Opinion
No. 4154.
Decided October 7, 1952.
The authority of the Justices of the Supreme Court to render advisory opinions is limited to the instances enumerated in Part II of the Constitution, Art. 74th, where such authority is granted, and cannot be extended by legislative action. Opinions of the Justices will not be rendered upon matters likely to come before the court for decision as to which the members might be disqualified by their prior expression of opinion. While the State Tax Commission may certify questions to the Supreme Court pursuant to R.L., c. 78, s. 35, when justiciable rights are involved and the questions arise in adversary proceedings, the commission is not entitled to a determination of questions certified where the proceedings before it are not adversary and any opinion rendered would be advisory only.
PETITION, by a taxpayer relating to distribution of income taxes for the year 1952 pursuant to Revised Laws, chapter 78, as amended by Laws 1951, chapter 10, section 1. The petitioner seeks to have withheld from distribution to the city of Keene a sum equivalent to the amount distributed to said city in the prior years 1948 to 1951 inclusive, on account of income taxes aggregating $2,523.41 paid by the petitioner for said years; and to have such sum paid to the town of Sullivan. As a ground for her petition she alleges that the payment of said taxes by her was in each year accompanied by a declaration of residence in Keene, which was made in the mistaken belief that she was in fact such a resident; and that she has since been adjudged by the Superior Court, for purposes of voting, not to be domiciled in Keene, but to have been domiciled at least since 1948 in the town of Sullivan.
Acting under the authority conferred by Revised Laws, chapter 78, section 35, the State Tax Commission has reserved, certified and transferred to this court, as a question "the resolution of which is necessary to the administration of said chapter 78," the question whether "upon a finding that the allegations contained in said petition are true," it may lawfully grant the prayer of the petition that the "amount of the distribution made to the city of Keene in the years enumerated on account of taxes paid by the petitioner, be withheld from the distribution to be made in said current year and the same distributed to the town of Sullivan."
Gardner C. Turner for the petitioner and the town of Sullivan, filed no brief.
The action of the State Tax Commission in certifying the foregoing question to this court presents a preliminary question of the authority of the court to determine the question transferred. The 74th Article of the Constitution (Part Second) provides that each branch of the Legislature as well as the Governor and Council shall have authority upon important questions of law and upon solemn occasions to require advisory opinions of the Justices of the court. The constitutional authority to give advice is limited to the cases enumerated in the article and cannot be extended by legislative action. In re School Law Manual, 63 N.H. 574; In re Probate Blanks, 71 N.H. 621; Harvey v. Harvey, 73 N.H. 106. See also, Faulkner v. Keene, 85 N.H. 147, 150. Only the bodies named in the resolution are entitled to such advice (Opinion of the Justices, 62 N.H. 706) and opinions will not be given upon matters likely to come before the court for decision as to which the members might be disqualified by their prior expression of opinion. Revised Laws, chapter 373, section 8; Opinion of the Justices, 70 N.H. 638, 639; Opinion of the Justices, 95 N.H. 557, and opinions cited. See Wyatt v. Board of Equalization, 74 N.H. 552, 573-4.
On the other hand questions may be certified to this court by such a body as the Public Utilities Commission, pursuant to legislative authority (R.L., c. 287, s. 20, as amended), when justiciable rights are involved and the question arises in adversary proceedings before the commission. Petition of White Mountain Power Co., 96 N.H. 144. See Petition of Public Service Co., 96 N.H. 310. Accordingly, in Opinion of the Justices, 81 A.2d 845, 850, rendered on May 15, 1951, with respect to a bill providing for a retail sales tax, it was stated that authority might properly be conferred upon the State Tax Commission to certify to this court for decision questions of law arising in connection with the administration of the proposed law, provided such questions arose "in the course of proceedings brought before the commission for determination." As was there stated: "The power given is for the purpose of adjudication and not for that of mere advice. Thus limited the provision is proper."
The limitation stated in the foregoing Opinion is thought to apply to the authority conferred by R. L, c. 78, s. 35, under which the question now before us has been certified and transferred. The certification by the commission fails to indicate that the statutory authority is exercised for the purpose of adjudication and not merely for that of advice. So far as appears the petitioner before the commission has no legal interest in the matter presented for determination. The petition does not seek recovery of taxes paid, and alleges no existing interest in the matter of past distributions or injury resulting therefrom. The income taxes paid for the years in question satisfied the petitioner's obligation and no abatement appears to have been sought.
The right of distribution under the statute is that of the town or city entitled to the distribution. Under ordinary circumstances the remedy for erroneous distribution is by certiorari from the decision of the agency charged with the duty of making the distribution. Pittsfield v. Exeter, 69 N.H. 336.
So far as appears neither the city of Keene nor the town of Sullivan was a party to the petition before the commission which prompted this certification. The town has appeared in this court as an intervenor, supporting the position of the petitioner. However the city, from which it is proposed that the amount in question be withheld in the distribution of tax proceeds for the current year, is not before us as a party. As was said in In re School Law Manual, 63 N.H. 574, 575, "A prospective determination . . . without notice and opportunity of hearing given to persons whose interests may be involved in the facts and the law of a particular case, would not be an exercise of judicial power." "There is no right to an adjudication of matters not in contention." Conway v. Board, 89 N.H. 346, 349. See Merchants Mut. c. Co. v. Kennett, 90 N.H. 253.
Since it appears to us that any determination of the question transferred which we might make upon this certification would be advisory only, we must respectfully decline to make it. If the question should later arise in adversary proceedings it may be determined under appropriate procedure. On the other hand, distribution as provided by statute (Laws 1951, c. 10) is not required to await the institution of adversary proceedings.
Case discharged.
All concurred.