted in 1961, and conditionally effective April 1, 1962. Laws 1961, 360:7. Sugar Hill Improvement Ass'n v. Lisbon, 104 N.H. 40; Lisbon v. Lisbon Village District, 104 N.H. 255. Because Sugar Hill was a part of the town of Lisbon when the census was taken, no provision was made in 1961 for representation of Sugar Hill as a town.
Article 9th provides that apportionment shall be made "every ten years" commencing in 1951, and "according to the last general census." In providing by the 1961 act that the apportionment then made should be effective "until another general census . . . is taken," the Legislature acted strictly in compliance with the Constitution, and presumably in anticipation of another census in 1970 "by the authority of the United States." Art. 9th, supra. Such a census should permit reapportionment to be made in 1971, with provision for representation of the town of Sugar Hill according to the number of its inhabitants in 1970.
It seems clear to us that the constitutional mandate establishes only one yardstick as a legislative guide in making an apportionment, and that is "the last general census of the inhabitants of the state taken by authority of the United States or of this state." Art. 9th, supra. There being no provision for a state census, the Federal census must be used. Since the Constitution provides for no reapportionment during the ten-year period following 1961, it is not "constitutionally competent" for the General Court to authorize an election of a representative by Sugar Hill in the year 1966. The answer to your first question is therefore "No." This makes it unnecessary to answer the remaining questions.
FRANK R. KENISON. LAURENCE I. DUNCAN. AMOS N. BLANDIN, JR. EDWARD J. LAMPRON. STEPHEN M. WHEELER.
September 30, 1963.