Opinion
No. 3885.
Decided October 14, 1949.
The assignment of certain additional executive duties to the Tax Commission to perform administrative acts is within the discretion of the Legislature and involves no constitutional question. The fact that a taxpayer's only appeal on questions of fact arising from an assessment by the Tax Commission is to the Commission itself, before which a hearing is provided, rather than a court of law is not in conflict with the Constitution.
William L. Phinney, Attorney-General (orally), for the State.
Elwin L. Page (by brief and orally), for John R. Spring, Lawton B. Chandler and Oliver W. Marvin.
On September 26, 1949, the Governor and Council adopted the following resolution:
"Whereas the legislature passed an act, Laws 1949, c. 43, authorizing the governor to examine the organization of agencies of the state government and to determine what changes are necessary to accomplish the purposes of the act, and
"Whereas said act provided for a commission to cooperate with and advise the governor on plans for the reorganization of state agencies, and
"Whereas at present the tax commission has the duty of administering provisions of R. L. c. 78 relative to taxation of incomes, said taxes being payable to the state treasurer and any taxpayer aggrieved by the assessment of the taxes by the tax commission may appeal to the superior court, and
"Whereas the reorganization commission now has under consideration a proposal for a change in the appeal provisions of said c. 78 and for the extension of the duties of the state tax commission by the addition of (1) the computation and collection of legacy and succession taxes, R. L., c. 87, and estate taxes, R. L., c. 88, and (2) the administration and collection of the motor vehicle road toll, R. L., c. 120 as inserted by Laws 1943, c. 65, and said proposal would also set up the tax commission as a board of appeal from the assessment of all taxes and tolls assessed and collected under its jurisdiction thereby doing away with the appeal to the superior court, and
"Whereas the said reorganization commission is uncertain whether such changes in the statutes may be made in view of the fact that the members of the state tax commission are appointed by the supreme court, and
"Whereas it appears that if this question is determined it will greatly assist the state reorganization commission and the governor in the preparation of plans for submission to the legislature.
"Now therefore be it resolved on motion duly made and carried that the opinion of the justices of the supreme court be requested upon the following important questions of law:
"1. Would any provision of the constitution be violated if the legislature should impose duties relative to the assessment and collection of various forms of state taxes and tolls, as hereinbefore stated, upon a state tax commission the members of which are appointed by the supreme court?
"2. Would any provisions of the constitution be violated by the enactment of a statute whereby a tax commission appointed by the supreme court is in charge of the assessment and collection of said taxes and at the same time any taxpayer aggrieved by such assessments is required to make his appeal to such a tax commission?"
The following answer was returned:
To His Excellency the Governor and the Honorable Council:
The undersigned Justices of the Supreme Court have considered the inquiries presented by your resolution adopted September 26, 1949.
Since the questions submitted in the resolution of the Governor and Council pertain to their executive duty (Constitution, Part Second, Arts. 60, 62), and "upon the assumption that our opinion may be of use to you in the performance of the duties legally imposed upon you, we herewith respectfully answer." Opinion of the Justices, 79 N.H. 535. See also, Opinion of the Justices, 74 N.H. 606, 607, 608; Opinion of the Justices, 75 N.H. 613, 615.
The first inquiry is understood to present the question of whether the Constitution would be violated by assignment to the Tax Commission of certain executive duties to perform administrative acts, such as the assessment and collection of taxes, now performed by other departments or officers of the executive branch. The inquiry is answered in the negative. The matter is one resting wholly within the discretion of the Legislature, to be dealt with according to standards commonly guiding its action. The issues involved are practical, and no constitutional question is presented.
The second inquiry is understood to be whether the Constitution will be violated if a taxpayer aggrieved by an assessment made by or under the supervision of the Tax Commission is required to take his appeal to that Commission.
Recitals contained in the resolution propounding the questions suggest that implicit in the second question is a proposal to substitute such an appeal for that to the Superior Court now provided by law. "[I]ssues of fact passed upon by an administrative body are not generally reviewable by the courts unless the legislature has provided therefor by expressly giving a right of review by appeal. Boody v. Watson, 64 N.H. 162, 164, 186; Attorney-General v. Sands, 68 N.H. 54, 55; Manchester v. Furnald, 71 N.H. 153, 157, 158; Attorney-General v. Littlefield, 78 N.H. 185, 189, 190." Cloutier v. State Milk Control Board, 92 N.H. 199, 202, 203. There is no constitutional requirement that there be an appeal on questions of fact from an assessment made by an administrative commission to a judicial inquiry in a court of law. The present appeal to the Superior Court may accordingly be dispensed with, provided the taxpayer is given an opportunity to be heard upon the assessment made against him.
The suggested appeal would be in the nature of either a hearing or a rehearing upon assessment, to be afforded a taxpayer before the executive authority charged with the duty of assessment. The Constitution does not preclude provision of such an administrative appeal if the Legislature sees fit to provide or require it. The issues presented by such an appeal would concern matters of an executive character, and the Commission would act in an administrative capacity. The proposed establishment of the Commission as an executive tribunal for the administrative purposes suggested would not be in violation of the principles considered at length in Opinion of the Justices, 87 N.H. 492. As here interpreted, your second inquiry is also answered in the negative.
FRANCIS W. JOHNSTON. FRANK R. KENISON. AMOS N. BLANDIN, JR. EDWARD J. LAMPRON.
October 14, 1949.
To His Excellency the Governor and the Honorable Council:
It is my opinion that the questions submitted by your resolution adopted September 26, 1949, are not such as to call for answer. The 74th Article of the Constitution authorizes the Governor and Council, as well as each branch of the Legislature, to require the advice of the Justices of the Supreme Court upon important questions of law and upon solemn occasions. It is well settled that only the bodies named in the Articles are entitled to such advice. Opinion of the Justices, 62 N.H. 706. It has also long been settled that the authority of the court to render advisory opinions is limited to advice upon "important legal questions pending in the body entitled to the advice, and awaiting the consideration and action of that body in the course of its legislative or executive duty." In re School Manual, 63 N.H. 574, 576. Numerous opinions of the court have applied this test. See Opinions of the Justices, 84 N.H. 584, 585; 86 N.H. 607; 90 N.H. 567; 93 N.H. 477.
The inquiries now made arise out of the formulation of plans for the reorganization of state agencies pursuant to Laws 1949, c. 43, by the Governor and a commission appointed to cooperate with and advise him in the preparation of such plans. Laws 1949, cc. 43, 86. Under this act, the Governor is required to prepare one or more plans and transmit the same to the General Court, if he finds it necessary, in order to accomplish the purposes of the act, that one or more of five specified types of organizational changes be made in the structure of any state agency (s. 2). Such plans are to become law in twenty-five days after transmittal, in the absence of a concurrent resolution of the two houses of the General Court indicating disfavor (s. 3).
The resolution submitting the questions in no way indicates that the Governor has found the proposals with respect to the Tax Commission "necessary to accomplish one or more of the purposes of section 1" of the act (s. 2). Until such a finding is made, the questions propounded do not become "important" within the meaning of the Constitution. The resolution suggests no occasion for action on the part of the inquiring body with respect to the questions presented, nor does the statute provide for action by the Governor and Council at any point in the process of preparation and submission of a plan to the Legislature. It follows that the questions propounded are not such as to come within the constitutional provision.
Since I deem it our constitutional duty under these circumstances to decline to answer the inquiries, I respectfully ask that I be excused from doing so.
LAURENCE I. DUNCAN.
October 14, 1949.